JUDGMENT
Sat Pal, J.
1. This petition has been directed against the order dated 17th May, 1997, passed by the Additional District Judge, Jagadhri. By this order, the learned Additional District Judge, Jagadhri has set aside the order dated 16th January, 1996, passed by the learned Additional Civil Judge, Senior Division, Jagadhri, by which the learned Additional Civil Judge had allowed the application filed by the petitioner-plaintiffs under Order 39, Rules 1 and 2, CPC and had restrained the respondent-defendants from alienating 1/5th share of the suit land. The learned trial Court while passing the order dated 16th January, 1996, observed :
“In order to show a prima facie case in his favour, applicant has drawn my attention towards the original will dated 19-10-1983. On perusing the contents of the Will, I feel that this Will is not forged document and appears to be a genuine document. He has also drawn my attention towards the jamabandi for the year 1983-84, wherein Piare Lal grand-father of the applicant has been shown in exclusive possession over the suit land.”
Relying on the above mentioned documents, the learned trial Court observed that it cannot be said at this stage as to which of the Wills is genuine Will and taking both the Wills to be as genuine the Will in favour of the applicant is lastly made. It was in these circumstances that the interim injunction was granted in favour of the applicant. While setting aside the said order, the learned appellate Court, however, observed that the earlier Will dated 16th October, 1972 which was executed in favour of the defendants was registered Will whereas the subsequent Will was not registered one and further since the mother of the plaintiff Vidyawati had given the affidavit in the year 1984 when the land in dispute was mutated in favour of the defendants, it cannot be prima facie believed that the second Will dated 19th October, 1983 remained with the mother of the plaintiff namely Vidyawati.
2. Mr. Dinarpur, learned counsel appearing on
behalf of the petitioner-plaintiff submitted that
the learned trial Court after having examined the
original Will dated 19th October, 1983 and after
observing that it is the subsequent Will, passed
the order granting injunction. Therefore, it cannot
be stated that the order passed by the learned trial
Court was arbitrary or perverse or the same was in
disregard of the sound legal principles or it was
passed without referring to the relevant records.
He, therefore, submitted that the learned lower
appellate Court was not correct in setting aside the
said order. In support of his submission, the
learned counsel placed reliance on a judgment of
this Court in Guru Nanak Education Trust v.
Balbir Singh, 1995 PLJ 207 : (AIR 1995 P & H
290).
3. The learned counsel further submitted that
the learned trial Court has granted the interim
injunction only to the effect that the defendants
shall not alienate 1/5th share of the suit land
which the plaintiff had claimed by virtue of the
Will dated 19th October, 1983. He submitted that
since both the parties are relying on their respective Wills, it would be in the interest of justice that
the suit property is preserved during the pendency
of the case. In support of mis submission, the
learned counsel placed reliance on two judgments of the Delhi High Court in Sashi Malhotra
v. Lakshman Kumar Aggarwal, 1996 (3) RCR
(Civil) 733 : (1997 AIHC 558) and Sanjay Tandon
v. Sarabjit Singh, 1997 (4) RCR (Civil) 571 :
(AIR 1997 Del 380).
4. Mr. Majithia, learned counsel appearing on behalf of the respondents, however, submitted that the Will dated 16th October, 1972 was registered Will whereas the second Will was unregistered one. He further submitted that in the first Will of 1972 the executor Piare Lal had stated the fact that 14 kanals of land had already been given to Jai Parkash who is the brother of the respondent and is the father of the plaintiff. He further submitted that in support of the Will mother of the plaintiff had given an affidavit in the year 1984 when the suit land on the basis of the Will dated 16th October 1972 was got mutated in favour of the respondents/defendants. He, therefore, contended that the learned lower appellate Court was right in setting aside the order passed by the learned trial Court. In support of his submission the learned counsel placed reliance on a judgment of this Court in Smt. Balbirwati v. Jagbir Singh Arora, 1992 PLJ 345.
5. After hearing the learned counsel for the parties and having perused the orders passed by the Courts below, I am of the opinion that the impugned order dated 17th May, 1997 passed by the learned Additional District Judge Jagadhri cannot be legally sustained. From the order, dated 16th January, 1997, passed by the learned trial Court I find that the learned trial Court has clearly observed that the original Will dated 19th October, 1983 which is the subsequent Will and is in favour of the plaintiff, was shown to the learned Presiding Officer and after having perused the contents of the same and after referring to the revenue records for the year 1983-84, the learned trial Court came to the conclusion that the plaintiff had a prima facie case in his favour and it was a fit case to grant interim injunction in favour of the plaintiff and against the defendants. It is true that the first Will dated 16th October, 1972 is a registered Will and the subsequent Will dated 19th October, 1983 pleaded by the plaintiff is unregistered one but whether the subsequent Will is a genuine document or not, cannot be gone into in the proceedings under Order 39 Rules 1 and 2. This question shall be gone into only during the trial of the suit. Once the learned trial Court after referring to the documents on record, came to the conclusion that the plaintiff has got prima facie case and the balance of convenience was in favour of the plaintiff, it cannot be said that the order passed by the learned trial Court is perverse or arbitrary. In view of these facts, I am of the opinion that the learned lower appellate Court fell into an error while setting aside the order passed by the learned trial Court, simply on the ground that the first Will is registered Will and the subsequent Will is unregistered Will. In any case, once it has been found that there is a dispute between the parties and pleas taken by the parties are based on certain documents, the suit property has to be preserved as held by a Division Bench of Delhi High Court in the case of Sanjay Tandon (supra). Even otherwise, once the suit has been filed by the plaintiffs, the respondents-defendants could not sell the suit property, and if they do so, that has to be subject to the provisions of Section 52 of the Transfer of Property Act.
6. In view of the above discussion, the petition is allowed and the impugned order dated 17th
May, 1997 passed by the learned Additional District Judge, Jagadhari, is set aside and the order
dated 16th January 1996 passed by the learned
trial Court is restored. The parties are, however,
left to bear their own costs.