Sohan Lal vs Om Parkash and Others

Iqbal Singh, J.—Being unsuccessful to obtain stay in his favour in both the courts below, the plaintiff-petitioner has come to this court by way of this petition u/s 115 of the CPC (hereinafter referred to as the Code).

A suit was filed by the plaintiff-petitioner for permanent injunction against the defendant-respondents restraining them from interfering in his cultivating possession on the ground that he is a prospective vendee of the land in dispute. It was averred that an agreement to sell dated 31.3.1999 was entered into with him by defendant-respondent No. 5 Manga Ram and he paid a sum of Rs. 3 lacs as earnest money out of the total sale consideration of Rs. 5,95,168/-. The sale deed was agreed to be registered on 30.11.1999. It is the further case of the plaintiff-petitioner that possession of the disputed property was given to him on the basis of the agreement, referred to above. Along with the suit, the plaintiff filed an application under Order 39 Rules 1 and 2 of the Code praying for stay during the pendency of the suit.

The said application was contested by the defendant-respondents.

The trial Court dismissed the application of the plaintiff filed under Order 39 Rules 1 and 2 of the code vide its order dated 15.4.1999. Feeling aggrieved against the said order, the plaintiff-petitioner went in appeal before the lower appellate Court, which was also dismissed vide order dated 3.6.1999.

I have heard the learned counsel for the petitioner and have gone through the records of the case.

The law is now well-settled that this Court should be very slow in upsetting the findings recorded by the lower appellate Court in such matters and that where two opinions are possible this Court should not substitute its own finding with the finding of the lower appellate Court. Moreover, in this case there is already an order of status quo operating in regard to the disputed property as is clear from the order dated 16.12.1997 passed by the Civil Judge (Senior Division), Sirsa, in civil suit No. 7-9 of 1997, Ram Chand v. Moti Ram and Ors.. The only document in favour of the plaintiff-petitioner is alleged agreement dated 31.3.1999 executed between him and defendant-respondent No. 5, referred to above. No legal right vests in the petitioner qua the property in dispute. I am not convinced that any irreparable loss or injury is going to be caused to the plaintiff if the interim stay, as prayed by him, is not granted to him. The plaintiff can be well compensated in terms of costs/damages etc. if the sale deed, as per agreement, is not executed in his favour. The learned counsel for the petitioner has relied upon the case of Nazar Mohd. Khan Vs. Arshad Ali Khan and Others, , but the facts of this case have no relevancy to the facts of the present case. In the present case, the land in question is jointly owned by other co-sharers and the agreement to sell dated 31.3.1999 nowhere depicts the specific killa numbers over which the plaintiff-petitioner was put in possession. All the co-sharers are entitle to enjoy the possession and a co-sharer cannot obtain ad interim injunction against the other co-sharers with regard to possession. The case cited by the learned counsel for the plaintiff-petitioner i.e. Shashi Malhotra v. Lakshman Kumar Aggarwal 1996 (3) R.C.R.733, rather, goes against him in view of the principle laid down therein in regard to grant of injunction in such matters. In Shashi Malhotra''s case. It has been held as under-

" xx xx xx xx xx xx It is settled law that grant of injunction is a discretionary relief. The exercise thereof is subject to the Court satisfying that (1) there is a serious disputed question to be tried in the suit and that, on the facts before the Court, there is probability of his being entitled to the relief asked for by the plaintiff/defendant; (2) the Court''s interference is necessary to protect the party from the species of injury. In other words, irreparable injury or damage would ensue, before the legal right would be established at trial; and (3) that the comparative hardship or mischief or inconvenience which is likely to occur from withholding the injunction will be greater than that would be likely to arise from granting it."

Moreover, that was a case between the landlord and tenant. As such, the facts of Shashi Malhotra''s case have no similarity with the fact of the case in hand, which have been narrated above. In view of the law laid down by our own High Court in such like matters, I am not inclined to interfere with the orders passed by the Courts below. Both the Courts have rightly held that as the plaintiff is not recorded to be in possession of the suit land in the revenue record, he has no prima facie case-and balance of convenience also does not lie in his favour. Moreover, agreement to sell allegedly executed by defendant-respondent No. 5 in favour of the plaintiff-petitioner cannot be acted upon at this stage.

For the aforesaid reasons, I do not find any merit in this petition and the same is hereby dismissed. It is made clear that anything observed while disposing of this petition, will not affect the merits of the case.