ABHAY RAJAN SAXENA Vs. KETAN MEHTA

JUDGEMENT

(1.) THIS appeal under Order 43 Rule 1(r) of the Code of Civil Procedure has been filed by defendant No. 4/appellant, recent purchaser, against the order dated 19/10/2012 passed by 3rd Additional District Judge to the Court of 1st Additional District Judge, Bhopal in Civil Suit No. 577 -A/2008 restraining to raise construction and to alienate the suit prop -

(2.) THE facts, in brief, are that the plaintiff filed a suit for declaration and permanent injunction against the defendants praying that the sale deed dated 24/8/1987 executed by the Vice President of defendant No. 3 -society in favour of defendant No. 1 be declared illegal, null and void. It has further been prayed that the plaintiff be declared owner with respect to plot No. C -41 situated at Padmnabhan Nagar, Bhopal. It is further prayed that defendant No. 1 be restrained in interfering in the possession of the the suit property. During pendency of the civil suit, defendant No. 1 has executed a sale deed in favour of defendant No. 4/appellant,2 however, he joined as a party in the civil suit and subsequently a prayer was made to restrain him from alienating and to raise construction by him on the suit property.

(3.) DEFENDANT No. 4/appellant has filed written statement raising preliminary objection that the sale deed of the year 1987 has been assailed after a long time, however, the suit cannot be maintained. It is further submitted that the sale deed executed in favour of defendant No. 1 was prior to the sale deed executed in favour of the plaintiff by the society. In such circumstances, on the basis of subsequent sale deed the plaintiff do not acquire any right over the suit property. It is further said that after mutation on the suit land in favour of defendant No. 1, physical possession has been taken by him, therefore, injunction cannot be granted because prima facie case and balance of convenience do not lie in favour of plaintiff.