JUDGMENT 1. - Though the matter has been placed for consideration of an application moved by the respondents Nos. 1 and 2 under Article 226(3) of the Constitution of India for vacation of the interim order dated 30.8.2010 but at the request of the learned counsel for the parties and having regard to the overall circumstances, the matter has been heard finally at this stage. 2. By way of this writ petition, the plaintiff-petitioner has challenged the judgment and order dated 2.8.2010 (Annex. 10) passed in Civil Appeal (Order) No. 11/2010 whereby the learned Additional District Judge, Barmer, while partly allowing the appeal preferred by the defendant Nos. 2 to 4 (respondent Nos. 1 to 3 herein), modified the order dated 26.6.2010 passed by the Civil Judge (Junior Division), Barmer in Civil Misc. Case No. 43/2010; and, while withdrawing the order granting temporary injunction, permitted the defendants-appellants to raise construction on a part of the property in dispute at their own risk subject to submission of undertaking as directed. 3. Briefly put, the relevant facts and background aspects of the matter are that the plaintiff-petitioner has filed a suit for perpetual injunction against the defendants (respondents herein) with the submissions that the property in dispute situated at Nehru Nagar, Barmer was the joint property of plaintiff and defendants Nos. 1 to 3 and has been in their joint possession but the defendants were seeking to alter the character of the property by demolishing the existing house and by raising new construction. According to the plaintiff, the defendants were adamant to carry out such construction while denying his rights in the property and were further seeking to let the same to a company. The plaintiff-petitioner has prayed for the relief of a prohibitory injunction that the defendants would not carry out any alteration in the property in question nor shall let the same to the company; and a mandatory injunction that the defendant should restore the portion of the house demolished by them at their own cost. The plaintiff-petitioner also filed an application under Order 39 Rules 1 and 2 C.P.C. seeking temporary injunction against the defendants that they shall not carry out any alteration in the disputed property without getting it properly partitioned nor shall let the same. 4. The plaintiff-petitioner also filed an application under Order 39 Rules 1 and 2 C.P.C. seeking temporary injunction against the defendants that they shall not carry out any alteration in the disputed property without getting it properly partitioned nor shall let the same. 4. The defendants asserted in their reply to the application for temporary injunction that the plaintiff had transferred his ¼th share in the disputed property in favour of the defendant No. 4 (respondent No. 1 herein) for a consideration of Rs. 3,00,000/-. It was asserted that the plaintiff was not having any right in the property in question after having transferred his share and, thus, was not entitled to seek any injunction. 5. During consideration of the application for temporary injunction, a Commissioner was appointed by the learned trial Court who submitted his report after site inspection on 23.6.2010. 6. While pressing on the prayer for interim relief, it was contended on behalf of the plaintiff-petitioner before the learned trial Court that he was a co-sharer of the undivided property in dispute; and was entitled to get the defendants restrained from raising any construction thereat. The defendants asserted that the plaintiff had alienated his share in the property in question in favour of the defendant No. 4 Lala Ram (nephew of the plaintiff). The plaintiff, however, denied having executed any such document as alleged by the defendants; and asserted that the agreement relied upon by the defendants was a fabricated document and that an F.I.R. had also been lodged in that regard. 7. The learned trial Court observed that the alleged agreement was an unregistered document and there was a real dispute between the parties regarding ownership of the property in question that could be determined only after the evidence; and hence, there was a prima Jade case in favour of the plaintiff. The learned trial Court also found the elements of balance of convenience and irreparable injury in favour of the plaintiff-petitioner with the observations that he was shown to be a co-sharer on the basis of the registered sale deed; and any alteration of the property in dispute during the pendency of the suit would lead to complications and multiplicity of proceedings. The learned trial Court, accordingly, allowed the application for temporary injunction and directed the parties to maintain status quo on the property in question as per the Commissioner's report. 8. The learned trial Court, accordingly, allowed the application for temporary injunction and directed the parties to maintain status quo on the property in question as per the Commissioner's report. 8. Aggrieved by the order so passed by the trial Court, the defendants Nos. 2 to 4 (respondent Nos. 1 to 3 herein) preferred an appeal that has been decided by the impugned order dated 2.8.2010. 9. The learned appellate Court observed that with the temporary injunction as granted by the learned trial Court, the defendants-appellants would be deprived of the use of the property in question despite they being the owners thereof. The learned appellate Court also noticed the submissions on behalf of the appellants that they were leaving about one-half portion of the plot in question open; and in relation to the remaining land, they were ready to submit an undertaking that the construction would be raised at their own risk. The learned appellate Court observed that the appellants too were the shareholders in the property in dispute and when no suit for partition had been filed, it cannot be said that the shares would be determined in the near future. Taking an overall view of the matter, the learned appellate Court observed that in the given circumstances, continuing with status quo order would be depriving the appellants of use and occupation of the property in question and when they were ready to submit an undertaking, the order passed by the trial Court could be modified. Taking an overall view of the matter, the learned appellate Court observed that in the given circumstances, continuing with status quo order would be depriving the appellants of use and occupation of the property in question and when they were ready to submit an undertaking, the order passed by the trial Court could be modified. The appellate Court, therefore, proceeded to modify the order passed by the trial Court with the following order and directions : vihykFkhZx.k@izkFkhZx.k dh vksj ls izLrqr ;g vihy vkaf'kd :i ls bl 