Vineet Kothari - (1.) THIS appeal has been filed by the plaintiff against the order dtd.30.11.2011 passed by the learned Additional Dist. Judge No. 3, Jodhpur Metro on the application for temporary injunction under Order 39 Rule 1 and 2 C.P.C.
(2.) THE learned trial Court allowing the application for temporary injunction of the plaintiff has restrained the defendants not to further alienate the suit property nor to hand over the possession of the same during the pendency of the suit. The learned counsel for the plaintiff - appellant Mr. J.R. Patel submitted that even while finding prima facie case in favour of the plaintiff without contradicting the factum of plaintiff's possession over the suit property, the learned trial Court in para 6 while finding of balance of convenience and irreparable loss has held that the defendant No. 2 and 4 were not in possession of the suit property and therefore, the application for temporary injunction only to the extent of alienation and not to further hand over possession has been granted. He further urged that in the counter -claim filed by the defendants, they had admitted that the plaintiff was in possession of the suit property and they had also filed an application under Order 39 Rule 2A C.P.C. in this regard and therefore, it was wrong on the part of the learned trial Court to find in para 6 that the defendants No. 2 to 4 were in possession of the suit property.
(3.) ON the other hand, Mr. S.N. Bhatt, learned counsel appearing for the defendants - respondents submitted that under two agreements to sell executed by the plaintiff in favour of the defendants No. 2 and 4 along with power of attorney executed by the plaintiff, which documents were signed by her husband Jitendra Mehta also as a witness, there is clear stipulation of possession of suit property having been handed over to the defendants and on the basis of power of attorney executed in their favour, they have executed registered sale -deed in favour of the defendant No. 1 Smt. Nirmala Chopra and defendant No. 3 Smt. Shanti Devi respectively, cancellation of which was sought in the present suit filed by the plaintiff. He submitted that the findings in para 6 of the impugned order cannot be said to be findings contrary to the aspect of prima facie case and the temporary injunction granted in favour of the plaintiff meets ends of justice and since the plaintiff was not in possession of the suit property, therefore, the restraint against the present defendants not to further alienate the suit property and not to further hand -over the possession to any 3rd party adequately protects the rights of the plaintiff and consequently, the present appeal of the plaintiff deserves to be dismissed.;