BEENA SAH Vs. DEEPA SAH

JUDGEMENT

(1.) Present appeal has been preferred against the judgment and order dtd. 25/6/2025 passed by the learned Civil Judge (Senior Division), Nainital in Civil Suit No. 55 of 2023 "Deepa Shah and Others vs. Dr. Gangadhar Prasad Shah & Others". By the said order, the learned trial court partly allowed the application for temporary injunction (Paper No. 52- Ga) filed by respondent nos. 1 to 3/plaintiffs in a partition suit and restrained the appellant, who is one of the four co-sharers of the suit property, from running and advertising car parking in the tennis court area situated to the south of Rituraj building (as described in Schedule 'A' of the plaint), without the prior permission of other co-sharers, and further restrained the appellant from creating third-party interests over the property during the pendency of the suit.

(2.) Brief facts necessary for adjudication of the appeal are that in the year 2003, respondent nos. 1 to 3/plaintiffs instituted a suit for partition and permanent injunction in the court of Civil Judge (Senior Division), Nainital against the appellants and other respondents (nos. 4 to 7). The said suit is still pending. During pendency, plaintiffs moved an application for temporary injunction to restrain the appellants from running a car parking in the tennis court area. The trial court, by the impugned order, granted injunction against the appellants. Hence, this appeal.

(3.) Learned counsel for the appellants would submit that the plaintiffs themselves admitted in their plaint that Late Smt. Basanti Devi Shah, wife of late Chandra Lal Shah, was the owner of Schedule 'A' property. By a Will, she bequeathed the same to her daughter Smt. Vidya Sah and her four sons, namely: (i) Krishna Lal Shah, (ii) Dr. Gangadhar Prasad Shah (respondent no.4 herein), (iii) Chandra Shekhar Shah (predecessor of respondents nos.1?3), and (iv) Mahesh Prasad Shah (husband/father of respondents nos.57). Mutation was accordingly done in Municipal Board records. The said four sons along with Smt. Vidya Sah also inherited Schedule 'B' property after the death of late Bhawani Das Shah. All four brothers thus became co-owners, each entitled to 1/4th share in Schedule 'A' and Schedule 'B' properties. Plaintiffs further admitted the subsequent deaths of the co- sharers (Vidya Sah in 1999, Krishna Lal in 2005, Mahesh Prasad in 2015, and Chandra Shekhar in 2020), whereas respondent no.4 is still alive. Thus, the appellants are entitled to 1/4th undivided share in both Schedule 'A' and Schedule 'B' properties.