Rohit Agrawal v. Yogendra Agarwal) was allowed and

2. Brief facts of the case are that the plaintiff-appellant had filed Suit No. 165 of 2022 with the prayer to declare will deeds dated 30.10.2017 and 27.06.2019 as null and void and also for permanent injunction restraining the defendant not to interfere in peaceful possession of plaintiff in respect of suit property mentioned at the bottom of plaint. It was the case of plaintiff-appellant that plaintiff and proforma defendant nos. 3 to 5 are real brothers and sister and proforma defendant no. 6 is mother of plaintiff. The father of plaintiff namely Shyam Behari Agarwal died on 14.07.2021 leaving the property in question as mentioned in the bottom of plaint. The plaintiff and proforma defendants / respondent nos. 3 to 6 being legal heirs of owner of property in question has become owner of the said property. The defendant no. 1 is aunt of plaintiff. The husband of defendant no. 1, Mahesh Agrawal died 15 years ago, issueless. The defendant no. 2 Rohit Agarwal is son of Rakesh Agarwal, who is brother of defendant no. 1. The defendant nos. 1 and 2 by playing fraud upon the father of plaintiff have got executed will deed on

30.10.2017 in their favour and have also succeeded to enter their names in revenue record on the basis of will deed dated 30.10.2017. The mutation proceeding was conducted behind the back of the plaintiff and other proforma defendants. It is also pleaded that another will was also executed in favour of defendant nos. 1 and 2 on

27.06.2019 and in both the will deeds dated 30.10.2017 and 27.06.2019, the defendant no. 2 was shown as nephew of executor of will deed whereas defendant no. 2 is nephew of defendant no. 1. It is further pleaded that power of attorney was also executed on 01.10.2020 in favour of defendant no. 2. It is also pleaded that the plaintiff and other proforma defendants being legal heirs of late Shyam Behari Agarwal have became absolute owner of the property after his death. The defendant nos. 1 and 2 by playing fraud has got executed will deeds in their favour. Both the will deeds dated 30.10.2017 and 27.06.2019 are forged documents and were executed under the influence. It is further pleaded that there is apprehension that on the basis of forged will deeds, the defendant nos. 1 and 2 will transfer the property and will create third party interest in respect of suit property. The plaintiff-appellant had also moved an application under Order 39 Rules 1 and 2 C.P.C., seeking interim injunction restraining the defendant nos. 1 and 2 not to create any third party interest in respect of suit property and not to interfere in peaceful possession of plaintiff.

3. The defendant-respondent had put in appearance before the trial court and filed objection to the interim injunction application which is paper nos. 76-Ga and 77- Ga. The defendant nos. 1 and 2 had denied the plaint allegations and it was pleaded that the plaintiff and proforma defendants have no right over the suit property and they are not in possession. It was also pleaded that there was matrimonial dispute between Shyam Behari Agrawal with his wife Smt. Meena Devi, who was impleaded as proforma defendant no. 6. The proforma defendant no. 6 had left the house of Shyam Behari Agrawal in the year 1992 and was living in her parental house. The proforma defendant no. 6 had lodged a first information report against her husband Shyam Behari Agarwal and defendant no. 1 in Police Station Kotwali which was registered as Case Crime No. 446 of 1992 under Sections 323, 506 I.P.C. The proforma defendant no. 6 had also filed a complaint against her husband Shyam Behari Agarwal under Section 406 I.P.C. and Section 3/4 D.P. Act which was registered a Complaint Case No. 528 of 1992. Another complaint was also filed under Sections 323, 498A, 504 and 506 I.P.C. which was registered as Complaint Case No. 2229 of 1993. All the aforesaid three criminal cases were consolidated and were decided vide judgment and order dated 31.01.2006 and Shyam Behari Agarwal and Smt. Radha Rani (defendant no. 1) were convicted under Section 323 I.P.C. It is further pleaded that the relation of Shyam Behari Agarwal with his wife defendant no. 6 were very strained and three criminal cases were lodged by defendant no. 6 against Shyam Behari Agarwal. Shyam Behari Agarwal was living with his brother namely Mahesh Agarwal and his family since 1992 till his death. The defendant nos. 1 and 2 looked after him since 1992. Shyam Behari Agarwal has no relation with his wife and children since 1992 and even at the time of his death, the cremation was done by defendant nos. 1 and 2. Since Shyam Behari Agrawal was living with defendant nos. 1 and 2 for last 25 years and there was no cordial relation with wife and children and as such, the registered will deed dated 30.10.2017 was executed by Shyam Behari Agarwal in favour of defendant nos. 1 and 2. The names of defendant nos. 1 and 2 were entered in the revenue record and they are in possession over the same.

