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Judgment
Instant appeal is filed against the order dated 22.08.2015
passed by the learned Additional District Judge No.2, Jodhpur in
Civil Misc. B Suit No. 13/2010 whereby, the application filed by
the appellant plaintiff under Order 39 rule 1 & 2 CPC for grant of
temporary injunction was dismissed. The order dated 22.08.2015
has been passed by the learned Additional District Judge No.2
after remand by this Court in S.B. Civil Misc. Appeal No. 596/2010
to consider the application for grant of temporary injunction afresh
after hearing both the parties.
Brief facts of the case are that the plaintiff-appellant filed a
suit for cancellation of sale deed dated 30.08.2008 in respect of
agricultural land situated at Vilage Basni, Jodhpur alleging that the
plaintiff entered into contract for sale of only 2 bighas and 11
biswas agricultural land, however the appellants/ defendants by
playing fraud got executed sale deed in their favour for 13 bighas
17 biswas and 16 biswansi land.
Alongwith the suit, the appellant also filed an application
under Order 39 Rule 1 & 2 CPC read with Section 151 CPC for
grant of temporary injunction with the prayer that defendants may
be restrained from getting their names entered into revenue
record and may not further transfer the disputed land during the
pendency of the suit.
The learned court below allowed the application for grant of
temporary injunction vide order dated 04.03.2010 and restrained
the defendants from transferring the land till disposal of the suit.
The appellant defendants preferred an appeal against the
order dated 04.03.2010 before this Court being S.B. Civil Misc.
Appeal No. 596/2010. This Court while observing that the matter
with regard to existence of prima facie case in favour of the
plaintiff has not been examined by the court below in correct
perspective, set aside the order dated 04.03.2010 and remanded
the matter to the court below to consider the application for grant
of temporary injunction afresh after hearing both the parties and
considering the pleadings of the parties and material placed on
record objectively.
In pursuance of order dated 24.12.2010 passed by this
Court, the learned court below considered the rival contentions of
both the parties afresh, dismissed the application filed by the
plaintiff under Order 39 Rule 1 & 2 CPC vide order dated
22.08.2015. Hence, this appeal.
Learned counsel for the appellant argued that the affidavits
and documents are to be considered for grant of temporary
injunction and there is ample evidence on record that no
possession was handed over by the appellant at the time of
execution of alleged sale deed dated 30.08.2008. It is further
argued that serious question is involved in the suit which needs to
be adjudicated by the court below and loss of possession of
agricultural land during pendency of the suit would result into
irreparable injury. Further the appellant being in possession over
disputed agricultural lands, the balance of convenience also lies in
his favour. Learned counsel for the appellant argued that entire
object of filing the suit by the appellant will be rendered
meaningless, if status quo with regard to appellant''s possession is
not maintained. It is submitted that if the defendants are not
restrained from transferring/dealing with the suit property, the
same would result into further complication and therefore, it was
prayed that the appeal be allowed and the relief as prayed for in
the application seeking temporary injunction be granted.
Per contra, learned counsel for the respondents submitted
that the plaintiff has not approached the Court with clean hands
inasmuch as the land in question was sold in favour of Shri
Navratan for consideration of Rs. 1,05,000/- whereas, the self
same land was sold in favour of defendants for consideration of
Rs. 14,05,000/- pursuant to compromise arrived at before the
executing court in favour of the decree holder Navratan and
judgment debtor Madan lal. Learned counsel submitted that the
on the basis of documentary evidence, it is clear that the entire
land measuring 13 bighas 17 biswas and 16 biswansi has been
sold by the plaintiff and the allegations of fraud are false. It is
argued that defendants cannot be deprived of their right to
alienate the property as transfer during the pendency of the suit.
Moreover, if any transfer is made, the same shall be governed by
the principle of lis pendence and therefore, neither prima facie
case nor the point of balance of convenience and irreparable loss
lies in favour of the appellant plaintiff.
Heard learned counsel for the parties and perused the
record.
