Patna High Court
Ramashish Rai vs Baijnath Mishra And Anr. on 3 November, 1998
Equivalent citations: 1999(1)BLJR433, 1999 A I H C 1343, (1998) 3 PAT LJR 862, 1999 BLJR 1 433, (1999) 1 BLJ 16
Author: M.Y. Eqbal
Bench: M.Y. Eqbal
JUDGMENT M.Y. Eqbal, J.
1. This civil revision application is directed against the order dated 28.9.1996 passed by 3rd Additional District Judge, Saran in Miscellaneous Appeal No. 108/94 whereby he set aside the order dated 6.10.94 passed by Munsif. III. Chapra in Title Suit No. 76/94 by which defendant opposite party was restrained from alienating the suit land till further order is passed in suit.
2. The plaintiff petitioner filed the aforementioned suit against the defendant opposite party for a decree of Specific Performance of Contract and also for confirmation of possession with respect to the suit lands measuring an area of 8 katha, 1 dhur towards north of plot No. 1615 appertaining to khata No. 182 situated in Mauza Hakma, District Saran. The plaintiffs case, in brief, is that he purchased a portion of plot No. 1615 towards eastern side and constructed his residential house. On 20.12.93 uncle of defendant No. 1 agreed to sell his share towards southern side of the said plot to the plaintiff and on that day, he gave possession of the said land on payment of consideration amount and a sale-deed was executed on 22.12.93. It is alleged that on the same day the defendant also agreed to sell his share in plot No. 1615 to the plaintiff and en receipt of Rs. 20,000/- the plaintiff took possession thereof and since then the plaintiff has been coming in possession of the suit land and amalgamated the same with his own land. On account of the failure of the defendant to execute a registered sale-deed the plaintiff filed the aforementioned suit and also filed a separate application under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure for an order of temporary injunction restraining the defendant from alienating the disputed land till the disposal of the suit. The trial Court after hearing the parties, by an order dated 6.10.94 allowed the application and issued temporary injunction restraining the defendant from alienating the suit land. Aggrieved by the said order, the defendant filed appeal being Misc. Appeal No. 108/94 which was ultimately allowed by the appellate Court in terms of order dated 28.9.96 and the order of injunction passed by the trial Court was set aside.
3. Mr. Sukumar Slnha, learned Counsel appearing for the plaintiff petitioner assailed the impugned order passed by the appellate Court as being illegal and contrary to the facts on record. Learned Counsel submitted that the appellate Court has not correctly appreciated the law with regard to grant of temporary injunction and the order suffers from serious illegality and infirmity.
4. I have gone through the orders passed by the trial Court and the appellate Court. From perusal of the appellate Court order it appears that the appellate Court found that there was no any reliable evidence to substantiate the story of oral agreement of sale and payment of earnest money. The appellate Court on the basis of evidence further came to a prima facie finding that the story of oral sale and delivery of possession of the suit land to the plaintiff has not been established. I do not find any illegality or infirmity in the order passed by the learned appellate Court. The appellate Court, after considering the entire facts and evidence came to a finding that neither the plaintiff has prima facie case nor the petitioner will suffer irreparable loss or injury which are essential ingredients for the grant of temporary injunction.
5. Be that as it may, admittedly, the plaintiffs case is that there was an oral agreement to sell of the suit land and on payment of consideration money the plaintiff was put in possession. There is no dispute that a suit for Specific Performance of Contract can be filed on the basis of oral agreement. The question for consideration in this case is whether the plaintiff has a legal right to restrain the defendant from alienating the suit land by obtaining an order of temporary injunction. It is well settled that an agreement to sell creates a right in personam and it does not create any right in the property. An agreement to sell gives a right to the proposed purchaser to bring a suit for specific performance of contract to sell but he cannot claim any interest in the property till his suit for specific performance is decreed. Learned Counsel appearing for the petitioner placed reliance on a judgment delivered by me which is reported in 1998 (2) PLJR 120, Lallan Prasad v. Parmeshwar Singh. The ratio decided by me in that judgment does not help the petitioner rather it totally goes against the petitioner. In the said judgment this Court observed: "I have heard learned Counsel for the parties and have gone through the orders passed by both the Courts below. In my opinion, both the Courts below have committed serious illegality and material irregularity in granting temporary injunction in the facts and circumstances of the case. The Courts below have over-looked the settled principles of law that an agreement to sell creates right in personam and It does not create any right in property. An agreement to sell gives a right to the proposed purchaser to bring a suit for specific performance of contract to sell but he cannot claim any interest in the property till his suit for specific performance is decreed. In the case of Jiwan Dass v. Narain Dass AIR 1981 Delhi, 291. it has been held by a Division Bench that an agreement to sell creates a right in personam and not in the estate such right created against a vendor to obtain specific performance can ultimately bind any subsequent transferee till, therefore, a decree of specific performance is obtained the vendor or a purchaser from his not entitled to full enjoyment of the property even if a decree for specific performance of contract is obtained and no sale-deed is actually executed. It cannot be that any interest in the property is passed. Consequently, temporary injunction cannot be granted till sale-deed is executed on the basis of decree of specific performance of contract to prevent the transferee under the sale-deed from enjoying possession.
6. As noticed above, in the facts of the instant case the appellate Court has rightly come to the conclusion that the plaintiff petitioner has no prima facie case for the grant of temporary injunction. I fully agree with the view taken by the learned Court of appeal below.
7. For the reasons aforesaid, there is no merit in this application, which Is, accordingly, dismissed.