Rajasthan High Court - Jodhpur
Trilok Chand vs . Kanta & Ors. on 1 December, 2015
Author: Vijay Bishnoi
Bench: Vijay Bishnoi
S.B.CIVIL MISC. APPEAL NO.2283/2015
Trilok Chand vs. Kanta & Ors.
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
JUDGMENT
S.B.CIVIL MISC. APPEAL NO.2283/2015
Trilok Chand vs. Kanta & Ors.
Date of Judgment : 01.12.2015
PRESENT
HON'BLE MR JUSTICE VIJAY BISHNOI
Mr N.L.Joshi, for petitioner
BY THE COURT:
This misc. appeal has been preferred by the appellant being aggrieved with the order dated 16.11.2015 passed by Additional District Judge No.2, Bikaner (for short 'the trial court' hereinafter), whereby the application filed by the appellant under Order 39 Rule 1 and 2 read with section 151 CPC has been dismissed.
Brief facts of the case are that the appellant filed a suit for specific performance of contract before the trial court while alleging that deceased Gavara Devi wife of Poonam Chand was the owner of agricultural land situated in Khasra No.483 measuing 45 Bighas and 3 Biswas in village Mahajan. During her life S.B.CIVIL MISC. APPEAL NO.2283/2015 Trilok Chand vs. Kanta & Ors.
2 time, as she was in need of money for her family requirements, she had sold the above mentioned agricultural land to the appellant for a consideration of Rs.72,250/- and for that, she had executed an agreement on 08.09.1993. It is also stated that the consideration amount was paid in cash and the possession of the above land was also handed over to the appellant. It is claimed that Gavara Devi died on 16.12.1996 and thereafter her husband Poonam Chand also agreed to execute the agreement to sell the land, however, on 21.05.2008, some unknown persons along with brokers visited the said agricultural land and informed the appellant that they are negotiating with the original Khatedars to purchase the above mentioned agricultural land. When the appellant contacted the respondents and asked them to get the sale deed executed as also the agreement dated 08.09.1993, they refused and threatened him to dispossess him from the land. The appellant prayed for issuing decree of specific performance of contract directing the respondents to execute the sale deed of the above mentioned land in his favour. Along with S.B.CIVIL MISC. APPEAL NO.2283/2015 Trilok Chand vs. Kanta & Ors.
3 the suit for specific performance of contract, an application for granting temporary injunction has also been filed by the appellant, however, the trial court, after hearing the counsel for the parties, has rejected the application vide impugned order. Hence, this appeal.
Learned counsel for the appellant has argued that the trial court has grossly erred in observing that prima facie case does not exist in favour of the appellant though the appellant had filed the suit on the basis of agreement executed by Gavara Devi in his favour and he is in possession of the land since the execution of the said agreement i.e. from 08.09.1993. It is further argued that the trial court has dismissed the application filed by the appellant for granting temporary injunction solely on the ground that the appellant has filed the suit for specific performance of contract in the year 2008 i.e. after 14 years of the execution of the agreement dated 08.09.1993. The learned counsel for the appellant has argued that even if there is any inordinate delay in filing the suit for specific performance of contract, the trial court should have at least restrained the S.B.CIVIL MISC. APPEAL NO.2283/2015 Trilok Chand vs. Kanta & Ors.
4 defendants from further alienating that property. In support of the above contentions, learned counsel for the appellants has placed reliance on decisions of Hon'ble Supreme Court in Ravi Prakash Agarwal & Ors. vs. Rajesh Prasad Agarwal & Ors., 2008 AIR SCW 7407 and Eshwarappa & anr. vs. Vishalakshamma & Ors., 2009(1) CT(SC)
29. The learned counsel for the appellant has also placed reliance on decisions of this Court in Peer Gulam Naseer vs. Peer Gulam Jelanee, RLR 1988(2) 871 and Smt. Lad Kanwar vs. Shri Ladu & Ors., 2015 WLC (Raj.) UC 740.
Heard learned counsel for the appellant and perused the impugned order.
It is not in dispute that the appellant has filed a suit for specific
performance of contract in the year 2008 with a prayer for issuing a decree in his favour and against the respondents to execute the sale deed in relation to the agricultural land belonging to Gavra Devi for which, as per the appellant an agreement was executed on 08.09.1993. The said agreement is too unregistered. The appellant has also failed to prima facie satisfy the trial court that he is in possession of the land. The S.B.CIVIL MISC. APPEAL NO.2283/2015 Trilok Chand vs. Kanta & Ors.
