SUNDER SINGH Vs. TARA CHAND

JUDGEMENT

(1.) THIS petition is instituted against the order dated 27.4.2013 rendered by the learned District Judge, Shimla in CMA No. 56 -S/14 of 2012. The facts necessary for the adjudication of this petition are that the respondents -plaintiffs (hereinafter referred to as the plaintiffs, for convenience sake) have filed suit against the petitioner -defendant (hereinafter referred to as the defendant) for permanent prohibitory and mandatory injunction. According to the averments contained in the plaint, Sh. Roop Chand, predecessor -in -interest of the parties, had executed 'will' No. 66 dated 21.5.1998 registered on 20.6.1998 before the Sub Registrar, Shimla. According to this 'will' all the properties movable and immovable, including residential house, were to be succeeded by his wife Smt. Dassi Devi, respondent No. 2, in the present petition and after her death, if Dassi Devi died earlier to Roop Chand, the entire property was to be succeeded by Sh. Dharam Singh, Gian Chand and Tara Chand, sons in equal shares and residential house consisting in 0 -4 Biswas was to be succeeded by Uma Devi, daughter of late Roop Chand. The defendant was excluded to succeed from the property in village Sukrala (Kasumpti Jajhot). According to the 'will', Sh. Roop Chand has made private partition among his sons. Sh. Roop Chand was hospitalized in the year 2010. He was not able to recoup. Sh. Roop Chand was shifted on 29.4.2010 to Pamlai by the defendant. The defendant with the help of his servant took Roop Chand on the pretext that he wanted to get him checked up from private doctor. Defendant managed to execute a 'will' from Roop Chand dated 29.4.2010. According to the plaintiff, the 'will' was not genuine and was a fabricated document. According to the 'will', plaintiff No. 2 i.e. Dassi Devi was dis -inherited from the entire property of Sh. Roop Chand. The 'will' dated 29.4.2010 has been challenged by plaintiff No. 1, namely, Tara Chand before the learned Civil Judge (Jr. Divn.), Rampur Bushahr. The defendant on the basis of the 'will' dated 29.4.2010, got the mutation of suit property attested in his favour by dis -inheriting Dassi Devi. The defendant with the help of the labourers also started interfering in the suit property. It is in these circumstances, the suit was filed.

(2.) THE plaintiffs' have also filed CMP No. 42/6 of 2012 under Order 39 Rules 1 & 2 CPC read with Section 151 CPC to restrain defendant from raising any construction on Kh. No. 1047 and dispossessing plaintiff No. 2 Dassi Devi from residential house comprising in Kh. Nos. 1039, 1038 and 1037, consisting of ten rooms (double storey), one kitchen, store room and bathroom and one toilet. The application was contested by the defendant. It appears from the pleadings that ad -interim relief was granted to the plaintiffs on 21.5.2012. However, CMP No. 42/6 of 2012, was dismissed by the learned Civil Judge (Jr. Divn.) Shimla, on 11.6.2012. The plaintiffs filed appeal against the order dated 11.6.2012 bearing C.M.A. No. 56 -S/14 of 2012 before the learned District Judge, Shimla. The learned District Judge, Shimla allowed the appeal partly and permitted Dassi Devi to use residential house, kitchen, store room, bathroom and toilet situated in Kh. Nos. 1037, 1038 and 1039, till her life time and ad -interim injunction was passed in favour of Dassi Devi, against the defendant to the effect that the defendant will not oust and dispossess Dassi Devi from the residential house, kitchen, store room, bathroom and toilet situated in Kh. Nos. 1037, 1038 and 1039 situated at village Kasumpti Jajhot (Shakral), Tehsil and District Shimla, till the disposal of the suit. Hence, this petition.

(3.) I have gone through the copy of Civil Suit No. 50 -1 of 2012 and the written statement filed by the defendant.