BISHNI DEVI Vs. BAHADUR SINGH

JUDGEMENT

(1.) This is a plaintiff's second appeal in a suit for injunction. Defendant-respondent Bahadur Singh is the own brother of the plaintiff-appellant. The third defendant-respondent Smt. Jamuna Devi is the wife of Bahadur Singh. The land in suit is agricultural. Mohan Singh, father of the plaintiff-appellant and of the defendant-respondent No. 1 was the tenure holder, when he died in April, 1968. After his death the plaintiff, who claimed to have been in possession of the land in suit, got her name mutated as the tenure holder in place of her deceased father Mohan Singh. The suit giving rise to the present second appeal was filed thereafter for an injunction restraining the defendants from interfering with her cultivatory possession over the land in suit.

(2.) The trial court decreed the suit but the lower appellate court reversed that decree and dismissed the suit on the ground that although the plaintiff was in possession of the land and her name was recorded as the tenure holder after the death of Mohan Singh, yet Bahadur Singh, the defendant, was a preferential heir. The lower appellate court has held that in the circumstances Bahadur Singh was entitled to a declaration from a court of competent jurisdiction that he was the lawful owner entitled to the property in suit and could also obtain possession under a decree of competent court. In this view of the matter the lower appellate court held that the case was not a fit one for the issue of a perpetual injunction restraining the defendants from interfering with the plaintiff's possession.

(3.) Mr. K.C. Dhuliya, learned counsel for the appellant urged before me that the finding of the lower appellate court was a travesty of law. Although the plaintiff has been found to be the recorded tenure holder in possession of the land in suit, yet the relief for permanent injunction has been refused to her. So long as the record stood, the plaintiff must be deemed to be the tenure holder and the lower appellate court could not have proceeded to hold that defendant-respondent No. 1 was in law entitled to be the owner and possession of the same.