RAJASTHAN HIGH COURT

                 Sukkha Singh

                 Vs.

                 Mahal Singh

                 S.B. Civil Misc. Appeal No. 574 of 2001
                               (H.R. Panwar, J.)

                 21.05.2002

                 JUDGMENT

H.R. Panwar, J.

1. This appeal is directed against the order dated 24.5.2001 passed by Additional
District Judge, Anupgarh (hereinafter referred to as 'the Trial Court') whereby the
application filed by the applicants under Order 39, Rules 1 and 2 read with Section
151 Civil Procedure Code was dismissed. Aggrieved by the order impugned, the
appellants have filed this appeal under Order 43, Rule 1(r) Civil Procedure Code.

2. I have heard learned Counsel for the parties. Carefully perused the order impugned.
3. Briefly stated facts to the extent they are relevant and necessary for decision on this
appeal are that plaintiff appellants filed a suit for specific performance of agreement
before the Trial Court, stating therein that respondent No. 1 Mahal Singh agreed to
sell the land in question to the appellants for a consideration of Rs. 1,50,000/- on
5.3.1986. Since 1996, the appellants are requesting respondent No. 1 Mahal Singh to
execute the sale deed in their favour but respondent No. 1 has been avoiding and
ultimately refused to execute the sale deed for the land in question.

4. An application under Order 39 Rules 1 and 2 read with Section 151 Civil Procedure
Code was filed by the appellants before the Trial Court seeking temporary injunction
during the pendency of the suit on the facts stated in the plaint as noticed above. A
reply was filed by respondent No. 1, denying the alleged agreement dated 5.3.1986. It
was specifically stated that respondent No. 1 had neither entered into any agreement to
sell the land in question in favor of the appellants on 5.3.1986 nor he received any
consideration under the alleged agreement. It was pleaded that respondent No. 1 has
been continuously in possession of the land since its allotment in his favor till he sold
the land in question to respondent No. 1 Iqbal Singh for valuable consideration of Rs.
4,90,000/- by registered sale deed dated 3.5.2001 and since 3.5.2001, respondent No.
1 Iqbal Singh is in peaceful possession of the land in question as its owner. The trial
Court considering all the material placed before it, reached to the conclusion that the
plaintiff appellants have failed to establish prima facie case in their favor on the
ground that the land in question has been sold to respondent No. 2 by a registered sale
deed dated 3.5.2001 and in the said sale deed, there is a recital that the possession of
the land sold has been transferred in favor of vendee. As such, respondent No. 2 Iqbal
Singh is in peaceful possession of the land in question since 3.5.2001. The registered
sale deed executed by respondent No. 1 in favor of respondent No. 2 was placed on
record of the Trial Court. The Trial Court further observed that even if the plaintiff
appellants are in possession of the land in question, then also the rights of respondent
No. 2, who is bona fide purchaser, cannot be jeopardized. The Trial Court did not find
balance of convenience in favor of the plaintiff appellants inasmuch as the execution
of the alleged document agreement to sell dated 5.3.1986 was denied by respondent
No. 1 in his reply affidavit. The said document is unregistered and the fact that
respondent No. 2 Iqbal Singh is bona fide purchaser of the land in question under the
registered sale deed for a valuable consideration, would be deprived of the use and
occupation of the land purchased by him. While considering the question of
irreparable injury, the Trial Court found that in the event of refusal to grant temporary
injunction to the plaintiff appellants, the plaintiff appellants would not suffer any
irreparable injury or loss as the alleged agreement to sell is yet to be established and if
the plaintiff appellants ultimately succeed in establishing the said agreement, they
would be entitled to damages in terms of money all the three essential ingredients
necessary for grant of temporary injunction were found, against the plaintiff appellants
and accordingly, the application filed by the plaintiff appellants seeking temporary
injunction, was rejected by the order impugned.

