Rukmini Bai vs Mallikarjuna

S.N. Satyanarayana, J.—Third defendant in O.S. No. 14/2013 on the file of Senior Civil Judge, Raichur, has come up in these petitions impugning the order dated 7.8.2014 in MA. No. 22/2013 on the file of Civil Judge (Sr. Dn), Raichur ( itinerary court at Devadurga), wherein the lower appellate court while allowing the aforesaid appeal filed by the plaintiff in OS. No. 14/2013 set aside the order passed by the trial Court on IA. 4 in declining to grant temporary injunction in favour of plaintiff, consequently granted order of temporary injunction in favour of plaintiff.

Brief facts leading to these petitions are as under:

The petitioner herein is third defendant, first respondent is plaintiff, second and third respondents are defendant Nos. 1 and 2 in OS. No. 14/2013. The said suit was filed by first respondent for the relief of specific performance of agreement of sale dated 30.1.2006 for sale of 2 acres 36 guntas of land in land bearing Sy. No. 73/P2 situated at Saswigere village of Deodurga Taluk, Raichur District, which was earlier belonging to defendant Nos. 1 and 2 It is stated that under the agreement dated 30.1.2006 defendant Nos. 1 and 2 agreed to sell the suit schedule property to plaintiff for valuable consideration of Rs. 3,16,100/-. In that behalf, they received in all a sum of Rs. 2,35,000/- from time to time under various cheques from the plaintiff. Since defendant Nos. 1 and 2 failed to execute the sale deed in respect of suit schedule property, the aforesaid suit for specific performance was filed by the plaintiff. It is stated even before the suit for specific performance was initiated, defendant Nos. 1 and 2 have already sold the property in favour of defendant No. 3. Hence, defendant No. 3 was also arraigned as subsequent purchaser in the suit.

In the said suit, it is stated that the plaintiff has filed IA. 4 under Order 39 Rules 1 and 2 r/w Section 151 of CPC seeking the relief of ad interim temporary injunction against defendant Nos. 1 to 3 with reference to his possession and enjoyment of suit schedule property. It is seen that in the said proceedings defendant No. 3 also filed an application in IA. 5 under Order 39 Rules 1 and 2 r/w Section 151 of CPC for the very same relief. The trial Court, after hearing the counsel for plaintiff as well as contesting third defendant, proceeded to dismiss both the applications. However, it is only the plaintiff being aggrieved by the rejection of his application in IA. 4 filed appeal in MA. No. 22/2013 on the file of Additional Senior Civil Judge, Raichur (Itinerary court at Devadurga) and the contesting third defendant did not choose to file an appeal against the rejection of his application in IA. 5. In MA. No. 22/2013 filed by the plaintiff, the lower appellate court on reappreciation of the pleadings proceeded to allow the said appeal. Consequently, set aside the order on IA. 4 in rejecting the same and by granting the relief of temporary injunction in favour of the plaintiff allowed the said application. Being aggrieved by the said order, the present petition is filed by defendant No. 3.

Heard the learned counsel for petitioner as well as contesting first respondent. On going through the pleadings and the orders impugned of both the courts below, it is seen that the agreement dated 30.1.2006 said to have executed by defendant Nos. 1 and 2 in favour of plaintiff is not in dispute. It is further not in dispute that out of the total sale consideration of Rs. 3,16,100/-, defendant Nos. 1 and 2 have received a sum of Rs. 2,35,000/- from the plaintiff on various dates under cheques issued in their favour. It is also not in dispute that the agreement that is relied on by the plaintiff discloses that possession of the suit schedule property was delivered to him under the agreement. Unless, the said averment is disputed as incorrect and evidence to that effect is adduced by the contesting third defendant in the original suit, he cannot find fault with the finding of the lower appellate court in granting the relief of temporary injunction in favour of the plaintiff.

It is also necessary to observe at this juncture that in the original suit application in IA. 5 under Order 39 Rules 1 and 2 r/w Section 151 of CPC was also filed by the third defendant seeking temporary injunction as against plaintiff. Admittedly, the said application was also dismissed while rejecting the application filed by the plaintiff in IA. 4. However, rejection of the plaintiff''s application was the subject matter of challenge in MA. No. 22/103, whereas the rejection of third defendant''s application in IA. 5 is concerned, he has accepted the same and did not choose to challenge by filing an appeal. In that view of the matter, he cannot have any objection to the granting of temporary injunction in favour of plaintiff in MA. 22/2013 by the lower appellate court when prima facie the agreement discloses delivery of possession of suit schedule property in favour of plaintiff as on 2006 i.e., on the date of agreement of sale.

In that view of the matter, this Court find that no justifiable grounds are made out to interfere with the order of lower appellate Court in allowing MA. No. 22/2013 and consequently, granting temporary injunction in favour of plaintiff by allowing IA. 4 filed in OS. No. 14/2013.

Accordingly, these writ petitions are dismissed.