Smt. Bimla W/o Sh Vidhyadhar, R/o Gram Nyasar Tehsil And vs District Jhunjhunu.

Judgment

1. Instant Civil Misc. Appeal is preferred by appellant-plaintiff aggrieved from dismissal of TI Application No. 36/2024 by learned District Judge, Jhunjhunu on 12.11.2024.

Learned counsel for appellant while relying upon grounds of appeal submitted that on basis of an agreement dated

29.05.2008, appellant-plaintiff has filed a suit for specific performance and permanent injunction against respondent- defendant. He further submitted that at the time of execution of contract the possession of suit property was handed over to the appellant-plaintiff but learned Trial Court without considering the material on record has dismissed the T.I. Application on the ground that the respondent has already sold the disputed property to third party on 27.12.2023 and third party was not arrayed as [2025:RJ-JP:3011] (2 of 9) [CMA-169/2025] party-respondent. He further submitted that this is a suit for specific performance wherein it is not necessary for him to implead a third party who has no concern with agreement to sale. He also referred the documents and submitted that after agreement to sale on 29.05.2008, the property in question was transferred by respondent in contravention to said contract. He further submitted that after the agreement a dispute was filed with regard to the suit property and same was disposed of in 2023 by this Hon’ble Court, and thereafter, the agreement to sale became enforceable. He also referred a specific condition No.3 on Page no.2 and submitted that the respondent has promised to execute the agreement after disposal of dispute if any pending in any Court. At last, he submitted that in a suit for specific performance it is necessary that the property in question be protected so that subject matter may not changed hands and the right and interest of plaintiff are required to be protected. He further relied upon judgment in case of Ramakant Ambalal Choksi Vs. Harish Ambalal Choksi and Ors. MANU/SC/1270/2024, Gurmeet Singh Bhatia Vs. Kiran Kant Robinson and Ors., (Civil Appeal No. 5522/5523 of 2019) dated 17.07.2019 and Maharaj Singh and Ors. Vs. Karan Singh (Dead) through LRs and Ors. MANU/SC/0587/2024 and submitted that only on the basis of provision under Section 52 of Transfer of Property Act, a Court cannot refuse to grant temporary injunction.

3. Aforesaid contentions were opposed by learned counsel for respondent and he submitted that after making forgery in [2025:RJ-JP:3011] (3 of 9) [CMA-169/2025] agreement dated 29.05.2008 the instant civil suit was filed, by plaintiff. He further submitted that a copy of agreement available with respondent is submitted for perusal by Hon’ble Court wherein a condition no.3 of Page 2 is different than what was asserted by plaintiff, as two specific lines were additionally added by using typewriter. He also denied the execution and submitted that this agreement to sale was never notarised. The plaintiff has filed a suit after a substantial delay and same is barred by limitation. He also referred the order passed by the trial court and submitted that before filing of the civil suit the property has already been transferred and present appellant is not in possession of suit property, therefore, an effective order cannot be passed against the defendant. He also referred the documents on record and submitted that unless the plaintiff establishes the execution of agreement, he is not entitled for any equitable relief. He also referred the order passed by the trial court and submitted that without establishing any perversity or illegality the appellant is not entitled for any injunction.

4. Heard learned counsel for appellant and learned counsel for respondent. Perused the material placed on record. Also perused the judgments as cited by learned counsel for appellant.

5. The facts giving rise to instant misc. appeal are that the appellant plaintiff has filed a civil suit before the learned District Judge, Jhunjhunu for specific performance of agreement dated

29.05.2008 executed by defendant for her 1/7th share in agriculture land in Khasra no. 113, 114, 584, 585, 641 total 5 Rakba, 8.89 hectare. As per plaint the defendant has agreed to [2025:RJ-JP:3011] (4 of 9) [CMA-169/2025] sale land @ ₹4 lakh per bigha and as a token of advance, defendant has received ₹ 2 lakh and executed an agreement on stamp of ₹100/-. During pendency of this civil suit the plaintiff has sought temporary injunction under Order 39 Rule 1 and 2 CPC.

