Kamla Devi vs Vijay Singh
2022 Latest Caselaw 10591 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Misc. Appeal No. 1336/2022

1. Kamla Devi W/o Late Shri Ram Singh, Aged About 65 Years, R/o Behind P.w.d. Guest House, Sujangarh Road, Ward No. 28, Nokha, Tehsil Nokha, Distt. Bikaner.

2. Shyam Singh S/o Late Shri Ram Singh, Aged About 44 Years, R/o Behind P.w.d. Guest House, Sujangarh Road, Ward No. 28, Nokha, Tehsil Nokha, Distt. Bikaner.

3. Bharat Singh S/o Late Shri Ram Singh, Aged About 40 Years, R/o Behind P.w.d. Guest House, Sujangarh Road, Ward No. 28, Nokha, Tehsil Nokha, Distt. Bikaner.

4. Gaurishankar S/o Late Shri Ram Singh, Aged About 35 Years, R/o Behind P.w.d. Guest House, Sujangarh Road, Ward No. 28, Nokha, Tehsil Nokha, Distt. Bikaner.

5. Chandra Devi D/o Late Shri Ram Singh, Aged About 37 Years, R/o Behind P.w.d. Guest House, Sujangarh Road, Ward No. 28, Nokha, Tehsil Nokha, Distt. Bikaner.

6. Geeta Devi D/o Late Shri Ram Singh, Aged About 30 Years, R/o Behind P.w.d. Guest House, Sujangarh Road, Ward No. 28, Nokha, Tehsil Nokha, Distt. Bikaner.

----Appellants Versus

1. Vijay Singh S/o Late Shri Bheraram @ Bheru Singh, R/o Behind P.w.d. Guest House, Sujangarh Road, Ward No. 28, Nokha, Tehsil Nokha, Distt. Bikaner.

2. Raju Singh S/o Late Shri Jagdish Singh, R/o Behind P.w.d. Guest House, Sujangarh Road, Ward No. 28, Nokha, Tehsil Nokha, Distt. Bikaner.

3. Om Singh S/o Late Shri Jagdish Singh, R/o Behind P.w.d. Guest House, Sujangarh Road, Ward No. 28, Nokha, Tehsil Nokha, Distt. Bikaner.

                                         (2 of 4)                    [CMA-1336/2022]


                                                                ----Respondents

For Appellant(s)         :     Mr. JK Bhaiya
For Respondent(s) :            Mr. SS Rajpurohit


            HON'BLE MR. JUSTICE FARJAND ALI

                                   Order

17/08/2022

The instant appeal has been preferred against the

order dated 05.08.2022 passed by the learned Additional

District Judge, Nokha, District Bikaner in Civil Misc. Case

No. 234/2021 whereby the learned trial Court has

declined to extend the interim order which was earlier in

currency.

Learned counsel for the appellants submits that the

suit for partition was decreed in favour of the appellants

vide order dated 24.01.2020. No appeal was preferred by

the defendants for a long time and the process for final

decree was underway. In the meantime, the defendants

had started raising construction over the disputed site,

therefore, an application came to be moved on behalf of

the decree holder/applicant/appellants before the learned

trial Court to restrain the defendant/judgment

debter/non-applicant from raising construction over the

property in question.

The learned trial Court after hearing the counsel for

the parties had passed an order dated 10.11.2021

restraining the defendants/judgment debter/non-

applicant from raising any construction and to maintain

(3 of 4) [CMA-1336/2022]

the status quo of the property as well. The said order had

been extended from time to time. Thereafter, the

defendants preferred an appeal against the preliminary

decree by way of filing a Civil First Appeal before this

Court. An ad interim order had also been passed therein.

However, vide order dated 22.07.2022, passed in Civil

First Appeal No. 47/22, the ad interim order had been

vacated and the trial Court had been directed to proceed

in the matter in accordance with law.

It is vehemently urged that after the aforeasaid

vacation of ad interim order passed by this Court vide

order dated 22.7.2022, the decree holder/applicant again

moved an application before the trial Court to restrain the

defendants from raising further construction at the property in question but the learned trial Court has

declined to restrain the defendants vide impugned order

dated 05.08.2022 which has been assailed herein by way

of filing the present Civil Misc. Appeal.

Learned counsel Mr. SS Rajpurohit has put in

appearance on behalf of the respondents. It is urged on

their behalf that the property was in a dilapidated and

shabby condition, therefore, in view of the current

climatic situation and regular precipitation, there was an

urgent need of maintenance, therefore, they may be

allowed to continue construction over the site. It is

further submitted that the Civil First Appeal is pending

consideration before this Court against the preliminary

decree and any order in this appeal may adversely

(4 of 4) [CMA-1336/2022]

influence the interest of the parties since final decree has

not been prepared yet.

Heard learned counsel for the parties and perused

the material available on record.

Considering the overall submissions made by learned

counsel for the parties and after perusal of the material

available on record, this Court deems it appropriate to

restrain the defendants from raising further construction

over the property in question. The learned trial Court

shall finally decide the Civil Misc. Application No.

234/2021 within a period of twenty days from the date of

receipt of this order. This order shall remain in currency

till final disposal of the aforementioned Misc. Application

No. 234/2021 and it shall not influence the rights and the interest of the parties in any manner in the course of

appeal or before the learned trial Court.

The appeal is disposed of accordingly.

(FARJAND ALI),J 84-Arti/-

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