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2012 DIGILAW 590 (PAT)

Arun Kumar Barnwal v. Dhrub Prasad

2012-04-09

RAKESH KUMAR

body2012
ORDER Heard Shri Shiv Kumar Dwivedy, learned counsel for the appellant. 2. The present appeal under Order 43 Rule 1(r) of the Code of Civil Procedure has been preferred against an order dated 4.1.2011 passed by Sub-Judge-III, Bettiah, West Champaran in Title Suit No.247 of 2009, whereby the learned court below has rejected the petition for injunction filed under Order 39 Rules 1 and 2 of the Code of Civil Procedure. 3. Learned counsel for the appellant submits that the plaintiff/appellant has filed the aforesaid suit for declaring will executed by defendant no.1, father of the appellant in favour of respondent nos.4 and 5 as void and further prayed for declaring sale deed, which were executed by respondent nos.4 and 5 to different persons as void. Learned counsel for the appellant submits that the father of the plaintiff/appellant was in his old age of 90 years and he was not in a position to execute deed of will in favour of respondent nos.4 and 5. Since it was a forged deed, the plaintiff/appellant had filed the suit for declaring the same as void. 4. During pendency of the suit, a petition was filed for restraining respondent nos.4 and 5 from alienating any properties out of said deed of will. As per learned counsel for the appellant, if the defendant/respondents are not restrained the whole suit, will become infructuous and as such it was necessary for the court below to grant injunction in favour of the plaintiff/appellant. 5. Besides hearing learned counsel for the appellant, I have also perused the impugned order as well as materials on record. From the impugned order, it is evident that in the year 1985 itself, during the life time of the father of the appellant as well as respondent nos.1 to 3, family partition had taken place in the year 1985 and all the parties i.e. all the sons and father were enjoying their own share. Subsequently, father of the appellant executed deed of will in favour of respondent nos.4 and 5, which has been questioned by the plaintiff/appellant. 6. The court is of the opinion that unless the registered will of deed is declared as void, at the moment, presumption would be that the respondent nos.4 and 5 are the legally entitled person for dealing with such property. The learned court below, after considering the matter, had rightly rejected the injunction petition. 7. 6. The court is of the opinion that unless the registered will of deed is declared as void, at the moment, presumption would be that the respondent nos.4 and 5 are the legally entitled person for dealing with such property. The learned court below, after considering the matter, had rightly rejected the injunction petition. 7. From the record, it is evident that prima facie case was not in favour of the appellant and as such I do not find any defect in the impugned order. 8. The appeal stands dismissed. ?