BESRU DEVI Vs. BHOOP RAM

JUDGEMENT

(1.) Instant petition filed under Art. 227 of the Constitution of India is directed against the judgment dated 15.3.2021 passed by learned District Judge, Shimla, District Shimla, H.P., in CMA No.29-S/14 of 2020, reversing the order dated 3.9.2020 passed by learned Civil Judge, Court No.7, Shimla, District Shimla, Himachal Pradesh, whereby CMA No. 719 of 2019, having been filed by the applicant-plaintiff ( hereinafter 'plaintiff') under Order 39 Rules 1 and 2 CPC, restraining the respondents-defendants (hereinafter, 'defendants') from causing any damage or interfering, selling, alienating, encumbering and mortgaging any portion of the suit land during the pendency of the main suit was allowed.

(2.) Precisely, the facts of the case as emerge from the material available on record are that the plaintiff claiming herself to be co-owner alongwith the defendants, filed suit for declaration to the effect that the Relinquishment Deed/Release Deed No. 1604, dated 9.9.2013 registered in the office of Sub Registrar, Shimla in favour of defendants No.1 and 2 is illegal, wrong, void and inoperative against the right, title and interest of the plaintiff as the same has been procured unlawfully without her knowledge and consent. Plaintiff averred in the aforesaid suit that about three years back, defendants No.1 and 2 in collusion with other defendants took her to Tehsil Office on the pretext of getting the said land partitioned. In the Tehsil Office, her thumb impression was taken on different documents, which were neither read over nor explained to her. The plaintiff remained under bona-fide belief that the documents were pertaining to the partition and in due course of time, land would be separated/partitioned. However, after about 2 1/2 years, on her inquiry, it was disclosed to her that land stands already transferred in favour of defendants No.1and 2. She alleged that she never intended to transfer her share in favour of defendants No.1 and 2 and they, taking undue advantage of her poverty, illiteracy and helplessness, wrongly and fraudulently executed the relinquishment deed in connivance with defendants No. 3 to 8, and as such, same may be declared as null and void. Apart from aforesaid relief, plaintiff also claimed that the defendants be restrained from interfering with her joint ownership and possession over the suit land situate at villages Chamyana and Shahnan.

(3.) Alongwith the aforesaid suit, plaintiff filed an application under Order 39 Rule 1 and 2 CPC stating therein that during winter vacation in the year 2020, the defendants started raising construction on the valuable portion of the land, for which they dug pits and also raised retaining walls. Plaintiff claimed that in case defendants are permitted to raise construction, she would be deprived of the best portion of the land. Plaintiff averred in the application that the construction is being raised by the defendants on Khasra No.167, measuring 00-36-18 hectares, Khata/Khatauni No.8min/17min, situated at Mohal Shahnan, Tehsil Shimla (Rural), District, Shimla, H.P.