6. In her reply defendant respondent has denied execution of agreement and further pleaded that defendant has sold her share in khasra no. 584, 585 and 641 by registered sale deed to M/s. Gold City Property, Jhunjhunu through partners Manoj Kumar and Arvind Kumar on 27.12.2023. The defendant has further denied handing over the possession over the land to plaintiff at any point of time. An objection was raised about unregistered and improperly stamped agreement to sale dated 29.05.2008 alongwith objection in terms of provision under Section 41 read with Section 42 of Rajasthan Tenancy Act for prohibition of sale by co-sharer without a specific division. At last, an objection was raised about non-impleadment of subsequent purchaser as party respondent.

7. Learned trial court after hearing both the parties has dismissed the TI application against the appellant plaintiff on all three counts prima facie case, balance of convenience and irreparable loss.

8. Herein, the plaintiff has filed a copy of agreement to sale dated 29.05.2008 wherein referred para no.3 is reproduced as under: ;g fd mijksDr of.kZr 'krksZa dh eSa o dzsrk ikyuk djsaxs fdlh rjg ls fMQksYVj ugha gksaxsA ,oa U;k;ky; esa fookn gks tkus dh lwjr esa dksVZ U;k;ky; ds Qslys ds ckn ds ckn eSa bl bdjkjukes dh ikyuk d:axh vkSj iw.kZ d:axhA [2025:RJ-JP:3011] (5 of 9) [CMA-169/2025]

9. A copy of this agreement is also submitted by defendant wherein para no.3 is as under: ;g fd mijksDr of.kZr 'krksZa dh eSa o dzsrk ikyuk djsaxs fdlh rjg ls fMQksYVj ugha gksaxsA

10. When we compare both the copies particularly as claimed by appellant plaintiff then in line no. 2 of para no.3 there appears to be some unfamiliarity. The distance between two lines after line no.1 and line no.2 on para no. 3 are not similar. After fullstop without leaving any space a word is typed in line no.2 which is abnormal in the entire agreement.

11. Herein, the counsel for appellant pleaded a specific fact in para nos. 6, 7 and 8 wherein he mentioned filing of suit on

04.07.2008 and disposal of suit on 19.05.2015. Further, disposal of civil appeal no. 416/2015 on 21.11.2023. According to plaintiff this suit was filed after execution of the agreement to sale. It means on date of execution of sale, there was no dispute pending with any of the Court. For perusal learned counsel for appellant has filed order dated 21.11.2023 in S.B. CFA no. 416/2015 wherein the present defendant was arrayed as respondent no.8 and appeal was dismissed as rendered infructuous.

12. A perusal of agreement dated 29.05.2008 indicate that total 90 days was prescribed for transaction and in case of non-compliance the defendant was empowered to forfeit advance amount. There is no communication on record between 29.05.2008 and 08.05.2024. [2025:RJ-JP:3011] (6 of 9) [CMA-169/2025]

13. Instant civil suit is filed on 01.06.2024 wherein the office has raised an objection that the suit is barred by law on the basis of agreement dated 29.05.2008 but same is within limitation on the basis of notice dated 08.05.2024. When there is no communication in writing within 90 days from 29.05.2008 how can anyone presume that the time which was essence of the contract was extended by respondent. Moreover, the plaintiff has to establish that the suit with regard to disputed property was filed on 04.07.2008 has impacted the execution of sale deed in pursuant to agreement dated 29.05.2008. The plaintiff has also failed to show that how he acquired knowledge about filing of civil suit on 04.07.2008. In para no.6 the plaintiff has not pleaded that the District Court has granted any injunction to prohibit transfer of land in dispute. In para no.7 the plaintiff has mentioned that the stay order was passed by the Rajasthan High Court. The record itself indicate that S.B. CFA preferred in 2015, therefore, there is no averment about stay between July, 2008 to 2015.

