The court emphasized the need to preserve the rights of the parties and the suit property during the pendency of the case by modifying the order to prevent the creation of third-party rights on the disputed property until the final decision of the suit.

Hon'ble Rakesh Tiwari, J.

Hon'ble Anil Kumar Sharma, J.

Heard learned counsel for the parties and perused the record.

2. This FAFO challenges the order dated 21.3.2012 passed by Civil Judge (Sr. Division) Mathura in O.S. No. 721 of 2008: Jagdish Bankey Lal Vs. Chandrabhan & others, whereby temporary injunction application no. 7Ga of the plaintiff/appellant has been rejected. The relevant findings recorded by the trial court in the order dated 21.3.2012 reads thus:

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3. Learned counsel for the appellant has submitted that before the trial court, the plaintiff/appellant had fully established his prima facie case, balance of convenience, irreparable loss and injury with regard to entitlement of grant of temporary injunction, but the trial court has failed to consider the same. He further submits that since the plaintiff/appellant is co-owner/sharer of the suit property, the defendant/respondents cannot be permitted to alienate the suit property; that if the defendant/respondents are left at liberty, they would sell off the suit property creating third party rights; that the WILL which is sole basis of claiming absolute right over the suit property, is a forged, fictitious document.

4. It is further contended by counsel for the appellant that the WILL in question was never executed by Late Smt. Gopi Bibi and the same was unregistered and purportedly bear the signature of Shri J.P. Garg, advocate.

5. Learned counsel for respondent has not been able to reply to the query of the Court that if the court below comes to the conclusion that property in dispute is joint property of the plaintiffs how would the 1/20 share of the property claimed by the plaintiff, would be given to him as observed by it in the judgment, and in that case if property is transferred by the respondent solely as owner to third parties, how could the 1/20 property be returned to him.

6. From perusal of the suit as well as injunction application, it is apparent that the suit for partition had been filed in which plaintiff/appellant claims 1/20 share of the property. It has been averred in paragraphs 5 and 7 of the suit that respondents no. 1 and 6 had prepared a forged WILL and they are threatening to transfer the said property alone.

7. From reading of the order impugned, it appears that the plaintiff had not been able to prove that the property in dispute was joint property of the parties. It also appears from the order that the court was of the view that appellant will not suffer any irreparable loss in case suit is decided finally, but has failed to consider that if it comes in the conclusion that property in dispute is undivided joint property of the parties how would the 1/20 share of the property claimed by the plaintiff would be given to him, if the property is transferred by the respondent solely as owner to third parties. Thus, the court while rejecting injunction application no. 7 Ga has not considered that in case third party right is created then how respondent no. 1 and 6 will get 1/20 share.

8. In the circumstances, in order to preserve the right of the parties as also the suit property during pendency of the suit, we modify the impugned order directing that third party right shall not be created on the property in dispute till final decision of the suit. However, the court below is further directed to decide the pending suit as expeditiously as possible.

9. With the aforesaid directions, the appeal is disposed of.

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