// 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Misc. Appeal No.518/2008 with S.B. Civil Misc. Stay Appl. No.382/2008 Abdul Wasi S/o Dr. Abdul Sami Versus Abdul Kadir S/o late Abdul Samad and Others Date of Order ::: 07.08.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri Mohammed Anees, Counsel for appellant Shri R.K. Agarwal and Shri P.C. Shah, Counsel for respondents #### By the Court:- Admit. Heard learned counsel for the parties. Plaintiff-appellant filed a suit for division, declaration and permanent injunction in respect of disputed property along-with an application for temporary injunction. The trial court passed an ex-parte temporary injunction order dated 2nd June, 2007. The defendants filed an application under Order 39 Rule 4 CPC for vacation of ex-parte temporary injunction order. The trial court, vide its order dated 24th January, 2008 allowed the application filed by the defendants and vacated the ex-parte temporary injunction order dated 2nd June, 2007. Being aggrieved with the same, the plaintiff // 2 // has preferred this miscellaneous appeal. A notice to show cause was given to the respondents and, in response thereto, they have entered their appearance through their respective Advocates. Learned counsel for the appellant submitted that he is in possession of the disputed property but the trial court committed an illegality in not confirming the ex-parte temporary injunction order dated 2nd June, 2007 granted in his favour; the trial court has committed an illegality in passing the impugned order whereby the ex-parte temporary injunction order has been vacated. He also contended that his grandfather had gifted the property to his mother and, on that basis, he is in possession of the same. Learned counsel for the respondents contended that all the defendants are five real brothers and, after the death of their father Abdul Samad, they became owner of the property. It is contended that all the five defendants have sold the property and, out of them, four brothers have already executed the sale-deed in respect of their 4/5th share in favour of the purchaser. So far as 1/5th share belonging to the defendant No.3 Dr. Abdul Sami, the father of the present plaintiff-appellant, is // 3 // concerned, there is no dispute that Dr. Abdul Sami also accepted earnest money of Rs.5,00,000/- (Rupees five lac only) and agreed to sell his share also and when he refused to execute the sale-deed in respect of his share then the purchaser filed a suit for specific performance and only in order to defy that suit the present suit has been filed on behalf of the present plaintiff/appellant at the instance of defendant No.3 Dr. Abdul Sami. It is further contended that even as per the case of the present plaintiff/appellant, his grandfather executed a gift-deed in favour of his mother, whereas the present suit has not been filed on behalf of his mother but it has been filed by plaintiff Abdul Wasi who does not have any legal right whatsoever over the disputed property. It is further contended that another brother of the present plaintiff/appellant also filed a separate suit wherein no temporary injunction order has been passed in his favour, therefore, the present suit was filed, therefore, in their submission, the learned trial court was justified in vacating the ex- parte temporary injunction order. I have considered the submissions of the learned counsel for the parties and examined the impugned order dated 24th January, 2008. // 4 // The learned trial court has dealt with the facts of the case in detail while passing the impugned order; it has decided the ingredients of prima-facie case, balance of convenience and irreparable injury in favour of the defendants and against the plaintiff, and, while considering the prima-facie case, it has observed that, even as per the admitted case of the plaintiff, the disputed property belongs to plaintiff's grandfather Abdul Samad and it is an admitted fact that father of the plaintiff, who is defendant No.3, is alive, therefore, the plaintiff does not have any right whatsoever to file a suit for division in presence of his father Abdul Sami. The trial court has further observed that, as per the case of the plaintiff itself, the plaintiff's grandfather gifted the property in favour of his mother but the original gift-deed has not been placed on the record and only a copy thereof has been placed on the record. The plaintiff's mother has not filed any suit on the basis of the so-called gift-deed and, in absence of his mother, the present suit on behalf of the plaintiff, is not maintainable. The trial court has dealt with other facts of the case also and, after considering the same, I find that the reasonings assigned by the learned trial court // 5 // while coming to the conclusion that prima-facie case is not made out in favour of the plaintiff, are perfectly justified and those reasonings cannot be said to be illegal or perverse. After considering the submissions of learned counsel for the parties and the reasons assigned by both the courts below, I do not find any ground to interfere with the impugned order. There is no merit in this appeal and the same is accordingly dismissed with no order as to costs. Consequent upon dismissal of the appeal itself, the stay application, filed therewith, does not survive and the same is also dismissed. (Narendra Kumar Jain) J. //Jaiman//