Shraddha Singh v. Rekha

NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Writ Petition (Art. 227) No.936 of 2018 Shraddha Singh, D/o Vijay Singh, aged about 32 years, R/o Dharamjaigarh, Tahsil & District Raigarh (C.G.) (Plaintiff) ---- Petitioner

Versus

1. Rekha, D/o Amarbahadur Singh

2. Renuka, D/o Amar Bahadur Singh

3. Reena Singh, D/o Amar Bahadur Singh All above R/o Ward No.6, Nagar Panchayat Dharamjaigarh, Tahsil Dharamjaigarh, District Raigarh (C.G.)

4. State of Chhattisgarh, through Collector, Raigarh, District Raigarh (C.G.) (Defendants) ---- Respondents For Petitioner:

Mr. Manoj Paranjpe, Advocate.

For Respondents No.1, 2 and 3: - Mr. Vivek Bhakta, Advocate.

For Respondent No.4 / State: - Mr. Rajendra Tripathi, Panel Lawyer.

Hon'ble Shri Justice Sanjay K. Agrawal Order On Board 04/01/2019

1. The plaintiff while filing suit for declaration of title, confirmation of possession and permanent injunction also filed application under Order 39 Rules 1 & 2 of the CPC stating that the defendants be restrained from alienating the suit property. While deciding the said application, the trial Court held that the plaintiff has a prima facie case in his favour, but declined to grant temporary injunction holding that balance of convenience and irreparable loss on such alienation has not been established by filing the agreement to sale with whom the defendants have entered into for alienation of the suit property. On

appeal being preferred, the first appellate Court though dismissed the appeal, but held that no case is in favour of the plaintiff for grant of temporary injunction against which this writ petition has been preferred.

2. I have heard learned counsel for the parties and perused the impugned order and copies of other documents.

3. The trial Court has clearly recorded a prima facie case in favour of the plaintiff, but declined to exercise the jurisdiction by granting injunction in favour of the plaintiff on the ground that agreement to sale entered into allegedly by the defendants in favour of some other person has not been produced. Once prima facie case has been recorded, merely because the plaintiff failed to submit copy of agreement to sale, temporary injunction cannot be denied, as the plaintiff is not party to the agreement to sale said to have been entered into by defendants No.1 to 3, therefore, he is not supposed to be in possession of the copy of agreement and therefore it is not produced. In the affidavit it has clearly been asserted that the agreement to sale has been entered.

Since the suit is pending since 11-5-2012 and considering the fact of recording of prima facie case in favour of the plaintiff by the trial Court which the first appellate Court has not considered and dismissed the miscellaneous appeal, it would be appropriate to direct that the defendants will not alienate the suit property till the suit is finally disposed of and the trial Court will do well to hear and decide the suit itself within three months from the date of receipt of a copy of this order, as the suit is pending since 11-5-2012. It is ordered accordingly.

4. With the aforesaid observation, the writ petition stands finally disposed of. No order as to cost(s).

5. Copy of the order be sent to the trial Court for hearing and disposal of the suit in accordance with law.

Sd/- (Sanjay K. Agrawal) Judge Soma