Sujan Mal Choudhary vs Sobhag Mal Jain and Others

Hon''ble Ms. Justice Bela M. Trivedi

The present appeal has been filed under Order XLIII Rule 1(r) of CPC by the appellant-plaintiff challenging the order dated 30th May, 2012 passed by the Addl. District Judge (Fast Track) No.2, Jaipur Metropolitan, Jaipur (hereinafter referred to as ''the trial court'') in Civil Misc. Case No. 34/10, whereby the trial court has dismissed the application of the appellant-plaintiff seeking temporary injunction under Order XXXIX Rule 1 and 2 of CPC. The short facts giving rise to the present appeal are that on 4.12.2000 the respondent No.1-defendant No.1 had purchased 1/4th share from one Ravindra in Khasra No. 774 admeasuring 1.39 hectares through the registered sale deed and on the same date the respondent No.2- defendant No.2 also had purchased the 1/4th share from one Raghvendra in the same Khasra No. 774 admeasuring 1.39 hectares through the registered sale-deed. On 28th July, 2005, the respondent No. 1 and 2 entered into an agreement to sell with the respondent No.3-defendant NO.3 and also executed a power of attorney in favour of the respondent No.3 in respect of the said /2 share in the said khasra number. The respondent No.3 in turn in the capacity of the power of attorney holder of respondent No. 1 and 2, executed on agreement to sell the said /2 share of Khasra No. 774 in favour of the appellant-plaintiff on 11th April,2007 for a consideration of Rs. 30 lacs. Subsequently, on 16.3.09 the respondent No.1 executed a registered sale-deed in favour of respondent Nos. 4 and 5 and on 20.1.10 the respondent No.2 executed a registered sale deed in favour of the respondent Nos. 5 and 6 in respect of their respective shares in the land in question. The appellant-plaintiff therefore filed the suit against all the respondents-defendants seeking specific performance of the agreement dated 11.4.07 executed by the respondent No.3-defendant No.3, and also filed an application being No. 34/10 seeking temporary injunction against all the defendants for restraining the defendant Nos. 4 to 6 from transferring alienating, or developing the land in question pending the suit. The said application has been rejected by the trial court by the impugned order. Being aggrieved by the impugned order, the present appeal has been filed.

It has been sought to be submitted by the learned senior counsel Mr. R.K. Agrawal for the appellant that during the pendency of the suit, the respondent No.4 had sold out his share to one society named Laxmi Grah Housing Society by executing registered sale deed on 10.2.11 and the trial court has erroneously rejected the application of the appellant seeking temporary injunction on the ground that the said society has not been made party to the suit. He also submitted that the agreement executed by the respondent NO.3 as the power of attorney holder of the respondent Nos. 1 and 2 was also binding to the respondent No. 1 and 2 and therefore the said respondents could not have sold the suit land to the respondent Nos. 4 to 6, who have further sold out to the society pending the suit. According to Mr. Agrawal if the injunction as prayed for was not granted, the appellant would not be able to get the fruits of the decree. Mr. Agrawal has relied upon the judgments of the Apex Court in the case of Khemchand Shankar Choudhari and Another Vs. Vishnu Hari Patil and Others, in the case of Guruswamy Nadar Vs. P. Lakshmi Ammal (D) through LRs. and Others, and in the case of Pramod Kumar Vs. U.P. Secondary Education Services Commission and Others, in support of his submissions that the parties purchasing the suit property during the pendency of the suit would not get good title in view of the doctrine of lis pendens contained in Section 52 of the Transfer of Property Act.

In the instant case, it appears that the suit of the appellant-plaintiff is based on agreement dated 11.4.07 allegedly executed by the respondent No.3 as the power of attorney holder of the respondent Nos. 1 and 2. The respondent Nos. 1 and 2 had already sold out their respective shares in the suit land to the respondent Nos. 4 to 6 by executing the registered sale-deeds in their favour prior to the appellant''s filing the suit. During the pendency of the suit, the respondent No. 4 has sold out his share in the suit property to the third party i.e. Laxmi Grah Housing Society. Under the circumstances, the doctrine of lis pendens would come into play as rightly submitted by the Learned Counsel Mr. Agarwal. However, the question is whether the appellant-plaintiff had made out any case for grant of the temporary injunction as prayed for during the pendency of the suit?

It is not disputed that the alleged agreement executed by the respondent No.3 as the power of attorney holder of respondent Nos. 1 and 2 was not registered one. It is trite to say that mere agreement to sell does not create any right, title or interest in favour of the proposed purchaser. It is also settled legal position that any alienation of the suit property made by any party pending the suit would be subject to the result of the suit by virtue of the doctrine of lis pendens as contained in Section 52 of the Transfer of Property Act, though such a sale might be through registered sale deed. In the instant case, the part of the suit property appears to have changed the hands and appears to be in possession of the subsequent purchaser society, hence such a sale would be subject to the result of the suit. Nonetheless, in absence of any prima facie case established by the appellant, the temporary injunction as prayed for cannot be granted. The appellant-plaintiff having failed to prove any prima facie case in his favour, the trial court has rightly rejected the application of the appellant-plaintiff seeking temporary injunction.

In that view of the matter, the appeal being devoid of merits deserves to be dismissed and is accordingly dismissed in limine. It is needless to say that the observations and findings of the trial court and of this Court being prima facie, the same shall not influence the trial court in deciding the suit on merits..