ANOOP MIRAKHUR Vs. MOHAN LAL DHAR

JUDGEMENT

(1.) This Civil 1st Misc. Appeal is preferred against the judgment and order dated 12-3-2001 propounded by the learned District Judge, Jammu in file No. 8 Civil Original Suit Anoop Mirakhur v. Mohan lal Dhar, whereby the appellants/plaintiffs application for ad interim injunction in a suit for partition was rejected.

(2.) The short controversy that arises between the parties revolves around a narrow compass. A dwelling house explicitly delineated in the title of the plaint and further described in the rough sketch map annexed with the plaint stood, in the ownership of one Jia Lal Dhar, who died in the year 1979 leaving behind his two sons namely, Mohan Lal Dhar arid Jawahar Lal Dhar and one daughter Suman Mirakhur. The daughter Suman Mirakhur also died in the year 1997. She left behind her sons and daughters plaintiffs Nos. 1 to 4 and husband plaintiff No. 5 as legal heirs. It is also stated that the mother of plaintiffs Nos. 1 to 4 and wife plaintiff No. 5 became entitled to 1/3rd share in the dwelling house along with defendants Nos. 1 and 2, after the death of Jia Lal Dhar. It is further stated that the suit property is occupied by the Border Security Force and the rent thereof has not been paid to the plaintiffs by the defendants. That initially the mother of the plaintiffs Nos. 1 to 4 and wife of plaintiff No. 5 many a times asked the defendants to partition the property in claiming her 1/3rd share in the dwelling house, but the defendants however, avoided to do so. It is further stated that the house remained vacant after the death of Jia Lal Dhar. The parties however, migrated in the year 1990 on account of un-favourable conditions in the valley and the same remained un-occupied since then. Refusal of the defendants to accede to the request of the plaintiffs for partition of the property and to give the share to the extent of 1 /3rd to the plaintiffs, led the plaintiffs to file the suit for partition by metes and bounds of the residential house situate at Bagh-I-Sunder, Chattabal, Srinagar, with a further relief of permanent prohibitory injunction.

(3.) Simultaneously, with the launching of the suit for partition, an application supported by an affidavit also came to be initiated in invoicing the provisions of Or. 39, Rr. 1 and 2 and Section 151, CPC for the grant of ad-interim injunction. Learned District Judge, after inviting objections from the other side and hearing the parties found that the plaintiffs/appellants having not succeeded to carve out a prima facie case and the balance of convenience also does not lean in their favour, rejected the application vide order dated 12-3-2001, the correctness of which has been impugned in this appeal.