AO/227/2015
2021 Latest Caselaw 386 UK

     IN THE HIGH COURT OF UTTARAKHAND
                         AT NAINITAL
         ON THE 22ND DAY OF FEBRUARY, 2021
                                BEFORE:
      HON'BLE SHRI JUSTICE MANOJ KUMAR TIWARI


         APPEAL FROM ORDER No. 227 of 2015


     BETWEEN:

     Smt. Khushnooda Begum.                             ....Appellant
         (By Mr. Sudhir Kumar, Advocate)


     AND:

     Javed Akhtar and others.                      .....Respondents

         (By Mr. Siddhartha Singh, Advocate for respondent no.
         26)


                              JUDGMENT

This Appeal under Order 43 Rule 1 (r) C.P.C. has been filed against the order dated 20.01.2015 passed by learned IInd Additional Civil Judge (Senior Division), Dehradun in Original Suit No. 372 of 2013. By the said order, temporary injunction application filed by the appellant, who is plaintiff in the suit, has been rejected.

2. Appellant filed a suit for partition. Alongwith the said suit, she filed a temporary injunction application with a prayer that the defendants to the suit be restrained from interfering with the peaceful possession over the property in question. The appellant had also sought injunction against the defendants, restraining them from creating any third party interest over the suit property and also from changing the

nature of the suit property. The said application was rejected by the trial Court, by placing reliance upon an affidavit filed by the appellant (plaintiff) in proceedings under Section 34 of L.R. Act, wherein she had made a statement that the suit property has been partitioned much earlier. Learned trial Court has also considered the fact that the appellant herself has earlier transferred her share in the suit property in favour of defendant nos. 27 & 28.

3. Heard learned counsel for the parties and perused the record. From the perusal of the order impugned in this Appeal, this Court does not find any reason to interfere. Learned Court below has considered all the relevant factors i.e. prima facie case, balance of convenience and irreparable injury in great detail and has come to the conclusion that defendants have not been able to make out a case for grant of temporary injunction.

4. In such view of the matter, this Court declines to interfere in the matter. However, having regard to the fact that the partition suit was filed by the appellant in the year 2013 and more than seven years have gone by, the Appeal is disposed of with a request to learned trial Court to decide Original Suit No. 372 of 2013 as expeditiously as possible, preferably within a period of twelve months from the date of production of certified copy of this order.

5. It is made clear that transfer of the suit property made by the parties or construction, if any, raised by the parties thereupon, shall be subject to final outcome of the said suit.

(MANOJ KUMAR TIWARI, J.) Arpan