O R D E R

Appellants/defendants have filed the present Misc.

Appeal under Order 43 Rule 1 of the C.P.C. challenging order dated 15.11.2019 passed by Additional District Judge, Badnagar, District Ujjain in Civil Suit No. 2A/2018 whereby application field under Order 39 Rule 1 & 2 of the C.P.C. by respondent No.1/plaintiff has been allowed.

Facts of the case, in short, are as under :

2. Respondent No.1 being the plaintiff has filed the suit for declaration, permanent injunction, partition, possession and cancellation of the sale-deed in respect of land comprising various survey numbers admeasuring total area 6.888 Aare. left by Devchandji. The plaintiff and defendants No. 1 to 5 are real brothers and sisters. Defendants No. 6, 7 and 8 are purchasers of the land in question. The plaintiff has alleged that after the death of Devchand, the name of defendants No.1 and 2 had been mutated in the revenue record, ignoring her 1/6th share in the suit property being a granddaughter of Devchand. Along with the suit ,the plaintiff also filed an application under Order 39 Rule 1 & 2 of C.P.C. seeking a temporary injunction to the effect that the defendants be restrained to alienate the suit property during the pendency of the suit.

3. Defendants 1 to 5 have filed the written statement refuting the averments made in the plaint that the suit property was mutated in the name of defendants No.1 and 2 in the year 1974-75. Thereafter, defendant No.3 - Sevaram was born at a later stage and as per wishes of Devchand, the suit property was distributed between defendants No. 1 to 3 in the equal share i.e. one third-one third. Appropriate proceedings were initiated before the Tehsildar in which plaintiff and defendant Nos. 4 & 5 gave their consent. Thereafter, a mutual family arrangement deed dated 18.6.2013 was also executed between all the brothers and sisters. The defendants also filed the reply to the application under Order 39 Rule 1 & 2 of C.P.C. Vide order dated 18.9.2018, learned Additional District Judge had dismissed the application by holding that there was a family partition between the family members including the plaintiff and thereafter, name of defendants No.1 to 3 were mutated on 3.9.2013. The present suit has been filed after five years from the date of order of mutation.

4. Being aggrieved by the aforesaid order dated 18.9.2018, the plaintiff preferred Misc. Appeal No.5323/2018 before this Court. Vide order dated 30.11.2018 this Court dismissed the Misc. Appeal and affirmed the findings recorded by the trial Court.

5. During the trial of the civil suit, the plaintiff has again filed an application under Order 39 Rule 1 & 2 read with Section 151 of C.P.C. on 31.7.2019. The defendants also filed the reply to the said application. Vide order dated 15.11.2019, learned Additional District Judge has partly allowed the application by restraining defendants No. 2, 3 and 6 to 8 from alienating the suit property. Hence, the present appeal before this Court.

I have heard Shri A.S. Garg, learned senior counsel appearing for the appellants/defendants and Shri Sameer Athawle, learned counsel appearing for respondent No.1/plaintiff at length and perused the material available on record.

6. The plaintiff by way of the suit is claiming 1/6th share in the ancestral property being a granddaughter of Devchand. According to her, the order dated 3.9.2013 passed by the Tehsildar is not binding on her. She has also denied the family partition held on 18.6.2013. According to her, she came to know about an order dated 3.9.2013 on 16.1.2018 when she demanded the partition of the suit property from defendants No.1 and 2. By way of the application for under Order 39 Rule 1 & 2, she sought a temporary injunction that defendants No.2, 3 and 6 to 8 be restrained from alienating, sale, transfer, gift of the suit property directly or through the agent. Vide order dated 18.9.2018, learned Additional District Judge has considered all the three factors - firstly the prima facie