DEVI PRASAD HARISHCHAND Vs. BABULAL BHIKARAM SHIVHARE

JUDGEMENT

(1.) THE defendant has come up in appeal aggrieved by an order of temporary injunction passed by the trial Court restraining the defendant/appellant from alienating the suit property and executing any sale-deed either in favour of Gurucharansingh or any other person.

(2.) THE plaintiff/respondent has filed a suit for specific performance of an agreement to sell of the suit property said to have been entered into by the defendant in favour of plaintiff on 6-5-1988. The consideration recited is Rs. 20,000/- out of which Rs. 10,000/- are said to have been paid simultaneously with the execution of the agreement. The defendant has denied the execution of the agreement and receipt of part consideration. On the other hand, the plea is that on 17-4-1988 he has entered into an agreement to sell the suit property in favour of his tenant Gurucharansingh and Gopalsingh, parting with possession in their favour in part performance of the agreement. Admittedly, the possession is not with the plaintiff though it is disputed as to whether the entire suit property is in possession of the tenants or the defendant. The plaintiff prayed for an ad-interim injunction restraining the attempted alienation of the suit property by the defendant. The prayer was allowed and the trial Court has granted the injunction as prayed for.

(3.) THE learned counsel for the defendant/appellant, placing reliance on Jamnabai v. Narmadashankar, 1957 JLJ 914 DB, Anil Kumar Kitesh v. Kashinath, 1982 MPWN 247 and Sitaram v. Tularam, 1989 JLJ 432, contended that the interest of the plaintiff/respondent being sufficiently protected by the doctrine of Us pendens embodied in Section 52 of the Transfer of Property Act, 1892, the plaintiff was not going to suffer any irreparable injury and even otherwise, the plaintiff had failed in making out any prima facie case and as such, no injunction should have been granted on his application. He has also submitted, in the alternative, that the Court below has not legally disposed of the issue as to the grant of temporary injunction and hence setting aside the impugned order the matter deserves to be remanded back for reconsiderattion.