4. Defendant nos. 1 and 2 had also filed Civil Suit No. 438 of 2022 against plaintiff/appellant and proforma defendants/respondents for permanent injunction as they are interfering in the peaceful possession of defendants of Civil Suit No. 165 of 2022.

5. Both the suits were consolidated and the learned trial court by the impugned order dated 20.01.2024 had rejected the interim injunction application filed by plaintiff-appellant in Civil Suit No. 165 of 2022 and had allowed temporary injunction application filed by defendant nos. 1 and 2 in Civil Suit No. 438 of 2022.

6. The present appeal has been filed on behalf of plaintiff-appellant for setting aside the order dated 20.01.2024, passed in Original Suit No. 165 of 2022 by which interim injunction application was rejected.

7. Heard Sri Rahul Sahai, learned counsel for the appellant, Sri Pawan Kumar Singh, learned counsel for defendant-respondent nos. 1 & 2 and perused the record.

8. It is submitted by learned counsel for the appellant that the trial court has erred in rejecting the interim injunction application by the impugned order dated

20.01.2024. The proforma defendant nos. 4 and 5 are brothers, proforma defendant no. 3 is sister and proforma respondent no. 6 is mother of plaintiff-appellant. The suit property belonged to Shyam Behari Agarwal who died on 14.07.2021 and after his death the plaintiff and proforma defendant nos. 3 to 6 being legal heirs have become absolute owners of suit property and since then they are in possession over the same. The defendant nos. 1 and 2 have no right or interest in suit property but they by playing fraud had got executed will deed dated 30.07.2017 in their favour by Shyam Behari Agarawal. The appellant and proforma respondents have no knowledge about the will deed dated 30.10.2017. The mutation proceedings were also conducted behind the back of appellant and proforma respondents and the names of defendants-respondent nos. 1 and 2 were incorrectly mutated in revenue records. Another will deed alleged to be executed by Shyam Behari Agarwal in favour of defendant-respondent nos. 1 and 2 on 27.09.2019 was also under the influence. It is further submitted that Shyam Behari Agarwal had not executed any will deed with his free consent. Will deeds were executed under the influence of respondents defendant nos. 1 and 2, after which they have executed sale deeds to third persons and are creating third party interest in respect of suit property. Admittedly, the plaintiff and proforma defendants are legal heirs of late Shyam Behari Agarwal. They have filed suit for cancellation of will deeds dated

30.10.2017 and 27.09.2019. The learned trial court has failed to consider that if the suit property have been sold by defendant nos. 1 and 2 during the pendency of suit, the purpose for filing the suit would become frustrated, therefore, the suit property is required to be preserved during the pendency of civil suit.

9. On the other hand, learned counsel appearing on behalf of defendants-respondent nos. 1 and 2 submits that the defendant-respondent no. 1 namely Smt. Radha Rani Agarwal is widow of Mahesh Agarwal, who is brother of Shyam Behari Agarwal. The wife of Shyam Behari Agarwal has left the house of her husband in the year 1992 and was living in her parental house. She had also lodged a first information report against her husband and defendant no. 1. Apart from first information report, two complaints were also filed by proforma respondent no. 6 against her husband and defendant no. 1. The trial court had consolidated all the three criminal cases and convicted Shyam Behari Agarwal and defendant respondent no. 1 vide judgment and order dated 31.01.2006. The relation of Shyam Behari Agarwal is very cordial with his brother Mahesh Agarwal and nephew Rohit Agarwal and they look after him since 1992. Shyam Behari Agarwal had executed will deeds with his free consent in favour of defendant nos. 1 and 2. Since there was no relation of Shyam Behari Agarwal with his wife and children (plaintiff and proforma defendants) since1992 and as such, Shyam Behari Agarwal had executed will deeds in favour of his sister-in-law and nephew. The names of defendants-respondent nos. 1 and 2 were recorded in revenue records. Lastly, it is submitted that the trial court after considering the entire evidence and materials which are available on record has recorded the finding that plaintiff had failed to prove his possession over the suit property and there was no prima-facie case in his favour, has rightly rejected the interim injunction application by the order impugned.

