The court upheld the trial Court's temporary injunction order, emphasizing the need to protect undivided property in a partition suit until the main suit is resolved.

Order :

(MANEESH SHARMA, J.)

1. On the request of counsel for the appellant service upon proforma respondents No.2, 4 and 6 is dispensed with.

2. Hence, service stands complete.

3. With the consent of learned counsel for the parties matters is heard finally on merits.

4. Brief facts of the case giving rise to the present appeal are that the plaintiff-respondent filed a suit for partition in respect of ancestral properties of the parties to the appeal situated at Gram Ladpura District Ajmer. Along with the suit plaintiff-respondent also filed an application under Order 39 Rule 1 & 2 CPC for grant of temporary injunction.

5. That the learned trial Court after hearing respective parties allowed the temporary injunction application vide order impugned dated 30.04.2016 and directed the defendants-appellant to maintain status quo with regard to suit properties as mentioned in para No.4 of the plaint.

6. The submission of learned counsel for the appellant is that the impugned order passed by the Court below is perverse and contrary to the material available on record and further submitted that in the first suit filed by the plaintiff's wife, the area of suit property was shown as 2,500 sq. yards, now the plaintiff has stated the area of suit property is 3000 sq. yards. He submitted that suit property is the personal property of the appellant and further submitted that the plaintiff is out of possession and had not paid requisite court fees as per the market value of the property. He also submits that the learned trial Court has decided the temporary injunction application as if he is declaring the rights of the parties finally. Therefore, he prayed that the impugned order may be set aside.

7. Per contra, the learned counsel for the plaintiff-respondent supported the impugned order and submitted that while deciding the temporary injunction application, the court below is supposed to consider the issue, prima facie. He further states that since it is a suit for partition and rights of the parties will be decided in the main suit, therefore, the property in dispute is required to be protected and he further submitted that there is no illegality or perversity in the impugned order, and prayed for dismissal of the appeal.

8. Having considered the submissions of both the counsels and perused the impugned order, the suit in question relates to partition of the property among the family members. It is also evident from the record that property has not been divided by metes and bounds, therefore, one co-sharer of the property is not allowed to raise construction over undivided properties. Thus, it is expedient in the interest of justice to preserve the property concerned.

9. A bare perusal of the findings recorded by the learned trial Court it is evident that serious questions of fact and law are involved in the suit and impugned findings are merely prima facie findings and it has been specifically recorded by the learned trial Court that the serious questions are involved in the main suit and said questions will be decided after recording the evidence of both the parties. Till than property in dispute is required to be protected.

10. The learned trial Court while considering the well known triple layer test for grant of temporary injunction has arrived to the conclusion that there is a prima facie case in favour of plaintiff-respondent and question of irreparable loss and balance of convenience is steadily lies in favour of plaintiff and to maintain status quo.

11. Thus in my considered opinion impugned order is just and proper and there is no arbitrariness and perversity in the impugned order. All the objections so raised by the appellant would be dealt with at the time of final hearing of the suit. The appeal is devoid of merits and same is hereby dismissed, however, it is made clear that any observations made by this Court as recorded in the impugned order or in the trial Court's order will not affect and influence the learned Trial Court while decid