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Dinesh & Ors. Vs Het Ram
CMA Regd. No.47/2024
IN THE COURT OF PRAVEEN GARG ADDITIONAL
DISTRICT JUDGE (I), SHIMLA, H.P.
CIS Computer Reg. No. 47/2024
CIS CNR No.HPSH100076042024
Civil Misc. Appeal No.23-S/14 of 2024
Trial Court Case No. 900367/2017
Date of Institution: 14.10.2024
Date of Decision : 27.05.2025.
In case:-
1. Dinesh son of Late Shri Jamna Dass.
2. Ram Chand son of Late Shri Jamna Dass.
3. Kaushalya wife of Late Shri Jamna Dass.
4. Santosh daughter of Late Shri Jamna Dass.
5. Mamta daughter of Late Shri Jamna Dass.
All residents of Village Cheoti, P.O. Jathia Devi via
Totu, Tehsil & District Shimla, H.P.
…Appellants/Defendants
-Versus-
Het Ram son of Late Shri Shonkia, R/o village Chaili Kalan,
P.O. Chaili via Summer Hill, Shimla-5, Tehsil & District
Shimla, H.P.
...Respondent/plaintiff.
CIVIL MISC. APPEAL UNDER SECTION
104 READ WITH ORDER 43 RULE 1(r)
OF THE CODE OF CIVIL PROCEDURE
AGAINST THE ORDER DATED
04.09.2024, PASSED BY LD. CIVIL
JUDGE, COURT NO.(4), SHIMLA, IN
C.M.A. NO.900367/2017, FILED BY
PLAINTIFF UNDER ORDER 39 RULES 1
& 2 READ WITH SECTION 151 OF CPC,
TITLED AS HET RAM VS DINESH &
ORS. WHEREBY THE SAID
APPLICATION HAS BEEN ALLOWED.
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CMA Regd. No.47/2024
Presence:
For the Appellant(s) : Sh. R.K. Khidta, Advocate
For the Respondent(s) : Sh. T.C. Sharma, Advocate
JUDGMENT
The present appeal has been preferred against
the order dated 04.09.2024, passed by the learned Civil
Judge, Court No.4, Shimla, District Shimla, H.P., in an
application under Order 39 Rules 1 & 2 of the Code of Civil
Procedure, in C.M.A. CIS Regd. No.900367/2017, case
titled as 'Het Ram vs Dinesh Kumar & Ors.', whereby, the
application filed by applicant/plaintiff under order 39 Rule 1
& 2 for grant of temporary injunction during the pendency of
suit had been allowed by learned Court below.
2. For the sake of convenience, the parties shall
be referred in the present appeal as arrayed before learned
Court below.
3. The aforesaid appeal arise from a suit instituted
by the plaintiff seeking a decree of declaration and
permanent prohibitory injunction against the defendants,
restraining them from cutting any valuable trees, over any
part/portion of the land comprised in Khewat No.34,
Khatauni No.59, Khasra Nos.178, 183, 202, 225, 267, 277,
Kitas-6, measuring 00-15-36 hectares and Khewat No.32,
Khatauni No.57, Khasra Nos.179, 180, 181, 422/185, 210,
212, 213, 430/214, 237, 257, 285 and 286, Kitas-12, total
measuring 00-71-48, situated at Mauja Kayargi, Tehsil &
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CMA Regd. No.47/2024
District Shimla, H.P. till the final disposal of the main suit.
4. It was submitted that the father of the plaintiff,
and the predecessor-in-interest of the defendants as well
as proforma defendants, was possessed of immovable
properties situated in three distinct revenue villages,
namely: (i) Mauja Chaili, Tehsil Shimla (Rural), District
Shimla; (ii) Mauja Shadog, Tehsil and District Shimla; and
(iii) Mauja Kiargi, Tehsil Shimla (Rural). It was further
submitted that late Shri Shonkia, upon his demise, was
survived by his legal heirs, namely Smt. Devku (widow),
and his sons Jeet Ram, Sukh Ram, Jamna Dass, Het Ram,
and daughters Janku, Sunehru, and Drugi. The said fact
stands duly reflected in the revenue record, as evidenced
by Mutation No. 214 dated 06.02.1979 pertaining to Mauja
Chaili Kalan. It was also submitted that subsequent to the
attestation of the aforementioned mutation, some of the
original legal heirs of late Shri Shonkia expired, and their
respective legal representatives have been arrayed as
defendants and proforma defendants in the present suit.
