PRAKASH SUKHDEV AKOTKAR Vs. MANSOORKHA GULABKHA

JUDGEMENT

(1.) ADMIT. Heard Counsel for the appellants and the respondents.

(2.) THIS appeal arises from the order of Civil Judge, Sr. Dn. Buldana, on an application under Order XXXIX, Rules 1 and 2, Code of Civil Procedure, for an injunction to restrain the appellants from interfering with the respondents possession and enjoyment of the suit property. The learned Civil Judge has allowed the said prayer. The said order is under challenge in this Appeal.

(3.) THE property in dispute belonged to one Smt. Noor Jahan who died in 1987. She had four sons who are defendants 1 to 4 before the lower Court. The defendant No. 1 alleging that he is in exclusive possession of the property executed an agreement to sell in favour of the plaintiff on 23-12-1994 and according to the plaintiff he was put in possession of the entire property on the same day. He instituted the present suit for the specific enforcement of the agreement against all the children of Noor Jahan and also their alienee-defendants 5 and 6. It was contended on behalf of appellants that the claim of the plaintiff that he is in exclusive possession of entire property is not correct. They would maintain that the co-owners were in possession and they subsequently executed a sale-deed in favour of defendants 5 and 6 and handed over possession to them. According to the appellants, defendants No. 5 and 6 are in possession of the property. In a matter arising under Order XXXIX, Rules 1 and 2, Code of Civil Procedure, three conditions are to be satisfied, that the applicant has a prima facie case; that in the event of not granting injunction he would be put to an irreparable loss and injury; and that the balance of convenience is in his favour. All these three conditions must coexist so that the applicant can be entitled to injunction under Order XXXIX, Rules 1 and 2 of Civil Procedure Code.