Rakma Vs Banta Deceased through Lrs.

Th e present revision petiti o n has been filed by the defendant/petiti o ner Rakma against the orde r dated 16.01.2014 passed by the learned Additi o nal District Judge, Kaithal w hereby the appeal filed by the plaintiff/respon d ent-Banta against the dismiss a l order passed by the learned t rial Court in applic a tion filed under Order XXXIX Rules 1 and 2 of the Code of C ivil Procedure, 190 8 (for short, ‘CPC’) was accept e d and the defendant was restrai n ed from alienatin g the suit property and from i n terfering in the alleged peac e ful possession of t h e plaintiff. 2. Th e admitted facts between the p a rties reveal that after the deat h of Molu, his son C hhajju became owner in pos s ession of the suit property to the extent of his s h are along with plaintiff and ot h er two co-sharers. It is undisp u ted that Chhajju a n d Rakma are half-brothers, ha v ing a common mother Bishni but

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different father s as Bishni married one Lal S i ngh after the death of Molu. T he plaintiff Banta is the real brother of Chhajju fro m the lineage of Molu and Bish n i. 3. It is further an admitted fact that C h hajju, during his lifetime, suff e red a consent decre e in favour of defendant Rakma i n respect of his share, but the s a me was set aside b y judgment dated 21.01.1997 p a ssed in Civil Suit No. 545 of 1 9 93. Later, Chhajju again filed another Civil Suit No. 420 of 2009 against Rak m a. Chhajju expire d on 07.11.2010 issueless. Prior to his death, he had also filed C ivil Suit No.6-A o f 2007 challenging three-fourth share of the plaintiff in total l a nd measuring 118 kanals 8 marlas, which w a s dismissed by judgment d a ted 14.12.2007.

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In the present proceedings, the p laintiff Banta has challenged the decree dated 2 1 .08.2010 passed in Civil Suit N o. 420 of 2009 on the groun d of fraud and has s o ught setting aside of the same. T he defendant Rakma, on the o t her hand, has resist e d the suit by asserting that he i s the owner in possession of the s uit land not only o n the basis of the impugned dec r ee but also by virtue of a regist e red Will dated 23.0 2 .2001 executed by Chhajju in h is favour.

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Th e learned trial Court, after c o nsidering the rival submissi o ns, dismissed the a p plication for interim injunctio n filed by the plaintiff under O r der XXXIX Rules 1 and 2 CPC on 10.04.2012 h o lding that Chhajju , who had d ied issueless, was t he absolute owner of his shar e in the property and competen t to deal with the s ame. It was further held that the plaintiff had not specific a lly pleaded the alle g ed fraud while challenging the decree suffered by Chhajju in C ivil Suit No. 420 o f 2009. On appeal, however, th e learned Additional District Ju d ge set aside the or d er of the trial Court on 16.01.2 0 14, holding that prima facie Ra k ma

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had no pre-existing right in the property whic h had devolved upon Chhajju f r om his father Molu , and consequently restrained R a kma from alienating the suit lan d . 6. Aggrieved by the order dated 16.01.2014 passed by the lear n ed Additional Dist r ict Judge, Kaithal, the present r e vision has been filed by Rakm a . 7. I h ave heard learned counsel for t he parties and carefully exami n ed the record. 8. It i s not in dispute that the pro p erty in question along with o t her property origin a lly belonged to Molu, and up o n his death suit property devol v ed upon his son C hhajju. Thus, Chhajju beca m e owner of suit property ha v ing inherited from h is father. Ignoring the other civ i l suits which are not subject m a tter of the present s uit except filed by Chhajju an d decided in favour of Rakma, i t is hereby submitt e d that the said Civil Suit No.420 of 2009 is under challenge in the present suit. The plaintiff-Banta has sought to c hallenge the decree on the gro u nd of fraud. Howe v er, the question that whether o r not the judgment of said suit is the result of fraud i s a matter of evidence to be det e rmined in the main suit and ca n not be conclusively adjudicated at the interlocutory stage.

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Fo r the purposes of grant of t e mporary injunction under O r der XXXIX Rules 1 and 2 CPC, the court is requir e d to consider whether the appli c ant has established a prima facie case, whether b alance of convenience lies in his favour, and w h ether he would suffer irrepara b le loss in the event of refusa l of injunction. In t h e present case, the impugned j u dgment and decree in favour of the defendant Rak m a, stands till date, a prima faci e case is clearly made out in fa v our of the defenda n t. The balance of convenienc e also tilts in his favour as he has stepped into th e shoes of Chhajju . Moreover, a s per settled law, no injunction can TRIPTI SAINIbe granted agai n st a co-sharer. The revenue re c ord (Jamabandi for the year 20 0 7– 2025.08.22 16:01 I attest to the accuracy and integrity of this document

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also refl e cts Chhajju as owner in pos s ession of one-fourth share as cosharer. These c r ucial facts have been ignored b y the learned lower appellate Co u rt. 10. In v iew of the above discussion, th e impugned order dated 16.01.2 0 14 passed by the l earned Additional District Jud g e is patently unsustainable in l aw and is hereby set aside. The order dated 10.0 4 .2012 passed by the learned C ivil Judge (Junior D ivision), dismissing the applic a tion for injunction, is upheld w ith the above obser v ations.

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Ac c ordingly, the civil revision peti t ion is allowed. 12. Pe n ding application(s), if any, also stand disposed off.

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August 22, 202 5 (MANDEEP PANNU) tripti JUDGE Wheth e r speaking/non-speaking : Spea k ing Wheth e r reportable : Yes/ N o

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Rakma v. Banta Deceased through Lrs.

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Rakma v. Banta Deceased through Lrs.

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