5. It was averred that the plaintiff and the other
proforma defendants were led to believe by late Shri
Jamna Dass that on the basis of the already attested
mutation in Mauja Chaili, he would also cause the mutation
in respect of the property situated in Mauja Kiargi to be
entered and attested in favour of all the legal heirs of late
Shri Shonkia. He had assured them that he would
personally take care of the said process, and hence, they
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need not concern themselves with the same. It was
submitted that acting upon such assurance and being
under a bona fide belief of their brother late Shri Jamna
Dass, the plaintiff and proforma defendants did not pursue
the matter of mutation in Mauja Kiargi. However, to their
utter shock and dismay, it came to their knowledge that late
Shri Jamna Dass, in utter breach of trust, got the mutation
of the property in Mauja Kiargi effected solely in his own
name, falsely projecting himself as the sole legal heir of
late Shri Shonkia. It was submitted that such fraudulent act
was committed by late Shri Jamna Dass with mala fide
intention and by deliberate suppression and concealment
of material facts. The said mutation was caused to be
entered and attested behind the back of the plaintiff and
proforma defendants in the year 1987, i.e., approximately
nine years after the demise of late Shri Shonkia, by way of
Mutation No. 260 dated 12.11.1987. It is submitted that the
said mutation is the result of fraud, is illegal, void ab initio,
and is not binding upon the rights and interests of the
plaintiff and proforma defendants, and as such, deserves to
be declared null and void.
6. It was further submitted that the suit land forms
part of the ancestral and coparcenary property of late Shri
Shonkia and, in the absence of any testamentary
disposition (Will), the same was required to devolve upon
his legal heirs by operation of natural succession under
Hindu Law. The impugned mutation order No. 260 dated
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CMA Regd. No.47/2024
12.11.1987, passed by the Learned Assistant Collector 2nd
Grade, Shimla, is therefore wholly illegal, without
jurisdiction, and in stark contradiction to the factual and
legal position. Moreover, no notice or opportunity of being
heard was ever granted to the plaintiff or any other
interested party prior to the attestation of the said mutation,
which renders the order non est in the eyes of law. It was
also submitted that a portion of the suit land is situated
adjacent to the road and is of high potential and value,
being developed and having irrigated fields and valuable
trees including species such as Tuni, Baan, Cheel, Kial,
Kharak, Beol, and Karyal. The defendants are attempting to
encroach upon and appropriate the most valuable portion
of the said property by raising construction thereon with an
ulterior motive to oust the plaintiff and effect an unlawful
and forcible partition of the coparcenary property.
7. In view of the above submissions, the plaintiff is
constrained to institute the present suit for declaration to
the effect that Mutation No. 260 dated 12.11.1987 is illegal,
void ab initio, and not binding on the plaintiff and proforma
defendants, and further seeks a decree for permanent
prohibitory injunction restraining the defendants from
raising any construction or causing any third-party interest
over the suit land, along with an appropriate application
seeking temporary injunction till the final adjudication of the
suit.
8. In written statement and reply on behalf of
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defendants, preliminary objections qua maintainability,
clean hands, suppression of material facts, estoppel, bad
for non-joinder and mis-joinder of necessary parties and
limitation have been raised. It has been contended that the
plaintiff does not possess any right, title, or interest
whatsoever in respect of the suit land. It has been
submitted that Late Shri Shonkia was a resident of village
Sharog, whereas the land situated in Mauja Kayargi was
owned and possessed by Late Shri Kishnu. The said Late
Shri Kishnu executed a valid Will in favour of Late Smt.
Devku, wife of Late Shri Shonkia. Subsequently, Smt.
Devku, by way of a duly executed Will, bequeathed the
said property in favour of Late Shri Jamna Dass. Upon the
demise of Shri Jamna Dass, the answering defendants
have inherited the suit property in accordance with the
aforesaid testamentary [Link] mutation of the
land has been lawfully attested in favour of Shri Jamna
Dass on the basis of the Will executed by Smt. Devku. It is
further submitted that the said Will has never been
challenged before any competent authority or court of law
till date, and hence, the objections now raised by the
plaintiff are devoid of merit and not legally sustainable.
