LALMATI KUER Vs. RAJBAHADUR SINGH

JUDGEMENT

(1.) THIS case was listed under the heading "For Hearing under Order 41 Rule 11 of Code of Civil Procedure (In short "CPC")" and with the consent of both the parties, the matter was heard for final disposal of the case alongwith I.A. No. 1908 of 2005 and it is, therefore, finally being disposed of by this order.

(2.) BRIEF facts of the matter are that the appellants have filed Title Suit No. 49 of 2004 in the Court of Subordinate Judge I, Gopalganj for a declaration that late Manager Rai was adopted son of Kashi Rai and appellants are legal heirs of late Manager Rai and respondents be restrained by injunction from interfering with the possession of the appellants over the suit properties. Case of appellants is that one Kashi Rai had no issue and he, in the year, 1962, adopted Manager Rai, the youngest son of Jwala Rai who was relative and friend of Kashi Rai. Jwala Rai had four sons. Rai Bahadur Singh, respondent No. 1, Gulab Rai, Babuna Rai and Manager Rai, Kumari Neelam, appellant No. 2 is daughter of Manager Rai. Further case of appellant is that Manager Rai died on 30.4.1987 during the lifetime of Kashi Rai who, on account of death of Manager Rai, lost his mental balance and called respondent No. 1 to look after his cultivation and taking advantage of mental condition of Kashi Rai, respondent No. 1, on the pretext of his treatment, brought Kashi Rai to Gopalganj and got a forged deed of Will executed in the name of his wife Kiran Devi, respondent No. 2, without the knowledge of appellants and on the basis of the forged Will, he and his wife threatened appellants to dispossess them from the suit properties over which appellants are in possession. The appellants made prayer for injunction restraining respondents from interfering their possession of suit properties and the Court, by its order dated 6.10.2004, rejected prayer of appellants against which appellants have preferred the present appeal. Case of appellants is that the alleged Will said to have been executed by Kashi Rai in favour of respondents has neither been probated nor any letters of administration have been granted by a Court of competent jurisdiction, therefore, right of legatee is not established. The appellants filed I. A. No. 1908 of 2005 under Order 39 Rule 1 of CPC for grant of ad interim injunction restraining respondents from making constructions of rice and flour mill over the suit land because according to them, respondents had brought bricks over the suit land and have engaged labourers to lay foundations and construction of brick wall for erecting a rice and flour mill on the suit land.

(3.) LEARNED counsel appearing on behalf of appellants has argued that in the impugned order, the Court below, after observing that the appellants have filed the suit for a declaration that Manager Rai was adopted son of Kashi Rai and allowing the prayer of appellants for injunction, during the pendency of the suit, Will amount pre -deciding the issue that Manager Rai was adopted son of Kashi Rai and for this reason, no prima facie case is made out in favour of appellants. According to him, this interpretation of law is not correct in view of decision reported in AIR (37) 1950 Patna 537 by which it has been held that "the mere fact, therefore, that the points which will ultimately have to be decided as issue in the suit does not exclude them from the consideration of the Court at the stage of an application for a temporary injunction." On this point, he has relied on an another decision of this Court reported in AIR (38) 1951 Patna 469 by which it has been held that while deciding the question of grant of temporary injunction, the Court is not right to anticipate the decision of the question in the suit itself. It has been argued that this is not the correct interpretation of law. From the perusal of impugned order, I find that no doubt aforesaid observation has been made by Court below but that is not the only ground on which prayer of injunction has been refused. The Court below has also taken into consideration the fact that balance of convenience is not in favour of appellants and nothing has been brought on record to show that in case prayer of appellants for injunction is not granted, they will suffer irreparable loss. On all the aforesaid grounds, prayer for injunction has been refused.