10. Considered the submissions of learned counsel for the parties and perused the record.

11. Admittedly, the plaintiff and proforma defendant nos. 3 to 5 are children of late Shyam Behari Agarwal and proforma defendant no. 6 is widow of Shyam Behari Agarwal. It is also undisputed that relation of Shyam Behari Agarwal with his wife was very strained and the wife along with children had left the house of her husband in the year 1992. Three criminal cases were got registered by defendant no. 6 against her husband which itself shows that relations of husband and wife were not cordial. Shyam Behari Agarwal was living with his brother since 1992. The will deeds executed by Shyam Behari Agarwal in favour of defendant no. 1 who is widow of his brother as well as in favour of Rohit Kumar. It is also undisputed that names of defendant nos. 1 and 2 were got recorded in revenue records and as per Khasra and Khatauni, the defendant nos. 1 and 2 are in possession over the same. The plaintiff-appellant has failed to prove his possession over the suit property by producing cogent evidence. The trial court has recorded the finding after considering the evidence which are available on record that the plaintiff-appellant is not in possession over the suit property and there is no prima- facie case in favour of plaintiff-appellant. The trial court has also recorded the finding that the balance of convenience is also not in favour of plaintiff and there is no irreparable loss in any manner to the plaintiff.

12. The finding recorded by learned trial court in respect of possession as well as prima-facie case is based on evidence and there is no illegality in any manner. The appellant has failed to point out any illegality in the order impugned. No ground for interference is made out. The first appeal from order is devoid of merits and is liable to be dismissed.

13. The first appeal from order is dismissed, accordingly.

14. Interim order, if any, stands discharged.

15. However, the trial court is directed to expedite the proceedings and to decide the Civil Suit No. 165 of 2022 along with connected Civil Suit No. 438 of 2022, expeditiously, preferably within a period of one year on merits, after affording opportunity of hearing to the parties concerned, unless there is any legal impediment. Order Date :- 24.1.2025 sailesh SAILESH PRAJAPATI High Court of Judicature at Allahabad

2. Brief facts of the case are that the plaintiff-appellant had filed Suit No. 165 of 2022 with the prayer to declare will deeds dated 30.10.2017 and 27.06.2019 as null and void and also for permanent injunction restraining the defendant not to interfere in peaceful possession of plaintiff in respect of suit property mentioned at the bottom of plaint. It was the case of plaintiff-appellant that plaintiff and proforma defendant nos. 3 to 5 are real brothers and sister and proforma defendant no. 6 is mother of plaintiff. The father of plaintiff namely Shyam Behari Agarwal died on 14.07.2021 leaving the property in question as mentioned in the bottom of plaint. The plaintiff and proforma defendants / respondent nos. 3 to 6 being legal heirs of owner of property in question has become owner of the said property. The defendant no. 1 is aunt of plaintiff. The husband of defendant no. 1, Mahesh Agrawal died 15 years ago, issueless. The defendant no. 2 Rohit Agarwal is son of Rakesh Agarwal, who is brother of defendant no. 1. The defendant nos. 1 and 2 by playing fraud upon the father of plaintiff have got executed will deed on

30.10.2017 in their favour and have also succeeded to enter their names in revenue record on the basis of will deed dated 30.10.2017. The mutation proceeding was conducted behind the back of the plaintiff and other proforma defendants. It is also pleaded that another will was also executed in favour of defendant nos. 1 and 2 on

27.06.2019 and in both the will deeds dated 30.10.2017 and 27.06.2019, the defendant no. 2 was shown as nephew of executor of will deed whereas defendant no. 2 is nephew of defendant no. 1. It is further pleaded that power of attorney was also executed on 01.10.2020 in favour of defendant no. 2. It is also pleaded that the plaintiff and other proforma defendants being legal heirs of late Shyam Behari Agarwal have became absolute owner of the property after his death. The defendant nos. 1 and 2 by playing fraud has got executed will deeds in their favour. Both the will deeds dated 30.10.2017 and 27.06.2019 are forged documents and were executed under the influence. It is further pleaded that there is apprehension that on the basis of forged will deeds, the defendant nos. 1 and 2 will transfer the property and will create third party interest in respect of suit property. The plaintiff-appellant had also moved an application under Order 39 Rules 1 and 2 C.P.C., seeking interim injunction restraining the defendant nos. 1 and 2 not to create any third party interest in respect of suit property and not to interfere in peaceful possession of plaintiff.

