SEEMA DEVI Vs. ANOOP KUMAR

JUDGEMENT

(1.) By way of instant petition filed under Art. 227 of the Constitution of India, challenge has been laid to judgment dtd. 7/3/2020 passed by learned Additional District Judge, Nalagarh, District Solan, Himachal Pradesh in Civil Misc. Appeal No. 18-NL/14 of 2019 titled Seema Devi v. Anup Kumar, affirming the order dtd. 20/6/2019 passed by, learned Senior Civil Judge, Nalagarh, District Solan, Himachal Pradesh in CMA No. 60/6 of 2019 in Civil Suit No. 86/1 of 2019, whereby an application filed by respondent No.1/plaintiff (hereinafter, "plaintiff') under Order XXXIX, rules 1 and 2 CPC restraining the petitioner/defendant No.1 (hereinafter, "defendant No.1') from raising construction on the suit land during the pendency of the suit, came to be allowed.

(2.) For having bird's eye view of the matter, facts shorn of unnecessary details and relevant for the adjudication of the case at hand are that the plaintiff filed a suit for permanent prohibitory injunction in the court of learned Senior Civil Judge, Nalagarh, averring therein that the land measuring 1-14 Bigha out of total land measuring 8-14 Bigha bearing Khasra Nos. 107 and 108, comprised in Khewat Khatauni Nos. 52/53, situate in Village Buranwala, Tehsil Baddi, District Solan, Himachal Pradesh as per Jamabandi for the year 2016 (hereinafter, "suit land')is joint property of the plaintiff, defendants and other co-sharers. Plaintiff set up a case that the parties to the suit are Hindus, governed by Hindu Succession Act and suit land was owned and possessed by one Ram Dass, grandfather of the plaintiff and after his death, same was inherited by father of the plaintiff and defendants Nos. 2 to 4 and husband of defendant No.5, namely Shri Jeet Ram. Aforesaid Jeet Ram died inteste, leaving behind plaintiff and defendants Nos. 3 to 5 as his class I heirs. Plaintiff claimed that the suit land came into hands of Jeet Ram as ancestral and coparcenery property as the same was inherited by him from his father, Ram Dass. Plaintiff further claimed that since the suit land was joint between the cosharers/coparceners and legal heirs of Jeet Ram, sale deed No. 60, dtd. 8/1/2018 of undivided share of defendant No.2 in favour of defendant No.1 and mutation No. 738 dtd. 11/1/2018 sanctioned on the basis of same is wrong, illegal, null and void. Plaintiff averred that defendant No.1 threatened him to interfere in the suit land and to disposses her therefrom forcibly on the basis of illegal sale deed and revenue entries, whereas, plaintiff is co-owner in possession of suit land and no legal title has been transferred in favour of defendant No.1. Alongwith the plaint, plaintiff filed an application under Order XXXIX, rules 1 and 2 CPC, stating therein that since he is co-owner-in-possession of the suit land and suit land is joint inter se parties coupled with the fact that defendant No.1 has extended threats to dispossess him forcibly on account sale deed No. 60, dtd. 8/1/2018, defendant No.1 is required to be restrained from interfering in the suit land.

(3.) Aforesaid suit as well as application for stay, having been filed by the plaintiff, came to be contested by defendant No.1, who while filing written statement to the plaint and reply to stay application, pleaded that the plaintiff has no cause of action or locus standi to file the application, especially when it is not in dispute that the suit land stands partitioned with mutual consent of the parties. Defendant No.1 claimed that the suit land was partitioned inter se parties with mutual consent of the parties and at that time, no objection, if any, was ever raised by the plaintiff. Defendant No.1 alleged that the plaintiff never raised question of title before Assistant Collector 1st Grade, Baddi, during partition proceedings, whereafter, she purchased the suit land after making due enquiries and payment of sale consideration. Defendant No.1 pleaded that the plaintiff and defendants Nos. 3 to 5 were never ready to purchase the suit land from defendant No.2. She claimed that new Khasra No. 108/1 has been carved after sale of her share made by defendant No.2 and she was recorded as owner-in-possession of the same, as such, plaintiff has no right, title or interest over the same. While admitting that the parties to the suit are Hindu, defendant No.1 specifically denied that the suit land remained in the hands of Jeet Ram as ancestral and coparcenery property during his life time. Defendant No.1 pleaded that defendant No.2 legally sold her share in her favour vide sale deed dtd. 8/1/2018 and now with a view to extract money, plaintiff has filed a frivolous suit against her, who after having secured possession of land in question, has already completed 80% of the work of construction of petrol pump on the site. Defendant No.1 pleaded that there is no prima facie case in favour of the plaintiff, who has no right, title or interest over the suit land in view of partition of suit land, between the parties by lawful process. Defendant No.1 claimed that in case prayer made for interim injunction during pendency of the suit is accepted, irreparable loss and injury would be suffered by her, which cannot be compensated in monetary terms.