MUSHTKEEM Vs. ARUN KUMAR JHUNJHUNWALA

JUDGEMENT

(1.) WITH the consent of the learned counsels for the parties, the appeal is decided finally at the admission stage. The present appeal is filed by the appellants -defendants under Order XLIII Rule 1 of C.P.C., challenging the order dt. 07.05.2011 passed by the Additional District & Sessions Judge No. 1, District Sikar (hereinafter referred to as "the trial Court") in T.I. application No. 07/2011, whereby the trial Court has allowed the T.I. application filed by the respondent Nos. 1 & 2 -plaintiffs, and restrained the appellants from carrying out any construction over the suit property and also restrained from transferring the same.

(2.) THE short facts giving rise to the present appeal are that the respondent Nos. 1 & 2 -plaintiffs had filed the suit seeking cancellation of the sale deed dt. 31.08.2010 executed by the respondent Nos. 3 & 4 in favour of the appellants on the ground that the suit property was the ancestral property in which the plaintiffs had share, and therefore, the respondent Nos. 3 & 4 could not have sold the same to the appellants. In the said suit, the respondents -plaintiffs had also filed the T.I. application, which was resisted by the appellants -defendants, contending inter alia that they were the bona fide purchasers and they should be permitted to put construction thereon. The trial Court after hearing the learned counsels for the parties has passed the impugned order, against which the present appeal has been filed.

(3.) HAVING regard to the submissions made by the learned counsels for the parties, and to the impugned order passed by the trial Court, it appears that the respondents -plaintiffs have sought the cancellation of the sale deed executed by the respondent Nos. 3 & 4 in favour of the appellants on the ground that the respondents -plaintiffs had 1/9th share in the suit property, however the plaintiffs have not sought for the partition of the suit property in the suit. Be that as it may, it appears that the appellants have purchased the property in question by registered sale deed, and invested the huge amount. The appellants have also now filed the undertaking on affidavit before this Court stating inter alia that they will remove the construction that may be raised by them on the suit land, at their own cost and risk, if ultimately the respondents -plaintiffs succeed in the suit. Considering the said undertaking filed by the appellants, the impugned order passed by the trial Court deserves to be modified. Accordingly, the appellants are permitted to raise the construction of the suit land, however it is clarified that the said construction shall be removed by them at their own cost and risk if the respondents -plaintiffs ultimately succeed in the suit. It is further directed that the appellants shall not transfer or alienate such constructed premises to any third party and also not create any third party interest in the said constructed premises till the pendency of the suit. With these directions, the appeal stands allowed accordingly.