Order 8

Order Details: COPY OF ORDER
Pdf Text: 34 CS SCJ 23/26
SEEMA THAKUR ALIAS POOJA VARMA Vs. SANJIV
THAKUR
03.10.2026
Present: None for the plaintiff.
Shri Surender Chauhan and Ms. Nisha, Ld. Counsel
for the defendant (Through VC)
Matter is listed for orders on application filed by the
plaintiff under Order XXXIX Rules 1 and 2 CPC.
Put up at 04.00 pm for orders.
(SAKSHI JAISWAL)
CIVIL JUDGE (NORTH)
ROHINI/DELHI/03.10.2026
At 04.00 pm.
Present: None.
Vide separate order, the application stands
dismissed.
List for arguments on maintainability on the present
suit on 06.01.2027.
(SAKSHI JAISWAL)
CIVIL JUDGE (NORTH)
ROHINI/DELHI/03.10.2026
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34 CS SCJ 23/26
SEEMA THAKUR ALIAS POOJA VARMA Vs. SANJIV
THAKUR
CNR No. DLNT030022132025
03.10.2026
ORDER
1. Vide this order, the Court shall dispose of the application
filed by the plaintiff under Order XXXIX Rules 1 and 2 CPC
seeking interim injunction against the defendant, thereby
restraining him from creating any third-party interest in the
properties owned by late Sh. Gyan Prakash Thakur and late Smt.
Kanwal Thakur and further restraining him from carrying out any
construction, modification or alteration in the said properties.
2. The case of the plaintiff, in brief, is that the plaintiff and
the defendant are the children of late Shri Gyan Prakash Thakur
and late Smt. Kanwal Thakur and that they, along with their sister
Poonam Thakur, are the only legal heirs of the deceased. It is
pleaded that late Smt. Kanwal Thakur was the owner of the five
properties mentioned in paragraph 3 and prayer clause of the plaint
and that, being one of her legal heirs, the plaintiff is entitled to
1/3rd share therein.
3. It is further pleaded that the defendant is attempting to
sell/deal with the aforesaid properties and that he has also started
construction at property bearing No. 1247, Mukherjee Nagar.
According to the plaintiff, the defendant has claimed himself to be
the exclusive owner of all the properties and has refused to
recognize the alleged share of the plaintiff and her sister.
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4. The application has been opposed by the defendant. The
defendant has pleaded that he is the owner of the property and that
the construction being carried out by him is in accordance with the
applicable municipal bye-laws. It is further the case of the
defendant that late Smt. Kanwal Thakur executed a registered Will
dated 22.03.2011 whereby her movable and immovable properties
were bequeathed in favour of the defendant and the plaintiff was
excluded from claiming any right, title or interest therein. It is also
contended that the present suit, being a suit for simpliciter
injunction, is not maintainable and that the plaintiff, if claiming
any right or share in the properties, ought to seek appropriate relief
of partition and possession.
5. I have heard learned counsel for the parties and have
perused the pleadings and material available on record.
6. While deciding an application under Order XXXIX Rule 1
and 2, the court is required to consider whether there exists a prima
facie case in favour of the plaintiff, whether balance of
convenience lies in favour of the plaintiff and whether irreparable
loss will be caused to the plaintiff if interim relief is not granted.
However, before considering the requirements of balance of
convenience and irreparable loss, it is necessary to examine
whether the plaintiff has been able to disclose a prima facie
enforceable right which can be protected in the present
proceedings.
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7. In the present case, the plaintiff claims that all the
properties mentioned in paragraph 3 of the plaint belonged to late
Smt. Kanwal Thakur. However, significantly, no title document
whatsoever has been placed on record by the plaintiff to prima
facie establish that the said properties were owned by late Smt.
Kanwal Thakur. No sale deed, conveyance deed, allotment letter,
lease deed, mutation document or other document evidencing the
ownership of late Smt. Kanwal Thakur over the properties in
question has been placed on record by the plaintiff.
8. The absence of such material assumes significance because
the entire claim of the plaintiff to a 1/3rd share is founded upon
the assertion that the properties formed part of the estate of late
Smt. Kanwal Thakur. Unless there is at least some prima facie
material demonstrating that the properties belonged to the
deceased mother, the plaintiff cannot, merely on the basis of her
relationship with the deceased, claim a prima facie proprietary or
co-sharer right in the properties.
9. The position becomes further complicated by the fact that
the defendant has specifically disputed the plaintiff’s assertion of
ownership/share and has relied upon a registered Will dated
22.03.2011 in respect of property bearing No. 1247, Mukherjee
Nagar. The question as to the validity, scope and legal effect of the
said Will is a matter which may require adjudication in appropriate
proceedings. However, at the present stage, the said Will at least
demonstrates that the plaintiff’s alleged right in the property is
seriously disputed.
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10. Even assuming, for the sake of argument, that the
properties in question belonged to late Smt. Kanwal Thakur and
that the plaintiff consequently acquired a share therein by
succession, it is an admitted position that the plaintiff is not in
possession of any of the suit properties. The plaintiff claims a share
in the properties allegedly forming part of the estate of her
deceased mother and seeks to restrain the defendant from dealing
with the properties. The plaintiff has admittedly not sought any
relief of partition or possession in the present suit, though she
herself has pleaded that she intends to file a separate suit for
partition.
12. Thus, there are two distinct reasons which operate against
the plaintiff at this stage. First, there is no prima facie documentary
material on record establishing that the five properties were owned
by late Smt. Kanwal Thakur. Second, even if it is assumed, without
deciding, that the properties belonged to late Smt. Kanwal Thakur
and that the plaintiff consequently inherited a share therein, the
plaintiff is admittedly out of possession and has not sought
partition and possession. In view of the law laid down by the
Hon’ble Supreme Court in Anathula Sudhakar v. P. Buchi Reddy
(Dead) by LRs., (2008) 4 SCC 594, a suit for simpliciter injunction
is not the appropriate remedy in such circumstances.
13. Consequently, this Court is of the prima facie view that the
present suit, in the form in which it has been instituted, suffers
from a serious question of maintainability. Since the plaintiff has
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not been able to demonstrate a prima facie enforceable right
capable of protection in the present suit, the first and foremost
requirement for grant of temporary injunction is absent.
14. Once the plaintiff fails to establish a prima facie case, the
other two requirements, namely, balance of convenience and
irreparable injury are not required to be considered.
15. Accordingly, the application under Order XXXIX Rules 1
and 2 CPC is dismissed.
16. In view of the above discussion, the issue regarding
maintainability of the suit in its present form requires
consideration. The matter be put up for arguments on the
maintainability of the suit.
17. Application, accordingly stands disposed off.
Copy of the order be given dasti.
(SAKSHI JAISWAL)
CIVIL JUDGE (NORTH)
ROHINI/DELHI/03.10.2026
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