Additionally, Mutation Entry No. 260 dated 12.11.1987 has
been attested in accordance with law and is valid in all
respects.
9. It is emphatically denied that the land in
question, alleged to belong to Late Shri Shonkia, was
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ancestral or coparcenary in nature. On the contrary, it is
submitted that the said land was initially owned and
possessed exclusively by Late Shri Shonkia, which fact is
clearly borne out from the entries in the relevant revenue
records. The mutation in respect of the said land was duly
attested by the competent revenue authorities after
following the prescribed legal procedure. It was further
submitted that the plaintiff, along with the other proforma
defendants, had due knowledge of the attestation of the
said mutation from the very inception. Therefore, the
institution of the present suit at this belated stage is not
maintainable either in law or on facts. The plaintiff has
never challenged the legality or validity of the said mutation
order till date, and as such, the same has attained finality
under law. The answering defendants have been in
continuous, peaceful, and uninterrupted possession of the
suit land since the year 1987, thereby establishing their
ownership rights over the same.
10. It was further denied that the suit land is
unpartitioned. The answering defendants are the rightful
owners in possession of their respective shares in the land
since 1987, as per due legal entitlement. The answering
defendants are well within their legal rights to utilize and
enjoy their land in the manner they deem fit. The
allegations levelled by the plaintiff to the effect that the
answering defendants are threatening to cut valuable trees
from the suit land for the alleged purpose of constructing a
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house for the plaintiff are vehemently denied as false,
frivolous, and baseless. The plaintiff has no concern or
connection whatsoever with the suit land, and hence, no
cause of action arises in his favour. All other averments
and allegations made in plaint were also specifically
denied. It was prayed that suit well as the application for
temporary injunction deserves to be dismissed.
11. The Learned Trial Court, after hearing the
arguments advanced by the Learned Counsel for both
parties and upon a prima facie appreciation of the evidence
presented, formed the opinion that the plaintiff had
established a case warranting the grant of temporary
injunction. Consequently, the application filed by the plaintiff
under Order 39, Rules 1 and 2 of the Code of Civil
Procedure (CPC) was allowed.
12. The appellants/defendants, being aggrieved by
the impugned order dated 04.09.2024 passed by the
Learned Civil Judge, Court No. 4, Shimla, have preferred
the present appeal on the grounds that the impugned order
is vitiated by conjectures and surmises and is contrary to
the material facts and documentary evidence available on
record, and as such, is liable to be set aside. It is
respectfully submitted that the Learned Trial Court, while
passing the impugned order, has failed to consider the
pleadings and the documents duly filed by the appellants,
and has erroneously proceeded to form a conclusion in
disregard thereof.
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13. The Learned Trial Court has incorrectly held
that the plaintiff is recorded as one of the sons of Late Shri
Shonkia Ram and has further proceeded on the
assumption that, in the main suit, the plaintiff has
challenged the mutation of inheritance in favour of the
appellants and that a prima facie case exists in favour of
the plaintiff as a legal heir of the deceased Shri Shonkia
Ram. It is submitted that the findings so recorded by the
Learned Court below are not borne out from the record and
are in direct contradiction to the true and correct factual
position. The suit land has been validly inherited by the
appellants on the basis of a duly executed Will by Late
Smt. Devku in favour of Shri Jamna Dass, and upon the
demise of Shri Jamna Dass, the appellants have lawfully
succeeded to the said property. The mutation No. 260,
dated 12.11.1987, has been duly attested as per law and
holds legal validity in all respects
14. It is submitted that the Learned Court below has
erred in law and on facts in concluding that the balance of
convenience and irreparable loss and injury can be
presumed in favour of the plaintiff. It is submitted that no
prima facie case is made out by the plaintiff, nor does the
balance of convenience tilt in his favour. On the contrary, it
is the appellants who shall suffer irreparable loss and injury
in the event they are restrained from exercising their rights
over the suit property, which they have lawfully inherited
from their predecessor-in-interest.