It is settled law that for grant of temporary injunction, all the
three essential ingredients namely, prima facie case, balance of
convenience and point of irreparable injury must be found in
favour of the plaintiffs. Unless the plaintiffs prima facie establish
all these three ingredients in their favour no temporary injunction
can be granted.
As per appellant plaintiff, the defendants by playing fraud got
executed the sale deed of entire land falling in the share of
plaintiff i.e. 13 bighas 16 biswas and 17 biswansi instead of only 2
bighas 11 biswa and 4 biswansi. The respondent defendants had
taken a stand that the land in question has been sold in their
favour pursuant to the agreement arrived at between Navratan
and appelant plaintiff before the Executing court in the execution
proceedings initiated for execution of the decree for specific
performance of contract passed in favour of the decree holder
Navratan. It is also not in dispute that the agreement to sale
regarding which a decree for specific performance of contract was
granted in favour of Navratan was in respect of 13 bighas 16
biswas and 17 biswansi land and not only for 2 bighas and 11
biswas land. The appellant plaintiff has filed suit for cancellation
of sale deed dated 30.08.2008 in respect of property in dispute
inter alia alleging that by misrepresentation and fraud, the
respondent''s husband/father got executed the sale deed for 13
bighas 16 biswas 17 biswansi instead of 2 bighas and 11 biswas
and 4 biswansi. It has been further alleged that the disputed
agricultural lands are part of ancestral joint property and no
partition has taken place. The allegations as set out in the plaint
would be a matter of evidence which could be decided only after
completion of trial.
In view of the fact that the transaction of sale has been
made in pursuance of execution proceedings in execution case no.
10/2004 (Decree holder Navratan Vs. Judgment debtor Om
Prakash) it cannot be said that the respondent''s case pertains to a
different agreement to sale for the land other than the subject
matter in the aforesaid execution proceedings.
From the overall consideration of the submissions made on
behalf of the appellant and the respondents, the validity of sale
deed dated 30.08.2008 at the prima facie stage of the litigation
cannot be said to be suspicious.
It is settled law that once a discretion is exercised by the
trial Court in granting temporary injunction or refusing to grant
temporary injunction, such discretion cannot be interfered in
appeal, unless some compelling reasons are demonstrated before
the appellate Court, which may justified that if temporary
injunction is not granted, it would occasion failure of justice.
Learned trial court in the face of registered sale deed, recitals
regarding payment of consideration and possession and
subsequent conduct of the parties mentioned in the pleadings
rightly held that there does not appear to be prima facie case in
favour of appellant plaintiff.
This Court while considering similar controversy in the case
of ''Tara Joshi (Smt.) & Anr. Vs. Vijay Raj & Ors reported in
2014(2) DNJ (Raj.) 801 in para 18 & 19 has held as under :-
"18. In view of the above, in face of the registered sale deed, the recitals regarding payment of consideration and possession therein and the subsequent conduct of M.C. Joshi and the plaintiffs, there does not appear to be a prima facie case in favour of the appellants.
The Hon''ble Supreme Court in the case of Skyline Education Institute (Pvt.) Ltd. (supra) reiterated the following principles laid down by it in Wander Ltd. v. Antox India (P .) Ltd. :: 1990 (Supp.) SCC 727:--
"... In such appeals, the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory
injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion he been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court''s exercise of discretion."
So far as the fact that the appellants are in possession of the suit property and are apprehending dispossession during the pendency of the suit, even as per the case of the defendants, the appellants are sub- letee from Attractive Exim Private Limited and had sought to reserve their right to take action under the law. Further the transfer, if any, during the pendency of the suit by the defendants also is taken care of by provisions of Section 52 of the Act and as such, besides lack of prima facie case, it cannot be said that the appellants will suffer irreparable injury, if the injunction as prayed for is not granted."
In view of above discussion, the order dated 22.08.2015
passed by the learned Additional District Judge NO.2, Jodhpur in
Civil Misc. B Suit No. 13/2010 does not call for any interference .
The appeal is hereby dismissed.
Any observations made by the trial court and this Court shall
not effect the final outcome of the suit and/or any other
proceedings.