RAJESHWER SHANKAR CHOUDHARY Vs. SHIV SHANKAR CHOUDHARY

JUDGEMENT

(1.) With the consent of the learned counsels for the parties the appeal is being decided finally at the admission stage. The present appeal has been filed under Order XLIII Rule 1 of CPC challenging the order dated 21.02.2013 passed by the Additional District Judge No. 13, Jaipur Metropolitan (hereinafter referred to as "the trial court") in Civil Misc. Case No. 281/2012, whereby the trial court has dismissed the application of the appellants-plaintiffs seeking temporary injunction in respect of the plot in question, pending the suit.

(2.) It appears that the present plaintiffs have filed the suit against the respondents-defendants seeking cancellation of the sale deed dated 28.09.2012 executed by the defendant Nos. 1 & 2 in favour of the defendant Nos. 7 to 9, and seeking the possession of the disputed plot No. A-1 and for permanent injunction restraining the defendants from putting up any construction on the said plot and from transferring or alienating or creating any third party interest in the said plot. Pending the suit, the appellants-plaintiffs had filed the application seeking temporary injunction of similar nature which was registered as Civil Misc. Case No. 281/2012. The said application was resisted by the respondents-defendants. The trial court vide the impugned order dated 21.02.2013 dismissed the said application of the appellants-plaintiffs filed under Order XXXIX Rule 1 & 2 of CPC, however directed the defendant Nos. 1 to 6 that if they wanted to sell the disputed property to any third party, they shall make mention about the pendency of the suit in the sale deed. Being aggrieved by the said order, the present appeal has been filed.

(3.) It has been sought to be submitted by the learned Senior Counsel Mr. S.R. Surana that the plot No. A-2 in question was allotted by UIT way back in the year 1957 to late Shri Murlidharji, the father of the appellants, who was the judicial officer and as such the said plots were the self acquired properties of the said Murlidharji. According to Mr. Surana, the respondent Nos. 1 & 2, who happened to be the sons of late Shri Ramchanderji, the brother of Murlidharji relying upon one forged document of family settlement, had sold out part of the disputed plot No. A-1 to the respondent Nos. 3 to 6. He further submitted that even if the said plot was treated as HUF property, the same could not have been sold by the respondent Nos. 1 & 2, as no partition of HUF properties had ever taken place. According to him, if the injunction as prayed for was not granted pending the suit, it would lead to multiplicity of proceedings.