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2000 DIGILAW 393 (ORI)

DEBASIS KUMAR DEY v. SOVA RAY

2000-08-01

P.K.MISRA

body2000
JUDGMENT : P.K. Misra, J. - Plaintiff is the appellant. He has filed Title Suit No. 252 of 1999 against the present respondents and others for declaration that the decree passed in Title Suit No. 32 of 1968 in the Court of the Subordinate Judge, Baripada, is void and for allotment of share with further prayer that the alienation made in favour of present respondents 3 to 10 is not binding and for permanent injunction restraining such purchasers from interfering with the possession of the plaintiff and defendants 17 to 25. During the pendency of the suit, the plaintiff filed an application under Order 39, Rules 1 and 2, C.P.C., seeking to injunct the present respondents 3 to 10 from disturbing the possession of the plaintiff in respect of 'A' Schedule properties of the injunction application and for restraining the present respondents 1 to 2 from alienating any portion of the disputed properties as mentioned in Schedule 'B' of the said application. 2. The trial Court has rejected such application on the ground that the plaintiff has failed to establish a prima facie case and the balance of convenience was in favour of the respondents and the plaintiff would not to be put to any irreparable loss in case injunction is refused. 3. The learned counsel appearing for the appellant has contended that it cannot be said that there is no prima facie case in favour of the plaintiff. He has submitted that since a fair question for determination is raised, it should be held that a prima facie case is established. 4. The trial Court has held that there is no prima facie case by referring to earlier decisions of several Courts. Any discussion relating to the merits of the case is likely to prejudice either party. Even assuming that the plaintiff has got a prima facie case, no order of injunction can be granted unless it is established that the balance of convenience lies in favour of the plaintiff and he will suffer irreparable loss if the injunction is refused. In the present case, the trial Court has observed that the respondents should not be deprived of the fruits of the litigation and the balance of convenience was not in favour of the plaintiff. The conclusion of the trial Court cannot be said to be erroneous. In the present case, the trial Court has observed that the respondents should not be deprived of the fruits of the litigation and the balance of convenience was not in favour of the plaintiff. The conclusion of the trial Court cannot be said to be erroneous. Similarly, it cannot be said that the plaintiff will suffer any irreparable loss if the injunction is refused. 5. The prayer for injunction was in two parts - one was relating to the injunction seeking to restrain the respondents from disturbing the possession, and the other was relating to injunction seeking prevention of making any alienation. In view of the prima facie conclusion that the purchasers were in possession, the injunction restraining the purchasers from coming upon the disputed land was rightly rejected. So far as alienation is concerned, the law is well settled that any alienation of the immovable property during pendency of a suit is hit by the principle of lis pendens u/s 52 of the Transfer of Property Act. As such, even if any of the parties to the suit alienate any portion of the disputed property during the pendency of the suit, the purchasers shall be bound by the ultimate decree to be passed in the suit. However, to allay any apprehension, I deem it just and proper to direct that in case any of the parties to the suit alienate any portion of the disputed property, a specific clause shall be incorporated in the document of alienation to the effect that the property is the subject-matter of the present suit and the purchasers shall be bound by the decision in the suit. 6. Though the suit is of the year 1999, it seeks to unsettle the decision given in an earlier suit. It is necessary that the uncertainty over the matter should be cleared as early as possible. I, therefore, direct the trial Court to dispose of the suit as early as possible, preferably by 10th May, 2001. It goes without saying that the trial Court shall dispose of the suit in accordance with law on the basis of evidence on record without being influenced by any observation made by the trial Court in the impugned order, or by the High Court in the present order. 7. Subject to the aforesaid observation and modification, the Misc. Appeal is disposed of There will be no order as to costs.