O R D E R

Parties to the lis are real sisters and daughters of late Sh. Keshav Ram. Prayer of temporary injunction made in the civil suit filed by the respondent/plaintiff was declined by the learned trial Court on 15.06.2021. However, learned Appellate Court on 10.09.2021 allowed the respondent’s appeal and restrained the defendant by way of temporary injunction from carrying out the construction over the suit land. It is in this manner that the defendant has invoked the jurisdiction of this Court under Article 227 of the Constitution of India.

2. I have heard learned Senior counsel for the parties and have also considered the relevant material on record.

3. It is well established that for the grant of temporary injunction, following three parameters must be met:-

3(a) Existence of a prima-facie case in favour of the applicant/plaintiff.

3(b) Denial of temporary injunction will cause irreparable loss and injury to the applicant, which cannot be compensated in terms of money.

3(c) Balance of convenience existing in favour of the applicant.

4.1 Prima Facie case

4.1(a) Suit was filed by the respondent for grant of permanent prohibitory and mandatory injunction under Sections 34 and 39 of the Specific Relief Act. The suit concerns Khata Khatauni No. 291/375, Kite-4 measuring 00-13-01 bighas situated in Mohal Churag, Tehsil Karsog, District Mandi. The revenue record i.e. jamabandi for the year 2018-2019 shows that Sh. Keshav Ram father of the parties was recorded as owner in possession of the suit land to the extent of 1960/36395 shares. The plaintiff asserted that she and her sister(defendent) succeeded to the suit land after the demise of their father on the basis of Will No.128 executed by him on 21.06.2007. This Will was questioned by son of Sh. Keshav Ram in Civil Suit No.39/2013. Both the sisters jointly defended the Will. This civil suit was dismissed by the learned trial Court on 2.11.2015. Subsequently Mutation No.1590 was attested in respect of the suit land in favour of both the sisters on 25.06.2021. Their brother has statedly carried the matter further in appeal.

Further case of the plaintiff is that by way of a family settlement, out of the suit land measuring 00-13.1 biswas (00-13-01 bigha), 1/6th share of Sh. Keshav Ram equivalent to about 17 biswansi was gifted by him in favour of defendant/petitioner on 21.05.1993. For this reason, there was an entry in the revenue record in favour of the defendant to the extent of 980 shares. However, Sh. Keshav Ram continued to be owner in possession of 1960 shares in the revenue record. Therefore, both the sisters have succeeded him on the suit land in equal shares.

Defendant’s case is that suit filed by the plaintiff is for perpetual injunction and not for injunction till partition of the land. That plaintiff has not applied for partition of suit land. Defendant is in possession of the suit land. Land measuring 00- 00-17 bigha was gifted to her by Sh. Keshav Ram on 21.5.1993. A house exists on this portion of the land concerning which stamp duty was paid & revenue entries were accordingly incorporated in her name.

4.1(b) The plaintiff and defendant are entered as co- owners over the suit land in revenue record. The fact that their exists a Will executed by Sh. Keshav Ram bequeathing the suit property in favour of his daughters, is also prima-facie substantiated from the record. The factum that both the parties to the present lis have jointly defended this Will before the learned trial Court in the civil suit filed against them by their brother, is also a matter of record.

Whether the plaintiff and the defendant have succeeded to the suit land in equal shares on the basis of Will dated 21.06.2007 is a question to be determined during trial. It appears that the Will was defended by both the sisters jointly in the civil suit filed against them by their brother. Mutation on the basis of this Will now stands entered and attested in favour of both the sisters. Insofar as the gift allegedly e