The main legal point established is the requirement for a prima facie case and the need for vigilance and consistency in presenting evidence and pleadings.

JUDGMENT :

1. The appellant has challenged order dated 21.08.20023 passed by the learned Additional District Judge, Jammu (hereinafter to be referred as “the Trial Court”), whereby the application of the appellant under Order 39 Rules 1 & 2, read with section 151 CPC for grant of temporary injunction has been dismissed.

2. It appears that the appellant had filed a suit against the respondents before the Trial Court seeking a declaration that he is the sole owner of the house bearing No. 194-A, situated at Rehari Colony, Jammu on the basis of Will dated 21.06.1994 executed by Shri Amrit Lal Sawhney, the predecessor-in-interest of the parties. The appellant has also challenged the judgment and decree dated 26.08.2003 passed by the Court of 1st Addl. District Judge, Jammu, whereby the decree of partition in respect of the suit house has been passed by the said Court. Further injunction restraining the respondents/defendants from interfering in peaceful possession of the appellant/plaintiff over the suit property has also been sought. Alongwith the suit, the plaintiff/appellant also filed an application for grant of temporary injunction.

3. As per the case of the appellant/plaintiff before the trial court, late Amrit Lal Sawhney, who was owner in possession of the suit house has left behind a Will dated 21.06.1994, whereby he has bequeathed the suit property in favour of the appellant/plaintiff. The parties to the suit happen to be the sons and daughters of Shri Amirt Lal Sawhney. According to the plaintiff, he had no knowledge about execution of the Will and it is only on 31st of December, 2019 that he came to know about the execution of the Will that was handed over to him by one Rakesh Kumar Bali with whom the testator had kept the said Will. It is averred that defendant No. 2 had filed a suit before the Court of Additional District Judge, Jammu against the plaintiff and other defendants for partition of the suit house by meets and bounds. At the time when the plaintiff filed the written statement in the said suit, he was not knowing about execution of the Will by the predecessor-in-interest of the parties in his favour. Vide judgment dated 30.11.2002 passed by the learned Additional District Judge, Jammu, a preliminary decree of partition was passed and a Commissioner was appointed. After receipt of report of the Commissioner, final decree was passed by the learned Additional District Judge, Jammu on 26.08.2003. In terms of order dated 15.12.2017, the learned Additional District Judge, Jammu observed that the suit house is very small, as such, the same cannot be partitioned into four shares. Accordingly, it was directed that the house in question may be put to sale by way of auction and sale proceeds be divided into four shares between the parties to the suit.

4. It is the case of appellant/plaintiff that during the execution proceedings, he came to know about execution of the Will and accordingly, he filed an application before the Executing Court objecting to the execution of the decree on the basis of the Will but the said application came to be dismissed for want of prosecution.

5. It appears that the plaintiff had also filed a suit seeking declaration that he is the absolute owner of the suit house on the basis of Will dated 21.06.1994 with consequential relief of permanent prohibitory injunction restraining the defendants from interfering into his peaceful possession of the suit house before the Court of 1st Addl. Munsiff, Jammu. The plaintiff after realising that he has not challenged the judgment/decree of partition dated 26.08.2003, read with order dated 15.12.2017 passed in the earlier suit, the plaintiff sought withdrawal of the suit with liberty to file fresh one. Vide order dated 17.06.2023 passed by the 1st Addl. Munsiff, Jammu, the application was allowed and the plaintiff was permitted to withdraw the suit with liberty to file fresh one. Accordingly, the suit, which is subject matter of the instant appeal, came to b