FA/118/2023
2023 Latest Caselaw 2542 UK

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                                  FA No. 118 of 2023
                                  Hon'ble Pankaj Purohit, J.

Mr. I.P. Kohli, Advocate, holding brief of Mr. Vikas Bahuguna, Advocate for the appellant.

2. Mr. Ajay Joshi, Advocate, holding brief of Mr. B.D. Pandey, Advocate for the caveator/respondent.

3. Heard.

4. Admit.

5. Let the Lower Court Records be summoned.

6. List this matter on 16.10.2023.

7. This is an appeal filed under Section 96 of the Code of Civil Procedure against the judgment and decree dated 03.05.2023 passed by learned 1st Additional Senior Civil Judge, Dehradun, in Original Suit No. 328 of 2014, Madan Gopal Vs. Chandrakala and Others, whereby, the appellant-plaintiff's suit for declaration and common injunction has been dismissed.

8. It is submitted by the learned counsel for the appellant that the suit was filed by the appellant challenging a Will dated 16.01.1992 to declare this Will as null and void on various grounds and a suit for permanent injunction restraining the respondent, not to alienate the property in question and to create any third party right and interest thereon. This suit was dismissed as stated above and feeling aggrieved the present appeal is filed before this Court.

9. Learned counsel for the appellant- plaintiff submits that the evidence, which has been adduced by the appellant-plaintiff, was not considered in right perspective by the learned Trial Court and recorded perverse finding, which is not sustainable under the law. It is further submitted by him that during the trial, there was status quo order in favour of the appellant plaintiff and, therefore, he prayed for the interim relief, otherwise, it is submitted by him, that the purpose of filing the first appeal would be frustrated.

10. Per contra, learned counsel for the respondent-caveator has opposed the prayer for the interim order on the ground that the property in question is a bhumidhari land and the Will has been executed by a person, who was owner of the said land, and, which according to him, was duly proved during the trial, therefore, the interim order is not warranted in the matter.

11. Having heard the rival contention, this Court is of the view that since the first appeal is heard by this Court on the question of law and fact, as well, therefore, the argument advanced on behalf of the respondent-caveator are not sustainable, as to whether the Will has been legally proved or not, is again to be gone into by this Court while hearing and deciding this first appeal.

12. In such view of the matter, the interim relief application is granted. The respondents are directed, not to alienate the suit property and to create any third party interest in respect of the suit property, during the pendency of the present first appeal before this Court.

(Pankaj Purohit, J.) 28.08.2023 Ujjwal