Point of Law: Letting out property essentially means creating third party rights in property.

JUDGMENT :

1. Both the appeals arise out of the order dated 05.05.2022 and hence the same have been heard and are being decided together.

2. Vide the impugned order dated 05.05.2022, the Additional District Judge No.7, Jodhpur Metropolitan (hereinafter referred to as ‘the learned Trial Court') has proceeded on to pass an ad interim order which reads as under :

^^bl voLFkk esa oknxzLr lEifRr dks lajf{kr o lqjf{kr fd;k tkuk U;k;ksfpr izrhr gksrk gS ijarq bl voLFkk esa bl U;k;ky; dks bl fcanq ij fopkj djuk gS fd bl foHkktu ds nkos dk vafre :i ls fu.kZ; gksus esa] ftlesa nksuksa i{kksa dh vihy izLrqr djus ds vf/kdkj Hkh 'kkfey gS] vusd o"kZ yxus dh vk'kadk gSA vr% bl voLFkk esa vizkFkhZx.k la[;k 01 ls 04 dks tfj;s varfje fu"ks/kkKk ikcan fd;k tkrk gS fd os oknxzLr lEifRr dk jgu] cS;] foØ; ;k fdlh vU; izdkj ls LokfeRo dk varj.k fdlh rhljs i{kdkj dks u djsa] bl ij yksu bR;kfn ysdj fdlh Hkkj dk l`tu u djsaA vizkFkhZx.k la[;k 01 ls 04 bl lEifRr dk iwoZor mi;ksx@miHkksx O;oLFkk djus ds fy, iw.kZr% Lora= gSA bl lEifRr esa fdlh izdkj dh ejEer vkfn djus ds fy, Hkh os iw.kZr% Lora= gSaA ;fn muds }kjk bl nkos ds yafcr jgus ds nkSjku blesa fdlh izdkj dk dksbZ fuekZ.k dk;Z fd;k tkrk gS] rks blds vk/kkj ij muds i{k esa fdlh vf/kdkj dk l`tu ugha gksxkA ;fn nkos ds yafcr jgus ds nkSjku bl lEifRr dks fdlh rhljs i{kdkj dks fdjk;s ij fn;k tkrk gS rks fdjk;snkj dks bl nkos ds vafre fu.kZ; ds v/khu gh vf/kdkj izkIr gksaxsA**

3. The present appeals have been preferred by the plaintiff & defendant No.5 respectively against the above order only to the extent it permits the respondents No.1 to 4 to raise construction over the disputed property and to let it out although with certain conditions.

4. The brief facts of the case are as under :

5. A suit for partition, rendition of accounts and permanent injunction was preferred by the plaintiff-Anand Kumar Bhansali on 04.05.2022. Along with the suit, an application under Order XXXIX Rule 1 & 2, CPC with a prayer for interim relief was also preferred. The notices of the temporary injunction application were served on the defendants in the evening of the same date and the matter was directed to be posted on the very next date. On 05.05.2022, after hearing both the parties, the learned Trial Court proceeded on to pass the ad interim order as reproduced above. Vide the order impugned, the learned Trial Court has restrained the defendants no.1 to 4 from creating any third party interest in the suit property by any mode of transfer i.e. mortgage, sale etc. However, the defendants have been permitted to use the suit property in the manner they were using it previously. With the said restraint order, the learned Trial Court proceeded on to hold that the defendants would be free to take up repairs etc. in the property with a rider that if any construction work is taken up, no right because of the said construction would be created in their favour. Further that if the property is let out to any third party during pendency of the suit, the tenant/third party would be entitled to the rights accrued only till disposal of the present suit.

6. It is against the above mentioned order that the present appeals have been preferred by the plaintiff as well as defendant no.5 only to the extent whereby the learned Trial Court has permitted the defendants no.1 to 4 to raise construction as well as to let out the suit property.

7. Although the prayer made in the present appeals is limited to the above mentioned extent, the arguments raised by both the parties before this Court were totally on the different footing. During the course of arguments, it has been argued that subsequent to the passing of the order impugned dated 05.05.2022, the defendants-respondents have taken up the commercial activities in the premises and therefore, they be restrained from using the property for commercial purposes.

8. Vide interim order dated 21.10.2022, it was directed as under :

“Till next date of the hearing, both the parties shall maintain status quo rega