SWAPNIL @ VIKAS KUMAR Vs. SURINDER PARKASH @ PRAKASH CHAND

JUDGEMENT

(1.) THIS order shall dispose of an application filed by the applicant/plaintiff as against the respondent for grant of an injunction restraining the respondent/defendant from alienating, encumbering or creating any charge over the property in dispute, as detailed in the Schedule attached with the application.

(2.) BRIEFLY stated, the facts of the case are that the applicant filed a suit for partition and for possession of the land to the extent of his share in the property and for declaration and permanent injunction. The plaintiff had alleged that he is the minor son of the defendant and defendant is owner in possession of the land detailed in the plaint and as the property is ancestral in nature, he is entitled to 1/2 share in the property by virtue of his birth and had applied for partition and had also claimed the relief of declaration and permanent injunction. The plaintiff had also challenged a Will allegedly executed by defendant as being null and void.

(3.) ON a perusal of the plaint, it is clear that the plaintiff had only alleged that the suit property was ancestral in nature and had not alleged that it was a co-parcenary property. It is yet to be proved by the plaintiff that the suit property was ancestral in nature since the defendant has taken the plea that it was self-acquired property of defendant since he got the property by way of a Will from his father. No documents have been placed on record to show that the property was ancestral in nature except the entries in the copies of Jamabandi showing that the defendant was the owner in possession of the suit property. It is also yet to be proved by the plaintiff that he has got 1/2 share in the suit property by way of birth and that he is entitled to the partition of the suit land. The plaintiff had also challenged the Will allegedly executed by the defendant and, prima facie, it is clear that the Will cannot be challenged by the plaintiff until and unless is given effect to. Thus, it is clear that the plaintiff has yet to prove his prima facie case and whether the suit is maintainable in the present form or not and, therefore, at this stage, the plaintiff cannot be said to be entitled to the relief claimed by him by this application.