5 trial court, after taking into consideration the above mentioned facts and circumstances of the case, has observed that for the purpose of granting temporary injunction in a case of specific performance of contract, the court should have satisfied itself about the possession of the plaintiff over the property. The trial court has placed reliance on decision of this Court in Naresh Jain & Ors. vs. Rama & Ors., AIR 2003(Raj.) 119. The trial court has also observed that as per the law laid down by the Rajasthan High Court in Sunil Kumar Pokharna vs. Basant Kumar Surana, 2012(1) DNJ (Raj.) 45, the court must satisfy itself before granting temporary injunction in favour of a plaintiff in suit for specific performance of contract whether the plaintiff was ready and eager to perform his part.
In the present case, it is noticed that the appellant has failed to produce before the trial court prima facie evidence to prove his possession over the disputed land. As observed earlier, admittedly the suit was filed by the appellant after a delay of 14 years and the appellant has failed to satisfy the trial S.B.CIVIL MISC. APPEAL NO.2283/2015 Trilok Chand vs. Kanta & Ors.
6 court regarding possession over the land.
In the above noted facts and circumstances, I am of the considered opinion that the trial court has not committed any illegality in rejecting the application filed by the appellant for issuing temporary injunction in his favour and against the respondents.
So far as case of Eshwarappa & anr.
vs. Vishalakshamma & Ors. (supra) is concerned, the Hon'ble Supreme Court has granted relief to the appellant while taking into consideration the fact that the interim order of maintaining status quo granted by the Hon'ble Supreme Court was in currency for about one year and, therefore, the appeal was disposed of with a direction to the trial court to dispose of the suit expeditiously while continuing the interim order of status quo for another one year. It is observed that the Hon'ble Supreme Court has specifically observed in the order that the order has not been passed on merits. In view of the above, the decision rendered in Eshwarappa & anr. vs. Vishalakshamma & ors.(supra) is of no help to the appellant.
In Ravi Prakash Agarwal & Ors. vs. S.B.CIVIL MISC. APPEAL NO.2283/2015 Trilok Chand vs. Kanta & Ors.
7 Rajesh Prasad Agarwal & Ors. (supra), the Hon'ble Supreme Court has taken into consideration the fact that the interim order passed on the temporary injunction application has continued for nine years and later on recalled. In that circumstance, the Hon'ble Supreme Court has ordered that the order of status quo continued for considerable length of time, it would, therefore, be appropriate to direct maintainance of status quo as was originally granted till the disposal of the suit. In this case also, the Hon'ble Supreme Court has clearly observed that they are not expressing any opinion on the merits of such case. In the present case, the appellant has failed to point out any order passed by the trial court of maintaining status quo. Hence, the case of Ravi Prakash Agarwal & Ors. vs. Rajesh Prasad Agarwal & Ors. (supra) is quite distinguishable on the facts and cannot be applied in this case.
In Peer Gulam Naseer vs. Peer Gulam Jelanee (supra), a Co-ordinate Bench of this Court has held that the courts below should not decide the controversy finally raised in the S.B.CIVIL MISC. APPEAL NO.2283/2015 Trilok Chand vs. Kanta & Ors.
8 pleadings by the parties at the stage of deciding application for temporary injunction. In the present case, from perusal of the impugned order, it is clear that the Court has not finally decided the controversy raised by the appellant in the suit. Hence, the decision rendered in Peer Gulam Naseer vs. Peer Gulam Jelanee (supra) has also no application in the present case.
In Smt. Lad Kanwar vs. Shri Ladu & Ors. (supra), a Co-ordinate Bench of this Court, after taking into consideration the arguments of both the parties and after perusal of the documents referred in the said case, has held as under:
"After hearing arguments of both the parties and after perusal of the documents referred by the parties during the arguments I am of the view that because of inordinate delay appellant may or may not have a prima facie case in her favour in strict sense of the term, but she is entitled to get a quick decision in her suit in which she has prayed for cancellation of three sale deeds. As per Section 52 of the Transfer of Property Act, respondent No.10, though he may be a bona fide purchaser, shall not be entitled to alienate the suit property without permission of this Court because the proceedings in the trial court are not collusive S.B.CIVIL MISC. APPEAL NO.2283/2015 Trilok Chand vs. Kanta & Ors.9
and in those proceedings right to the suit property is directly and specifically in question."
In the present case, the situation is quite different. The appellant has failed to prove prima facie case regarding his possession over the land in dispute before the trial court and has also not filed suit for cancellation of any sale deed and the suit for specific performance of contract has been filed after 14 years of the execution of agreement, therefore, the case of Smt. Lad Kanwar vs. Shri Ladu & Ors. (supra) is also quite distinguishable on the facts and is not applicable in this case.
In view of the above discussions, I do not find any merit in this appeal and the same is hereby dismissed.
Stay petition also stands dismissed.
[VIJAY BISHNOI],J.
m.asif/-PS