Judgment

1. The present civil writ petition has been filed assailing the order dated 22.07.2024, passed by the learned Additional District and Sessions Judge No. 05, Jaipur Metropolitan-II, in Civil Misc. Appeal No. 07/2023, whereby the learned Appellate Court, while dismissing the appeal preferred by the plaintiff-petitioner, upheld the order dated 21.08.2023, passed by the learned Additional Civil Judge-cum-Metropolitan Magistrate No. 3, Jaipur Metropolitan-II, in Civil Application No. 19/2021. By the said order, the application for temporary injunction filed by the plaintiff-petitioner was partly allowed only to the limited extent that the parties were restrained from transferring or encumbering the disputed property in any manner in respect of the property described in Schedule ‘A’ and Schedule ‘B’ annexed to the application, which has fallen to the share of Jagdish Narayan.

2. The necessary facts for adjudication of the present writ petition are that the plaintiff–petitioner instituted a suit for partition, declaration, and permanent injunction in respect of two disputed properties situated at Sikar Road, bearing Khasra No. 78/3 admeasuring 2215.4 square yards, and another property situated opposite Jyoti Petrol Pump bearing Khasra No. 79/1 admeasuring 1210 square yards. Both properties are described as Schedule ‘A’ and Schedule ‘B’ in the map annexed with the plaint. The plaintiff–petitioner has averred that the said properties were jointly purchased by the ancestors of the parties, namely Jagdish Narayan and Harsahai, through a registered sale deed, and that they had raised construction thereon and remained in possession thereof. He further stated that the properties have remained undivided on the spot.

2.1 The plaintiff–petitioner and respondent–defendant Nos. 1 & 2 are the sons of Late Jagdish Narayan; respondent–defendant No.3 is his wife; and respondent–defendant Nos. 4 to 6 are his grandsons. Jagdish Narayan died on 25.08.2020 and Harsahai died on 05.10.2020 leaving no legal heirs. Consequently, the disputed properties devolved upon the plaintiff–petitioner and respondent–defendant Nos. 1 to 3, each having an alleged 1/4th share therein. The plaintiff–petitioner is stated to be residing in the disputed property along with his family. It was also stated that the customary pagdi ceremony of Jagdish Narayan was performed in favour of the plaintiff–petitioner, whereas that of Harsahai was performed in favour of respondent–defendant No. 2.

2.2 The plaintiff–petitioner has further stated that after the demise of Harsahai, respondent–defendant No. 2, for the first time, produced a Will dated 31.12.2018 allegedly executed by Harsahai in his favour during the pagdi ceremony and furnished a copy thereof to the plaintiff–petitioner. The said Will makes reference to a prior partition between Jagdish Narayan and Harsahai, purportedly effected through a consent decree dated 28.04.2008 in Case No. 11/2008, based on an agreement dated 10.12.2007, concerning Khasra No. 79/1, and also alleges a similar consent partition of Khasra No. 78/3.

2.3 The plaintiff–petitioner has challenged the said Will as null, void, illegal, and fraudulent, contending that the alleged decree and partition were procured by Harsahai in collusion with his advocate and by taking undue advantage of the mental incapacity of Jagdish Narayan, who, as pleaded, was suffering from mental illness since 1981–82, which led to his dismissal from service in the RJC Department, Jaipur, rendering him incapable of participating in legal proceedings. It has been specifically alleged that the decree dated 28.04.2008 was fraudulently obtained in the absence of Jagdish Narayan, wherein a suit was filed by the advocate of Harsahai on behalf of Jagdish