ASHOK KUMAR SABLE Vs. SAVAK PRASAD SINGH

JUDGEMENT

(1.) THIS is an appeal directed against the order dated 16.12.94, passed by 1st Additional Judge to the Court of District Judge, Betul, in C.S. No. 24 -A/94, refusing to grant temporary injunction u/o. 39, Rules 1 and 2 of the Code of Civil Procedure.

(2.) THE appellant filed a Civil Suit No. 24 - A/94 on the basis of an agreement dated 30th August, 1989 whereby it has been agreed between the appellant and the respondent No. 1 that the suit property shall be sold for a consideration of Rs. 3 lacs. It was also stated in that agreement that out of the suit property, Khasra No. 28 situate in village Pathakheda, Tahsil and District Betul the appellant had already purchased three acres of land for a consideration of Rs. 21,000/ - and the rest of the land is now being purchased for the aforesaid consideration. The earlier agreement in respect of one acre of land is also on record, which is dated 19.7.89. This document too mentioned the fact that the said entire property shall be sold for a consideration of Rs. 3 lac. It is not disputed by the counsel for the parties that as per agreement dated 19.7.89 registration of one acre of land has already been clone between the parties. It is the case of the appellant that after executing the agreement dated 30.8.89 the appellant approached the respondent No. 1 for performing his part of the contract. In paragraph 3 of the plaint it is stated that when the appellant wanted the execution of the sale -deed for a consideration of Rs. 2,79,000/ - the respondent No. I refused to do so several times and, thereafter, on 13.6.92 the respondent No. 1 accepted Rs. 4,000/ - and thereafter Rs. 5000/ -. According to the appellant, the cause of action arose on 13.6.92 and, therefore, the suit was within time.

(3.) THE learned counsel for the appellant argued that the appellant has filed an application u/o. 390, Rules 1 and 2 of the Code of Civil Procedure for restraining the respondent No. 1 from further alienating the suit property. The trial Court has totally misunderstood the nature of temporary injunction sought by the appellant. The trial Court has dealt with the case as if the appellant is claiming that he is in possession of the suit properly and the trial Court has held that since the appellant is not in possession of the suit property, he is not entitled to temporary injunction.