- (1.) THE present appeal has been filed by the appellants-plaintiffs under Order 43 Rule 1(r) of CPC challenging the order dated 19.11.2007 passed by the Addl.District Judge (Fast Track) No.9, Jaipur City, Jaipur (hereinafter referred to as the 'trial court'), whereby the trial court has partly allowed the temporary injunction application being No.15 of 2007 filed by the appellants, by restraining the respondent No.4 (original defendant No.4) from alienating the suit property to the third party during the pendency of the suit.
(2.) IT has been sought to be submitted by learned counsel Mr. Laxmi Kant for the appellants that the appellants-plaintiffs have filed the suit for cancellation of the sale deed executed by the respondent No.1 in favour of respondent No.4 and also for specific performance of the agreement dated 31.3.2003 executed by the respondent No.1 in favour of the appellants. According to him, the trial court though believed prima facie case and balance of convenience in favour of the appellants-plaintiffs, restrained the respondent No.4 only from alienating the suit property and did not grant injunction against the other respondents. Relying upon the judgment of Apex Court in the case of Maharwal Khewaji Trust (Regd.), Faridkot vs Baldev Dass 2005(1) Apex Court Judgements457 (S.C.), the learned counsel has submitted that the application for temporary injunction cannot be declined on the basis that alienation will be subject to law of lis pendens. According to him,order passed by the trial court being erroneous, all the respondents should be restrained from alienating the suit property. The learned counsel also submitted that the trial court had erroneously held that the respondent no.4 was in possession of the suit property. On the other hand, learned counsels Mr.Sudesh Bansal and Mr.Deepak Asopa for the respondents have submitted that respondent No.4 has purchased the suit property by registered sale deed from the respondent No.1 and therefore the trial court court has rightly granted injunction against respondent no.4 only. Supporting the order passed by the trial court, learned counsels have submitted that the appeal deserves to be dismissed. Having regard to the submissions made by learned counsel for the parties and to the impugned order passed by the trial court, it transpires that the appellants-plaintiffs has filed the suit seeking cancellation of the sale deed executed by the respondent No.1 in favour of respondent No.4 and also seeking specific performance of the agreement dated 31.3.2011 allegedly executed by the respondent No.1 in favour of appellants. It is not disputed that the sale deed executed in favour of the respondent No.4 on 8.12.2003 was registered sale deed. It is true that the trial court, has observed that the plaintiffs had established prima facie case in their favour, however, so far as the possession of suit property is concerned, it is pertinent to note that the appellants plaintiffs themselves have sought possession of the suit property from the respondents in the suit, meaning thereby that the plaintiffs were not in possession of the suit property at the time of filing of the suit. Under the circumstances, the trial court has rightly believed the possession of the respondent No.4 and restrained him from alienating the suit property to any third party. The decision of the Apex Court cited by the learned counsel for the appellants have no application to the facts and circumstances of the present case, and therefore, not helpful to them. In that view of the matter, there being no illegality and perversity in the impugned order, the appeal deserves to be dismissed and is accordingly dismissed.;