- (1.)HEARD learned counsel for the appellants.
(2.)BY this Misc. Appeal the plaintiff appellants have challenged the order dated 22nd March, 2012 passed by Additional District Judge No.6, Jaipur Metropolitan, Jaipur whereby the application filed by the appellants under Order 39 rules 1 and 2 C.P.C. for grant of temporary injunction in the civil suit filed by them for pre-emption, has been rejected.
Briefly stated the facts of the case are that the plaintiff appellants have filed a Civil Suit for pre-emption in respect of the sale made by defendant respondent nos. 2 and 3 in favour of defendant respondent no.1 vide registered sale deed dated 29th October, 2010 in respect of part of the residential plot with the averments that late Shri Radheyshyam, husband of plaintiff-appellant no.1 and father of plaintiff appellant nos. 2 to 4 and the defendant respondent nos. 2 and 3 and Shri Siya Ram, brother of late Shri Radheyshyam had jointly purchased the disputed residential land, details of which have been mentioned in para no.1 of the civil suit. It has also been averred in the suit and in the T.I. Application that the said property was mutually partitioned between the partners in equal four shares having a common entrance from south. The plaintiff appellants also avered in the suit and stated in the T.I. application that the defendant-respondent nos. 2 and 3 have sold their portion to defendant respondent no.1 for a sale consideration of Rs.10,00,000/- vide registered sale deed dated 29th October, 2010 without notice to them. The plaintiffs then stated in the application for grant of temporary injunction application that the plaintiff appellants have common entrance for their portion, therefore, they have preferential right to purchase the disputed property. In the temporary injunction application it was prayed that the defendant respondents be restrained from selling or otherwise transferring or alienating the disputed property to any other person till final disposal of the suit.

The defendant-respondents filed written statement to the civil suit and also to the application for grant of temporary injunction under Order 39 rules 1 and 2 and denied the material facts stated in the plaint as well as in the application for grant of temporary injunction and further averred that no pre-emption right with regard to the disputed property exists in favour of the appellants.

After hearing both the parties, the trial court has come to the conclusion that the plaintiff appellants have not produced any document to show prima facie that there is common way towards south to enter in the property. Therefore, there is no prima facie case in favour of the plaintiffs for grant of temporary injunction but in case the plaintiffs succeed in the civil suit with regard to the common entrance, the will the entitled to get such relief from the date of filing of the suit but at this stage the respondent no.1 is having title over the property therefore, he cannot be restrained from use of the same and thus, the balance of convenience lies in favour of the defendant respondent and further he will suffer irreparable loss also in case temporary injunction is granted in favour of the plaintiffs. Giving such findings, the application for grant of temporary injunction has been rejected.

Counsel for the plaintiffs submits that the common entrance towards the southern side of the property in dispute is the subject matter of the suit, therefore, the trial court has committed error in rejecting the application for grant of temporary injunction.

(3.)I have gone through the Misc. Appeal and further considered the submissions of the counsel for the plaintiff appellants.
On consideration of the same, I am of the opinion that the trial court has rightly observed that no document with regard to existence of common entrance towards south has been produced to prove prima facie case in support of the application under Order 39 rules 1 and 2 C.P.C. Therefore, the case of the plaintiffs for grant of temporary injunction has rightly been rejected. In such circumstances, the trial court has rightly observed that in case the plaintiffs would be able to prove their case, after recording of evidence then they will be entitled for the final reliefs as prayed for in the suit at the time of final disposal of the suit. The trial court has committed no error in rejecting the application under Order 39 rules 1 and 2 CPC for grant of temporary injunction. The appeal has no force and the same is, dismissed.