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15. It is further submitted that the Learned Court
below, while passing the impugned order, has observed
that the Court cannot go into the credibility of the
allegations and counter-allegations at this stage. However,
paradoxically, the Court has simultaneously concluded that
the plaintiff ought to be given an opportunity to prove his
claim by leading evidence, and that the subject matter of
the suit deserves to be preserved for that purpose. It is
submitted that the Learned Trial Court, while allowing the
application of the plaintiff, has completely overlooked the
fact that the mutation under challenge stands duly attested
on the basis of a valid Will executed in favour of the
appellants. It is pertinent to note that the said Will has not
been challenged by the plaintiff in the suit proceedings.
Despite this material omission on the part of the plaintiff,
the impugned order has been passed, which is
unsustainable in the eyes of law and deserves to be set
aside.
16. It is submitted that the Learned Court below,
while passing the impugned order, has completely failed to
appreciate that Mutation No. 260 was duly attested on
12.11.1987 and has never been challenged by the plaintiff
in any appeal or appropriate legal proceedings, thereby
attaining finality. The present suit has been instituted after
an inordinate delay of more than 30 years, which is clearly
barred by limitation. Despite this, the Learned Court below
has erroneously proceeded to pass the impugned order in
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favour of the plaintiff, which is legally unsustainable and
deserves to be set aside. It is further submitted that the
Learned Court below has disregarded the material fact that
the appellants inherited the suit property in the year 1987
from their predecessor-in-interest and have been in
continuous possession and enjoyment of the same ever
since. The appellants have developed the land and planted
trees thereon, and the property has remained under their
ownership and possession without any interruption. In view
of the above facts, the impugned order ought not to have
been passed against the appellants, especially when the
plaintiff has no right, title, or interest in the suit property in
any manner whatsoever. The order passed by the Learned
Court below, therefore, suffers from grave legal infirmities
and is liable to be set aside in the interest of justice.
17. It is further submitted that the Learned Court
below has erred in law in arriving at the conclusion that the
suit property deserves to be preserved. A bare perusal of
the revenue record as well as the pleadings and
documents placed on record by the appellants clearly
establishes that the plaintiff has no right, title, or interest
whatsoever over the suit land situated at Mauja Kiaragi,
Tehsil and District Shimla. Despite this, the Learned Court
below has, without any legal basis, presumed facts in
favour of the plaintiff, which is impermissible under the
settled principles of law. The Learned Trial Court has
completely ignored the defence taken by the appellants
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and the documentary evidence produced on record, which
conclusively demonstrate that the plaintiff has no claim or
entitlement over the suit property. Nevertheless, the
Learned Court below has proceeded to restrain the
appellants/defendants from cutting valuable trees standing
on their own land, which has been legally inherited and
possessed by them. Such restraint imposed by the Learned
Court below is wholly arbitrary, without jurisdiction, and
cannot be sustained either in fact or in law. Accordingly, the
impugned order is vitiated by serious legal infirmities and
deserves to be set aside in the interest of justice.
18. I have heard learned counsel for the parties at
length and have also gone through the entire case record
as well as impugned order dated 04.09.2024 passed by
learned Court below.
19. The following points arise for determination in
the present appeal:-
(1) Whether the impugned order 04.09.2024,
passed by the learned trial court is legally
and factually sustainable?
(2) Relief.
20. For the reasons, to be recorded hereinafter, the
findings on the aforesaid point, are as under:-
Point No.1 : Yes.
Relief : The civil miscellaneous
appeal is dismissed as per
the operative part of the
judgment.
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“REASONS FOR FINDINGS”
POINT NO.1
21. A temporary injunction is an equitable relief
granted under Order 39 Rules 1 & 2 of the Code of Civil
Procedure, 1908 (CPC), for preserving the status of the
subject matter of litigation until the final adjudication of
rights. The principles governing the grant of temporary
injunction, as settled by the Hon’ble Supreme Court in
numerous cases, require the plaintiff to satisfy three
essential conditions:
(i) Prima Facie Case – The applicant must demonstrate a
reasonable likelihood of success in the main suit. A prima
facie case implies the existence of a serious disputed
question that requires adjudication in the suit. However, it
does not necessitate proving the case beyond doubt at the
interim stage. The requirement is only to ascertain whether,
based on the averments in the plaint and the supporting
documents filed by the plaintiff, the view taken is a
plausible one. Reference may be made to the judgment in
M. Gurudas v. Rasranjan, (2006) 8 SCC 367.
(ii) Balance of Convenience – The balance of
convenience refers to the comparative hardship or
inconvenience likely to be caused to either party in the
event of grant or refusal of the injunction. The Hon’ble
Supreme Court in Dalpat Kumar v. Prahlad Singh, AIR
1993 SC 276 has laid down that the balance of
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convenience must be determined by considering which
party would suffer greater hardship in case of an adverse
order.
