K NAGARAJAN Vs. R RADHA

JUDGEMENT

(1.) The plaintiff in O.S.NO.430 of 2002 on the file of the Additional District Munsif, Karur, has preferred the present Civil Revision Petition under Article 227 of the Constitution of India, aggrieved against the order dated 11.10.2002 passed in I.A.307 of 2002.

(2.) The case in brief for disposal of this Civil Revision Petition is as follows : The revision petitioner/plaintiff filed I.A.NO.307 of 2002 under Order 39 Rules 1 and 2 to pass an order of temporary injunction, restraining the respondents/defendants and their men from, in any manner, interfering with his possession and enjoyment of the property till the disposal of the suit. The suit property originally belongs to one Sembayee Ammal and on 19.09.1990, she entered into an agreement of sale in respect of the property for a price of Rs.3,500/- per cent with the petitioner. On the date of agreement itself, Sembayee Ammal received a sum of Rs.3.00 lakhs as advance and she agreed to convey the property within six months. Even during her lifetime, she failed to receive the balance of sale price and execute the document, even though the plaintiff was ready and willing to perform his part of agreement of sale. Sembayee Ammal died in the year 1991 and thereafter, the petitioner filed O.S.No.152 of 1993 for specific performance of the agreement of sale against her legal heirs. On 31.07.1995, the suit was decreed and the plaintiff had also deposited the balance of sale consideration, namely, Rs.74,500/-. The plaintiff filed E.P.No.180 of 1995 for execution of the sale deed. On 03.07.1998, the learned Subordinate Judge, Karur, executed the sale deed in favour of the plaintiff and it was registered. The petitioner filed E.P.NO.136 of 1998 for taking possession through Court and on 18.02.1999, the petitioner had taken possession of the property through the process of Court. Ever since that date, the plaintiff has been in possession and enjoyment of the property. This being so, the respondents/defendants 1 and 2, who are wife and husband and strangers to the property, having got no manner of right, title or interest, have taken the property interfering with the possession and enjoyment of the plaintiff and hence, the application. The plaintiff has got prima facie case and balance of convenience in his favour.

(3.) The second respondent filed a counter and denied various averments. He also denied the knowledge about the filing of O.S.No.152 of 1993 and also the execution of the sale deed by Court as well as the delivery of possession. The respondents are not parties to those proceedings and as such, they are not binding. The second respondent had purchased the suit property from the said legal heirs of Sembayee Ammal on 31.03.1994 under a registered sale deed. Even before the sale deed, the property was originally in the possession of one Kamaraj and Selvaraj as tenants. The respondent got assignment of leasehold right from them under a registered document dated 18.03.1994. After assignment of leasehold right, possession was also given to the respondent and he alone is in possession and enjoyment of the same. From the year 1995 onwards, neither Sembayee Ammal nor her legal heirs were in possession and enjoyment of the property. No possession much less actual possession was taken by the petitioner and it must be a paper delivery. While the petitioner has no possession of the property and the same is in the possession of the respondents alone, no question of attempting to interfere with the possession will arise. The documents filed by the petitioner are only make belief ones, particularly the revenue records. The petitioner has no case much less prima facie case. There is collusion between the petitioner and the vendors of the respondents. The status quo and the balance of convenience do not require the grant of an order of temporary injunction and as such, the application is liable to be dismissed.