ANIL KUMAR YADAV AND ORS. Vs. BHAWANA YADAV

JUDGEMENT

(1.) This petition under Article 227 of the Constitution of India challenges the order dated 2.6.2015 passed in Civil Misc. Appeal No. 10/2015 (63/2015) by Additional District Judge No. 2, Ajmer setting aside the order dated 2.5.2015 passed by Civil Judge, Ajmer City (North), Ajmer dismissing the respondent plaintiff's (hereinafter plaintiff) application under O. 39 R. 1 and 2 CPC and instead directing that the plaintiff's application under O. 39 R. 1 and 2 CPC would stand allowed and the petitioner defendants (hereafter defendants) stand restrained from making any construction/repair in the suit property till the final adjudication of the plaintiff's suit for permanent injunction.

(2.) The facts of the case are that the plaintiff filed a suit for permanent injunction against the defendants stating that her mother -in -law one Smt. Lajwanti was the owner of the suit property i.e. AMC No. 153/11 "Tara Bhavan, Hati Bhata, Ajmer" purchased by a registered sale deed. During her life time on or about 23.1.98, Lajwanti executed a Will in favour of the plaintiff's husband one Sunil Kumar Yadav S/o. Tarachand Yadav. Lajwanti expired on 1.3.2000. Thereupon the legatee Sunil Kumar Yadav under the Will dated 23.1.98 became the absolute owner of the suit property. Sunil Kumar Yadav applied for a probate of the Will dated 23.1.98 in the court of District Judge, Ajmer. However during the pendency of the proceedings, the aforesaid Sunil Kumar Yadav expired on 3.5.2011 and was substituted by plaintiff as his widow. Finally, the District Judge, Ajmer vide his judgment dated 25.9.2012 granted probate in favour of plaintiff despite the opposition of the defendants disbelieving a Will dated 22.1.2000 purportedly subsequently executed by the late Lajwanti in favour of the defendant Anil Kumar as propounded by him. It was stated that in the circumstances, the plaintiff had became the absolute owner of the property, yet the defendants with an intent to raise construction on the suit property had collected construction material at site. Hence the suit for permanent injunction. In the accompanying application under O. 39 R. 1 and 2 CPC, it was prayed that in the meantime by way of interim injunction the defendants be restrained from constructions of any land in the suit property.

(3.) On service of summons, in the reply to the application for interim injunction it was stated that the judgment dated 25.9.2012 in the probate proceedings by the District Judge, Ajmer on the purported Will dated 23.1.98 was not final as the appeal there -against had been filed by the defendants before the Rajasthan High Court, Jaipur Bench, Jaipur. It was stated that thus the very foundation of the plaintiff's claim to absolute ownership of the property was unsustainable and the question of title to the suit property was at large. It was further stated that the suit property which was in possession of the defendants was in a dilapidated condition and hence essential repairs were necessary least collapse endanger the life and limb of the occupants. It was stated that the suit laid by the plaintiff being one for permanent injunction and the plaintiff not being in possession, no relief could be granted. It was prayed that in the circumstances, the application under O. 39 R. 1 and 2 CPC be dismissed.