5. This appeal was admitted by this Court on 7.6.2001. While admitting the appeal,
this Court directed both the parties to maintain status quo. Respondent No. 2 filed an
application under Section 151 PC. On 13.3.2002 wherein in para No. 1 it was admitted
by respondent No. 2 that Square No. 222/5 measuring 25 Bighas Chak No. 2 A.M.
Tehsil Anupgarh is in possession of the appellants. It was further admitted that the
appellants were in possession of the land in question and are getting the fruit of the
land, by retaining the possession whereas the applicant has been wrongly deprived
from his right of getting the possession of the land. It was prayed that if the appellants
are willing to keep the possession of the land in question, then they may be ordered to
deposit Rs. one lac cash security in lieu of the possession per year. This application is
supported by an affidavit of respondent No. 2 Iqbal Singh. Thus, from the admitted
facts, it is prima facie established that the appellants are in possession of the land in
question and respondent No. 2 Iqbal Singh despite the registered sale deed in his
favor, is out of possession of the land in question. Respondent No. 1 Mahal Singh has
not claimed himself to be in possession in his reply before the Trial Court. The
situation which emerges from the admitted fact is that the appellants are in possession
of the land in question.

6. Learned Counsel for the appellants contended that respondent No. 1 agreed to sell
the land in question in favor of the appellants by an agreement to sell dated 5.3.1986
for a consideration of Rs. 1,50,000/- and a sum of Rs. 1,22,000/- was paid by the
appellants to respondent No. 1 on the very date of the agreement dated 5.3.1986 and
the said agreement to sell was attested by Tehsildar (Revenue), Anupgarh. In the
agreement to sell, there is a specific recital of having transferred the possession of the
land to the appellants by respondent No. 1 along with supply of water and since
5.3.1986, the appellants are in cultivatory possession of the land in dispute. Appellants
further paid Rs. 16,000/- to respondent No. 1 endorsement thereof is on the said
agreement. He further contended that the Trial Court refused to grant injunction in
favor of the appellants on the ground that there is a recital in the registered sale deed
executed by respondent No. 1 in favour of respondent No. 2 wherein the transfer of
possession is mentioned but the fact remains that after 5.3.1986, respondent No. 1
never remained in possession and since the possession of the land was not with
respondent No. 1 at the time of executing the sale deed in favor of respondent No. 2,
there arises no question of transfer of physical possession and, therefore, any recital in
the registered sale deed dated 3.5.2001 is far from truth so far as physical transfer of
the land in question is concerned. This submission further gets strengthened from the
fact that during the pendency of appeal, before this Court, respondent No. 2 lqbal
Singh has filed an application dated 13.3.2002 supported by an affidavit wherein in
clear terms, respondent No. 2 has admitted that the appellants are in possession of the
land.

7. He further contended that the Trial Court has further erred in deciding the point of
balance of convenience and irreparable injury to the appellants in the event of refusal
to grant injunction. The appellants who put in lawful possession by the agreement to
sell dated 5.3.1986 for payment of consideration of Rs. 1,22,000/- and Rs. 16,000/- on
27.5.1986 total amounting to Rs. 1,38,000/- would be deprived of possession and
would suffer irreparable injury on being ousted from the land in question.

8. Learned Counsel appearing for the respondents contended that the suit filed by the
plaintiff is beyond limitation as the agreement alleged to have been executed in favor
of plaintiff-appellants is dated 5.3.1986 and the suit has been filed in the year 2001
after about 15 years of the agreement. Since the appellants failed to file the suit within
a reasonable time, therefore, the appellants are not entitled for specific performance of
the contract. He has relied on a judgment of the Hon'ble Supreme Court in Veerayee
Ammal v. Seeni Ammal, 1 wherein the Hon'ble Supreme Court held that the word
"reasonable" has in law prima facie meaning of reasonable in regard to those
circumstances of which the person concerned is called upon to act reasonably known
or ought to know as to what was reasonable. It may be reasonable go give an exact
definition of the word "reasonable", the reason varies in its conclusion according to
idiosyncrasy of the individual and the time and circumstances in which he thinks. The
dictionary meaning of the "reasonable time" is to be so much time as is necessary,
under the circumstances, to do conveniently what the contract or duty requires should
be done in a particular case.

