SHEELA DEVI Vs. ABHA MISHRA AND ORS.

JUDGEMENT

(1.) THIS writ petition has been filed by plaintiff -petitioner Smt. Sheela Devi against order dt. 17.11.2014 passed by learned Additional District Judge No. 2, Ajmer, whereby the said Court set aside the order dt. 03.01.2014 passed by learned Civil Judge (Jr. Div.) & Judicial Magistrate, Ajmer City. The subordinate Court by aforesaid order dt. 03.01.2014 rejected allowed the application filed by petitioner under Order 39 Rule 1 and 2 read with Section 151 of the Code of Civil Procedure. The facts of the case are that the petitioner filed a civil suit before the trial Court contending that the respondent No. 3 Shri Mool Chand and his brother Magna, executed a sale agreement for a part of the plots No. 9 and 10, measuring 574 square yard of Khasra No. 8046 situated at Thok Maliyan III, New Kesar Colony, Adarsh Nagar, Jaipur. The said sale agreement was executed in the presence of two witnesses and attested by Notary Public and on payment of complete sale consideration of Rs. 3,21,000/ - vacant possession of the said land was handed over to the petitioner on 06.11.2001. The petitioner in the suit prayed for perpetual injunction against the respondent. The petitioner also submitted an application for temporary injunction along -with the suit, alleging that the respondents No. 1 and 2 are adamant to create third party interest while alienating the property. The defendant -respondents contested the suit. According the plaintiff -petitioner, defendant -respondents No. 1 and 2 tried to forcefully start digging a foundation for construction. When the plaintiff -respondents denied them to do so, they persisted with the construction work and started fighting with the plaintiff -petitioner. The defendant -respondents No. 1 also warned the petitioner to falsely implicate and drag them in a criminal case. The defendant -respondent No. 3 Shri Mool Chand also filed reply to the temporary injunction application supporting the case of the plaintiff -petitioner.

(2.) SHRI Shobhit Tiwari, learned counsel for the plaintiff -petitioner, has argued that learned appellate Court was wholly unjustified in recording the finding in favour of the defendant -respondents on the question of prima facie case even when the defendant -respondents admitted in their reply to the application for temporary injunction the sale agreement dt. 06.11.2001 that the sale agreement dt. 06.11.2001 was executed in favour of the plaintiff -petitioner. The defendant -respondent No. 1 tried to forcefully dispossess the plaintiff -petitioner and raise construction. The defendant -respondents No. 1 and 2 placed on record copy of the registered agreement dt. 28.12.2005 and 17.04.2006 claiming thereby that the disputed property was conveyed to them. It is argued that while the plaintiff -petitioner is claiming the land on the basis of agreement to sell executed in her favour by Mool Chand and his brother Magna for sale consideration of Rs. 3,21,000/ -. The defendant -respondents No. 1 and 2 claimed that they purchased the land by registered sale -deed from their third brother. Learned counsel for the plaintiff -petitioner submitted that unless the land was divided by meets and bounds, Shri Mool Chand could not have sold the entire land and at -least it was not determinable as to which part of the land belong to him. The finding, on prima facie case, recorded by the appellate Court are perverse and erroneous therefore the impugned order is liable to be set aside.

(3.) ON hearing learned counsel for the parties and perusing the material on record, I find that this is another attempt by the plaintiff -petitioner to secure injunction order after her first attempt for the said purpose failed when learned Additional District Judge No. 2 dismissed her application under order 39 Rules 1 and 2 of the CPC filed along -with the suit for specific performance of agreement dt. 06.11.2001. This Court affirmed he aforesaid order by dismissing S.B. Civil Miscellaneous Appeal No. 407/2014 filed by non other than the plaintiff -petitioner herein. The learned counsel for petitioner has sought to justify filing of subsequent suit contending that the prayer in the suit was different and therefore fresh application of temporary injunction filed along -with the said suit for setting aside the sale -deed was perfectly valid and maintainable.