Civil Revision No. 2534 of 2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Revision No. 2534 of 2009 Date of decision : October 12, 2010 Surjan Singh ....Petitioner versus Surjit Kaur and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Jasbir Rattan, Advocate, for the petitioner Mr. HR Nohria, Advocate, for respondent nos. 1 to 3 L.N. Mittal, J. (Oral) Surjan Singh defendant no. 1 has filed the instant revision petition under Article 227 of the Constitution of India. This is unfortunate litigation among the family members. It is classical example of modern day greed and materialism. Plaintiffs/respondents no. 1 to 3 are daughters of Sukhdev Singh defendant no. 5/proforma respondent no. 7. Defendants no. 1 and 2 (petitioner and proforma respondent no. 4) are sons of Sukhdev Singh who also had another son Harminder Singh since deceased represented by his widow and minor son (defendants no. 3 and 4/proforma respondents no. 5 and 6). Civil Revision No. 2534 of 2009 -2- Respondents no. 1 to 3 filed suit against petitioner and proforma respondents no. 4 to 7 alleging that defendant no. 5 Sukhdev Singh inherited the suit land measuring 157 kanals 2 marlas from his father Sucha Singh who inherited the same from his own father Daya Nand and therefore, the suit land is ancestral Joint Hindu Family coparcenary property but defendant no. 5 has transferred the same to defendants no. 1 to 4 by transfer deeds. The plaintiffs have challenged the said transfers alleging that defendant no. 5 could not transfer 3/7th share of the plaintiffs. The plaintiffs sought temporary injunction restraining defendants no. 1 to 4 from alienating suit land in any manner till final decision of the suit. Defendants no. 1 and 3 to 5 contested the suit. They denied that the suit land is ancestral Joint Hindu Family coparcenary property. Defendant no. 5 specifically denied that the suit land was inherited by him from his father Sucha Singh or that Sucha Singh inherited the same from his own father Daya Nand. Various other pleas were also raised. Learned Civil Judge (Junior Division), Dhuri vide order dated 1.11.2007, Annexure P/2 allowed the plaintiffs application for temporary injunction and thereby defendants no. 1 to 4 were restrained from alienating the suit land measuring 157 kanals 2 marlas in any manner till final decision of the suit. Defendant no. 5 was restrained from alienating 1/7th share in land measuring 2 bighas 17 biswas which is not in issue in the instant revision petition. Appeal preferred by defendant no. 1 against order Annexure P/2 of the trial court has been partly allowed by learned Additional District Judge, Sangrur vide judgment dated 28.1.2009, Civil Revision No. 2534 of 2009 -3- Annexure P/1. By the said judgment, defendants no. 1 and 2 have been given liberty to alienate 1/7th share each in the suit land and defendant nos. 3 and 4 have been given liberty to alienate 1/7th share in the suit land i.e. 1/14th share each but defendants no. 1 to 4 have been restrained from alienating 3/7th share in the said land allegedly of the plaintiffs. Feeling aggrieved, defendant no. 1 has preferred the instant revision petition. I have heard learned counsel for the parties and perused the case file. Learned counsel for the petitioner vehemently contended that there is no material on record to depict that the suit land is ancestral or coparcenary property and therefore, plaintiffs have no prima facie case for grant of temporary injunction. On the other hand, learned counsel for respondent nos. 1 to 3/plaintiffs contended that defendants no. 1, 3 and 4 in their written statement Annexure P/6 did not specifically deny that Sukhdev Singh defendant no. 5 had inherited suit land from his own father Sucha Singh and that Sucha Singh has inherited the same from his own father Daya Nand. I have carefully considered the rival contentions. Defendants no. 1, 3 and 4 in their written statement Annexure P/6 have specifically denied that suit property in the hands of defendant no. 5 was Joint Hindu Family ancestral coparcenary property. Moreover, defendant no. 5 in his written statement Annexure P/7 specifically denied that the suit land was owned by Daya Nand and on his death Sucha Singh bacame its owner and after death of Sucha Singh, Sukhdev Singh became owner thereof. Civil Revision No. 2534 of 2009 -4- Consequently, it cannot be said that there is no specific denial of the aforesaid fact. On the contrary, plaintiffs did not produce any mutation on the file to depict that Sukhdev Singh inherited suit land from his father Sucha Singh or that Sucha Singh inherited it from his father Daya Nand. Consequently, prima facie there is no material on record to depict that suit land was ancestral coparcenary property in the hands of Sukhdev Singh. The plaintiffs, therefore, have no prima facie case for grant of temporary injunction. Balance of convenience is also not in their favour nor they would suffer irreparable loss or injury because any alienation made during the pendency of the suit may be subject to doctrine of lis-pendens. Nevertheless necessary direction may be given to the defendants for safeguarding the interest of the plaintiffs. For the reasons aforesaid, it is manifest that impugned orders of the courts below are manifestly illegal and perverse because the plaintiffs failed to make out necessary ingredients for grant of temporary injunction. The impugned orders are, therefore, un-sustainable and suffer from jurisdictional error. Accordingly, the instant revision petition is allowed and impugned order Annexure P/2 of the trial court and impugned judgment Annexure P/1 of the lower appellate court are set aside and application moved by respondents no. 1 to 3 for temporary injunction stands dismissed. However, if during the pendency of the suit, defendants no. 1 to 4 i.e. petitioner and proforma respondents no. 4 to 6 alienate suit land or any part thereof, they shall specifically recite in the deed of alienation about the pendency of the suit so that the alienee may not take the plea of being Civil Revision No. 2534 of 2009 -5- bonafide purchaser without notice of the pendency of the suit. This direction shall safeguard interest of plaintiffs. Nothing observed hereinbefore shall be construed as an expression of opinion on the merits of the suit. ( L.N. Mittal ) October 12, 2010 Judge 'dalbir'