RAMAVTAR SINGH YADAV Vs. OM VEER SINGH

JUDGEMENT

(1.) This appeal under Order 43 Rule 1(r) of Code of Civil Procedure, 1908 (CPC) is filed against the order of the trial Court dated 12.3.2013 by which the application under Order 39 Rules 1 and 2 CPC filed by the appellant/plaintiff has been dismissed. The application for injunction which has been dismissed by the impugned order was filed in a suit for possession, damages and injunction by the appellant/plaintiff against the respondent/defendant.

(2.) The issue is with respect to the suit property being one shop bearing no.B-1, Gajipur Dairy Farm, Delhi on an area of 80 sq mtrs. Appellant/plaintiff is said to have acquired rights in the immovable property by means of the registered agreement to sell dated 24.1.2006. There is another suit which is filed against the appellant/plaintiff by the respondent herein alongwith Sh. Dharambir to whom the suit property was transferred by the present respondent. In the other suit, the respondent herein alongwith Sh. Dharambir has prayed for cancellation of the registered agreement to sell dated 24.1.2006 executed in favour of the appellant/plaintiff by the respondent herein. Trial court has dismissed the stay application essentially by observing that an agreement to sell does not confer any right, title and interest in the property and that the appellant/plaintiff had not filed any suit for specific performance.

(3.) In my opinion, the trial court has fallen into an error inasmuch as once the agreement to sell is registered whatever rights which would flow under that agreement would be available to the appellant/plaintiff and if there is any defect in the form of the suit, that would be examined by the court at the appropriate stage, however form of the suit at the interim stage should not defeat any valuable rights in favour of the appellant/plaintiff created by means of the registered agreement to sell dated 24.1.2006. In any case, once the suit is filed with respect to an immovable property, the doctrine of lis pendens contained in Section 52 of the Transfer of Property Act, 1882 will come in and the respondent/defendant if he transfers the suit property it would be subject to rights of the appellant/plaintiff.