DR SHIVENDRA TRIPATHI vs SHASHI TRIPATHI

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2026:CGHC:13099
Digitally
signed by
JYOTI
SHARMA
Date:
2026.03.20
10:49:36
+0530
NAFR
JYOTI
SHARMA
HIGH COURT OF CHHATTISGARH AT BILASPUR
MA No. 165 of 2025
1. Dr Shivendra Tripathi S/o Late Dr. Sharda Prasad Tripathi Aged About 40
Years R/o Village And Post Jevra Tahsil Bemetara District- Bemetara (C.G.)
2. Dr. Jitendra Tripathi S/o Late Sharda Prasad Trpathi Aged About 52 Years
R/o Village And Post Jevra Tahsil Bemetara District- Bemetara (C.G.) Current
R/o Irrigation Colony Karantola Bhanpuri District- Bastar C.G.
... Appellant(s)
versus
Shashi Tripathi W/o Sharda Tripathi Aged About 48 Years R/o Near Collector
Office Bemetara Tahsil And District- Bemetara C.G.
... Respondent(s)
(Cause title is taken from CIS)
For Appellant(s) : Mr. Vivek Kumar Tripathi, Advocate
Hon'ble Shri Justice Bibhu Datta Guru
Judgment on Board
19/03/2026
1. The appellants/plaintiffs have preferred the present appeal under
Order 43 Rule 1(r) of the Code of Civil Procedure, 1908, being
st
aggrieved by the order dated 03.05.2025 passed by the learned 1
District Judge, Bemetara, District Bemetara (C.G.) in Civil Suit No. 01-
A/2024 (Dr. Shivendra Tripathi & Ors. Vs. Shashi Tripati), whereby the
learned trial Court rejected the application filed by the
appellants/plaintiffs under Order 39 Rules 1 & 2 r/w Section 151 of
CPC.

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2. The plaintiffs/ appellants have filed a suit for declaration and permanent
injunction regarding a house constructed on land measuring 69.96 sq.
meters comprised in Khasra No. 435/3-20, described in Schedule-A of
the plaint. Plaintiff No.1, Dr. Shivendra Tripathi, is the son of the
defendant Smt. Shashi Tripathi, and Plaintiff No.2 is her step-son. The
plaintiffs contend that Plaintiff No.1 is the sole owner of the suit
property and the defendant has no right or interest therein. It is alleged
that the defendant was convicted under Section 302 IPC for the murder
of the pregnant wife of Plaintiff No.2 and was later released after
remission. The plaintiffs further plead that their father had already
partitioned his properties between the two plaintiffs during his lifetime,
pursuant to which mutation has been effected, and therefore the
defendant has no right over the suit property. Along with the suit, the
plaintiffs have also filed an application under Order 39 Rules 1 and 2
CPC seeking temporary injunction restraining the defendant from
forcibly entering or interfering with the suit property during the
pendency of the suit.
3. Per contra, the defendant has filed a written statement along with a
counterclaim contending that after the death of her husband, late
Sharda Prashad, she is entitled to 1/3rd share in the properties left by
him, as no partition took place during his lifetime. She has alleged that
the plaintiffs conspired against her and forced her to live separately in a
rented house with minimal facilities, and that the house purchased in
her name at Bemetara was merely a show arrangement. The
defendant has further alleged that Plaintiff No.2 conspired with others
to get his own wife murdered and falsely implicated the defendant in
the criminal case. By way of counterclaim, the defendant has sought a

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declaration of her ownership and possession over several properties
including the house constructed on land measuring 69.96 sq. meters
comprised in Khasra No. 435/3-20. The defendant has also filed a reply
to the application under Order 39 Rules 1 & 2 CPC, reiterating the
averments made in the written statement and praying for dismissal of
the application for temporary injunction.
4. After hearing the parties and considering the material available on
record, the learned Trial Court observed that the defendant, being the
legal representative of her deceased husband Dr. Sarda Prashad
Tripathi, is prima facie entitled to inherit the property left by him and
there is no material on record to show that she has been deprived of
such right. The Court further held that in absence of any document
showing exclusive ownership or transfer of lease in favour of Plaintiff
No.1, the plaintiffs failed to establish a prima facie case. It was also
observed that a co-sharer cannot seek injunction against another co-
sharer and the proper remedy is a suit for partition. Accordingly, the
Trial Court held that no prima facie case or balance of convenience lies
in favour of the plaintiffs and no irreparable loss would be caused to
them. Consequently, the application under Order 39 Rules 1 & 2 CPC
was dismissed.
5. Learned counsel for the appellant/plaintiffs submits that the learned
Trial Court has committed a manifest error in rejecting the application
filed under Order 39 Rules 1 & 2 CPC without proper appreciation of
the material available on record. He further submits that Trial Court has
erred in ignoring the fact of prior partition and exclusive ownership of
appellant No.1. It is argued that the respondent has no right to interfere

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with the suit property.
6. I have heard learned counsel for the parties, perused the record and
the impugned orders with utmost circumspection.
7. Upon consideration of the record, this Court finds that the main
contention of the plaintiffs is that the defendant, having been convicted
for the murder of her daughter-in-law Smt. Bhavna Tripathi, is
disqualified from claiming any right in the suit property. However, on
perusal of Section 25 of the Hindu Succession Act, 1956, it is apparent
that disqualification from inheritance applies only in respect of the
property of the person murdered. In the present case, the defendant is
claiming inheritance in the property left by her deceased husband Dr.
Sarda Prashad Tripathi, and not in the property of the deceased
daughter-in-law. Therefore, the said provision does not disentitle the
defendant from claiming inheritance in the property left by her
husband.
8. Further, the plaintiffs have sought a decree of declaration and
injunction asserting that the suit property exclusively belongs to Plaintiff
No.1 on the basis of an alleged partition during the lifetime of their
father. However, no material document has been produced on record
to establish such partition or to show as to how the lease or title of the
suit property was transferred in favour of Plaintiff No.1. Mere mutation
entries in the revenue records do not confer title, and in absence of the
relevant documents, the claim of exclusive ownership remains
unsubstantiated.
9. It is also a settled principle of law that where parties are co-sharers in a
property, one co-sharer cannot seek injunction against another co-

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sharer, and the proper remedy in such circumstances is to seek
partition of the property. In the present case, the defendant being the
legal representative of the deceased owner cannot prima facie be
denied her right of inheritance in absence of any document showing
that she has been lawfully deprived of such right.
10. Accordingly, in absence of material documents establishing exclusive
title of the plaintiffs, it cannot be said that a prima facie case exists in
their favour. The balance of convenience also does not lie in favour of
the plaintiffs and no irreparable loss would be caused to them if
injunction is refused. Therefore, the order of the learned Trial Court
dismissing the application under Order 39 Rules 1 & 2 CPC does not
suffer from any illegality or perversity and does not call for interference.
11. Accordingly, the instant appeal being devoid of merit is hereby
dismissed at the motion stage itself.
Sd/-
(Bibhu Datta Guru)
Judge

Jyoti