AKSHEY KUMAR Vs. RAKESH KUMAR

JUDGEMENT

(1.) AKSHEY Kumar minor plaintiff (Petitioner-herein) is the son of Mukesh Kumar son of Ram Sarup. Through his mother, he instituted suit for permanent injunction restraining his uncle Rakesh Kumar son of Ram Sarup defendant (respondent-herein) from making construction on portion of house being NC No. 4370 situated in Kikar Bazar, Bathinda beyond his 1/2 share and particularly on any specific portion of this house without getting it partitioned and further restraining Rakesh Kumar from demolishing any construction on the excess and specific portion of the house and also restraining him from alienating the excess and specific portion of the house without getting the same partitioned. Basis of his claim was that this house was originally owned by his grand-father Ram Sarup. Ram Sarup died on 3.2.1998. During his life time, he had executed will dated 4.1.1998 wherethrough he had bequeathed this house to him and his uncle Ramesh Kumar in equal shares and this house is still their joint property and is lying unpartitioned by metes and bounds. Some portion is in his possession. Rakesh Kumar respondent-defendant forcibly demolished the front portion of the premises which abuts the road side and he had threatened to demolish the remaining portion and to reconstruct the demolished portion so that he occupies the excess and valuable portion abutting the bazar side and thus the plaintiff would be deprived of the occupation of that more valuable portion abutting the bazar side. It was alleged by him in the plaint that Rakesh Kumar was bent upon raising construction on the excess and specific portion which is more valuable and also bent upon alienating that excess and specific portion of the house which is more valuable to some body else without getting the same partitioned.

(2.) RAKESH Kumar contested the suit urging that during his life time Ram Sarup had executed a registered Will on 12.6.1996 vide which he had willed away area measuring 18'x38' situated on the back side to the plaintiff while he had willed away the front portion situated towards the Kikar Bazar measuring 18'x38' to him. Ram Sarup died on 3.2.1998. It was further pleaded that this Will dated 12.6.96 is the last Will and testament of Ram Sarup and on account of this Will, he is in possession of the front portion of the house situated towards the Kikar Bazar and, therefore, he has the right to demolish any construction lying constructed on this portion and raise construction afresh thereon. It was further urged that the Will set up by Akshey Kumar plaintiff is also forged and fabricated. Alongwith the plaint, Akshey Kumar moved an application for the grant of temporary injunction to the said effect.

(3.) AKSHEY Kumar went in appeal to the learned Additional District Judge, Bhatinda. Learned Addl. Distt. Judge, Bathinda dismissed the appeal holding that the order refusing temporary injunction is of discretionary character which shall not be interfered with by Appellate Court unless the discretion exercised by the trial Court had been exercised arbitrarily, capriciously and in disregard of the sound legal principles or without considering all the relevant records.