Civil Revision No. 2487 of 2005

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IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

Civil Revision No. 2487 of 2005

Date of decision: 12.10.2006

Jasbir Kaur

..... Petitioner.

Versus

Harbans Kaur and another

..... Respondents.

CORAM: HON'BLE MR. JUSTICE P.S. PATWALIA

Present:-

Mr. R.S. Dhaliwal, Advocate

for the petitioner.

Mr. Arun Jindal,Advocate

for the respondents.

P.S. PATWALIA, J. (ORAL)

The present revision petition has been filed by the petitioner

aggrieved by the orders passed by learned trial court and the lower appellate

Court declining the relief of injunction on an application filed under Order

39 Rules 1 and 2 of the Code of Civil Procedure.

The facts as emerge from the orders are that one Nachhatar

Singh was the owner of the property in dispute. He had two children.

Jasbir Kaur plaintiff in the suit and petitioner in the present revision petition

and a son Karnail Singh. Karnail Singh has since died and survived by

Civil Revision No. 2487 of 2005

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widow Harbans Kaur and daughter Birbal Kaur, who are defendants in the

suit and respondents in this revision petition. Consequent upon the death

of Nachhatar Singh his property was partitioned in the year 1998 among his

heirs including the plaintiff and the defendants on the basis of natural

succession.

The present suit was instituted by Jasbir Kaur in May 2003 on

the plea that she had chanced upon a Will dated 15.04.1987 allegedly

executed by Nachhater Singh in her favour, in which she alone was entitled

to inherit the entire property. The Will set up is an unregistered Will. After

considering all these facts, the trial Court concluded that the plaintiff has

no prima facie case in her favour since the Will was unregistered and the

original of the Will has not even been produced on record for reference.

The trial Court has held that it was doubtful whether the plaintiff would

ultimately succeed in the suit. It was further held that any alienation made

by the defendants during the pendency of the suit would be subject to the

doctrine of lispendence. The application was declined by the trial Court

with the following observations:-

“Now it is a matter of fact only whether the Will propounded

by the plaintiff would succeed or not. The original will has not

been placed on record for reference, by this court, but the

defendants being rightful owners cannot be restrained from

enjoying the property, in their hands. Alienation of the

property is an essential attribute of ownership. It is doubtful,

whether the plaintiff would ultimately succeed in suit, by

establishing herself the only legal heir of Nachhatar Singh, on

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the basis of testamentary inheritance. At the same time, any

alienation, made by defendants, during the pendency of present

suit, would be taken care of doctrine of lispendence. It is

required that defendants shall incorporate the factum regarding

pendency of present suit, in the sale deed, if any, which is

intended to be entered into by them, during the pendency of

present suit.”

The findings have been confirmed by the lower Appellate

Court

After hearing learned counsel for the parties, I do not find any

error in the view taken by the trial Court on the basis of aforementioned

facts. It cannot be said that there is a strong prima facie case in favour of

the petitioner-plaintiff in the suit. Her interest has been protected by

directing the defendants to incorporate the factum of the pendency of the

present suit in any sale deed, which may be executed by them.

For the reasons aforementioned, I do not find any merit in this

revision petition and the same is accordingly dismissed.

October 12 , 2006

( P.S. PATWALIA )

dinesh

JUDGE