1 S.B.CIVIL WRIT PETITION NO.1235/2009. Thakurji Radha Kishan Bihari Ji through Next Friends Kanti Kishore Lavaniya and Others. VERSUS Gyatri Pariwas Shanti Kunj Haridwar (U.P.)and Others. IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B.CIVIL WRIT PETITION NO.1235/2009. Thakurji Radha Kishan Bihari Ji through Next Friends Kanti Kishore Lavaniya and Others. VERSUS Gyatri Pariwas Shanti Kunj Haridwar (U.P.) branch at Karauli through its Manager and Others. 03.08.2009. HON'BLE MR.JUSTICE DALIP SINGH Mr.Mukesh Kumar Goyal, for the petitioners. Mr.Suresh Goyal, for the respondents. ***** The matter comes up on the application No.10296 for modification of the stay order dated 06.03.2009. Learned counsel for the parties are in agreement that the submissions on the aforesaid application as well as on the merits of the writ petition being identical, the writ petition itself may be heard and decided finally. I have heard learned counsel for the parties and perused the orders passed by the learned courts below. The plaintiff-petitioner filed a suit for injunction to restrain the defendants-respondents from raising construction over the disputed property alleging therein that the same belongs to Thakurji Radha 2 S.B.CIVIL WRIT PETITION NO.1235/2009. Thakurji Radha Kishan Bihari Ji through Next Friends Kanti Kishore Lavaniya and Others. VERSUS Gyatri Pariwas Shanti Kunj Haridwar (U.P.)and Others. Kishan Bihariji who has filed the suit through the next friends arrayed as the plaintiffs. The plaintiffs alleged that the property in dispute belongs to the temple of Thakurji Shri Radha Kishan Bihariji and that the defendants have no right to raise constructions over the land in dispute. The respondents-defendants submitted their reply and interalia it was alleged that the land in dispute belongs to one Bholaram and the wife of Bholaram Smt.Gomati Devi gifted the property to the defendants vide a gift deed executed on 04.12.1996 as well as the second gift deed dated 27.03.1998. On the basis of the above, the defendants contended that the defendants have the right to raise construction over the property in dispute in their own right. The learned trial court while deciding the application for the grant of temporary injunction, out of which the present writ petition has arisen, in its order dated 28.11.2008 held that the defendants have spent a considerable amount over the construction and in case the status quo is ordered, then it would cause irreparable loss to the defendant. Therefore, the learned trial court directed that in case any construction is raised, the defendant would not cause any obstruction on account of the construction so far as the 'darshanarthi' to the temple Thakurji Radha Kishan Bihariji are concerned and would not raise the 3 S.B.CIVIL WRIT PETITION NO.1235/2009. Thakurji Radha Kishan Bihari Ji through Next Friends Kanti Kishore Lavaniya and Others. VERSUS Gyatri Pariwas Shanti Kunj Haridwar (U.P.)and Others. construction in such a way so as to cause any interference in the rights of the 'darshanarthis'. The plaintiff not being satisfied with the above, preferred an appeal before the learned lower appellate court and the learned lower appellate court vide its order dated 14.01.2009 has dismissed the said appeal, hence, this writ petition against the order of the trial court dated 28.11.2008 and the appellate court dated 14.01.2009. In the light of the defence raised by the defendant claiming a right over the property in dispute on the basis of the alleged gift deeds dated 04.12.1996 and dated 27.03.1998 executed by the Smt.Gomati Devi wife of Bholanath, learned counsel for the petitioner drew the attention of the court to page 9 of the certified copy of the order dated 28.11.2008 passed by the learned trial court where the question with regard to the alleged gift deeds has been discussed by the learned trial court. The findings of the learned trial court in this behalf reads as follows:- "अूाथȸगण ने गोम ती देवी का एक दान पऽ जो 4.12.96 का पृं ठाǑकंत है, उसकȧ ओर भी Ú यान आकǒष[त Ǒकया है। हालांǑक इस दान पऽ पर उसके हः ता¢र नहȣं है। साथ हȣ ǑƮतीय दान पऽ 27.3.98 को अपने प¢ मɅ होना बताया है।" From the above, learned counsel for the petitioner contended that so far as the first gift deed which has been