PANWAR, J. - (1.) THIS appeal is directed against the order dated 2. 4. 99 passed by Additional District Judge No. 2, Bikaner (hereinafter referred to as `the trial court') whereby the trial court dismissed the application filed by plaintiff appellant under Order 39 Rules 1 and 2 read with s. 151 C. P. C. Hence, this appeal.
(2.) BRIEFLY stated facts to the extent they are relevant and necessary for decision of this appeal are that a suit for specific performance of agreement dated 17. 8. 98 was filed by the plaintiff appellant before the trial court on 24. 8. 98 within seven days from the date of the alleged agreement against defendant respondents. The agreement is unregistered and execution of it has been denied by the respondents. Respondents also denied in their reply to the application filed by the plaintiff appellant regarding possession of the land having been given to the plaintiff appellant. Prima facie, having considered the material placed by the parties before the trial court, the trial court reached to the conclusion that the plaintiff appellant has failed to establish prima facie case in his favour. While considering the question of balance of convenience and irreparable injury, the trial court also held that since the plaintiff appellant is not in possession of the land in dispute as also failed to prima facie establish the agreement of sale dated 17. 8. 98 and, therefore, the issue of balance of convenience was not found in favour of the plaintiff appellant. The trial court prima facie held that since the plaintiff appellant is not in possession of the land in dispute, therefore, in case injunction is refused, the plaintiff appellant would not suffer any irreparable loss or injury. Since all the essential ingredients for grant or refusal of temporary injunction were found against the plaintiff appellant, the application filed by the plaintiff appellant was dismissed. I have heard learned counsel for the parties. Perused the order impugned and the record of the trial court. The case as set up by the plaintiff appellant prima facie cannot find favour for the reason that the agreement dated 17. 8. 98 and within less than seven days, a suit has been instituted for specific performance of the contract. Nothing has been shown as to how the plaintiff came with the possession of the land in dispute. There is no such averment in the alleged agreement having handed over the possession. More so, the agreement is unregistered. If the agreement contains a recital about delivery of possession, then it requires compulsory registration u/s. 17 (f) of the Indian Registration Act (for short `the Act') and is made enforceable with effect from 18. 9. 89 by Rajasthan Amendment Act No. 18 of 1989. More so, in the instant case, the respondent defendants have specifically denied of having executed such an agreement. The agreement is yet to be established by evidence in the trial and, therefore, in my considered opinion, the trial court committed no error in not relying the said agreement as a genuine document. It is settled law that S. 53a of the Transfer of Property Act does not confer a right on a transferee to move an application for temporary injunction under Order 39 Rules 1 and 2 C. P. C. in a suit for specific performance on the basis of unregistered agreement for sale which requires compulsory registration. In Ranchor Dass Chhangan Lal vs. Devaji & Others (1), the Hon'ble Supreme Court held that the doctrine of part performance is a defence. It is a right to protect his possession against any challenge to it by this transferor or any person claiming through him contrary to the terms of the contract. The statutory protection envisaged under Section 53a of the Transfer of Property Act can be used as a ground of defence and not as a ground of attack. In United Commercial Bank vs. Bank of India (2), the Hon'ble Supreme Court held that no injunction could be granted under Order 39 Rules 1 and 2 C. P. C. unless the plaintiffs establish that they had a prima facie case, meaning thereby that there was a bona fide contention between the parties or a serious question to be tried.
(3.) WANDER Ltd. vs. Antox India Pvt. Ltd. (3), the Hon'ble Supreme Court held as under: " The appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against. exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. if the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion. " In the instant case, the land in dispute was originally allotted to the father of the defendant respondents Shri Devaram Meghwal and since from the date of this allotment in favour of Devaram, the father of defendant respondents was in possession and after his death, defendant respondents being his legal heirs, remained in continuous possession of the land in dispute. The revenue record stands in the name of the defendant, respondents. The trial court also came to the conclusion that the defendants are in possession of the land in question. A Division Bench of this Court in Hira and Others vs. Board of Revenue and Another (4) has held that if the defendant is already in possession of the disputed property, a temporary injunction cannot be passed against him because that would amount to depriving him of possession of the property. In other words, the defendant in possession of the property, cannot be deprived thereof by a temporary injunction. ;