Vinod Kumar vs Bohat Ram and Others

Valmiki J Mehta, J.—The challenge by means of this First Appeal under Order 43(1)(r) CPC is to the impugned order dated 19.3.2010 which has allowed the application of the Respondent No. 1/Plaintiff under Order 39 Rules 1 & 2 CPC thereby restraining the Appellant from in any manner transferring the suit property or parting with possession thereof to any person till the decision of the suit.

The issue in the case pertains to ownership of the suit property WZ-5, situated in village Titarpur, New Delhi. The Respondent No. 1 who is a senior citizen of 80 years, laid out a case that he is the owner of the property and earlier litigations were initiated which concluded in his favour vide orders dated 4.11.1997 (Ex.PW1/11) and 14.1.1997 (Ex.PW1/12). These were litigations between the Respondent No. 1 and the Defendant No. 2 in which it was stated that the Defendant No. 2 had no rights in the property. The Defendant No. 2 thereafter subsequently transferred the property firstly to Defendant No. 1 and thereafter the property was transferred to other Defendants and lastly to the Defendant No. 7. Admittedly the Defendants are related to each other. Since the property was being regularly transferred, in order to prevent further complications, after the Defendant No. 7/Appellant was added, the subject application for injunction under Order 39 Rules 1 and 2 CPC was moved to restrain the Defendant No. 7 from transferring the property further and which has been allowed.

An injunction application under Order 39 Rules 1 and 2 CPC is decided on the triple factors of prima facie case, balance of convenience and irreparable injury. These three factors are clearly in favour of the Respondent/Plaintiff inasmuch as the earlier litigations concluded showing his ownership. The Defendant No. 2 failed to prove his ownership and merely because there was an allegation of possession, does not mean that Defendant No. 2 was the owner. The other Defendants are subsequent transferees and they cannot claim a title better than Defendant No. 2. Balance of convenience is also in favour of Respondent No. 1/Plaintiff, who will be caused irreparable loss if the property is transferred because if third party''s rights come into question, equities may also come into existence and which may be prejudicial to Respondent No. 1/Plaintiff.

Accordingly, there is no illegality or perversity in the impugned order which in effect directs maintenance of status quo in the property so that the suit does not become in fructuous qua the existing Defendants and the Plaintiff has to keep on changing different persons to be made parties to the suit. Once the triple factors were in favour of Respondent No. 1/Plaintiff, the Trial Court has rightly passed the impugned order.

In view of the above, there is no merit in the appeal. Dismissed.