The court emphasized that ancestral property remains joint family property unless legally disposed of, and the birth of a son creates coparcenary rights.

JUDGMENT :

H.P.Sandesh, J.

Heard the learned counsel for the appellants and the learned counsel for respondent Nos.3 to 6.

2. This appeal is filed against the order dated 20.07.2024 passed on I.A.Nos.1 to 3 in O.S.No.905/2021 rejecting the applications, wherein the relief is sought to restrain defendant Nos.2 to 6 from interfering, alienating and putting up of construction over the application schedule property.

3. The factual matrix of the case of the plaintiffs before the Trial Court is that the plaintiffs filed the suit for the relief of partition and separate possession and also for the relief of declaration to declare that the sale deed executed by defendant No.1 in favour of defendant Nos.3 to 6 is not binding on the share of the plaintiffs. It is contended that defendant No.1 has suppressed the fact with a malafide intention to deprive the legitimate rights of the plaintiffs over the suit schedule property and has illegally executed the sale deed and by virtue of sale deed, defendant Nos.2 to 6 have started not only to carry out construction but have also indulged in sale of flats to third parties with a view to make huge profits. Since the suit schedule property is a vacant land and as the same so called sale deed holders are wrongly claiming that they have purchased portion of the suit schedule property under the registered sale deeds, the plaintiffs have come up with these applications contending that the defendants are financially sound and have close connection with local politicians and anti social elements. The defendants may go to any extent to deny the plaintiffs lawful right and share. Hence, apart from filing the suit for partition, the plaintiffs also filed the I.As. to restrain defendant Nos.2 to 6 from interfering, alienating and putting up of construction over the suit schedule property.

4. The defendants in pursuance of the suit summons appeared and filed common objections and contended that the suit schedule property is part and parcel of larger extent of 7 acres 31 guntas of land sold by the plaintiffs father i.e., defendant No.1, uncles and aunts of the plaintiffs. The plaintiffs were very much aware of the sale in the year 2016 itself. The plaintiffs are also aware of the fact that after purchase of the property, defendant No.4 has undertaken construction project of Villas and multi storied building in the purchased property and the project is almost at the completion stage. The plaintiffs are very much aware of the fact that the land is not vacant as on the date of suit. The defendants also produced the photographs to show that the construction is coming up and contend that defendant No.4 has already invested more than 100 Crores in the project and several members of public have purchased Villas and apartments and defendant No.4 has also taken financial assistance from Bank and even the customers who have opted to purchase Villa have invested their hard earned money and borrowed money from the Bank and hence injunction cannot be granted. It is contended that the property is not at all joint family property or ancestral property at the hands of the plaintiffs.

5. The Trial Court taking note of the pleadings of both the parties, formulated the points for consideration for granting of temporary injunction and answered all the points in the negative in coming to the conclusion that admittedly defendant No.1, who is none other the father of the plaintiffs, has sold the suit schedule property in favour of the defendants and the property sold in favour of the defendants also involve the share of defendant No.1 and there is no demarcation of the property pertaining to defendant No.1 i.e., in which part these defendants have purchased, this Court at this initial stage cannot come to a conclusion that the defendants should be restrained from interfering with the possession of the plaintiffs. The Trial Court also discussed with regard to the relief of putting up of construction and comes to the conclusion that alrea