Dismissed

Abhishek Bairwa S/O Kanwar Lal Bairwa v. Kanwar Lal Bairwa Son of Chiman Lal Bairwa

Rajasthan HC14 Sept 2022CW/3903/2018

Case brief

AI extract

What is this about?

The High Court of Rajasthan disposed of a writ petition challenging the rejection of a temporary injunction application in a civil suit involving a Will. While a prior interim order deleting a deceased respondent was allowed, the petition challenging the refusal of injunction was dismissed, holding the lower courts acted correctly in requiring evidence on the Will's genuineness before granting rel

What did the court decide?

The writ petition challenging the rejection of temporary injunction was dismissed; a separate application deleting a deceased respondent from the cause title was allowed.

Abhishek Bairwa S/O Kanwar Lal Bairwa Vs Kanwar Lal… — Property and Title | Rajasthan HC (2022)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Writ Petition No. 3903/2018

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Abhishek Bairwa Son Of Kanwar Lal Bairwa, Resident Of Indradhanush Farm, Kundera Bus Stand, Ranthambore Road, Tehsil And District Sawaimadhopur Raj. at Present Resident Of Shivaji Nagar Civil Lines Jaipur Raj.

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----Petitioner

¶5

Versus

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Kanwar Lal Bairwa Son Of Chiman Lal Bairwa, Resident Of Indradhanush Farm, Kundera Bus Stand, Ranthambore Road, Tehsil And District Sawaimadhopur Raj..

¶7

Sunita Daughter Of Kanwar Lal Bairwa, Resident Of Indradhanush Farm, Kundera Bus Stand, Ranthambore Road, Tehsil And District Sawaimadhopur Raj.

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Anita Daughter Of Kanwar Lal Bairwa, Resident Of Indradhanush Farm, Kundera Bus Stand, Ranthambore Road, Tehsil And District Sawaimadhopur Raj. ( DELETED)

¶9

	….Respondents
For Petitioner(s)	: Mr. M.M.Ranjan, Sr. Adv. with Mr. Lokesh Tiwari, Adv.
For Respondent(s)	: Mr. Shyam Lal Sharma, Adv.

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HON'BLE MR. JUSTICE ASHOK KUMAR GAUR

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Order

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14/09/2022

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Matter comes up on misc. application No.2/2021 filed on behalf of the petitioner for deleting the name of the respondent No.3-Anita from the array of respondents.

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Learned counsel submitted that the respondent No.3 has expired on 26.11.2020 and since she was unmarried daughter of Kanwar Lal Bairwa, as such her name may be deleted from the array of respondents.

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[CW-3903/2018]

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(2 of 5)

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Learned counsel appearing for the respondent Nos.1 & 2 does not object to the said deletion of respondent No.3.

¶18

For the reasons mentioned in the aforesaid application, the same is allowed. The name of respondent No.3 is permitted to be deleted from the array of the respondents. The amended cause title filed along with the application is taken on record.

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Heard on admission.

¶20

The instant writ petition has been filed by the plaintiffpetitioner, challenging the orders dated 13.01.2016 and 25.01.2018, whereby temporary injunction application and appeal filed by the petitioner, against rejection of temporary injunction application, were rejected respectively.

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Learned Senior Counsel for the petitioner submitted that the Court below has committed an error while considering prima facie case in favour of the petitioner for the purpose of granting temporary injunction.

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Learned Senior Counsel submitted that the petitioner had ample evidence to prove that the alleged Will, executed by late Kamlesh @ Kamlesh Rajrani-mother of the petitioner, was a forged document.

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Learned Senior Counsel further submitted that the bare perusal of the document, which has already been filed with the writ petition, reflects that the signature of mother of the petitioner is at variance with the document which was executed by her as will.

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Learned Senior Counsel further submitted that the petitioner is not a stranger to the entire litigation and he being son of the deceased Kamlesh @ Kamlesh Rajrani, has his own right and

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[CW-3903/2018]

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(3 of 5)

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share in the property in question and during pendency of the suit, the Court below ought to have protected his right.

¶28

Learned Senior Counsel submitted that if the said propertyland and houses etc. are alienated by the respondents or third party rights are created, then the petitioner will suffer irreparable loss and at least the Court below ought to have restrained the respondents from alienating the property in question.

¶29

Learned Senior Counsel submitted that in the appeal filed by the petitioner against the rejection of temporary injunction application, the Appellate Court has also not considered the relevant factors for grant of temporary injunction and as such, this Court is required to interfere in the present matter.

¶30

Learned Senior Counsel further submitted that in respect of a forged Will, the investigation has already been carried out by the Police and as such, the Court below was to consider that prima facie case was not in favour of the respondents to defend or create any right on the basis of the Will and, on the contrary, prima facie case was in favour of the petitioner-plaintiff.

¶31

Learned Senior Counsel further submitted that the Court below only on account of other legal heirs of the deceasedKamlesh @ Kamlesh Rajrani, being party to the suit, could not have rejected the claim of the petitioner and the issue with regard to the Will being forged or not could be decided on prima facie basis.

¶32

Learned counsel-Mr. Shyam Lal Sharma, appearing for the respondents submitted that concurrent findings have been recorded by both the Courts below and as such, this Court may not interfere under Article 227 of the Constitution of India.

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[CW-3903/2018]

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(4 of 5)

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Learned counsel for the respondents further submitted that the issue with regard to the Will as whether the same is forged or not, can only be decided at final stage by the Court and prima facie the petitioner did not have any case in his favour for grant of injunction.

¶36

Learned counsel further submitted that in the suit filed by the petitioner-plaintiff, he himself admitted that the property in question belongs to his mother and as such it was a self acquired property and no right can be created in favour of any other person and the executant of the Will has every right to bequeath the property in favour of any person, including her own daughters.

¶37

I have heard the submissions made by learned counsel for the parties and perused the material available on record.

¶38

This Court finds that both the Courts have considered the relevant factors for grant of temporary injunction and if the Courts below have found that the issue of Will, was to be decided at a subsequent stage and as such, only on the averments of the petitioner, that the Will was forged, no temporary injunction has been granted.

¶39

This Court further finds that the issue with regard to the forged signature of the executant on the Will, said to be executed by mother of the petitioner, is of course to be decided by the Court, after taking proper evidence and for establishing prima facie case, the Courts below have already found that the petitioner is not even in the possession of the property and as such, the Courts below have refused to interfere in the matter.

¶40

This Court finds that no illegality has been committed by the Courts below while passing the orders impugned.

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[CW-3903/2018]

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(5 of 5)

¶43

Learned Senior Counsel, at this juncture, submitted that at least, permission may be granted to move appropriate application before the Court below for protection/maintenance of the property and the same may not be alienated.

¶44

It goes without saying, that if the petitioner-plaintiff intends to file any subsequent temporary injunction application narrating certain new facts, he is always free to do so and the court below may decide the same in accordance with law.

¶45

The present writ petition has no force and the same is accordingly dismissed.

¶46

(ASHOK KUMAR GAUR),J

¶47

Bhavnesh Kumawat/Ramesh Vaishnav

¶48

Abhishek Bairwa S/O Kanwar Lal Bairwa v. Kanwar Lal Bairwa Son of Chiman Lal Bairwa

Case brief

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Abhishek Bairwa S/O Kanwar Lal Bairwa v. Kanwar Lal Bairwa Son of Chiman Lal Bairwa

Case brief

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