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2021 DIGILAW 905 (HP)

VIDYA DEVI v. MELA RAM

2021-11-30

JYOTSNA REWAL DUA

body2021
ORDER : 1. Both the learned Courts below have dismissed the application moved by the plaintiffs under Order 39 Rule 1 & 2 of the Code of Civil Procedure. In the aforesaid background, the plaintiffs have preferred the instant petition under Article 227 of the Constitution of India. 2........ (i) A suit was filed by the plaintiffs/petitioners for declaration to the effect that they alongwith proforma defendants are owners in possession of the suit land to the extent of 1/8th share measuring 3-12 bighas out of the total land measuring 28-13 bighas situtated at Mauza Bangran, Tehsil Paonta Sahib, District Sirmaur, H.P. Mutation of inheritance of suit land attested in favour of defendants No.1 and 2 was also prayed to be declared as illegal and inoperative qua the plaintiffs. A sale deed executed by defendants No.1 and 2 on the basis of this mutation in favour of defendants No.3 and 4 was also prayed to be declared as illegal. Consequential relief of permanent prohibitory injunction for restraining the defendants from interfering and changing the nature/alienating the suit land was also prayed. (ii) The foundational facts pleaded for the aforesaid reliefs are that one Devi Singh, son of Kanahiya was owner in possession of the suit land. He sold this suit land to Sh. Budh Ram-the father of plaintiffs and proforma defendants in the year 1963 for a sum of Rs. 10,000/- Sh. Budh Ram accordingly came in possession of the suit land and after his death, plaintiffs alongwith proforma defendants have been cultivating the suit land. Defendants No.1 is the son and defendant No.2 is the widow of late Sh. Changa son of Sh. Kanahiya. Defendants No.1 and 2 were not related to Sh. Devi Singh in any manner. Mutation No. 403 of inheritance of late Sh. Devi Singh attested in favour of defendants No.1 and 2 with respect to the suit land was illegal. The sale deed No.362 dated 06.04.2002 executed by defendants No.1 and 2 in respect of sale of suit land in favour of defendants No.3 and 4 was also inoperative and not binding upon the plaintiffs. (iii) The defendants took up the stand that their predecessor in interest namely Sh. Changa alias Devi Singh had purchased the suit land alongwith Sh. Mangat Ram, Sh. Kishan Lal and Sh. Budh Ram. The land thereafter was partitioned and suit land was allotted to Sh. Changa alias Devi Singh. (iii) The defendants took up the stand that their predecessor in interest namely Sh. Changa alias Devi Singh had purchased the suit land alongwith Sh. Mangat Ram, Sh. Kishan Lal and Sh. Budh Ram. The land thereafter was partitioned and suit land was allotted to Sh. Changa alias Devi Singh. After the death of Devi Singh, defendants No.1 and 2 became the owners of the same. They further pleaded that the question of possession and title with respect to the suit land had already been decided between the parties in Regular Second Appeal No.472/2001 decided on 10.03.2010. (iv) Learned trial Court vide order dated 26.03.2015 as corrected on 27.05.2015, dismissed the application under Order 39 Rule 1 and 2 CPC. This order has been affirmed by the learned First Appellate Court on 22.08.2016. 3. After hearing learned counsel for the parties, I am of the considered view that there is no error in the impugned orders passed by the learned Courts below:- (i) The case set up by the plaintiffs was that their father Budh Ram had purchased the suit land in the year 1963 from Devi Singh. However, there was no document on record to support this averment. (ii) In RSA No.472/2001, defendants No.1 and 2 have been held to be in possession of the suit land. Mutation No.403 with respect to the suit land has been attested in favour of defendants No.1 and 2. On the strength of their being owner in possession, defendants No.1 and 2 have executed the sale deed No. 362 on 06.04.2002, in favour of defendants No.3 and 4. (iii) In order to succeed in the application for grant of temporary injunction, the plaintiffs were required to show not only the existence of a prima facie and arguable case in their favour, but they had also to demonstrate the balance of convenience in their favour and that an irreparable loss and substantial injury shall be caused to them, in case of refusal of the relief of temporary injunction. The plaintiffs may have an arguable case in their favour but balance of convenience is certainly not in their favour. Plaintiffs have also failed to show that they would suffer irreparable loss and injury in case of refusal of grant of temporary injunction. The plaintiffs may have an arguable case in their favour but balance of convenience is certainly not in their favour. Plaintiffs have also failed to show that they would suffer irreparable loss and injury in case of refusal of grant of temporary injunction. (iv) Learned Courts below have also noticed that the plaintiffs concealed the fact that the they alongwith proforma defendants have filed another civil suit against the present defendants and various other persons, wherein declaration against the partition proceedings had been prayed for. 4. Consequently, learned Courts below have not committed any error in dismissing the plaintiffs' application under Order 39 Rules 1 & 2. This petition lacks merit and is dismissed as such. Pending miscellaneous applications, if any, shall also stand disposed of. It is clarified that the observations made above are confined only to the adjudication of the present petition and shall have no bearing on the merits of the matter.