1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR WRIT PETITION NO. 5474/2007 (Murli Manohar Deokiunandan Saxena and others vs. Missionaries of Charity and others) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- CORAM : Smt. Vasanti A. Naik, J. DATE : 14 th November, 2008 By this petition, the petitioners impugn the order passed by the 6th Joint Civil Judge, Junior Division, Nagpur, on 29th September,2003, as also the judgment passed by the 2nd Additional District Judge, Nagpur, on 21st June, 2006, refusing to grant a temporary injunction in favour of the petitioners. The petitioners are the original plaintiffs. They claimed to be the Class-II heirs of deceased Shivnandanlal Saxena. According to the plaintiffs, since Shivnandanlal did not have any Class-I heir, the plaintiffs became the owners of the suit property after the death of Shivnandanlal on 24.06.2004. It was pleaded that defendant No.2 Rupam was withdrawing huge amount from the bank account of deceased Shivnandanlal. A 2 suit for permanent injunction was, therefore, filed by the plaintiffs for restraining the defendants from interfering with the possession of the suit plot which was situated at Nagpur and other immovable properties left behind by deceased Shivnandanlal. Permanent injunction was also sought against the defendants restraining them from operating the bank account of deceased Shivnandanlal. The Defendant Nos. 1, 2 & 9 filed their joint reply to the application filed by the plaintiffs under Order 39,Rule 1 & 2 of C.P.C. Defendant No. 3 and Defendant No.6 also filed separate replies to the application for temporary injunction. It was stated by Defendant No.3 in his reply that Shivnadanlal had executed a will in favour of some of the defendants on 23rd May, 2004. It was stated in reply by defendant No. 3 that a bequest of the amount in the Bank was made in his favour since he was an Abhyasi of the defendant No.3 Mission. It was stated in the reply filed by defendant N0.6 – State Bank of India, that as per 3 the Bank's records, Shri Shivnandanlal had nominated the respondent no.2 to receive the balance in his account after his death. The defendants had sought for rejection of the injunction application. The trial Court, after considering the material on record, came to a conclusion that the plaintiffs had failed to make out a prima facie case and balance of convenience was also not in favour of the plaintiffs. The trial Court held that the plaintiffs did not produce any documentary evidence on record to show that they were in possession of the suit house. Though the defendant no. 2 was withdrawing the amount lying in the bank account of Shivnandanlal, the Court observed that according to the say of the respondent Bank, the deceased had nominated defendant no.2 for withdrawal of the amount. It was also observed by the trial Court that though the property was the exclusive property of Shivnandanlal, the plaintiffs have not sought a declaration that they were the only Class-II heirs of Shivnandanlal. In the absence of any document showing their possession over the suit 4 property, the trial Court held that the plaintiffs had failed to make out a prima facie case for grant of injunction. In view of the nomination in favour of defendant no.2 to operate the bank account, the Court held that there was no question of granting any injunction in favour of the plaintiffs so far as the bank account is concerned. The order passed by the trial court was upheld by the First Appellate Court in an appeal against the order passed by the Trial Court. The Appellate Court confirmed the findings recorded by the trial Court and further found that the wills produced by the defendants were registered documents. The Court also found that the plaintiffs had neither challenged those wills, nor had challenged the nomination of defendant no.2 for operation of the bank account. Both the courts have correctly recorded a categorical finding that the plaintiffs had not established that they were in possession of the suit property or were entitled to the injunction restraining the defendants from operating the bank account. 5 No fault can be found with the findings recorded by both the Courts as it is apparent from the orders that the plaintiffs had not made out a prima facie case and the balance of convenience was also not in favour of the plaintiffs. The judgment reported in A.I.R. 1956 SC 443 and relied on by the counsel for the petitioners is not applicable to the facts of this case. There is no error whatsoever, muchless a jurisdictional error in the orders passed by both the courts. The writ petition is, therefore, dismissed with no orders as to costs. JUDGE Rvjalit