G. D. Dubey, J. - (1.) THIS appeal has been preferred against the judgment and order of Civil Judge, Ghaziabad, issuing a temporary injunction against the appellant and restraining the appellant from selling plot no. 113/11 and the building constructed thereon in Navyug Market, Ghaziabad to any other person except the plaintiff-respondents or to give possession to the said third person transferee till the disposal of the suit.
(2.) THE plaintiffs filed a suit before the lower court seeking relief of prohibitory injunction to restrain the defendant from disposing the property in question to any outsider for any consideration except to the plaintiff. THE plaintiffs alleged that they are closely related with each other and the defendant. THE Ghaziabad Development Authority had invited tenders for commercial-cum-residential plot. THE defendant and the plaintiffs had submitted their tenders. After the tenders were accepted by the Ghaziabad Development Authority, the plaintiffs were allotted plot no. 113/12 and the defendant was allotted plot no. 113/11. It was alleged that at the time of submitting the tenders and getting the lease deed executed in favour of the respective parties in respect of the plots in question mentioned above, it was agreed between the parties that if any one of them intends to sell his plot then the same will be sold to the other party. It was also agreed that neither the plaintiffs nor the defendant shall be entitled to dispose of or sell the plots or the building standing thereon to any other outsider. In pursuance of this agreement, constructions were raised on two plots in such a manner that from the very appearance it transpires that the constructions are one and not separate. THE defendant appellant being an old lady and having only one daughter (who is married) had intended to sell her property for Rs. 7, 50,000/- to plaintiff no. 1 with the consent of plaintiffs 2 and 3 and also of her daughter. In consideration thereof the defendant received Rs. 25000/- on 1-6-1988 and Rs. 1,25,000/- on 30-6-1988. In respect of these money transactions, the defendant had issued receipts on chit of papers. THE plaintiffs having great faith in defendant accepted the said receipts on plain papers just as a token of receipt of the money. It was also agreed that the amount of rupees six lacs would be paid to the defendant at the time of execution of the sale- deed, which was decided to be executed upto 30th May, 1989. Prior to that date the defendant was to get all legal permission i. e. permission of Ghaziabad Development Authority, Income-tax certificate etc THE defendant is alleged to have fallen under the influence of one Dharampal son of Sri Shyam Lal who has animosity against the plaintiffs. THE defendant was given some allurement and thus is intending to sell her property to the outsider Dharampal. On these facts, the prayer had been made for issue of a temporary injunction against the defendant-appellant. The defendant-appellant had contested the matter. She admitted that she had purchased a plot from Ghaziahad Development Authority after submitting a tender as advertised by the said Authority, she also admitted that the constructions were raised on the portion of land taken on lease by her and plaintiffs 2 and 3. She, however, stated that the constructions were made separate. There were separate stair-cases and toilets. The tenants i. e. Canara Bank and Export Inspection Agency had made some alterations in the building in accordance with their requirements. It was stated that the constructions on one portion of the land belonged to the defendant-appellant are not dependant on the constructions made on the land belonging to plaintiffs 2 and 3. The defendant denied that she had ever agreed at the time of submitting tender to Ghaziabad Development Authority or at any later time that she will sell the property only to plaintiffs 2 and 3 and none else. She denied that it was ever agreed with the plaintiffs that she will sell her property to the plaintiffs for Rs. 7,50,000/-, She also denied to have received a sum of Rs. 25,000/.- and Rs. 1,25,000/- on 1-6-1988 and 30-6-1988 respectively. She stated that she had asked the export inspection agency and other tenants to give rent separately as plaintiff no. 1 was not depositing the rent realised from them in an account. Consequently, she had to cancel the power of attorney in favour of plaintiff no. 1. The defendant also contended that the plaintiffs had no concern with the property. The learned Civil Judge came to conclusion that the plaintiffs had a prima facie case. He found some substance in the contention of the plaintiffs regarding the contract between the parties conferring a pre-emptive right in favour of the plaintiffs. He also found prima facie that the defendant had received two amounts as mentioned above. The lower court also held that balance of convenience was in favour of the plaintiffs, for the house was constructed in such a manner that it cannot be partitioned and any transfer will complicate the matters. On these two observations, the impugned order was passed.
(3.) IT has been contended on behalf of the appellant that there is no evidence on record about the time, place and manner of execution of the alleged agreement. There is no mention in the said agreement as to what was the price to be offered and whether the price offered by a third party was to be the price paid by either of the parties. IT was further urged that, from a reading of the plaint, it transpires that the first agreement regarding creation of pre-emptive right was created in 1968 and the contract for agreement to sell was arrived at between the parties in 1988. IT was urged that none of these contracts are in writing. IT was urged that none of these agreements were enforceable. Therefore, the lower court, it was urged, had erred in issuing the injunction order. Learned counsel for the respondents argued that even oral contracts are enforceable by way of suit for specific performance of contract. It was further urged that the first contract relating to the concurrent right of preemption was a valid right. It was also urged that by the second alleged oral contract, the price and time for sale, and the name of vendee was fixed. It was, therefore, urged that the lower court was fully justified in believing the case of the plaintiffs and holding that they had prima facie case. It was also urged that the plaintiffs were offering very reasonable price and balance of convenience lay in their favour for the present structure of the house in question is such that if a stranger purchases it then there will be a complication. As regards the third ingredient of "irreparable loss" for grant of temporary ' injunction, learned counsel urged that this too was in favour of the plaintiffs. Elaborating this contention, learned counsel urged that the original intention of the parties was that the land should remain in the family of the parties. Since the constructions were built in a composite manner as to give one entity to the building constructed on two plot nos. 113/11 and 113/12, any intrusion of third person as a purchaser would affect construction and also the benefits to the plaintiffs of user of the two buildings as one entity.;