JOGINDER NATH Vs. SUDERSHAN KUMAR

JUDGEMENT

(1.) This appeal is directed against the order dated 22nd October, 2003 propounded by learned Additional District Judge, Jammu, whereby the application of the appellant/plaintiff for temporary injunction was ordered to be dismissed on the presentation of an undertaking by the respondent/defendants that in case any change is made in the suit property after order of this Court, the same shall be dismantled /removed by them at their own expenses, if they failed in the suit after the trial of the same.

(2.) It appears that in a suit for partition by metes and bounds of the property explicitly delineated in the schedule of plaint and for possession to the extent of 1/4th share in the said property, commenced by the appellant/plaintiff, an application supported by an affidavit also came to be initiated for the grant of ad interim injunction in invoking the provisions of Order 39, Rules 1 and 2 read with Section 151 of the CPC, in restraining the defendants/non-applicants from executing deeds of transfer of the proportion of the household and defendant No. 1 from raising any construction over the said portion of the suit property consisting of Quarter Nos. 220/221, Rehari Colony, Jammu. While issuing a notice, at the first instance, the trial Court, considering the case one of emergent nature, dispensed with the requirement of notice under Order 39, Rule 3 and directed the parties to maintain status quo on spot vide order dated 7-1-2002. The case of the appellant/plaintiff as projected in the suit is that Shri Lakhmi Dass, father of the parties, was the head of the family and after having displaced from Tehsil Kotli, District Mirpur, was allotted Quarters Nos. 220 and 221, Rehari Colony, Jammu. These houses were allotted to the displaced family, of which Lakhmi Dass was father and head of the family. Lakhmi Dass died on 19-8-1972 and after his death, Smt. Bhagwanti, their mother, with the consent of other members of the family became the head of the family and succeeded to the property allotted to her late husband, Shri Lakhmi Dass, migrant. It is further stated that the quarters were allotted to the family as a whole, as a measure of rehabilitation with elder member as head of the family to represent the family. It is further averred by the appellant/plaintiff that the allotment of the quarters was to the whole family and not to the head of the family in his individual capacity. The allotment of single or double quarter was passed on the strength of the family. It is stated that respondent/defendant No. 1 started digging foundation on a particular portion of the house for raising construction thereon and when objected to by the appellant/plaintiff, defendant/re-spondents-2 refused to acknowledge the right of the ownership of the appellant/plaintiff and further threatened to transfer the portion of the house to defendants Nos. 1 and 2 by executing gift deeds. The denial of the right of the ownership of the appellant to the portion of the house allotted to the family by the Rehabilitation Department, by the defendants/respondents occasioned the appellant/plaintiff a cause of action to commence the suit for partition by metes and bounds.

(3.) The respondent/defendants on the other hand, in their disclaimer refuted the contention of the appellant/plaintiff and stated to be within their right being the sole owner in possession of quarter Nos. 220 and 221 in pursuance of a gift deed executed in their favour by defendant No. 3 and, thus, competent to make alteration or raise construction over any portion of the said property. That the appellant/plaintiff having no right or title over the property can neither maintain the suit for partition by metes and bounds claiming any share in the said property nor any prima facie case leans in his favour for the grant of temporary injunction. The trial Court, after hearing the parties and perusing the record, dismissed the application of the appellant/plaintiff, provided the defendants/non-applicants submit an undertaking that in case any change is made to the suit property after the order of this Court, the same shall be dismantled or re moved at their own expenses, if they do not succeed in their suit.