IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 541 of 2008 Judgment reserved on 28.5.2008 Date of decision: 18.6.2009. Smt. Jogeshra Devi …….Petitioner. Vs. Urmila Devi and others ....….Respondents Coram: The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Petitioner : Mr. Ajay Sharma, Advocate. For the Respondents : Mr. C.P. Sood, Advocate. Kuldip Singh, Judge Heard. On the request of learned counsel for the parties the petition is being disposed of at the admission stage. The petitioner was plaintiff in Civil suit No.83/2005 in the Court of Civil Judge (Jr. division) Court No.2, Palampur. The petitioner has filed this petition against the judgment dated 19.8.2008 passed by learned Addl. District Judge(1) Kangra at Dharamshala in Civil Misc. Appeal No.18-P/06 reversing order dated 1.5.2006 passed by learned Civil Judge (Jr. division) Court No.2, Palampur in CMA No.129/05. 2. The further facts are that petitioner had filed Civil Suit No.83/2005 in the Court of Civil Judge (Jr. division) Court No.2, Whether the reporters of the local papers may be allowed to see the Judgment?Yes 2 Palampur for declaration that she along with Vidya Devi, Om Devi, Usha Parmar and Dropati, proforma defendants, are entitled to the estate of late Wazir Chand being his heirs and the Will dated 9.10.1980 allegedly executed by late Wazir Chand in favour of Kartar Singh predecessor-in-interest of Urmila Devi, Balbinder Singh, Parvinder singh, Minakshi, Mohini , Anjana Kumari and Ranjana Kumari is forged and mutation to the estate of Wazir Chand attested in favour of late Kartar Singh of land situate in Mohal Gaggal is wrong and illegal. The petitioner and proforma defendants are also entitled to inherit the property of Wazir Chand along with late Kartar Singh in accordance with Hindu Succession Act, 1956. The petitioner had also prayed permanent prohibitory injunction restraining Urmila Devi, Balbinder Singh, Parvinder Singh, Minakshi, Mohini , Anjana Kumari and Ranjana Kumari from alienating, encumbering, changing the nature of the suit land and cutting trees there from in any manner 3. It has been alleged that petitioner is daughter of late Wazir Chand. She was surprised to know during the evidence in Civil Case No.56/2000 titled Urmila Devi vs. Bhagwan Singh that late Kartar Singh had managed and manipulated a forged Will allegedly executed by Wazir Chand on 9.10.1980 in his favour and on that basis the mutation was attested in favour of late Kartar Singh of the property of Wazir Chand, situate at Mohal Gaggal. Urmila Devi, Balbinder Singh, Parvinder Singh, Minakshi, Mohini , Anjana Kumari and Ranjana Kumari succeeded to the estate of Kartar Singh after his death. It has been alleged that Wazir Chand had executed a Will dated 15.2.1980 in favour of petitioner, Vidya Devi, Om Devi, Usha Parmar, Dropati and late Gheroo Devi. Wazir Chand had died in the 3 year 1981. The petitioner in the suit has assailed the Will dated 9.10.1980 of Wazir Chand. 4. The suit was contested by respondents by filing joint written statement, in which preliminary objections of maintainability, locus standi, estoppel, limitation, valuation and lack of cause of action were pleaded. On merits, it was pleaded that valid Will was executed by late Wazir Chand on 9.10.1980 and mutation of the property of late Wazir Chand was rightly attested in favour of late Kartar Singh on the basis of Will dated 9.10.1980. The petitioner was aware of the Will dated 9.10.1980 and had not challenged the Will for the last 22 years. The petitioner has no concern with the property left by late Wazir Chand. The petitioner after the death of Kartar Singh had never challenged succession to the estate of Kartar Singh in favour of contesting defendants nor the petitioner had challenged succession to the estate of Gheroo Devi in favour of late Kartar Singh. Wazir Chand and Gheroo Devi parents were looked after by late Kartar Singh and his wife Urmila. The contesting defendants denied the claim of the petitioner. 5. In the suit the petitioner had filed CMA No.129 of 2005 under Order 39 rules 1,2 read with Section 151 CPC for interim relief. This application was also opposed by contesting defendants. The learned Civil Judge (Jr. Division) vide order dated 1.5.2006 directed the parties to the suit to maintain status quo qua nature, construction, trees, alienation and encumbrances on the suit land till disposal of the main suit. The order dated 1.5.2006 was assailed by respondents No.1 to 5 by way of Civil Misc. Appeal No.18-P/06 and the Addl. District Judge vide judgment dated 19.8.2008 has allowed the appeal 4 and set aside the order dated 1.5.2006 of Civil Judge (Jr. division) and dismissed the application under Order 39 rules 1,2 read with Section 151 CPC filed by the petitioner for interim relief in the trial Court, hence the present petition by plaintiff. 6. The learned counsel for the petitioner has submitted that the Addl. District Judge has erred in setting aside the order dated 1.5.2006 of the trial court which was just equitable and in the interest of both the parties. The suit is yet to be decided on merits. There is nothing wrong in the order dated 1.5.2006 when the trial court had ordered status quo regarding the property to be maintained by both the parties. The order dated 1.5.2006 is in the interest of both the parties as the said order protected the suit property. In case the order dated 1.5.2006 is restored, it will avoid the multiplicity of the litigation between the parties. The learned counsel for the respondents has supported the impugned judgment. 7. In the application under Order 39 rules 1,2 the well known factors namely prima facie case, balance of convenience, irreparable loss are to be considered while disposing of such application. In case prima facie case is not in favour of a party then balance of convenience and irreparable loss cannot be in favour of that party. In the present case the Will dated 9.10.1980 of late Wazir Chand has been assailed. It is the case of the petitioner that Wazir Chand had allegedly executed a Will dated 15.2.1980 in favour of petitioner and others. The petitioner has alleged that she came to know about the Will dated 9.10.1980 only during the evidence of Civil Case No. 56/2000 titled as Urmila Devi vs. Bhagwan Singh. Wazir Chand had died as per the petitioner in the year 1981. There is no 5 explanation why on the basis of alleged Will dated 15.2.1980 the property of Wazir chand was not mutated in favour of petitioner and others. The petitioner has alleged that she came to know of the alleged Will dated 9.10.1980 only during the evidence in Civil Case No. 56/2000 titled as Urmila Devi vs. Bhagwan Singh but the present suit was filed in May 2005. The present suit was filed after about 24 years of the Will dated 9.10.1980. Kartar Singh had also died and his property was mutated in favour of contesting defendants. The petitioner at that stage also did not assail the Will dated 9.10.1980. Therefore, from any angle the petitioner has no prima facie case in her favour. The property as of today is in the name of contesting defendants who are the heirs of late Kartar Singh the beneficiary of Will dated 9.10.1980. It has been contended by learned counsel for the petitioner that during the pendency of suit the contesting respondents may alienate the property which will lead to multiplicity of the litigation between the parties. The alienation of the disputed property during the pendency of the suit is governed by principle of lispendens. The learned Addl. District Judge has rightly appreciated the material on record. The learned counsel for the petitioner has failed to point out any jurisdictional error in the impugned judgment, resultantly petition fails and is accordingly dismissed with no order as to costs. In view of dismissal of the main petition, CMP No.880 of 2008 is also dismissed. ( Kuldip Singh ) Judge June 18, 2009 (sks) 6