CR No.4437 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.4437 of 2010 Date of decision: 21.7.2010 Smt. Amar Kaur ......Petitioner(s) Versus Smt. Hardeep Kaur and another ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Sumeet Mahajan, Sr. Advocate with Mr. Sham Lal Bhalla, Advocate for the petitioner. Rakesh Kumar Garg, J. This revision petition has been preferred by defendant No.2 Amar Kaur challenging the impugned order dated 10.5.2010 passed by the Additional District Judge, Ludhiana whereby appeal filed by respondent No.1 (plaintiff) against the order of the trial Court on an application under Order 39 Rules 1 and 2 CPC has been accepted and the petitioner has been restrained from alienating the suit property in any manner during the pendency of the suit. As per the averments in the suit, Charan Singh, son of the petitioner, was owner in possession of the suit land who died leaving behind his wife Hardeep Kaur and daughter Manpreet Kaur (i.e. the respondents) and the mother Amar Kaur (petitioner). Charan Singh during his life time executed a Will dated 10.8.2007 in favour of the plaintiff- respondent Hardeep Kaur bequeathing his entire property. It was further pleaded that the mutation sanctioned on the basis of natural inheritance was illegal, null and void and she had no knowledge regarding the execution of the Will at that time. Since the defendants i.e. petitioner and CR No.4437 of 2010 2 respondent No.2 have refused to admit the claim of the plaintiff-respondent No.1, the suit for declaration regarding the suit property was filed along with the suit. An application under Order 39 Rules 1 and 2 CPC for restraining or creating any charge on the suit property was also filed. Upon notice, defendant No.1 now respondent No.2 was proceeded against ex parte. Defendant No.2 (i.e petitioner) filed written statement contesting the suit. Execution of the Will by Charan Singh in favour of the plaintiff-respondent was denied. It was pleaded that mutation on the basis of natural inheritance was sanctioned correctly. Moreover, the plaintiff-respondent herself had furnished an affidavit on oath before an Executive Magistrate stating that she had no objection for sanctioning the mutation and thus, the suit was liable to be dismissed. After considering the rival contentions, application under Order 39 Rules 1 and 2 CPC was dismissed by the trial Court vide order dated 6.3.2010. However, on an appeal, the Lower Appellate Court vide impugned order dated 10.5.2010 allowed the same and restrained the petitioner as well respondent No.2 from alienating the suit property in any manner during the pendency of the suit. Challenging the aforesaid order, learned senior counsel appearing on behalf of the petitioner has vehemently contended that the learned Additional District Judge, Ludhiana has failed to appreciate the fact that there was no prima facie case in favour of the plaintiff-respondent as she herself had filed an affidavit at the time of sanction of mutation on the basis of natural inheritance and thus, the impugned order was liable to be set aside. Learned counsel for the petitioner further relied upon a judgment of the Hon'ble Supreme Court in Kashi Math Samsthan and another v. Shrimad Sudhindra Thirtha Swamy (2010) 1 Supreme Court CR No.4437 of 2010 3 Cases 689, to contend that an interim order can be passed in a case subject to proof of prima facie case and question of considering balance of convenience or irreparable loss and injury to a party does not arise if the party fails to prove prima facie case to go for trial. Since in the present case respondent No.1 has no prima facie case, the impugned order could not have been passed against the petitioner. I have heard learned counsel for the petitioner and perused the impugned order and the judgment cited at the Bar. The plaintiff-respondent has filed a suit claiming the entire property left by Charan Singh on the basis of a Will. She has also alleged that at the time of sanction of mutation, the execution of Will in her favour was not to her knowledge. In view of the aforesaid averment made by plaintiff-respondent No.1 in her suit, the contention of the petitioner that the plaintiff-respondent has no prima facie case because she had furnished her affidavit at the time of sanction of mutation on the basis of natural inheritance, is liable to be rejected because the aforesaid factum as averred by the petitioner and the circumstances in which the affidavit of the plaintiff-respondent was furnished, are questions of fact, which can be proved only by taking evidence and therefore, at this stage, it cannot be said that the plaintiff-respondent has no prima facie case in her favour. . Thus, I find no merit in this petition. Dismissed. July 21, 2010 (RAKESH KUMAR GARG) ps JUDGE