Punjab-Haryana High Court
Malkiat Singh And Another vs Smt Nanako Devi And Others on 18 July, 2011
Author: Jaswant Singh
Bench: Jaswant Singh
C.R.No.4278 of 2011 #1#
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
C.R.No.4278 of 2011
Date of decision: 18.7.2011
Malkiat Singh and another
....Petitioners
Vs.
Smt Nanako Devi and others
....Respondents
CORAM: HON'BLE MR. JUSTICE JASWANT SINGH Present: Mr. H.N. Sahu, Advocate for the petitioners. Jaswant Singh, J
Plaintiff-petitioners have filed the instant petition under Article 227 of the Constitution praying for setting aside the impugned judgment dated 4.6.2011 (P.2) passed by learned Additional District Judge, Karnal whereby appeal filed by them against the order dated 24.9.2009 (P.1) passed by the learned Additional Civil Judge (Sr. Division), Assandh dismissing their application under Order 39 Rules 1 & 2 read with Section 151 CPC has been dismissed.
Brief facts of the case are that the plaintiffs-petitioners filed a suit for declaration to the effect that mutation No.5719 dated 13.7.2005 is illegal, null and void with a further prayer for declaration that they are owners in possession of land in dispute along with proforma defendants- respondents on the basis of will dated 8.2.2002. Along with the suit, an application under Order 39 Rules 1 & 2 CPC was filed for grant of interim injunction restraining the defendants-respondents from alienating the suit property. Upon notice, the same was opposed. After hearing both the sides, C.R.No.4278 of 2011 #2# learned trial Court dismissed the application vide the impugned order dated 24.9.2009 (P.1). On an appeal having been filed, the same has also been dismissed by the learned Additional District Judge, hence the present appeal.
Learned counsel for the petitioner argues that the impugned orders passed by the courts below are wholly erroneous and liable to be set aside. In case, the interim injunction is not granted, the defendants- respondents will alineate the suit property and that will give rise to the multiplicity of litigation and case of the plaintiff-petitioners will be gravely prejudiced.
After hearing learned counsel for the petitioners and perusing the paper book, this court does not find any merit in the petition and the same deserves dismissal.
The plaintiffs-petitioners are claiming their right, title and interest in the suit property on the basis of the alleged will dated 8.2.2002 executed by one Mangal Singh in their favour. Admittedly, the said will has not been believed by the revenue authority and, therefore, the mutation was not sanctioned in their favour. The contesting defendants-respondents are seriously disputing the execution of alleged will by deceased Mangal Singh on the premise that the said will is result of fraud and misrepresentation. It is further alleged that said Mangal Singh was an Ex-Army Personnel and he never put his thumb mark on any document due to the reason that he being literate used to sign.
To resolve the matter in controversy for the limited purposes of deciding the application under Order 39 Rules 1 & 2 CPC and to find out whether the ingredients of prima facie case, balance of convenience and C.R.No.4278 of 2011 #3# irreparable loss and injury are made out in favour of the plaintiff-petitioners, the learned trial Court perused the original will and came to the conclusion in paragraphs 9 & 10 while passing the impugned order dated 24.9.2009, which read as under:
"9. xx xx The original will has been submitted on record which is a laminated document. The will is unregistered document and consist thumb impression of said Mangal Singh along with two witnesses namely Gian Singh, Numberdar and one Nishan Singh son of Sant Singh. On going through this will of 8.2.2002 even from the naked eye goes to show that the thumb mark which is existing over this will and which allegedly relates to Mangal Singh is not complete in itself but has been put as partial and it is not also capable to be compared or distinguished as to whether this thumb impression existing over this Will are of the alleged testator Mangal Singh or not. The way in which thumb impression have been put over this Will in itself goes to show that their exist suspicious circumstances over the due and voluntary execution of this Will by the shown person Mangal Singh. Had it been a voluntary act on behalf of deceased Mangal Singh, he might have put his entire thumb mark over this Will which could have been capable to be ascertained as to whether it is the thumb impression of testator Mangal Singh or not."
10. xx xx Along with this the complete thumb impression of Mangal Singh is also existing over the sale deed dated 27.6.1978 which even in its photo stab goes to show in itself that it is a clear thumb impression of Mangal Singh over this sale deed and this thumb impression over the Will dated 8.2.2002. It can be said at this stage prima facie that the thumb mark as existing over the Will in question do not correspond with the thumb impression over the sale deed dated 27.6.1978 though it is yet to be finally proved by way of evidence of both the parties which is yet to come on record."
A perusal of the observation recorded by the learned trial Court prima facie shows that the alleged will dated 8.2.2002 is surrounded by C.R.No.4278 of 2011 #4# suspicious circumstances and no final opinion can be expressed at this stage without adducing evidence by both the parties. There is no other material available on record to differ with the conclusion arrived at by both the courts below regarding existence of prima facie case in favour of the plaintiff-petitioners. It is well settled that for grant of interim injunction, all three ingredients are to be made out and interim injunction is not to be granted in routine without fulfilling these pre-conditions but in the present case, plaintiff-petitioners have miserably failed to do so.
Keeping in view the facts and circumstances discussed hereinabove, this Court finds no illegality or perversity in the impugned orders passed by the learned courts below warranting interference under Article 227 of the Constitution.
Dismissed.
July 18, 2011 ( JASWANT SINGH ) manoj JUDGE