Alok Sharma, J. - (1.) THIS civil misc. appeal arises from the order dated 23.03.2013, passed by the Additional District & Session Judge, Bharatpur partially allowing an application under Order 39 Rule 1 & 2 CPC filed by the plaintiff -respondent No. 1 (hereinafter 'the plaintiff) in a suit for partition and inter alia restraining the defendants -appellants (hereinafter defendant Nos. 1 & 2 - -as described before the trial court) and defendant -respondent No. 2 (hereinafter defendant No. 3 - -as described before the trial court) from alienating, transferring or otherwise creating third party rights in the suit property.
(2.) COUNSEL for the defendant Nos. 1 & 2 has submitted that the plaintiff is the daughter of defendant No. 1. It was submitted that part property in issue in the suit devolved on the defendant No. 1 in the year 1986 on the death of his father Ramcharan and mutation was also opened in his name in the year 1989. Counsel submits that such property in issue in the suit was the self acquired property of Ramcharan. Therefore in terms of Section 8 of the Hindu Succession Act, 1956 (hereinafter 'the Act of 1956') read with Schedule I thereof to the extent of devolution on the defendant No. 1 on Ramcharan's death he become the absolute owner thereof. It was submitted that other properties detailed in the suit were self acquired by the defendant No. 1 from his own resources individually in his own name along with his brothers and consequently no part of the property to that extent in his ownership or possession partook the character of ancestral property. It was submitted that the plaintiff was married in the year 1987 and had been residing in her matrimonial home for last about 25 years. Yet ill -advised as she was, she laid the suit for partition and permanent injunction qua properties owned by the defendant No. 1 singularly in his own right, in the year 2012 claiming the property to be ancestral property and the benefit to herself as a coparcenor after the amendment to Section 6 of the Act of 1956 effective 09.09.2005. Counsel submits that not an iota of evidence was produced before the trial court by the plaintiff wherefrom it could be even prima facie established that the suit property was in any way ancestral property to which the plaintiff as coparcenor effective 09.09.2005 had any right, claim, interest and/or title. Delay of about seven years even since the amendment aforesaid effective 09.09.2005 has also been pointed out. Counsel for the plaintiff has supported the order of the trial court.
(3.) MR . Satish Kumar appearing for the defendant No. 3, Surajbhan, submits that the defendant No. 3 is a bona fide purchaser of part of the property in issue in the suit from the defendant No. 1 having exercised due diligence. Valuable consideration for the said property to the extent of his purchase has been paid and possession thereof obtained. Counsel has supported the case of the defendant Nos. 1 & 2.;