DILSHAD ALVI Vs. IKRAR AHMED

JUDGEMENT

(1.) Present petition is preferred assailing the judgment and order dated 26.08.2014, passed by the Civil Jude (Junior Division), Dehradun in O.S. No. 126 of 2013, Dilshad Alvi Vs. Ikram Ahmad and others, whereby learned Trial Court was pleased to hold that suit simplicitor for permanent prohibitory injunction is barred by Section 41 (H) of the Specific Relief Act as well as judgment and order dated 19th January, 2015, passed by the First Addl. District Judge, Dehradun, whereby appeal filed by the plaintiff petitioner herein was dismissed.

(2.) Brief facts of the present case, inter alia, are that plaintiffs have filed Civil Suit seeking permanent prohibitory injunction restraining the defendants not to transfer the suit property in favour of third party saying agreement to sell was executed between the parties on 04.10.2012, however, same was never got registered; when plaintiff requested the defendant to execute the sale deed after receiving the sale consideration, defendant refused to execute the sale deed and has extended threat that he would sell the property in favour of third party, therefore, necessity arose to file suit for permanent prohibitory injunction restraining the defendant not to transfer the property in favour of the third party.

(3.) In a suit, preliminary issue was framed to the effect that as to whether suit for permanent prohibitory injunction is barred by Section 41 (H) of the Specific Relief Act. Learned Trial Court has observed that if plaintiff has alternate remedy to file suit for specific performance, then suit for prohibitory injunction would be barred by Section 41 (H) of the Specific Relief Act. Mr. Manish Arora, learned counsel, appearing for the plaintiff petitioner has vehemently argued that since agreement to sell is unregistered, therefore, plaintiff cannot file suit for specific performance. Hence suit for permanent prohibitory injunction was filed against the defendant not to create third party interest. Section 54 of the Transfer of Property Act, 1882, as applicable in the State of U.P. as well as Uttarakhand, reads as under :-