IN THE HIGH COURT OF JUDICATURE AT PATNA
FA No.229 of 2007
SMT.SHUSHILA DEVI & ANR .
Versus
BRAJ BHUSHAN JHA .
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ORDER
10. 14.07.2010. (1) Heard the parties on the Interlocutory Application
No.7767 of 2008.
(2) This application has been filed under Order 39 Rule 1
& 2 read with Section 94 and 151 of the Code of Civil Procedure
by the appellant praying therein to restrain the respondents
from dispossessing them.
(3) The learned counsel for the appellant submitted that
the learned Court below has wrongly decreed the probate case
in favour of the respondent and on the basis of the Judgment,
the respondent is trying to dispossess the appellants from the
suit property. The learned counsel submitted that the
appellants are in possession. On the other hand, the learned
counsel appearing on behalf of the respondent submitted that it
is false to say that the appellants are in possession of the suit
property. In fact, the respondent is in possession and the
appellants reside in their sasural.
(4) From perusal of the Judgment against which this First
Appeal has been field, it appears that the learned Court below
found that on the same day, a gift deed was executed by the
father of the appellants and according to the appellant’s case
their father had come to Registration office for executing gift but
the respondent got executed will and after considering
2
evidences disbelieved the case of the appellant and allowed the
probate case in favour of the respondent.
(5) In the injunction itself at paragraph 9 and 10,
specifically, it has been mentioned that now the name of
respondent is mutated with respect to the suit property by order
of Circle Officer.
(6) It is well settled that question of possession is a
question of fact and it depends on the evidences. Prima facie
the evidence of possession, i.e., mutation order is in favour of
the respondent. The probate application has also been allowed.
Now, therefore, if the respondent is restrained from
dispossessing appellant then it will amount to finding of
possession in favour of appellant and further it will mean that
the respondent is not in possession. This matter, i.e., claim of
possession of the parties cannot be decided in this injunction
application. Moreover, prima facie the appellant have admitted
that the name of respondent is mutated regarding the suit
property.
(7) I, therefore, find that the appellants have got no
prima facie case. The balance of convenience is also not in their
favour so there is no question of any loss what to speak of
serious loss and irreparable injury.
(8) In the result, I find no merit in this injunction
application and accordingly, the injunction application is
rejected.
Sanjeev/- (Mungeshwar Sahoo, J.)