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2012 DIGILAW 624 (UTT)

RAO JISHAN v. RAO JUNAD

2012-09-27

B.S.VERMA

body2012
JUDGMENT [Hon’ble B.S. Verma, J. (Oral)] (Misc. Application No.4252 of 2012) Heard learned counsel for the parties and perused the record. 2. This appeal under Order 43, Rule 1(r) C.P.C. is directed against the order dated 1-9-2012 passed by Civil Judge (Senior Division) Haridwar in Original Suit No. 85 of 2012 Rao Juna and another Vs. Rao Jishan and another, whereby the temporary injunction application of the plaintiffs-respondents has been allowed and the defendant-appellants have been restrained from interfering in the possession of the plaintiffs’ property, which has been purchased by them by way of sale deed and is also recorded in the Khatauni in their names. 3. According to the appellants, one Sri Sanjay Agarwal had executed an agreement for sale in favour of the appellants in respect of the suit property and photocopy of the document has been filed by the defendants before the trial Court. 4. It is the trial Court, who will examine the validity of the agreement to sell since it is not a registered agreement and for what purpose it can be read in evidence. 5. According to the appellants, the dispute has arisen when Smt. Baldei, vendor of the plaintiff-respondents had executed sale deeds in favour of the purchasers of land of her share. The trial Court on the basis of the entry in the revenue record of the plaintiffs found that a prima facie case was made out in favour of the plaintiffs. It was also held that the balance of convenience and irreparable loss are also in favour of the plaintiffs, therefore, granted injunction in their favour. 6. Learned counsel for the appellants has contended that the learned trial Court has miserably failed to consider the fact that Smt. Baldei, who is the vendor of the plaintiffs sale-deed had already sold the land of her share measuring 1073.85 S.M. and that the remaining area, which was left to the share of Smt. Baldei was much less than what had been sold by her to the plaintiffs, therefore, the plaintiffs cannot be said to have made out a prima facie case in their favour. Learned counsel for the appellants also contended that once, the plaintiffs failed to establish their prima facie case, there is no need to prove other two ingredients for grant of temporary injunction, namely, the balance of convenience and irreparable loss. 7. Learned counsel for the appellants also contended that once, the plaintiffs failed to establish their prima facie case, there is no need to prove other two ingredients for grant of temporary injunction, namely, the balance of convenience and irreparable loss. 7. Learned counsel appearing on behalf of the plaintiff-respondents has in reply submitted that the prima facie case should not be confused with prima facie title of the plaintiffs and that while hearing the temporary injunction application, the trial Court need not enter to discuss the evidence on the point. 8. Having heard the submissions of the learned counsel for the parties and considering the material placed before this Court and considering the facts and attending circumstances, this Court is of the view that the impugned order dated 1-9-2012 passed by the trial Court does not suffer from any illegality or material irregularity. The ground of challenge taken by the appellants that Smt. Baldei could not have sold the area in question in favour of the plaintiffs is a matter of evidence and cannot be decided unless evidence on behalf of both the parties is led before the trial Court. However, considering the facts of the case, it would be in the fitness of things that the plaintiffs-respondents be directed not to create third party interest in the property in dispute. The impugned order as passed by the trial Court does not call for any interference in this appeal. The impugned order dated 1-9-2012 is affirmed. However, in the peculiar facts and circumstances of the case, it is directed that the plaintiff-respondents shall not create third party interest in the property in dispute during the pendency of the suit. The trial Court is also directed to decide the suit on its own merits in accordance with law, after hearing both the parties, expeditiously, as far as possible. The appeal is accordingly disposed at admission stage.