Gulab Rai vs Atam Singh and Others

Sat Pal, J.—This petition has been directed against the judgment dated 7.4.1997 passed by Additional District Judge, Hissar. By this judgment the learned Additional District Judge has set aside the order dated 23.11.1994 passed by Sub-Judge 1st Class, Hissar, vide which the application filed by the plaintiff/petitioner under Order 39 Rules 1 and 2 read with Section 151 C.P.C. was allowed and the respondents/defendants were restrained from alienating the property mentioned in the plaint.

Mr. Puri, the learned counsel appearing on behalf of the petitioner submits that there is a clear finding of the learned trial Court that prima facie some of the property in question was ancestral one and as such the defendants had to be restrained from alienating the property mentioned in the plaint. He further submits that once an order passed by the learned trial Court is based on certain facts which are relevant to the case, the learned lower Appellate Court could not set aside the finding of the learned trial Court even if two opinions could be formed on the basis of those facts. He, therefore, contended that the impugned order passed by the lower Appellate Court setting aside the order passed by the learned trial court was erroneous and was liable to be set aside. In support of his submission, the learned counsel placed reliance on three judgments of this Court in Smt. Sunita Jain and Others Vs. Chander Kanta and Others, . Kamla Kumar Thapar Vs. Vinod Kumar Thapar, . Ram Kumar Vs. State of Haryana, .

Mr. Goel, the learned counsel appearing on behalf of the respondents, however, submits that the learned lower Appellate Court prima facie came to the conclusion that the petitioner had suppressed the facts relating to the case, particularly the fact with regard to judgment dated 19.12.1975 pertaining to the property in question which was based on the compromise of the parties including the plaintiff/petitioner.

After hearing the learned counsel for the parties and having perused the records, I find that the interest of the plaintiff/petitioner is fully protected as any alienation of the property during the pendency of the present suit would be hit by doctrine of Lis pendense. It has been held so vide para 15 of the impugned order. In view of these facts I do not find any merit in this petition and dismiss the same.