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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.