14. In case of Ramakant Ambalal Choksi Vs. Harish Ambalal Choksi and Ors. (supra), Hon’ble Supreme Court has considered appellate jurisdiction under Order 43 of CPC and also the principle governing grant of temporary injunction and explained the expression “perverse”. Further, considered provision under Section 52 of the Transfer of Property Act and observed that irrespective of the fact of law under Section 52 an injunction during pendency to preserve the property can be issued. In case of Gurmeet Singh Bhatia Vs. Kiran Kant Robinson and Ors.(supra), Hon’ble Supreme Court has laid down that [2025:RJ-JP:3011] (7 of 9) [CMA-169/2025] subsequent vendee cannot be added as a necessary party in a suit for specific performance between vendor and original vendee. In case of Maharaj Singh and Ors. Vs. Karan Singh (Dead) through LRs and Ors. (supra), while considering the material relating to specific performance, observed that where suit agreement claimed as sham and bogus and other defendants could be said to be bona fide purchasers even the plaintiff were entitled for decree for specific performance.

15. Having considered the entirety of facts and circumstances of the case, a fact is quite clear that agreement to sale was allegedly executed on 29.05.2008 with time line of 90 days. Though, the defendant denied the execution of agreement but a copy shown by her counsel clearly indicate variation in condition no. 3 on page no.2. The doubt about insertion of almost two lines in condition no. 3 has not been explained. The property has changed hands prior to filing of suit or even prior to notice dated 08.05.2024.

16. As per principle of law laid down by Hon’ble Apex Court, the subsequent vendee cannot be added as a necessary party in a suit for specific performance as same is primarily between vendor and original vendee. This principle is based on judgment in case of Kasturi vs Uyyamperumal & Ors 2005 (6) SCC 733, therefore, it is not necessary to the person seeking specific performance to implead a subsequent purchaser as party but to effectively execute a decree, if any, passed by the trial court, the court has to consider whether the party is a purchaser prior to filing of suit is a necessary party and without impleading the same a suit can be decreed. In case of Maharaj Singh and Ors. Vs. [2025:RJ-JP:3011] (8 of 9) [CMA-169/2025] Karan Singh (Dead) through LRs and Ors.(supra), there was a registered agreement for sale and the execution of agreement was never denied by the executant to the agreement, therefore, in case of denial at later stage, Hon’ble Supreme Court has held that even if agreement was sham and bogus and other defendants are bona fide purchasers even then the plaintiffs were entitled for decree. Thus, the facts in the instant case is different than Maharaj Singh and Ors. Vs. Karan Singh (Dead) through LRs and Ors.

17. In case of Ramakant Ambalal Choksi Vs. Harish Ambalal Choksi and Ors. (supra), while considering the judgment in case of Anand Prasad Agarwal Vs. Tarkeshwar Prasad reported in (2001) 5 SCC 568 and Dalpat Kumar Vs. Prahlad Singh reported in (1992) 2 SCC 719, Hon’ble Supreme Court has granted injunction despite noticing the provision under Section 52 of Transfer of Property Act.

18. Herein this case, the facts as mentioned hereinabove clearly indicate that the judgments as referred by learned counsel for appellant have no applicability. A fact is also noticeable in the instant case that there is serious objection not only about execution of agreement and also on genunity of agreement. A relief of temporary injunction is equitable relief and while considering prima facie case, balance of convenience and irreparable loss, the Court cannot be on side by a person who has not approached the Court with clean hands, therefore, we agree with the end result drawn by the learned trial court, though, we may differ on reasons assigned by the trial court. [2025:RJ-JP:3011] (9 of 9) [CMA-169/2025]

19. Hence, the appeal sans merit and is liable to be dismissed.

20. In view of aforesaid, the instant civil misc. appeal is hereby dismissed with pending application(s), if any. Chetna/248-S (ASHOK KUMAR JAIN),J