KALAWATI Vs. CHAND

JUDGEMENT

(1.) Smt. Kalawati, plaintiff/appellant, filed a suit against the defendants for a decree of possession by pre-emption of the house No. 4263, Gali Punjabiyan, Ansari Road, Darya Ganj, Delhi. The allegations of the plaintiff in the plaint are that she is the owner of property bearing No, 4264 (new), Gali Panjabiyan, Ansari Road, Darya Ganj, Delhi. Siri Chand, defendant No. 1, was the owner of property No. 4264 in question which is contiguous to the plaintiff's property No. 4263. Defendant No. I sold out his property bearing No. 4263,, for a sum of Rs. 70,000.00 ,by means of a registered sale deed executed on 31st July 1984 in favour of Ved Parkash Katyal, defendant No. 2. The further allegations of the plaintiff are that the provisions of the Punjab Pre-emption Act, 1913 (for short, the 'Act') are applicable to the property. No. 4263 in question and, besides, that the custom of pre-emption also prevails in the walled city of Delhi, wherein the property in question is situated. The plaintiff in para 11 of the plaint has stated that she claims pre-emption under Section 19 of the Act on the ground that the property No. 4263, Gali Punjabiyan, Ansari Road, Darya Ganj, Delhi, i.e. the property sold out by defendant No. I to defendant No. 2, is the dominant tenement, and the property owned by the plaintiff, namely, property No. 4624 (new) is the servient tenement and vice versa. The further averments in this para of the plaint are that there is a passage.of 18 feet wide running in front of both the properties, Nos. 4263 and 4264, on their western side and the drainage and rain water also passes in the common manhe in front of the plaintiff's house.

(2.) Along with the suit, the plaintiff filed an application under Order 39 Rules 1and 2 and Section 151 of the Civil Procedure Code against the defendants for a temporary injunction against the defendants restraining them from selling, mortgaging, parting with possession or making any additions or alterations to the property in question during the pendency of the suit. The suit as also this application are contested by both, defendants Nos.1 and 2. Shri H.L. Malhotra, Additional District Judge, after hearing the parties' counsel, dismissed the application of the plaintiff by his impugned order dated 13th May 1986. It is against this order that the plaintiff/appellant has preferred this appeal.

(3.) The appeal has been opposed by the defendants/respondents. I have heard arguments of Shri J.K. Jain, learned counsel for the appellant, and Shri D.R.Thadani and Shri J.C.Gupta, learned counsel for defendants Nos. 2 and I respectively. The learned Additional District Judge, in his impugaed order, has observed that the present suit, being one for possession by pre-emption, the question of right to immovable property is directly and specifically in question in the suit, and, as such, the provisions of Sec- lion 52 of the Transfer of Property Act bar any transfer of the property in question during the pendency of the suit. That being so, any transferee of the property, by virtue of the transfer pendente lite, shall be bound by the decree of possession that may be passed in, favour of the plaintiff in the suit, and that, therefore, there was no deed for passing an order for temporary injunction in favour of the plaintiff against the defendants in that behalf, as Section 52 of the said Act provided enough safeguard to the rights of the plaintiff. It was also observed by the learned Additional District Judge that the plaintiff has not shown anything if any steps were being taken by defendant No. 2 for transferring the property in question to anyone. According to the Trial Court, the plaintiff/applicant was also unable to show as to how she would suffer an irreparable Joss in the event of the'temporary injunction asked for not being granted in her favour. On this basis, the application for grant of the temporary injunction was dismissed.