2025:HHC:20308 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.97 of 2025 Decided on: 27.06.2025 Vivek Kumar ….Petitioner Versus Deepak Kumar ...Respondent Coram Hon’ble Mr. Justice Satyen Vaidya, Judge Whether approved for reporting? For the petitioner: Mr. Subhash Sharma, Senior Advocate with Mr. Prantap Sharma, Advocate. For the respondent: Ms. Shrutika, Advocate. Satyen Vaidya, Judge (Oral) By way of instant petition, the petitioner has assailed order dated 26.12.2024, passed by learned Additional District Judge-I, Una in Civil Miscellaneous Appeal No.33/2023, whereby the order dated 01.08.2023 passed by learned Civil Judge, Court No.III, Amb in CMA No.244-VI/21 has been set aside. 2. The respondent herein is the plaintiff in Civil Suit No.139/1 of 2021 pending on the files of learned Civil Judge, Court No.III, Amb. The suit has been filed against the petitioner herein/defendant and others, impleaded as proforma defendants. The parties hereafter shall be referred to by the same status as they hold before the original Court. 3. The plaintiff, defendant and proforma defendants are real brothers and sisters. The dispute is with respect to 2 immovable property detailed in the plaint, left behind by their father late Shri Rajinder Pal. 4. The defendant is claiming exclusive right over the entire suit property on the basis of a Will dated 25.02.2019 allegedly executed by late Shri Rajinder Pal. 5. By way of the above noted suit, the plaintiff has challenged the Will. 6. Along with the suit, the plaintiff also preferred an application under Order 39 Rules 1 and 2 CPC for interim injunction and thereby sought to restrain the defendant from taking the forcible exclusive possession by ousting the applicant/plaintiff and proforma defendants from joint possession, changing the nature, raising any sort of construction and getting the mutation attested on the basis of Will. 7. The defendant contested the application. 8. Learned trial Court vide order dated 01.08.2023 dismissed the application for interim relief. In appeal filed by the plaintiff under Order 43 Rule 1(r) of the Code, the order passed by learned trial Court has been set aside and the appellate Court vide impugned order has directed the parties to maintain status quo qua nature, construction, possession and alienation of the suit land till the disposal of the main suit. 3 9. I have heard learned counsel for the parties and perused the record carefully. 10. Learned Senior Advocate representing the defendant has taken the Court through the reasons given by both the Courts in support of their respective views. The learned trial Court was persuaded not to grant interim injunction order for the reasons firstly that the plaintiff had not been able to establish prima facie case as the Will was a registered document carrying some presumption; secondly, the allegation that the Will was result of some mischief was not believable as the executant had remained as “Numberdar” at one point of time; thirdly, the proforma defendants who were none other than the sisters of the plaintiff and defendant had supported the case of the defendant and lastly, the Will was required to be proved in accordance with law. The appellate Court did not concur with the reasons assigned by learned trial Court. The Appellate Court found that the claim of the plaintiff as to ownership and possession of the suit land was yet to be adjudicated. The plaintiff would be entitled to a share in the suit property, in the case of intestate succession of the suit property was established. On weighing the comparative mischief/hardship and inconvenience, learned appellate Court found weight in favour of the plaintiff. 4 11. Learned counsel for the plaintiff has supported the impugned order by contending that the Will is subject to proof in accordance with law and till the time the defendant succeeds in proving the Will, the plaintiff cannot be outrightly ousted from the suit property. She further submitted that mere attestation of mutation is not sufficient and the Will once challenged, cannot be acted upon till the adjudication of the Court on the disputed issues. 12. Having considered the rival contentions, I am of the view that the order passed by learned appellate Court needs to be modified for the reasons detailed hereinafter. 13. The effect of impugned order will be harsh on both sides as they have been directed to maintain status quo qua nature, construction, possession and alienation of the suit property till the disposal of main suit. The suit is at its initial stage and in normal circumstances it is going to take considerable time before final disposal. The effect of the impugned order will remain for indeterminate period. The suit property shall be rendered useless for all the stake holders. 14. Noticeably, the plaintiff even if succeeds in the suit will only be entitled to 1/6th share in the entire suit land. It is not the case where the plaintiff is seeking exclusive right to the entire 5 suit property. That being so, the right of the plaintiff can be protected by putting the defendant to terms. The preservation of the suit land to the extent of 1/6th share can be ordered as an equitable measure to balance the interest of both sides. In this manner, the defendant will be able to use the suit property after excluding the share of the plaintiff and simultaneously the interest of the plaintiff shall also be protected. In case the plaintiff succeeds in the suit, he will not be put to irreparable loss and injury. 15. In result, the petition is allowed. Order dated 26.12.2024, passed by learned Additional District Judge-I, Una in Civil Miscellaneous Appeal No.33/2023, is modified to the extent that defendant will be at liberty to use the suit land except 1/6th share thereof which share shall be preserved as a consolidated plot so that least prejudice is caused to the plaintiff in case he finally succeeds in the suit. 16. The petition is disposed of accordingly along with pending application(s), if any. ( Satyen Vaidya ) Judge June 27, 2025 (vt)