Rani Udvani vs Suresh alias Sudama

Rohit Arya, J.—Heard.

This Miscellaneous Appeal by defendant No. 6 and connected M.A. No. 467/2104 by defendants No. 1, 8, 9 & 10 are directed against the order dated 25/04/2014 passed in civil suit No. 02A/2014 by V Additional District Judge, Gwalior, district Gwalior, allowing plaintiff''s application under Order XXXIX Rule 1 and 2 CPC.

Upon perusal of the order impugned, this Court is of the opinion that the Court below has rightly applied three-fold principle to deal with the aforesaid application, viz., prima facie case, balance of convenience and irreparable injury to the factual matrix of the case in a right perspective and reached impeccable logical conclusion.

Admittedly, parties to the lis are real brothers and sisters. The issue relates to the claim of plaintiff qua defendants convenient to the rights and interest of the parties in relation to the properties claimed to be joint family properties and joint possession of the family members. Defendants No. 1, 8, 9 and 10 have asserted that during life time of Chandumal Dingra as per family arrangement dated 04/08/1987, plaintiff had separated himself from the family after taking his share. Besides, it was further submitted that except one house situated in Bala Bai Ka Bazar, remaining properties described in the plaint are self-acquired properties of the defendants and a photo copy of ''will'' dated 01/09/1986 was produced alleged to have been executed by late Chandumal Dingra in favour of defendants. At the same time, a fact relating to filing of civil suit No. 8A/2005 decided on 28/12/2005 in relation to apportionment of the family properties amongst the defendants without impleading plaintiff as party to the same has also surfaced wherefrom F.A. No. 104/2006 is pending consideration before this Court. It is stated that as plaintiff was not made a party, the plaintiff has filed an application to be added as party in the said first appeal. It is a queer fact that the aforesaid family arrangement, a document dated 04/08/1987 was not produced before the Court; bedrock on which the defendants No. 1, 8, 9 and 10 build up their case for rejection of the application filed by plaintiff under Order XXXIX Rule 1 and 2 CPC. Defendant No. 6, one of the daughters of late Chandumal Dingra has also claimed one of the properties as described in the plaint which was said to have been bequeathed in her favour by her father vide registered ''will'' dated 22/06/2000. As such, different sets of defendants have claimed different properties by producing different documents. Defendants also claimed that some more documents are to be filed in the Court as regards claims by defendants on different properties. Hence, as of now there are three documents, viz., family arrangement dated 04/08/1987, ''will'' dated 01/09/1986 and ''will'' dated 22/06/2000. Plaintiff has denied existence of the documents and particularly, so called family arrangement dated 04/08/1987 and submitted that the same is a forged document. He denied to have signed the said document.

Trial Court having considered the submissions of the plaintiff and the defendants in the context of the aforesaid documents in relation to the suit property reached the conclusion that in order to arrive at a finding as regards, right, interest and title of the plaintiff over the suit properties which are claimed to be joint family properties, the issue needs to be addressed on merits. Therefore, at this stage, it is just and proper to restrain the defendants from alienating or creating third party interest over the suit properties and further to avoid multiplicity of litigation or adding of new parties to the litigation. As such, prima facie case and balance of convenience in the aforesaid context have been found to be in favour of plaintiff.

Certainly, creation of third party rights or alienation of the properties in dispute shall lead to coils of litigation which is rightly found not in the interest of justice and, therefore, Court below has justified finding irreparable injury to the plaintiff if properties in dispute change hands during pendency of the suit.

In view of the aforesaid analysis, this Court is of the opinion that the order impugned does not suffer from any illegality or jurisdictional error.

Both the appeals sans merit and accordingly dismissed.

Certified copy as per rule.