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2013 DIGILAW 1632 (PNJ)

Anoop Singh v. Sarabjeet Singh

2013-12-09

K.KANNAN

body2013
JUDGMENT Mr. K. Kannan, J. (Oral):- The defendants who were injuncted by an interim order in the application filed under Order 39 Rule 1 and 2 by the Appellate Court is a revision petitioner. The plaintiffs have filed a suit on the basis of intestate succession from their father Mohinder Singh in whose favour there is a registered document of transfer by the grand mother Jaswant Kaur. The defendant’s contention was that Jaswant Kaur, although was stated to be a purchaser through a document dated 19.9.1974 was only the defendant’s benamidar and that he alone be paid the consideration for the purchase. The issue of whether the purchase by Jaswant Kaur was really benami transaction for the benefit of defendant would fall for consideration at the time of trial. Prima facie on the basis of documents, the ostensible owner was Jaswant Kaur and after a transfer through a registered instrument in favour of Mohinder Singh the defendant cannot claim the said property. The defendant’s contention was that Jaswant Kaur again executed a Will before her death bequeathing equal share to both her sons and consequently Mohinder Singh had only half share and the remaining half share belong to the defendant. It is further the contention of the defendant that there had been a family partition between the two brothers and in that partition the first plaintiff himself was a witness. As per the said document the defendant has got a right in the property. Mohinder Singh himself had filed a suit in respect of the very same subject matter but later withdrew the same. There have been previous proceedings in which claim to the property had been made by Mohinder Singh and his sons and they had all been dismissed and the present suit has been filed without disclosing the institution of earlier suits and the dismissal. 2. When the trial court dismissed the application for injunction, the Appellate Court has considered the prima facie case of the plaintiffs from the point of view of the fact that the registered instruments stand in the name of Jaswant Kaur and Mohinder Singh and the khasra girdawaris have also entered only Mohinder Singh as a person in possession. The court has also examined the fact that none of the documents stands in the name of the defendant. The court has also examined the fact that none of the documents stands in the name of the defendant. Adverting to a claim for family partition, the court has observed that it is an un-registered document and the validity or extent of admissibility would still be matters for consideration at a subsequent stage. Referring to the institution of earlier suits, the court has observed that the plaintiffs themselves were not parties and in any event there had been no adjudication on merits. 3. I do not find any error in the order of the Appellate Court for interference. The revision petition against the order passed by the Appellate Court is therefore dismissed as devoid of merits.