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This civil first appeal under Section 96 CPC has been filed against the judgment and decree dated 15.12.1999, passed by the Additional District Judge No.2, Sikar dismissing the plaintiffs-appellants' (hereinafter 'the plaintiffs') suit for declaration, preemption, mandatory injunction, permanent injunction as also for specific performance of contract.

The facts of the case are that the plaintiffs filed a suit on 23.01.1985 stating that the suit property described in the plaint was in the ownership of the respondent-defendant No.1 (hereinafter 'the defendant') Dilip Kumar. It was stated that the defendant No.1 had a large chunk of land and had divided it into plots for disposal and use as residential property. It was stated that one of the plot belonging to the defendant No.1 had been sold to one Hanuman Prasad Sharma (east-northern side), another to the plaintiff No.2 Shyam Lal (south-western side), and yet another plot was sold to Patashi Devi (North-Eastern side). All the three sale-deeds were duly executed according to the plaintiffs by the defendant No.2 as the special power of attorney holder of defendant No.1. It was stated that under the belief that the defendant No.2 was generally authorised to sell the property of the defendant No.1, the plaintiff No.1 i.e. Mohani Devi (since dead and now represented through her LRs) wife of plaintiff No.2 Shyam Lal had purchased another parcel of land adjoining the land earlier purchased by the plaintiff No.2, Shyam Lal by way of advancing a sum of Rs.15,000/- duly receipted in cash by the defendant No.2. It was stated that subsequently an agreement to sell was also executed by the defendant No.2 on 28.08.1978 in respect of the plot for which the advance had been made over by the plaintiff No.1 to the defendant No.2 on or about 24.07.1978. The plot in question was then stated to have been merged by the plaintiffs with the plot earlier purchased by the plaintiff No.2 under a registered sale-deed and gated. It was further averred in the plaint that the defendant No.2 continued to assure the plaintiffs that a formal sale-deed would be duly registered on obtaining a power of attorney by defendant No.2 from defendant No.1, who at the relevant time was residing in USA. The matter was thereupon rested and was not perused in earnest. Hence while the matter of execution of a registered sale-deed in respect of the plot in issue remained pending but the actual peaceful possession of the plot continued with the plaintiffs allegedly having been handed over by the defendant No.2. Thereafter the plot was used as stated the plaintiffs inter alia for storing their building material, for tying their cattle as also for keeping certain household articles therein. It was stated that a water connection on the disputed plot in the name of the plaintiff No.2 was also obtained. It was then alleged that however in breach of the agreement to sell dated 28.08.1978 in respect of the suit plot, it had been sold to the defendant Nos.3 & 4 vide two sale-deeds dated 02.01.1985 and 05.01.1985 respectively duly registered on 19.02.1985. It was stated that thereafter attempts were made by the defendant Nos.3 & 4, the alleged subsequent purchasers, to dispossess the plaintiffs from their lawful possession of the plot in dispute in the circumstances detailed hereinabove. The disputes as to possession of the suit plot then led to criminal action and FIRs came to be lodged between the contesting parties. It was further stated that the plaintiffs had always been ready and willing to perform their part of contract under the agreement to sell dated 28.08.1978 and have the sale-deed in respect of the disputed plot prepared and executed and that in the event no further amount was due and outstanding as consideration towards the suit plot as the agreed consideration of Rs.15,000/- had been paid under receipt dated 24.07.1978. The plaintiffs yet stated that they would be ready to pay such further amount as warranted in the event the sale-deed of the plot were directed to be registered in the name of the plaintiffs in view of the agreement to sell dated 28.08.1978 and the sale-deeds executed in favour of the respondent Nos.3 & 4 thereafter cancelled. It was submitted that in the facts averred in the plaint, the plaintiff No.1 was thus entitled for a decree of specific performance qua the suit property. Alternatively, rights over the disputed plot were also sought to be asserted with reference to the Rajasthan Preemption Act, 1966 (hereinafter 'the Act of 1966') on the ground of the plot earlier purchased by the plaintiff No.2 having a common wall with the plot in dispute and also for easement of necessity. It was stated that it was the duty of the defendant No.1 to notify the plaintiff No.2 of the intended sale of the plot to the defendant Nos.3 & 4 prior to its actual sale with reference the provisions of the Act of 1966. The transfer of the disputed plot by way of registered sale-deed in favour of defendant Nos.3 & 4 was alleged to be to just defeat the rights of the plaintiff No.2, who was thus entitled to have the said transaction declared illegal and a further direction to have the said sale registered in the name of the plaintiff No.2. A decree of permanent injunction was also sought to protect the plaintiffs' purported lawful possession of the disputed plot.

In the context of the overall decision on the issues before it, the suit laid by the plaintiffs stood dismissed by the trial court under its judgment and decree dated 15.12.1999. Hence this first appeal.