3. The defendant-respondent had put in appearance before the trial court and filed objection to the interim injunction application which is paper nos. 76-Ga and 77- Ga. The defendant nos. 1 and 2 had denied the plaint allegations and it was pleaded that the plaintiff and proforma defendants have no right over the suit property and they are not in possession. It was also pleaded that there was matrimonial dispute between Shyam Behari Agrawal with his wife Smt. Meena Devi, who was impleaded as proforma defendant no. 6. The proforma defendant no. 6 had left the house of Shyam Behari Agrawal in the year 1992 and was living in her parental house. The proforma defendant no. 6 had lodged a first information report against her husband Shyam Behari Agarwal and defendant no. 1 in Police Station Kotwali which was registered as Case Crime No. 446 of 1992 under Sections 323, 506 I.P.C. The proforma defendant no. 6 had also filed a complaint against her husband Shyam Behari Agarwal under Section 406 I.P.C. and Section 3/4 D.P. Act which was registered a Complaint Case No. 528 of 1992. Another complaint was also filed under Sections 323, 498A, 504 and 506 I.P.C. which was registered as Complaint Case No. 2229 of 1993. All the aforesaid three criminal cases were consolidated and were decided vide judgment and order dated 31.01.2006 and Shyam Behari Agarwal and Smt. Radha Rani (defendant no. 1) were convicted under Section 323 I.P.C. It is further pleaded that the relation of Shyam Behari Agarwal with his wife defendant no. 6 were very strained and three criminal cases were lodged by defendant no. 6 against Shyam Behari Agarwal. Shyam Behari Agarwal was living with his brother namely Mahesh Agarwal and his family since 1992 till his death. The defendant nos. 1 and 2 looked after him since 1992. Shyam Behari Agarwal has no relation with his wife and children since 1992 and even at the time of his death, the cremation was done by defendant nos. 1 and 2. Since Shyam Behari Agrawal was living with defendant nos. 1 and 2 for last 25 years and there was no cordial relation with wife and children and as such, the registered will deed dated 30.10.2017 was executed by Shyam Behari Agarwal in favour of defendant nos. 1 and 2. The names of defendant nos. 1 and 2 were entered in the revenue record and they are in possession over the same.

4. Defendant nos. 1 and 2 had also filed Civil Suit No. 438 of 2022 against plaintiff/appellant and proforma defendants/respondents for permanent injunction as they are interfering in the peaceful possession of defendants of Civil Suit No. 165 of 2022.

5. Both the suits were consolidated and the learned trial court by the impugned order dated 20.01.2024 had rejected the interim injunction application filed by plaintiff-appellant in Civil Suit No. 165 of 2022 and had allowed temporary injunction application filed by defendant nos. 1 and 2 in Civil Suit No. 438 of 2022.

6. The present appeal has been filed on behalf of plaintiff-appellant for setting aside the order dated 20.01.2024, passed in Original Suit No. 165 of 2022 by which interim injunction application was rejected.

7. Heard Sri Rahul Sahai, learned counsel for the appellant, Sri Pawan Kumar Singh, learned counsel for defendant-respondent nos. 1 & 2 and perused the record.

8. It is submitted by learned counsel for the appellant that the trial court has erred in rejecting the interim injunction application by the impugned order dated

20.01.2024. The proforma defendant nos. 4 and 5 are brothers, proforma defendant no. 3 is sister and proforma respondent no. 6 is mother of plaintiff-appellant. The suit property belonged to Shyam Behari Agarwal who died on 14.07.2021 and after his death the plaintiff and proforma defendant nos. 3 to 6 being legal heirs have become absolute owners of suit property and since then they are in possession over the same. The defendant nos. 1 and 2 have no right or interest in suit property but they by playing fraud had got executed will deed dated 30.07.2017 in their favour by Shyam Behari Agarawal. The appellant and proforma respondents have no knowledge about the will deed dated 30.10.2017. The mutation proceedings were also conducted behind the back of appellant and proforma respondents and the names of defendants-respondent nos. 1 and 2 were incorrectly mutated in revenue records. Another will deed alleged to be executed by Shyam Behari Agarwal in favour of defendant-respondent nos. 1 and 2 on 27.09.2019 was also under the influence. It is further submitted that Shyam Behari Agarwal had not executed any will deed with his free consent. Will deeds were executed under the influence of respondents defendant nos. 1 and 2, after which they have executed sale deeds to third persons and are creating third party interest in respect of suit property. Admittedly, the plaintiff and proforma defendants are legal heirs of late Shyam Behari Agarwal. They have filed suit for cancellation of will deeds dated

