AARIF Vs. SAIRA BANO

JUDGEMENT

(1.) THIS civil misc. appeal arises from the order dated 02.02.2013, passed by the District & Session Judge, Dholpur partially allowing an application under Order 39 Rule 1 & 2 CPC filed by the plaintiff -respondent No. 1 (hereinafter 'the plaintiff) in a suit for specific performance and inter alia restraining the appellants -defendants (hereinafter 'the defendants') from alienating, transferring or otherwise creating third party right in the suit property.

(2.) THE facts of the case are that relying on an agreement to sell dated 09.09.2011, the plaintiff laid a suit for specific performance against the defendants. Along with the suit an application under Order 39 Rule 1 & 2 CPC was filed seeking to restrain one Gopal Dixit (respondent No. 3 before this Court), successor and husband of the original vendor Suman Dixit from changing the status of the suit land or alienating it. It appears that in the meantime Gopal Dixit transferred the suit property by way of a registered sale -deed in favour of the defendants, Aarif and Rizwan , who were subsequently impleaded in the suit. On consideration of the matter even though the agreement to sell dated 09.09.2011 was denied both by Gopal Dixit and the subsequent purchasers, the learned trial court in the overall facts of the case found that the allegation of fabricated and forge nature of the agreement to sell dated 09.09.2011 could not be determined at the interlocutory stage and would be a subject matter determinable only on the basis of the evidence before it in the course of the proceedings. So holding the learned trial court found prima facie case as also balance of convenience and irreparable loss in favour of the plaintiff and against the defendants. Consequently, it was directed that during the pendency of the suit, the defendants would be restrained from alienating, transferring or otherwise creating any third party right in the suit property.

(3.) I however find no force in the submission.