GOVIND DAS Vs. KANDAS

JUDGEMENT

(1.) By order dated 13.1.2011 in Civil Misc. Case No. 3/2011 titled as Kandas v. Govind Das and ors, the court of Civil Judge (JD), Jodhpur City, Jodhpur had dismissed the application for temporary injunction which was filed by Kan Das. The order dated 13.1.2011 of that court was challenged in appeal by Kan Das and in this regard Civil Appeal No. 12/2011(112/2011) decided was by the Addl. District Judge(FT) No.3, Jodhpur Metropolitan, Jodhpur on 19.10.2011 and the order of the lower court was set aside and a temporary injunction was granted in favour of Kan Das.

(2.) Now petitioners Govind Das s/o Badri Das and Smt. Santosh w/o Gopal Das have challenged the order dated 19.10.2011 of the Addl. District Judge (FT) No.3, Jodhpur Metropolitan, Jodhpur in this petition which has been filed under Article 226 and 227 of the Constitution of India.

(3.) I have heard both the parties and I have perused the documents which have been submitted by the parties in this file. I have perused the copy of the power of attorney and copy of the report of the Commissioner also which are part of the file. I have perused the copies of the affidavits of Smt. Kamla Bai, Smt. Uchhab Kanwar, Santok, Banshi Lal and Kishna Ram also. Prima facie, it appears that the suit property (temple along with residential premises) was owned by Badri Das who was having a Patta of this property and who was in possession of this property. Badri Das executed a Will regarding this property in favour of his wife Smt. Shobha Devi and after death of Badri Das, Shobha Devi became sole owner of the suit property and she was in possession also. Then Smt. Shobha Devi had allegedly executed a registered Will in favour of Kan Das and Gopal Das regarding the suit property. Then after in the year 2008 Smt. Shobha Devi also expired and then Kan Das and Gopal Das became its owner on the basis of said Will. It has been alleged that after death of Smt. Shobha Devi, the possession of residential premises was with Kan Das and possession of temple was with Gopal Das. Thus, the temple in question was in possession of Gopal Das and so Smt. Santosh Devi, who is wife of Gopal Das and one person Govind Das who is son of Badri Das have claimed to be in possession of this temple and on the basis of that possession, they want that they should be allowed to complete the construction work in the temple. Nine photos of incomplete construction of temple have been submitted by Govind Das and Smt. Santosh Devi.