Vineet Kothari, J. - (1.) BY the impugned order dt. 23.01.2014 in the present suit filed by the plaintiff/respondent, Naresh Kumar, the learned Court below has granted temporary injunction in favour of plaintiff directing the defendant to maintain status quo with respect to plot or land in question in the present suit for specific performance. Mr. M.C. Bishnoi, learned counsel for the appellant/defendant has submitted that the defendant has even denied the existence of valid agreement itself claimed to be executed on 17.01.2005 for a sum of Rs. 1,15,000/ -, against which only an advance sum of Rs. 35,000/ - was given to the father -in -law (Sh. Gaurishanker) of the defendant which was in fact only a loan. He also submitted that construction being raised by the defendant has been stopped under the impugned order, whereas the plaintiff has no right to restrain the defendant from going ahead with the construction and possession of the land was never handed over to the plaintiff. The disputed plot ad -measuring 709.5 Square Meters, is situated at Gamadwada Mohalla, Sagwara, District Dungarpur.
(2.) ON the other hand, Dr. Sachin Acharya, learned counsel for the respondent/plaintiff submitted that the possession of the plot in question was given to the plaintiff at the time of execution of agreement itself and thus the defendant has no right to go ahead with the construction being raised on the plot in question, which will remain subject to the final decision of the suit. Having heard the learned counsel for the parties, this Court is satisfied that the present misc. appeal deserves to be allowed. As against the agreed sum of Rs. 1,15,000/ -, the plaintiff has admittedly given only a part sum of Rs. 35,000/ - was paid to the defendant at the time of execution of agreement in the year 2005 which too is said to be only a loan and not an advance for transfer of land, and the present suit for specific performance thereof has been filed by the plaintiff in the year 2013, after eight years. There is no finding of the learned Court below with respect to possession of the plaintiff over the plot in question and that the possession of the plot was handed over to the plaintiff at the time of execution of agreement itself of later on. In these circumstances, putting a restraint on the defendant not to enjoy the said land and raise construction may cause unnecessary prejudice to the defendant where the issue of validity of the agreement itself and readiness and willingness to perform his part of promise is yet to be decided by the Court below in the present suit. Therefore, the present appeal of the defendant, therefore, deserves to be allowed. Consequently, the present misc. appeal of the defendant/appellant is allowed and the impugned order of T.I. dt. 23.01.2014 is set aside. No costs. A copy of this order be sent to the concerned parties and the Court below forthwith.;