Gurnam Kaur vs Jaswant Singh

G.C. Garg, J.—The Petitioner basing her claim on an oral family partition, filed a suit for declaration to the effect that she was owner of 5/36 share of the agricultural land measuring 476 kenals 12 Marias and entitled to get her name incorporated in the revenue record accordingly.

Along with the plaint, an application seeking temporary injunction against the Respondent her brother, restraining him from alienating or creating any encumbrance over the land in question, was also filed. The application was dismissed by the trial Court on September 19, 1990 by holding that the Petitioner had not been able to make out a prima facie case for grant of temporary injunction. Appeal preferred against that order did not meet with success. Hence, the present revision petition.

After hearing learned Counsel for the parties, I find no merit in the revision petition. The Petitioner has failed to show that she has a prima facie case. She has even failed to show that in the event of injunction being not granted, she will suffer any irreparable loss. As noticed above, the Petitioner is basing her claim only on the basis of an oral family settlement. Obviously, no writing ever came into existence. The alleged family settlement has not been incorporated in any record. The date of the alleged family settlement has not been mentioned. It will be appropriate to point out that the land in dispute was initially purchased by the Respondent somewhere in the year 1959 and he continues to be recorded as owner and in possession thereof. No occasion arose for the family settlement between the brothers and sisters.

The husband of the Petitioner also filed a suit which is pending disposal. In that suit, her husband had claimed ownership rights in the land in dispute on the ground that the Respondent was only a benamidar and he was the real owner. In the alternative, it was averred that he was the owner by adverse possession. The injunction application moved by the husband of the Petitioner failed upto the High Court.

Learned Counsel for the Petitioner has not been able to show any semblance of a right in favour of the Petitioner except by stating that she acquired right in the land in dispute on account of oral family settlement. It is not even alleged or shown on the record that the Petitioner is in possession of the land in dispute yet an order of stay of dispossession was obtained at the time of motion hearing. The only injunction sought by the Petitioner was that the Respondent be restrained from alienating/creating any encumbrance over the property in dispute till the disposal of the suit. Even otherwise, any alienation made by the Respondent during the pendency of the suit will be hit by the rule of lis pendence. The courts below have thus, rightly declined the injunction prayed for by the Petitioner and I see no ground to interfere with the discretion exercised by them while dismissing the Petitioner''s application under Order 39 Rules 1 and 2 of the Code of Civil Procedure. The revision petition consequently fails and is dismissed. No costs.