Mr. R.K. Mathur, Sr. Advocate with Mr. Aditya Mathur, appearing for the plaintiffs has submitted that the learned trial court ought to have decreed the suit for specific performance on the basis of the receipt dated 24.07.1978 (Ex-6) and the agreement to sell dated 28.08.1978 (Ex-8) executed by the defendant No.2 stating himself to have been authorised by defendant No.1. It has been submitted that albeit no formal power of attorney had been executed by the defendant No.1 in favour of the defendant No.2 in respect of the disputed plot / suit property yet the learned trial court from the overall evidence on record as also facts and circumstances of the sale of three other plots in the vicinity of the disputed plot by the defendant No.2 as the special power of attorney of defendant No.1 ought to have held that the defendant No.2 had implied / ostensible authority to act on behalf of the defendant No.1 and make the sale transaction of the disputed plot / suit property in favour of the plaintiff No.1. It has been submitted that both exhibit-6 dated 24.07.1978 evidencing the receipt of Rs.15,000/- by the defendant No.2 as consideration for the sale of the disputed plot / suit property as also exhibit-8 i.e. the agreement to sell dated 28.08.1978 executed by the defendant No.2 in favour of the plaintiff No.1 ought to have been found to be good and valid against the defendant No.1 and binding on him by the trial court on the evidence of Nanu Ram (PW-5) and Shiv Narayan (PW-12). It has been submitted that the learned trial court instead erroneously proceeded to doubt and disbelieve the evidence of Nanu Ram (PW-5) on the sole ground that he was not the signatory either of the receipt dated 24.07.1978 or the agreement to sell dated 28.08.1978 and that of Shiv Narayan (PW-12) on the untenable ground that he was a chance and interested witness not being a resident of Sikar, but of a distinct place Silanvas, Tehsil Ladnoo, District Nagaur and had also been a client of the plaintiff No.2, an Advocate, between 1982 to 1985. It was submitted that the learned trial court was also overtly suspicious rather unfairly, of the receipt dated 24.07.1978 and more particularly the agreement to sell dated 28.08.1978 being drawn on a plain white paper and not on a stamp paper duly notarized. It has been submitted that the learned trial court also erred in holding that the signatures of Ladu Ram Joshi, defendant No.2, on the receipt dated 24.07.1978 and agreement to sell dated 28.08.1978 were forged as they did not match the signatures of Ladu Ram in the report of the Forensic Science Laboratory. Sr. counsel has submitted that there was ample evidence before the trial court in the form of the plaintiffs' witnesses, the report of the court commissioner dated 29.01.1985 and the water connection over the disputed plot in the name of the plaintiff No.2 to hold that the plaintiffs had been in possession of the disputed plot at least ever since the execution of the agreement to sell dated 28.08.1978. Sr. Counsel has further submitted that the learned trial court failed to appreciate that the purported admission of the plaintiff No.2 in various litigations before the District Courts in Sikar with regard to the disputed plot belonging to the defendant No.1 were wrongly inferred overlooking the context in which a registered sale-deed in respect thereof had not been executed in favour of the plaintiff No.1 consequent to which in terms of the Transfer of Property Act, the defendant No.1 continued to remain the legal owner even while the plaintiffs were in possession with a right to seek specific performance under the agreement to sell dated 28.08.1978. Sr. Counsel has submitted that aside of the above, the learned trial court also erred in failing to decree the suit as laid in the alternative in favour of the plaintiffs on the ground of preemptory rights of the plaintiff No.2 over the disputed plot under the Act of 1966 in view of his plot and the disputed plot sharing a common wall and easement of necessity. It has been further submitted that in the facts of the case, the plaintiffs ought to have been held entitled not only to the possession by way of a mandatory injunction of the disputed plot / suit property having been unlawfully dispossessed, but also for permanent injunction for thereafter safeguarding the rights and interest of the plaintiff No.1 in the disputed plot / suit property. It was thus submitted that the judgment and decree dated 15.12.1999 passed by the trial court was deserving of being set aside on the grounds detailed above and the suit as laid for specific performance liable to be decreed at the hands of this Court.

As far as the preemptory rights of the plaintiffs under the Rajasthan Preemption Act, 1966 to purchase the disputed plot are concerned, based on sharing a common wall between the plot owned by the plaintiff No.2 and the suit property, this Court in the case of Nen Mal Vs. Kan Mal [1987 (II) RLR 278] and in the case of Dharam Pal Vs. Smt. Kaushalya Devi [1989 (2) RLR 826] respectively has held that the right to preemption cannot be based on vicinage. The trial court from the evidence on record also rightly held that the plaintiff No.2 had an alternative access to his preexisting adjoining plot. I thus find no force in the plaintiffs' case on the count of right of preemption. Issue No.4 and 5 are also therefore liable to be decided against the plaintiffs. In my considered opinion, with the conclusions of this Court on there being no privity of contract between the plaintiffs and the defendant No.1, the plaintiffs being unable to prove the execution of the receipt dated 24.07.1978 (Ex-6) and the agreement to sell dated 28.08.1978 (Ex-8) by the defendant No.2 and the plaintiffs having no preemptory rights, no case whatsoever can be made out in favour of the plaintiffs for grant of a permanent injunction in respect of the suit property. The plaintiffs have no legal rights or title over the suit property. The learned trial court has rightly found from the evidence on record that the evidence set up before it by the plaintiffs with regard to the then possession was contradictory in nature and unsustainable to make out a case for grant of permanent injunction. This court concurs with the said finding of the trial court. In any event the suit property has since been admittedly sold to the defendant Nos.3 & 4, who are presently in possession thereof having constructed their house thereon with due permission from the competent authority and it is settled law that there can be no injunction against the true owner.