DINESH CHANDRA SOMANI,J. - (1.) The instant Civil Misc. Appeal has been preferred by the defendant/appellants against the order dated 16/11/2016 passed by Additional District Judge No. 3, Sikar in Civil Misc. Case No. 93/2016 (CIS No. 123/2016), whereby application for temporary injunction filed by the plaintiff/respondent under Order 39 Rule 1 and 2 of CPC has been partly allowed and both parties have been restrained to maintain status quo of the suit properties till disposal of the suit.
(2.) The material facts which are necessary for disposal of this Civil Misc. Appeal stated in brief are as under :-
(3.) The plaintiff/respondent No. 1 (hereinafter referred to as "the plaintiff") brought a suit for partition and permanent injunction under section 22 and 38 of the Specific Relief Act, against the defendant/appellants (hereinafter referred as the "the defendants") and the respondent No. 2 to 5, stating therein that the plaintiff and the defendant No. 1 to 4 are legal representatives of late Mangilal. Mangilal had two properties situated in Sikar. One property is situated in Ward No. 26 new, Opposite Rajendra Hospital, Rani Sati Road, Sikar and another property situated in Ward No. 20, Opposite Kalyanji Temple, Sikar. After death of Mangilal, all the parties became owner of ?, ? share in these properties. The defendant mother-Sita Devi and sister-Lalita Devi executed a registered release deed in favour of the plaintiff on 03/05/2011 and both of them surrendered their rights and share in favour of the plaintiff, hence the plaintiff became owner of ? share and the appellants remained with ?, ? share in these properties. Along with the civil suit, the plaintiff filed an application under Order 39 Rule 1 and 2 read with section 151 of CPC for restraining the defendants from interfering in his possession and to change condition of the disputed properties, and not to sale, mortgage or alienate the property to anyone. The defendant/appellants filed their separate replies of the application for temporary injunction and denied the material averments of the plaint, and stated that their father Mangilal himself executed a family settlement in the year 1997 i.e. on 31.07.1997 and divided the property among all the three brothers, and all of them signed the document of family settlement. Defendants also pleaded that on 02/08/2010, an amended family settlement was executed by all the three brothers with mutual consent, in presence of their mother Sita Devi and maternal uncle Dindayal, and the property was divided in two parts and 5 feet wide place was left in the mid, for use as common way. Eastern portion came in the share of the plaintiff and western portion came in the share of the defendant/appellants No. 1 and 2. The plaintiff is having 50% share and the defendant/appellants No. 1 and 2 are having 50% share in this property. As the property No. 1 is costly and the plaintiff got 50% portion in the property mentioned in para 3 (Ka), therefore, the plaintiff released his share in the property mentioned in para 3 (Kha) in favour of the defendant/appellants No. 1 and 2. It is also pleaded that after execution of amended family settlement, all the parties started using their share and constructed shop and started their business. It is further pleaded that if subsequently, release deed is executed in favour of the plaintiff, then also it will not affect the rights of the parties, and it should be read in favour of the defendant/appellants also. It is also pleaded that the defendant No. 2 Pramod Kumar started construction on the first floor of his share and the construction was on full swing. Later on, ill intention developed in the mind of the plaintiff, and in order to grab the share of his two brothers, the plaintiff has filed this suit for partition and injunction along with application for temporary injunction, and the defendants prayed to dismiss the application for temporary injunction filed by the plaintiff.;