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2011 DIGILAW 814 (JHR)

Bina Devi v. Roshan Kumar surin

2011-08-30

N.N.TIWARI

body2011
Order With the consent of the parties, this appeal as well as I.A. no.1334 of 2011 are heard together and are being disposed of by this order. 2. This appeal is against the order dated 7.4.2011 passed by Sub-Judge-VIII, Ranchi in Title Suit no.138 of 2010, whereby learned court below has rejected the plaintiff-petitioner's prayer for issuing appropriate injunction, restraining the defendant nos. 1 to 3 from interfering with the peaceful possession of the plaintiff over the suit lands. 3. In the said suit, the plaintiff has sought a decree for specific performance of agreement between the predecessors in interest of defendant nos. 1 to 3 and the plaintiff and has also prayed that she be put in khas possession over the suit land, if she is found dispossessed. The defendant nos. 1 to 3 filed written statement contesting the said suit and disputing and denying the agreement. 4. During pendency of the suit, the plaintiff filed a petition under Order XXXIX Rule 1(a) and (c) of the Code of Civil Procedure stating, inter alia, that the State Housing Board is proceeding to allot/transfer/sale the suit land, which would affect the right of the plaintiff and, as such, the Housing Board-defendant no.4 be restrained from transferring the suit land during pendency of the suit, by issuing an appropriate injunction. 6. A rejoinder to the petition was filed by defendant no.4-Housing Board stating, inter alia, that the plaintiff has no locus standi to pray for any such injunction over the suit property as the same belongs to the Housing Board. The defendant no.3-alleged vendor of the plaintiff-is an allottee and tenant under the Board. The said transaction was not brought to the knowledge of and no permission was taken from the Housing Board. They also disputed the agreement and the claim of possession of the plaintiff 7. Learned court below, after hearing the parties and considering the facts and materials on record held that the suit land was allotted to Nottrot Kerketta and he was a mere allottee. There was no final transfer of the suit property by the Board, in his name by any registered document and no permission was taken from the Housing Board before entering into the alleged agreement in favour of the plaintiff. There was no final transfer of the suit property by the Board, in his name by any registered document and no permission was taken from the Housing Board before entering into the alleged agreement in favour of the plaintiff. Learned court below further held that though a prospective purchaser has right to sue for specific performance of contract to sell, if there is any such contract-but only by entering into an agreement, the purchaser does not acquire any right superior to the right of the vendor, who is still the owner of the property before he completes the transaction and transfers his right, title and interest of the property to the purchaser or any decree is passed by the court of law declaring transfer of right, title and possession of the vendor. He ultimately found that there is no prima facie case or the balance of convenience in favour of the plaintiff and there is no reason for complaining irreparable loss and injury. Learned court below, thus, rejected the said application by the impugned order. 8. Assailing the said order, the appellant has taken almost similar ground and claimed that the plaintiff-appellant is entitled to be protected by issuing order of temporary injunction restraining the defendant-Housing Board from transferring the suit land during pendency of the suit. 9. Mr. V.P. Singh, learned senior counsel, appearing on behalf of the petitioner, submitted that learned court below has not properly considered the documents filed by the plaintiff-appellant and has erroneously rejected the plaintiff's prayer seeking injunction against the Housing Board. He further submitted that the plaintiff is in possession of the suit property by virtue of an agreement. She has already deposited the entire consideration amount and was put in possession of the suit property. She has got prima facie case and the balance of convenience in her favour. He further submitted that if the plaintiff is dispossessed during pendency of the suit, she shall suffer irreparable loss and injury. 10. Mr. S. Godadia, learned counsel, appearing on behalf of the Jharkhand State House Board, on the other hand, submitted that the plaintiff-appellant has no locus standi to seek injunction against the Housing Board. The property belongs to the Housing Board. It has not been transferred by registered lease deed to defendant nos.1 to 3. 10. Mr. S. Godadia, learned counsel, appearing on behalf of the Jharkhand State House Board, on the other hand, submitted that the plaintiff-appellant has no locus standi to seek injunction against the Housing Board. The property belongs to the Housing Board. It has not been transferred by registered lease deed to defendant nos.1 to 3. He is simply an allottee and the plaintiff claims to have entered into an agreement for purchasing the said property. When the vendor is yet to get title and interest in the property and the Housing Board is still the owner, the plaintiff cannot claim prima facie case or balance of convenience in her favour. Even if it is admitted for the sake of argument that on the basis of an agreement, she has right to sue for specific performance against her vendor, she does not have any right against the Board. Since the Housing Board has got title over the property, prima facie case is against the plaintiff and the balance of convenience is in favour of the title holder. Any claim of injury under the said circumstance has not legal basis. 11. I have heard learned counsel for the parties and considered the facts and materials on record. It is an admitted fact that the property belongs to the Housing Board and that Nottrot Kerketta was an allottee. It is also admitted position that there is no registered lease in favour of the allottee. The Housing Board has specifically claimed that the property has not been legally transferred in favour of Nottrot Kerketta. The plaintiff claims to have entered into an agreement for purchasing the said property from the said Nottrot Kerketta. The Housing Board is not a party to the said agreement. In such circumstance, on the basis of the said agreement, the plaintiff cannot be said to have prima facie case or balance of convenience in her favour or any sufficient cause to restrain the Housing Board from dealing with the property by issuing an injunction. 12. So far as the claim of suffering injury by any apprehended transfer during pendency of the suit is concerned, if the appellant succeeds in her suit, she can take advantage of the principle of lis pendence. 13. Learned court below has considered all the aspects in detail and has recorded his finding with sound reasons. 12. So far as the claim of suffering injury by any apprehended transfer during pendency of the suit is concerned, if the appellant succeeds in her suit, she can take advantage of the principle of lis pendence. 13. Learned court below has considered all the aspects in detail and has recorded his finding with sound reasons. I find no illegality on any ground to interfere with the said impugned order. This appeal is, accordingly, dismissed. I.A. no.1334 of 2011 seeking ad- interim injunction in the aforesaid terms stand rejected.