M.S. Liberhan, J. - (1.) THE petitioner has challenged the order of the Additional District Judge, declining the prayer for ad -interim injunction during the pendency of the suit. The undisputed facts stated at the bar are that Sunder Lai was the owner of the land in dispute who sold it to Sukhchain and others. The respondent sought decree for possession by pre -emption which was granted finally by this Court on 8.8.1986. It is stated in the course of argument that Bishan Singh filed a suit on 6.10.1982 against his sons for declaration that he is the real owner and his sons are only benamidars. This suit was decreed on the same date as the sons admitted the claim.
(2.) WHEN the execution of the order dated 8.8.1988 was sought, Bishan Singh filed the present suit claiming himself to be a tenant on the land in dispute as well as the real owner of the land in suit. Pleas are destructive of each other. A suit for declaration was filed that he is the real owner and the decree cannot be executed with a consequential relief of injunction restraining the respondent from executing the decree in dispute. Both the courts below declined the ad -interim injunction. Learned Counsel for the petitioner contends that the law with respect to benami transactions is not applicable to the facts in this case, inasmuch as the decree was passed much earlier to the Act coming into force. He further contends that the judgment reported as Mithilesh Kumari and Anr. v. Prem Behari Khare, 1989(1) S.V.L.R. (c) 252, decided on 14.2.1989 is not applicable to the facts and circumstances of this case. It is contended that since the petitioner is admittedly in possession, actual delivery of possession cannot be effected at this stage.
(3.) LEARNED Counsel for the respondent refuted the arguments and contends that there is no error of jurisdiction exercised by the courts below in declining the ad -interim Injunction. Apart from this there are no sufficient grounds to Interfere in the discretion exercised by the courts below.;