'krZ ds lkFk Lohdkj dh tkrh gS fd ;fn vkns'k dh rkjh[k ls ,d ekg ds Hkhrj vihykFkhZx.k@izkFkhZx.k v/khuLFk U;k;ky; ds le{k bl vk'k; dh vaMjVsfdax nsrs gS fd ;fn mRrjnkrk@oknh eksgu ds i{k esa ewy okn fMdzh gksrk gS vFkok oknxzLr ifjlj esa mldk fgLlk r; gks tkrk gSa] rks Lo;a ds [kpsZ ls mls fgLlk ns nsaxs rFkk fdlh izdkj ds [kpsZ dh bl lEcU/k esa dksbZ ekax ugha djsaxs] o bl tk;nkn dk ewy okn ds fuLrkj.k rd fdlh Hkh :i esa vUrj.k ugha djsaxs rks gh v/khuLFk U;k;ky; }kjk ikfjr vkns'k fnukad 26-6-2010 blh vuqlkj la'kksf/kr le>k tkdj deh'uj fjiksVZ ds lkFk layXu uD'kk ekdZ ,0vkQ0vkbZ0Mh0 Hkkx ij fuekZ.k dk;Z Lo;a dh tksf[ke ij dj ldsaxsA ;fn mDr izdkj dh vaMjVsfdax ns nh tkrh gS] rks mRrjnkrk oknh eksgu o psukjke Hkh ewy okn ds fuLrkj.k rd oknxzLr tk;nkn dk fdlh Hkh :i esa vUrj.k ugha djsaxs o ,d ekg dh vof/k esa bl vkns'k dh ikyuk esa v.MjVsfdax is'k ugha dh tkrh gS rks vihykFkhZx.k@izkFkhZx.k dh ;g vihy [kkfjt le>h tkdj v/khuLFk U;k;ky; dk vkns'k fnukad 26-6-2010 ;Fkor jgsxkA blh vuqlkj bl vihy dk fuLrkj.k fd;k tkrk gSA 10. It is contended on behalf of the plaintiff-petitioner in this writ petition that the appellate Court has interfered with the welL-reasoned order of the learned trial Court without any justification. It is submitted that the trial Court as well as the appellate Court found existence of substantial and bonafide dispute and, thus a prima facie case in favour of the plaintiff, and after finding a prima facie case. status quo of the property in question was definitely required to be maintained. It is further submitted that the appellate Court has ignored the fundamental principles that the discretionary order of grant of temporary injunction does not call for interference unless the same is shown to be arbitrary or capricious. status quo of the property in question was definitely required to be maintained. It is further submitted that the appellate Court has ignored the fundamental principles that the discretionary order of grant of temporary injunction does not call for interference unless the same is shown to be arbitrary or capricious. The order passed by the learned trial Court, it is contended, being just and proper and not suffering from any infirmity, there was no scope for interference by the learned appellate Court. It is further submitted that the alleged agreement as relied upon by the defendants is a matter of serious dispute and an F.I.R. has also been lodged in that relation, and no rights could be considered existing on the basis of this disputed document. It is further submitted that merely on the basis of an undertaking, the defendants cannot be permitted to alter the character of the property in question during the pendency of the suit. 11. The learned counsel for the contesting respondents has duly supported the order impugned and submitted that the appellants are ready to furnish any further undertaking if so considered proper by this Court but no case for preventing the defendants from raising the construction is made out. 12. After having heard the learned counsel for the parties and upon perusal of record, while there does not appear any reason to reverse or set aside the order passed by the appellate Court but then, in the circumstances of the case, it appears appropriate to put the contesting respondents to the further terms and conditions for removal of the construction, if so required at the time of final decision of the suit, and for not creating any third party rights during the pendency of the suit. 13. It is noticed that the appellate Court has considered it proper to allow the defendants-appellants to raise the construction on the property in dispute subject to their furnishing undertaking that the same would be at their own risk. In the given set of facts and circumstances, the order so passed by the appellate Court cannot be said to be without jurisdiction or suffering from any such material irregularity as to warrant interference in the extraordinary writ jurisdiction. 14. In the given set of facts and circumstances, the order so passed by the appellate Court cannot be said to be without jurisdiction or suffering from any such material irregularity as to warrant interference in the extraordinary writ jurisdiction. 14. In the present case, though on the face of it, a dispute might appear existing but then, indisputable position cannot be overlooked that even if the plaintiffs case is accepted on its face value, he cannot claim more than ¼th share in the property in question; and the defendant Nos. 1 to 3 are having ¾th share in the property. It is stated that the contesting defendants are raising construction on about one-half portion of the property in dispute. Moreover, the plaintiff has chosen only to file a suit for perpetual injunction but there is no claim for partition or division by any person. In a comprehensive view of the matter, granting of blanket temporary injunction until disposal of the suit is likely to cause comparatively greater inconvenience to the defendants and on the other hand, if the contesting defendants are put to specific terms whereby they cannot claim any equity for having raised such construction and they do not create an third party rights in the property in question during the pendency of the suit, interest of justice would be served without any likelihood of inconvenience or injury to the plaintiff-petitioner. 15. In the aforesaid view of the matter, though the order impugned is not interfered with and hence, the writ petition is dismissed but the stipulations contained in the order impugned are modified in the manner that it shall be required of the appellants before the appellate Court (respondents Nos. 1 to 3 herein) who have already submitted an undertaking (Annex. 11) pursuant to the order passed by the appellate Court, to submit further an undertaking to the effect that the construction shall be raised only at the area permitted by the appellate Court, that the same shall be at their own risk, and that they will remove the same if so required at the time of final decision of the suit. The said defendants shall further undertake not to create any third party right or interest in the property in question during the pendency of the suit. The said defendants shall further undertake not to create any third party right or interest in the property in question during the pendency of the suit. Upon furnishing of such undertaking to the satisfaction of the trial Court, the defendants shall be free to proceed with the construction in question. 16. Having regard to the circumstances of the case, it is also considered proper and hence observed that the trial Court shall try to expedite the trial and to conclude same at the earliest. 17. There shall be no order as to costs of this writ petition.Writ petition dismissed. *******