9. He has also relied on a judgment of the Hon'ble Supreme Court in Mool Chand
Bakhru and Anr. v. Rohan and Ors.2 The point for consideration before the Hon'ble
Supreme Court was as to whether a person (claiming to be a proposed vendee) can
protect his possession of an immovable property on the plea of part performance under
Section 53-A of the Transfer of Property Act on the basis of an oral agreement, the
terms of which have not been reduced in writing. The Hon'ble Supreme Court held
that written agreement has to precede the putting of the proposed vendee in possession
of the property and in that case, Bhagwan Dass was never put in possession of the
property in pursuance of the written agreement arrived at between the parties and,
therefore, hold that the person who has not been put in possession, by written
agreement I cannot claim protection of Section 53-A of the Transfer of Property Act.
Mool Chand Bakhru's case (supra) relied upon by the learned Counsel for the
respondents, is on different facts. In that case, the case of proposed vendee was well
based on oral agreement and on the basis of oral agreement to sell, the proposed
vendee claimed protection under equitable doctrine of part performance as contained
in Section 53-A of the Transfer of Property Act, 1882, whereas in the instant case, the
appellants proposed vendees have been put in possession of the land in question by
the agreement, which was reduced into writing and verified and attested by the
Tehsildar (Revenue), Anupgarh. Learned counsel for the appellants contended that the
appellants are in peaceful possession of the land in question under an agreement to
sell dated 5.3.1986 and the recital in that agreement clearly shows that the appellants
were put in possession of the land by the said agreement to sell and the document
agreement to sell is verified and attested by the Tehsildar (Revenue), Anupgarh. He
further contended that respondent No. 2, who is alleged to have purchased the land in
question from respondent No. 1 on 3.5.2001 by an application supported by his own
affidavit, admitted that the appellants are in possession of the land and he is out of
possession, which further strengthens the case of the appellants that they are in
possession of the land in question by agreement to sell dated 5.3.1986, specific
performance of which is sought by the appellants by way of suit or specific
performance, which is pending before the Trial Court and, therefore, the appellants
being in long and settled possession of the land in question are entitled to protect their
possession.

10. Learned Counsel for the appellants relied on a judgment of this Court in Gyan
Singh v. Ranjeet Singh, 3 wherein this Court held that plaintiff in possession of land
under agreement of sale having long possession, is presumed in lawful possession and,
therefore, the possession of the plaintiff otherwise required to be protected during the
pendency of the suit.

11. In Gangubai Bablya Chaudhary and others v. Sitaram Bhalchandra Sukhtankar
and others etc.4 the Hon'ble Supreme Court held as under :

               "When an interim injunction is sought, the Court may have to examine
               whether the party seeking the assistance of the Court was at any time in
               lawful possession of the property and if it is so established one would
               prima facie ask the other side contesting the suit to show how the
               plaintiffs, were dispossessed ?"