alleged to have been executed by Smt.Gomati 4 S.B.CIVIL WRIT PETITION NO.1235/2009. Thakurji Radha Kishan Bihari Ji through Next Friends Kanti Kishore Lavaniya and Others. VERSUS Gyatri Pariwas Shanti Kunj Haridwar (U.P.)and Others. Devi, as per the finding of the learned trial court, the same does not bear the signatures of the donor. On the basis of the above, it is contended that the same cannot be said to have been validly executed in favour of the defendant. Learned counsel for the respondent does not dispute the fact that the aforesaid document, the alleged first gift deed dated 04.12.1996 does not bear the signature of Smt.Gomati Devi. In view of the above, the learned trial court and the learned lower appellate court could not have relied upon the aforesaid piece of evidence so far as the case of the defendant is concerned of the title passing to the defendant by the alleged gift deed dated 04.12.1996. The next part of the defence which had been raised by the defendant-respondent is on the basis of the second gift deed dated 27.03.1998. The submission of the learned counsel for the petitioner is that as would be evident from the above extracted portion of the order of learned counsel for the trial court where it has been stated that it has only been alleged that the second gift deed was executed on 27.03.1998 but it seems that the aforesaid deed has not been produced by the defendants to support their case. The aforesaid portion in the order certainly leads 5 S.B.CIVIL WRIT PETITION NO.1235/2009. Thakurji Radha Kishan Bihari Ji through Next Friends Kanti Kishore Lavaniya and Others. VERSUS Gyatri Pariwas Shanti Kunj Haridwar (U.P.)and Others. to the aforesaid conclusion that the second gift deed dated 27.03.1998 was claimed to have been executed but the same does not appear to have been filed by the defendants. The learned counsel for the defendant- respondent has not controverted this fact before this court. Be that as it may, the fact remains that the property in dispute even as per the defendant was that of Bholanath and his ancestors. In that view of the matter, admittedly the gift deed has only been executed by Smt.Gomati Devi. The question which arises is as to what was the right of Smt.Gomati Devi during the lifetime of Bholanath to execute the gift deed in favour of the defendants. As it is not the case of the defendants that the gift deed was executed by Bholanath even assuming that the land belongs to Bholanath. In the facts and circumstances, the fact that Bholanath was very much alive is evident from the fact that Bholanath has filed his affidavit before the learned trial court. A reading of the judgment of the learned trial court goes to show that from the affidavit, it was clear that the land was allegedly donated in the year 1995 to Pragya Mandal whereas the defendants are said to be the members of Gayatri Pragya Peeth, District Karauli and what is the relationship between the two has also not come on record. In that view of the matter, there is certainly a prima facie case in favour of the plaintiff-petitioner and the learned courts below have erred and committed 6 S.B.CIVIL WRIT PETITION NO.1235/2009. Thakurji Radha Kishan Bihari Ji through Next Friends Kanti Kishore Lavaniya and Others. VERSUS Gyatri Pariwas Shanti Kunj Haridwar (U.P.)and Others. jurisdictional error in rejecting the case of the plaintiff on the ground of prima facie case. In the facts and circumstances, therefore, I am inclined to accept this writ petition and confirm the interim order passed by this court on 06.02.2009 while setting aside the impugned orders dated 28.11.2008 and 14.01.2009. It is further directed that during the pendency of the suit, the status quo, as it exists today, shall be maintained by both the parties with regard to the property in dispute. It is made clear that any observation made in this order while allowing the writ petition shall not be construed as a finding of fact with regard to the merits of the suit are concerned as the parties are yet to lead evidence in trial and the issues which are raised are to be decided on the basis of the evidence to be recorded in the trial. Consequently, the writ petition and the application No.10296 stand disposed of. (DALIP SINGH),J. Solanki DS, Jr.P.A.