HIGH COURT OF CHHATTISGARH AT BILASPUR Writ Petition (Art.227) No.1478 of2010 PETITIONERS: 1. 2. -Versus- RESPONDENTS: Defendant Akash Agarwal, S/o Sita Ram Agarwal, aged about 26 years, R/o Gondwara Road, Gulabnagar, Gudhiari, Opp. Telephone Exchange, District Raipur (CG) Vikas Agarwal, S/o Sita Ram Agarwal, aged about 24 years, R/o 06/1303,Glel Huntry Road, Carnegie Victoria, Permanent R/o Village Newara, Tehsil Tilda, District Raipur Sita Ram Agarwal, S/o Radheshyam Agarwal, aged about 50 years, R/o Village Newara, Tehsil Tilda, District Raipur(CG) Anil Agarwal, S/o Radheshyam Agarwal, aged about 46 years, R/o Village Newara, Tehsil Tilda, District Raipur (CG) Present: Shri Adjl Minhaj, counsel for the petitioners. Sinale Bench: Hon'ble ShriDhirendra WIishra. J. ORAL ORDER (23-6-2010) 1. Respondent No.1 is the father ofthe petitioners. He is recorded owner of the suit land. The petitioners herein filed a civil suit for declaration that they have 1/3rd share in undivided suit property. Similarly, their father also has1/3 share in the suit property and he does not have any legal right to alienate the same. They also prayed for direction that any transfer or alienation of the suit property by their father would not be binding upon them and they also prayed that a decree of perpetual injunction against their father from alienating the joint property. In the aforesaid suit, they filed an application for temporary injunction. The trial Court rejected their application for temporary injunction and miscellaneous appeal preferred by the petitioners has been further rejected by learned Additional District Judge by the impugned order. 2. Learnedcounsel forthe petitioners submitted that both the Courts below have ignored the admitted fact that the property in question was purchased by their grandfather and thus, they had also right, title and interest over the suit propertyand as such, a prima faciecase. The Courts below have also ignored the memorandum of partition filed by the petitioners whereby the petitioners have been given 1/3 share in the property along with their father. The Courts below ought to have presumed that the property is a joint family property and simply because the name of respondent No.1 is recorded in the revenue record, he does not become exclusive owner of the property. The petitioners had established a prima facie case. If respondent No.1 is not restrained from alienating the suit property, a third party interest may be created and that may cause irreparable injurylto the petitioners. 3. While dismissing the appeal preferred by the petitioners, learned Additional District Judge has observed that there isnothing on record to show that property in question is a joint family property. There is no explanation as to why record was not mutated on the basis of partition effected way back in the year 1994 till2009. From the pleadings in the plaint, itis clear that the property was transferred in the past and loan was obtained by mortgaging the property and there is no pleading that the defendant is trying to alienate the suit property to any particular person. 4. After going through the impugned order, the averments in the plaint, application for temporary injunction and its reply and fhe order passed by thetrial Court, I am of the opinion that both the Courts below, after considering the entire material available on record, have rightly held that the plaintiff has no prima facie case. The plaintiff has failed to prove prima facie case. Even | otherwise, if respondent No.1 transfers, alienates or creates third party interest over the suit property during the pendency of the suit, such transfer should be governed by the doctrine of despondency and transferee would be bound by the final decree in the suit and no irreparable injury is likely to be caused to the plaintiff. 5. On the basis of aforesaid discussion, 1 am of the opinion that there is no illegality, infirmity or jurisdictional error committed by learned Additional District Judge by confirmingthe order ofthe trial Court in rejectin^the application for grant of temporary no manifest injustice isliketyl 6. In the result, 1 find no substqnce in this petition, the same deserves to be and is accordingly dismissed. ^-_. Barve ttu. injunction filed by the petitioners and to be occasioned to the plaintiff/petitioners. Sd/- Dhirendra Mishra Judge