DHANVANTRI DEV Vs. SUSHILADEVI AND ORS.

JUDGEMENT

(1.) This miscellaneous appeal has been filed under Order XLI, Rule 1(r) of Civil Procedure Code (in brief "Code") against the order dated 11-5-2012 passed by XXIst Additional District Judge, Indore in Civil Suit No. 24-A/2011 whereby dismissed the application filed by the plaintiff under Order XXXIX, Rules 1 and 2 of the Code. Facts of this case are that plaintiff/appellant filed a civil suit for declaration and permanent injunction stating that her mother-in-law Smt. Bhavri Devi was owner and in possession of property situated at 7-B, Builders Colony, Indore. The defendant No. 1 is Devrani and defendant No. 2 is Devar of Plaintiff. On 5-2-1992, Bhavri Devi granted lease to her daughter-in-law Smt. Shashikala Devi to construct first floor. Later on 9-4-1992, Bhavri Devi granted lease to her another daughter-in-law Smt. Sushila Devi (defendant No. 1) to construct second floor. On 30-4-2010 Bhavri Devi executed a Will in favour of Smt. Dhanvanti Devi (Plaintiff) and bequeath the entire ground floor and garage constructed over plot No. 7-B, Builders Colony. Bhavri Devi died on 24-5-2010. After her death on the basis of Will Plaintiff became the exclusive owner and possessee of the ground floor of the 7-B, Builders Colony and her name was mutated in Municipal record. The ground floor consists of three bedrooms, two halls, kitchen, storeroom, garage, and one room above the garage. According to the plaintiff during lifetime of Bhavri Devi the plaintiff and her family had been residing for last 28 years with Bhavri Devi on ground floor. After the death of Bhavri Devi dispute arose between the plaintiff and defendants in regard to possession of first floor. Then on 11-6-2011 Police Station Tukoganj, Indore filed a report and Sub-Divisional Magistrate Indore initiated proceeding under section 145 of Criminal Procedure Code against the Plaintiff and defendants. In that matter SDM passed order against the Plaintiff then plaintiff filed a revision before the Additional Sessions Judge which has been dismissed. Thereafter she filed the petition under section 482 of the Criminal Procedure Code before this Court which was disposed of on 12-8-2011 directing the competent civil Court to decide the injunction application within two months and parties are directed to maintain status quo for two months. In the suit the plaintiff sought relief for declaration that she is the exclusive owner of the ground floor. On 21-4-2011 the defendants threatened to forcibly dispossess her, therefore, Plaintiff has filed an application for injunction against the defendants that during the pendency of the suit, her possession be protected.

(2.) Defendants/respondents resisted the application stating that the plaintiff conspired with attesting witnesses namely Kalyanmal Kothari, Rajendra Pahadia, Advocate N.G. Baheti, and Notary Mohd. Nabi Khan and prepared a forged Will. The defendant has filed a private complaint against them and the Magistrate took cognizance against them. There was a strange relationship between the plaintiff and Bhavri Devi and the Bhavri Devi has already bequeath the property in favour of defendant No. 1 and during lifetime of Bhavri Devi the defendants were residing with her and they used to take care of her. After the death of Bhavri Devi when the Teerahi ceremony was being performed Plaintiff forcibly kept her household belongings in some portion of the ground floor of the house and on 6-4-2011 Plaintiff gave an undertaking that she will remove her belongings within ten days. Plaintiff is not in possession of the property and therefore she is not entitled for any injunction.

(3.) In support of the application Plaintiff has filed the copy of the Will, her own affidavit, and affidavit of attesting witnesses Kalyanmal Kothari and Rajendra Pahadia and she also filed affidavits of Ganga Vishnu Rathi, Pramod Bhai, Harish Chandra Kabra, Narayandas and Parasmal Modi. In rebuttal defendant No. 1 filed her own affidavit, besides this, Affidavits of Kasturchand Kothari, Rajmahal Maheshwari, Arun Kumar Sharma, Omprakash Neema, Bhagwati Bai, Dr. Sanjay Maheshwari, Shobha Sindhi, Aman Loya, Kamalji Mundra and Nand Motwani and the orders passed by SDM and ASJ in regard to proceedings under section 145, Criminal Procedure Code.