30.10.2017 and 27.09.2019. The learned trial court has failed to consider that if the suit property have been sold by defendant nos. 1 and 2 during the pendency of suit, the purpose for filing the suit would become frustrated, therefore, the suit property is required to be preserved during the pendency of civil suit.

9. On the other hand, learned counsel appearing on behalf of defendants-respondent nos. 1 and 2 submits that the defendant-respondent no. 1 namely Smt. Radha Rani Agarwal is widow of Mahesh Agarwal, who is brother of Shyam Behari Agarwal. The wife of Shyam Behari Agarwal has left the house of her husband in the year 1992 and was living in her parental house. She had also lodged a first information report against her husband and defendant no. 1. Apart from first information report, two complaints were also filed by proforma respondent no. 6 against her husband and defendant no. 1. The trial court had consolidated all the three criminal cases and convicted Shyam Behari Agarwal and defendant respondent no. 1 vide judgment and order dated 31.01.2006. The relation of Shyam Behari Agarwal is very cordial with his brother Mahesh Agarwal and nephew Rohit Agarwal and they look after him since 1992. Shyam Behari Agarwal had executed will deeds with his free consent in favour of defendant nos. 1 and 2. Since there was no relation of Shyam Behari Agarwal with his wife and children (plaintiff and proforma defendants) since1992 and as such, Shyam Behari Agarwal had executed will deeds in favour of his sister-in-law and nephew. The names of defendants-respondent nos. 1 and 2 were recorded in revenue records. Lastly, it is submitted that the trial court after considering the entire evidence and materials which are available on record has recorded the finding that plaintiff had failed to prove his possession over the suit property and there was no prima-facie case in his favour, has rightly rejected the interim injunction application by the order impugned.

10. Considered the submissions of learned counsel for the parties and perused the record.

11. Admittedly, the plaintiff and proforma defendant nos. 3 to 5 are children of late Shyam Behari Agarwal and proforma defendant no. 6 is widow of Shyam Behari Agarwal. It is also undisputed that relation of Shyam Behari Agarwal with his wife was very strained and the wife along with children had left the house of her husband in the year 1992. Three criminal cases were got registered by defendant no. 6 against her husband which itself shows that relations of husband and wife were not cordial. Shyam Behari Agarwal was living with his brother since 1992. The will deeds executed by Shyam Behari Agarwal in favour of defendant no. 1 who is widow of his brother as well as in favour of Rohit Kumar. It is also undisputed that names of defendant nos. 1 and 2 were got recorded in revenue records and as per Khasra and Khatauni, the defendant nos. 1 and 2 are in possession over the same. The plaintiff-appellant has failed to prove his possession over the suit property by producing cogent evidence. The trial court has recorded the finding after considering the evidence which are available on record that the plaintiff-appellant is not in possession over the suit property and there is no prima- facie case in favour of plaintiff-appellant. The trial court has also recorded the finding that the balance of convenience is also not in favour of plaintiff and there is no irreparable loss in any manner to the plaintiff.

12. The finding recorded by learned trial court in respect of possession as well as prima-facie case is based on evidence and there is no illegality in any manner. The appellant has failed to point out any illegality in the order impugned. No ground for interference is made out. The first appeal from order is devoid of merits and is liable to be dismissed.

13. The first appeal from order is dismissed, accordingly.

14. Interim order, if any, stands discharged.

15. However, the trial court is directed to expedite the proceedings and to decide the Civil Suit No. 165 of 2022 along with connected Civil Suit No. 438 of 2022, expeditiously, preferably within a period of one year on merits, after affording opportunity of hearing to the parties concerned, unless there is any legal impediment. Order Date :- 24.1.2025 sailesh SAILESH PRAJAPATI High Court of Judicature at Allahabad