12. Learned Counsel has also relied on a judgment of this Court in Smt. Pushpa
Kanwar & Anr. v. Suraj Prasad Gupta, 5 wherein this Court held that by virtue of
Section 49 of the Registration Act, 1908, unregistered agreement of sale of land is
admissible in evidence. In the instant case, the alleged agreement to sale dated
5.3.1986 was not required compulsory registration. The document agreement of sale
having recital regarding transfer of possession of the property was made compulsory
registrable by amendment in the Registration Act, which came into force from
18.9.1989 and as such, he contended that the said agreement was otherwise not
required to be compulsorily registrable and, therefore, admissible in evidence. Be that
as it may. The question which remains to be considered is whether the appellants are
entitled to protect their long possession. Order 39, Rule 1(c) provides that where in
any suit it is proved by affidavit or otherwise that the defendant threatens to dispossess
the plaintiff or otherwise causes injury to the plaintiff in relation to any property in
dispute in the suit, the Court may by order grant a temporary injunction to restrain
such act, or make such other order for this purpose. Thus, clause (c) of Rule 1 of
Order 39 empowers the Court for granting temporary injunction so as to preserve the
subjectmatter of the suit property till the dispute is adjudicated in the suit. Primarily
the burden is on the appellant plaintiff to prima facie establish by affidavit or
otherwise that he has a prima facie case in his favor, which needs adjudication in the
suit. It is settled law that while considering the question, of prima facie case, it is not
to be confused with prima facie title. What is required is that the plaintiff has to show
that he has bona fide raised a substantial question, which needs to be adjudicated at
the trial of the suit. The plaintiff is thus required to prima facie establish that in the
event of non-interference by the Court, it will result in irreparable injury and
substantial loss. While considering irreparable injury, comparatively which refusal to
grant a temporary injunction and if the Court considers that the subject-matter of the
suit must be maintained status quo, then discretion must be exercised in favor of the
parry seeking temporary injunction so that the subject-matter of the suit in dispute can
be preserved by directing to the party to maintain status quo. The third essential
ingredient for grant or refusal of temporary injunction is balance of convenience.
Keeping in view the admitted fact that the plaintiff appellants are in long settled
possession under the agreement though execution of the agreement has been denied
but the possession of the appellants has specifically been by respondent No. 2 on
affidavit in this view of the matter, I am of the considered view that the appellants,
who are admittedly in possession, have a prima facie case in their favor. A serious and
substantial question regarding the sale of property by respondent No. 1 in favor of the
appellants has been raised by the appellants pending adjudication. Therefore, balance
of convenience also lies in favor of the appellants for grant of temporary injunction. In
the event of refusal, the appellants would be forcibly dispossessed and, therefore, also
refusal to grant injunction would cause irreparable injury or comparatively more
mischief to the appellants. In this view of the matter, I am of the considered view that
the trial Court substantially erred in deciding all the three essential ingredients for
grant of temporary injunction against the appellants. By interim order dated 7.6.2001,
this Court directed both the parties to maintain status quo. In this view of the matter
also, it will not be proper at this juncture to disturb the order directing the parties to
maintain status quo in respect of the property in dispute. In my considered view,
admittedly where the appellants are in possession and the respondents do not claim to
be in possession of the land in question. It would not be proper at this juncture to
refuse temporary injunction during the pendency of the suit. By interim order, this
Court directed both the parties to maintain status quo. In my considered opinion, ends
of justice would be met if the parties are directed to maintain status quo. Since
respondent No. 2 is said to be bona fide purchaser and the sale deed dated 3.5.2001 is
on record, this shows that the land in question had been purchased by him for Rs.
4,90,000/-. Ultimately if the plaintiffs fail in the suit, since they had been enjoying the
fruits of the land for all these years it would be appropriate to direct the plaintiff
appellants to deposit Rs. 75,000/- annually before the trial Court so that interest of
respondent No. 2 be adequately protected in the event of his success.

13. Consequently, this appeal succeeds and is allowed. All the parties are directed to
maintain status quo of the land in question during the pendency of the suit. However,
the appellants are directed to deposit a sum of Rs. 75,000/- annually with the trial
Court on or before 30th July, 2002 and thereafter every year, disbursement of which
shall be subject to decision of the main suit. The trial Court is directed to expedite and
conclude the trial of the suit preferably within one year. It is made clear that any
observation made either by the trial Court or this Court shall not be taken to be
relevant at the trial of the suit on merits. No order as to costs.

Order accordingly.

Cases Referred.

1. 2002(1) Civ. Times (SC) 69
2. 2002(1) SC 385
3. 2002 WLC (Raj.) UC 342
4. AIR 1983 SC 742
5. 1997 WLC (Raj) UC 377