Punjab-Haryana High Court
Varinder Kaur vs Jaswinder Kaur And Ors on 22 September, 2014
Author: Inderjit Singh
Bench: Inderjit Singh
253
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CR No.5500 of 2014
Date of decision: September 22, 2014
Varinder Kaur
...Petitioner
Versus
Jaswinder Kaur and others
...Respondents
CORAM: HON'BLE MR. JUSTICE INDERJIT SINGH
Present: Mr.J.S.Brar, Advocate
for the petitioner.
Mr.Vivek Sharma, Advocate
for the respondents.
****
INDERJIT SINGH, J.
Petitioner Varinder Kaur has filed this revision petition against Jaswinder Kaur and other respondents under Article 227 of the Constitution of India for setting aside the impugned order dated 27.01.2014 passed by learned Civil Judge (Junior Division), Patiala and later on confirmed in appeal vide order dated 11.07.2014 by learned Addl. District Judge, Patiala, whereby application under Order 39 Rule 1 and 2 CPC filed by the plaintiff/petitioner was dismissed.
Notice of motion was issued and respondents appeared through their counsel and contested the petition.
I have heard learned counsel for the parties and have gone through the record.
From the record, I find that Varinder Kaur plaintiff has filed a suit against her sisters Jaswinder Kaur, Harminder Kaur, Sukhpal VINEET GULATI 2014.09.26 16:15 I attest to the accuracy and authenticity of this document Chandigarh CR No.5500 of 2014 -2- Kaur and Gurpreet Kaur for declaration to the effect that plaintiff is exclusive owner in possession of Kothi No.325 measuring 269 sq. yards as described in the head note of the plaint and for permanent injunction restraining the defendants from interfering in any manner in the peaceful possession or making any agreement or alienating or selling or creating any type of charge upon the suit property.
The brief facts of the case are that plaintiff alleging herself as owner in possession of the suit property which was previously owned by mother of the parties, who has purchased the same vide sale deed dated 12.11.1996. Parents of the parties lived in the suit property and mother of parties died on 11.06.2006 and their father died on 16.08.2010. The plaintiff and the defendants are the only children of their parents. The plaintiff further stated that mother of plaintiff executed a Will on 05.07.2005 at Mansa out of her free will without any undue influence etc. and it was duly witnessed by Pulwinder Singh, Nambardar and Satbir Singh, Advocate. It is also stated that plaintiff is in exclusive possession and enjoying the suit property as owner in possession of the suit property. On the other hand, defendants admitted that suit property was owned by mother of the parties but they denied that after the death of Jasvir Kaur, plaintiff is in possession of the suit property. It is further stated that plaintiff and defendants are owners and in joint possession of the property in question. Mutation of the suit property has already been sanctioned. The execution of the Will has been denied. It is further stated that original Will has not been produced in the Court file and it has been VINEET GULATI 2014.09.26 16:15 I attest to the accuracy and authenticity of this document Chandigarh CR No.5500 of 2014 -3- wrongly pleaded that the alleged Will is in possession of defendant No.3 Sukhpal Kaur. Learned Civil Judge (Junior Division), Patiala vide impugned order dated 27.01.2014 held in the order that Will can be proved only in course of trial with the help of the evidence and at this stage, prima facie case is to be seen. The Court after considering the facts which are to be considered after the evidence, dismissed the application under Order 39 Rule 1 and 2 CPC, also on the ground that plaintiff has concealed the fact regarding mutation as well as the fact regarding criminal case filed against the plaintiff by the defendants. Learned Addl. District Judge, Patiala, on the same grounds, upheld the impugned order dated 27.01.2014.
From the record, I find that at this stage plaintiff is alleging Will in her favour and stating that she is exclusive owner in possession over the suit property. The plaintiff is yet to prove the Will by leading evidence before the trial Court and the trial Court after the appreciation of the evidence, is to give the finding as to whether the Will in question is a valid Will or surrounded by suspicious circumstances. At this stage, prima facie suspicious circumstance cannot be seen without any evidence on record. Therefore, in view of the Will alleged by the plaintiff, there is prima facie case in favour of the plaintiff. If during the pendency of the suit, property is alienated, then the plaintiff will suffer irreparable loss and further balance of convenience also lies in favour of the plaintiff.
At the time of arguments, learned counsel for the petitioner only argued that the order of status quo regarding alienation and VINEET GULATI 2014.09.26 16:15 I attest to the accuracy and authenticity of this document Chandigarh CR No.5500 of 2014 -4- possession be ordered, so that revision petitioner may not alienate the property and he argued that plaintiff also herself is ready to bind herself to not to alienate the property.
In view of the facts and circumstances of the present case, in my view, the existing position of the property is to be maintained till the final decision of the case and further the fact that there is no mention in the plaint regarding mutation or regarding criminal case filed against the plaintiff, in no way, can be held as material concealment and on this ground, the relief also cannot be denied to the plaintiff/revision petitioner. As already discussed that there is prima facie case in favour of the plaintiff at this stage and balance of convenience also lies in his favour and if temporary injunction is not granted she will suffer irreparable loss, therefore, the parties to maintain status quo regarding alienation and possession of the suit property till the final disposal of this suit. The impugned orders dated 27.01.2014 passed by learned Civil Judge (Junior Division), Patiala and 11.07.2014 passed by learned Addl. District Judge, Patiala are not as per law and the same are set aside. The application under Order 39 Rule 1 and 2 CPC is allowed.
Therefore, finding merit in the present revision petition, the same is allowed. However, nothing stated above, shall constitute my opinion on the merits of the case.
September 22, 2014 (INDERJIT SINGH)
Vgulati JUDGE
VINEET GULATI
2014.09.26 16:15
I attest to the accuracy and
authenticity of this document
Chandigarh