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[CMA-1096/2021]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR

S.B. Civil Misc. Appeal No. 1096/2021

Magan S/o Ramji Patel, Aged About 47 Years, Ambasa, Tehsil

Jhadol (Phalasiya), District Udaipur

----Appellant

Versus

1.

Shri Ramji S/o Daya Patel, Aged About 69 Years, Ambasa,

Tehsil Jhadol (Phalasiya), District Udaipur

2.

Vinod Kumar S/o Banshilal Patel, Aged About 30 Years,

100 Arbuda Nagar, Umiya Parivar, Valasana Idar, Tehsil

Idar, District Sabarkantha (Gujarat)

3.

Rekhaben W/o Rajendra Kumar Patel, Parsoda, Tehsil

Vijay Nagar, District Sabarkantha (Gujarat)

4.

Rakesh S/o Ramji Patel, Ambasa, Tehsil Jhadol

(Phalasiya), District Udaipur

5.

State Of Rajasthan-State, Tehsildar (Bhumidhari), Jhadol,

District Udaipur

6.

The Sub-Registrar, Phalasiya, Tehsil Jhadol, District

Udaipur

----Respondents

For Appellant(s)

:

Mr. Jhamaklal Nagda

For Respondent(s)

:

Ms. Alka Pandey

Mr. Sajjan Singh Rajpurohit

HON'BLE MR. JUSTICE MADAN GOPAL VYAS

Judgment

DATE OF JUDGMENT

06/

09/2023

The present civil misc. appeal under Order 43 Rule 1(r) read

with Section 104 of the Code of Civil Procedure has been filed by

the plaintiff-appellant against the order dated 11.8.2021 passed

by the learned Addl. District Judge No.4, Udaipur in Civil Misc.

Case No.10/2021 (CIS No.59/2021) whereby the learned trial

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[CMA-1096/2021]

court rejected the application filed by the plaintiff-appellant under

Order 39 Rule 1 and 2 read with Section 151 of the CPC seeking

temporary injunction.

2.

Brief facts giving rise to the present appeal are that the

appellant-plaintiff claims that agricultural land bearing Aaraji

number 889 and 1547 admeasuring 2.5300 hectares situated in

revenue village Ambasa, Tehsil Jhadol (Phalasiya), District Udaipur

was purchased in the name of respondent no. 1 as a joint family

property in which the plaintiff-appellant contributed money. A

family settlement took place and land bearing Aaraji number 889

admeasuring 1.2800 hectares was kept for the appellant.

Subsequently, a family partition took place in which the land

bearing Araji no. 889 admeasuring 1.2800 hectares and a house

built thereupon came under the appellant’s share. However, the

respondent no. 1 sold the said land to respondent nos. 2 and 3.

The plaintiff-appellant preferred a suit for cancellation of sale deed

and grant of perpetual injunction along with an application for

temporary injunction restraining the respondents-defendants from

alienating/transferring the suit property and maintaining the

status quo.

3.

Learned counsel for the plaintiff-appellant submits that the

appellant is the son of the respondent no.1 and was residing at

Kuwait at the time of purchase of the agricultural land bearing

Aaraji Nos.889 and 1547 ad measuring 2.5300 hectares at

revenue village Ambasa, Tehsil Jhadol (Phalasiya), District Udaipur.

The property was purchased in the name of respondent no. 1 as a

joint family property for which the appellant has also contributed

an initial sum of Rs.2,00,000/-. Thereafter, from time to time, the

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[CMA-1096/2021]

appellant sent money to respondent no. 1 on demand from Kuwait

for construction of house upon the said property and for other

expenses. Therefore, the property in question is a joint family

property in which the plaintiff-appellant has a share. A dispute

arose between the appellant and the respondent no.1 with respect

to the suit property, which was settled on intervention of the

eminent persons of the community and on 05.12.2010, a family

partition took place in which the plaintiff-appellant was given

possession of land bearing Aaraji No.889 ad measuring 1.2800

hectares alongwith a house constructed thereupon. The plaintiff-

appellant is in possession of the suit property. Therefore, it is

submitted that the trial Court has committed error in not finding

any prima facie case in favor of the appellant-plai