Research › Search › Judgment

Rajasthan High Court · body

2011 DIGILAW 161 (RAJ)

Mahesh Chand v. Satya Narayan

2011-01-21

R.S.CHAUHAN

body2011
JUDGMENT 1. - Mr. Ram Rakh Sharma, appears on behalf of plaintiff-respondent No.1. Both the counsels are ad idem that respondents No. 2 to 10 are merely proforma respondents; according to them, the contest is between the appellants and the respondent No.1, Satya Narayan. Therefore, with the consent of both the parties, this case is being decided at this stage itself. 2. Aggrieved by the order dated 17.11.2009, passed by the Additional District Judge, Gangapurcity, whereby the learned Judge has allowed the temporary injunction application, filed by the plaintiff-respondent, and has directed the parties to maintain status quo, the defendants-appellants have approached this Court. 3. The plaintiff-respondent filed a suit for cancellation of the will of Chitarmal Kherapati. Along with the suit, he has also filed an application under Order 39, Rule 1 and 2 . It is the case of the plaintiff-respondent that he is the adopted son of Chitarmal. Therefore, he is entitled to the properties left by Chitarmal . On the other hand, the appellants have pleaded that the properties have been left to them by Smt. Kesher, the wife of Chitarmal, through a will. Since the appellants have based their case on the will, the plaintiff-respondents have challenged the genuineness of the said will. 4. Mr. P.S. Sharma, the learned counsel for the appellants, has contended that the learned Judge has ignored the fact that the plaintiff-respondent does not have a strong prima facie case in his favour. For, the learned Judge has noticed that the plaintiff-respondent has not submitted any deed or document to show that he was legitimately adopted by Chtarmal. The learned Judge has relied only upon the document issued by the Municipality to prima facie conclude that the plaintiff-respondent is the adopted son of Chitarmal. Moreover, the appellants happen to be in possession of the property. The property is rented out. Since the civil suit will take a long time to be decided, it is imperative that the right to maintain the property be given to the appellants. Therefore, he has prayed that the impugned order be modified and at least the right to maintain the property should be given to the appellants. 5. On the other hand, Mr. Ram Rakh Sharma, the learned counsel for plaintiff-respondent No.1, has pleaded that no blanket right to maintain the property should be given to the appellants. Therefore, he has prayed that the impugned order be modified and at least the right to maintain the property should be given to the appellants. 5. On the other hand, Mr. Ram Rakh Sharma, the learned counsel for plaintiff-respondent No.1, has pleaded that no blanket right to maintain the property should be given to the appellants. In fact, the appellants are free to seek permission of the Court as and when the maintenance has to be carried out. Therefore, he has supported the impugned order. 6. Heard the learned counsel for the parties and perused the impugned order. 7. Since the battle is over a property, naturally the property needs to be protected during the pendency of the suit. Moreover, the property needs to be maintained during this period. Therefore, a blanket order of suo-moto would cause irreparable loss to the appellants. For, in case the property cannot be maintained, it is bound to be damaged. Therefore, this Court modifies the order dated 17.11.2009 to the limited extent that the appellants are at liberty to maintain the property during the pendency of the suit. However, they would not alienate, or transfer, or sell the property, and would not create any third party rights over the property during the pendency of the suit. 8. With theses observations, the appeal is, hereby, disposed of.Appeal dismissed of. *******