(iii) Irreparable Injury – The applicant must show that in
the absence of an injunction, an injury will occur that
cannot be adequately remedied by damages. With respect
to irreparable injury, the settled legal position dictates that
an injury cannot be termed irreparable if it can be
adequately compensated by way of monetary damages or
if other efficacious remedies are available to the applicant.
Reliance is placed on the judgments in Kuldip Singh v.
Subhash Chandra Jain, AIR 2000 SC 1410, and
Maharawal Khewaji Trust v. Baldev Dass, (2004) 8 SCC
488.
22. It is an admitted fact that the suit land originally
belonged to Late Shri Kishnu, who was the brother-in-law
of Late Shri Shonkia Ram. It is also undisputed that both
the plaintiff and Late Shri Jamna Dass—the predecessor-
in-interest of the defendants—were sons of Late Shri
Shonkia Ram. The plaintiff’s case is premised on the
assertion that the suit land constituted coparcenary
property within the joint Hindu family and, therefore, should
devolve upon all Class-I legal heirs of Late Shri Shonkia
Ram by way of natural succession, in accordance with the
principles of Hindu Succession Law.
23. In contrast, the defendants have contested this
position by relying on two testamentary documents: first, a
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Will allegedly executed by the original owner, Late Shri
Kishnu, in favor of Late Smt. Devku (wife of Shri Shonkia
Ram and sister of Shri Kishnu), and second, a subsequent
Will executed by Late Smt. Devku in favor of her son, Late
Shri Jamna Dass. Based on these Wills, the defendants
claim that the suit land is not ancestral or joint family
property of Late Shri Shonkia Ram but rather self-acquired
property of Smt. Devku, derived through bequest, and
subsequently passed on to Jamna Dass. Accordingly, the
defendants assert that mutation No. 260 was lawfully
entered in their favor based on the chain of testamentary
succession.
24. However, this narrative warrants closer scrutiny.
A careful perusal of the Will dated 10.04.1969, which the
defendants themselves rely upon and claim was executed
by Late Shri Kishnu, reveals that the bequest was not
made solely in favor of Late Smt. Devku. Instead, the Will
clearly indicates that the suit land was devised jointly in
favor of both Late Shri Shonkia Ram and Late Smt. Devku.
Furthermore, documentary evidence on record shows that
the mutation under challenge—mutation No.260 dated
12.11.1987 was not effectuated on the basis of any Will
executed by Late Smt. Devku. Rather, the said mutation
was entered based on a declaration made by Late Shri
Jamna Dass on 13.03.1987, wherein he represented
himself as the sole legal heir of Late Shri Shonkia Ram and
the share of late Shri Shonkia Ram was mutated in favour
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of Jamna Dass. Such a representation is patently
erroneous in light of the admitted fact that the plaintiff is
also a son of Late Shri Shonkia Ram. Therefore, the
mutation cannot be presumed to have been validly
recorded, nor can it override the rights of other legal heirs
under the law of succession.
25. In view of the above, the conclusion drawn by
the Learned Trial Court that a prima facie case exists in
favor of the plaintiff is not only legally sustainable but also
grounded in the factual matrix of the case.
26. With regard to the contention advanced by the
learned counsel for the appellants—that the plaintiff has
failed to challenge the Will in the main suit—it is pertinent
to note that the burden of proof regarding the genuineness,
execution, and legal validity of the Will lies squarely upon
the defendants. Since it is the defendants who have
asserted their right to the suit land on the strength of these
Wills, it is incumbent upon them, under Section 68 of the
Indian Evidence Act, 1872, to prove the Will in accordance
with law. The absence of a direct challenge to the Will by
the plaintiff does not disentitle him to interim relief.
27. With respect to the issue of balance of
convenience and irreparable loss, it is essential to clarify
the correct legal position. It is a well-settled principle of law
that, while adjudicating an application for interim injunction,
the Court is not required to merely weigh which party is
more inconvenienced. Rather, the Court must assess
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whether the balance of convenience favors the grant or
refusal of the injunction in order to preserve the subject
matter of the suit and maintain status quo until final
adjudication.
28. In the present matter, the plaintiff has sought an
injunction restraining the defendants from alienating or
altering the nature and character of the suit land by cutting
of valuable trees during the pendency of the proceedings.
The underlying rationale is that if, in the absence of interim
relief, the defendants proceed to sell, transfer, or materially
alter the property by cutting of valuable trees etc., it would
not only prejudice the plaintiff's claim but also complicate
the litigation further by involving third parties interest.
29. It is a settled principle under Section 52 of the
Transfer of Property Act, 1882, commonly known as the
doctrine of lis pendens, that during the pendency of any
suit in which rights to immovable property are directly and
specifically in question, the property in dispute cannot be
transferred or otherwise dealt with in a manner that may
affect the rights of the other party under any decree that
may be passed in such suit. This doctrine exists to prevent
the frustration of the court’s eventual decision and to
ensure that parties cannot defeat the rights of others by
transferring property pendente lite.
30. In the present case, if the interim injunction is
not granted, and the defendants proceed to alienate the
suit land or alter its physical condition by cutting down
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valuable trees, a subsequent transferee, though legally
deemed to have constructive notice of the pending
litigation, may acquire interest in the suit land in good faith
and without knowledge of the full legal complexities. Such a
transferee, despite having no fault, may be unnecessarily
drawn into prolonged and multifaceted litigation, leading to
legal uncertainty and potential hardship. This would defeat
the purpose of expeditious and effective resolution of the
underlying dispute.
31. Therefore, the balance of convenience
decisively favors the grant of an interim injunction. Granting
the injunction would maintain the status quo, safeguard the
subject matter of the litigation, and prevent the introduction
of third-party rights that may hinder or delay the
implementation of the final decree.
32. As regards the element of irreparable harm or
injury, it is noteworthy that it is an admitted position that the
suit property remains unpartitioned and the ownership
rights are under contestation. If, during the pendency of the
litigation, the defendants are permitted to alter the physical
nature of the land—such as by construction, tree-cutting, or
other developmental activities—it may lead to diminution in
the value, identity, or utility of the property. Such changes
may be irreversible in nature and could result in the plaintiff
suffering harm which cannot be adequately compensated
by monetary damages.
33. Hence, in the interest of justice, to avoid
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irreversible consequences and to ensure that the final
decree, if passed in favor of the plaintiff, is capable of being
effectively implemented, it is imperative that the nature and
character of the suit land be maintained as it exists today.
34. In light of the above, both the balance of
convenience and the potential for irreparable loss clearly
warrant the grant of an interim injunction in favor of the
plaintiff. This would serve to safeguard the subject matter of
the suit and prevent any action by the defendants that
might frustrate the outcome of the pending litigation.
35. Accordingly, the findings of the Learned Trial
Court, granting interim relief in favor of the plaintiff and
preserving the suit property for adjudication, are rooted in
sound legal reasoning and do not suffer from any material
irregularity or perversity warranting interference at the
appellate stage. Accordingly, the point no.1 is decided in
favour of respondent and against the appellants.
RELIEF (FINAL ORDER)
36. As a sequel of my findings on point No. 1
above, the instant appeal is dismissed devoid of any
merits and impugned order dated 04.09.2024, passed by
learned Court below after through and correct appreciation
of facts and law available upon case file is affirmed.
37. However, it is also made clear that the
observations made here-in-above shall remain
confined to the disposal of application only and shall
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have no bearing on the merits of the case. Memo of
costs be prepared accordingly. Applications, if any, stands
disposed off being infructuous.
38. The parties are directed to appear before
learned Court below on date already fixed by the learned
trial Court.
39. The file of the learned trial Court along with a
copy of this judgment be sent back and the file of this court,
after due completion, be consigned to the Record Room.
Announced in the open court on this 27th day of
May, 2025.
(Praveen Garg)
Additional District Judge (1),
Shimla, District Shimla, H.P.
VT