THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD C.M.A.Nos.93 of 2011 and 114 of 2011 ORDER: (per the Hon’ble Sri Justice P.Durga Prasad) Both the appeals are directed against the common Orders passed in I.A.Nos.1026 of 2008 and 1027 of 2008 in O.S.No.500 of 2008 by the III Additional District Judge (Fast Track Court), Ranga Reddy District on 12.08.2010. The appellants herein are the respondents in the above said petitions and the respondent herein has filed the I.A.No.1026 of 2008 under Order 39 Rules 1 and 2 for grant of Ad-interim injunction restraining the respondents from dispossessing the petitioner therein from the suit schedule property pending disposal of the suit. I.A.No.1027 of 2008 is also filed under Order 39 Rules 1 and 2 for grant of Ad-interim injunction restraining the respondents from alienating the suit schedule property pending disposal of the suit. According to the respondent/petitioner the appellants herein are the legal heirs of late S.Raja Gopalan, who was the absolute owner of the plot bearing No.136, admeasuring about 400 square yards, forming part of Survey No.9/1/F (part), situated at Saroornagar, Hyderabad. According to the respondent/petitioner, the said S.Raja Gopalan had offered to sell the said land for a consideration of Rs.16,00,000/- to him. He accepted to purchase the same for the above said consideration and entered into agreement of sale dated 11.10.2001. Accordingly, he paid Rs.16,00,000/- to him and he was put in possession of the said property and the said S.Raja Gopalan has promised to execute the registered sale deed after producing of all link documents, survey settlement plan, No Due Certificate from bank, and the respondent/petitioner requesting the said S.Raja Gopala from time to time for production of link documents etc., and to perform his part of the obligation of the contract by executing the registered sale deed, but he postponing the matter for one reason or other. In the year 2004 when the respondent/petitioner went to the house requesting for execution of sale deed, he was not found in the house and he could not trace out whereabouts of said S.Raja Gopalan or his legal heirs. Thereafter, he came to know that the said S.Raja Gopalan died in the year 2004, immediately he made a paper publication dated 28.05.2008 in Andhra Jyothi calling upon his legal representatives to executed the registered sale deed in his favour and the appellants herein on seeing the publication gave a reply-cum-warning notice denying the agreement of sale dated 11.10.2001. Thereafter, he came to know that the appellants in order to evade the obligation made under the agreement of sale by their father trying to sell away the same to 3rd parties at higher rate and not cooperating with the respondent/petitioner to execute the registered sale deed in his favour. As such they may be restrained by way of injunction from alienating the suit schedule property and dispossessing him from the suit schedule property pending disposal of suit. The appellants/respondents opposed the said application by filing the counter denying about their father late S.Raja Gopalan offering to sell the suit schedule property for consideration of Rs.16,00,000/- to the respondent/petitioner and the respondent/petitioner paying Rs.16,00,000/- and their father putting him in possession of the said property. According to them, the said agreement of sale dated 11.10.2001 is a fabricated document by putting the thumb impression of their father S.Raja Gopalan even though he is a signatory. According to them, their father was a lecturer in Mechanical Engineering in Government Polytechnic and very well capable of putting his signature. They further pleaded that their father submitted an application to the BSNL authorities requesting to shift his phone bearing No.4838349 from House No.11-13-44/6, Road No.10, Alkapuri, L.B.Nagar, Hyderabad to Sugeetha Gopala Krishna, w/o S.Gopala Krishnan, plot No.9, Bhagavathi Nagar, Street No.10, Venkatagiri, Yousufguda, Hyderabad by affixing his signature. They further pleaded that their father also submitted an application to Branch Manager, SBI, Ellareddy Guda Branch, Hyderabad on 12.10.2001 requesting to make his account as joint account with his daughter by affixing his signature. They also pleaded that the cheques dated 29.09.2002, 22.10.2002, 5.11.2003, 13.02.2004 and 13.02.2004 were issued by their father under his signature and he also addressed a letter to Lloyd Finance Limited on 23.10.2001 for sending his Fixed Deposit maturity amount to his address. According to them, all those documents clearly shows that their father S.Raja Gopalan is in a fit condition to affix his full signature and there is no need to execute the alleged agreement of sale by affixing thumb impression. During the course of enquiry before the lower Court Exs.P.1 to P.5 were marked on behalf of the petitioner and Exs.R.1 to R.14 were marked on behalf of the respondents. Taking into consideration of the respective contentions of both parties and documentary evidence, the lower Court has allowed both the petitions. Aggrieved by the same, the present appeal is filed by the respondents therein. The main contention of the appellants’ counsel is that the alleged agreement of sale dated 11.10.2001 said to have been executed by late S.Raja Gopalan is a fabricated document with thumb impression even though the said S.Raja Gopalan is a signatory and he could able to put his signature prior to the date of execution of alleged agreement of sale and subsequent to the agreement of sale and when the said agreement of sale is in dispute, they cannot be prevented by way of injunction pending disposal of suit. The respondent’s counsel on the other hand has pleaded that the said S.Raja Gopalan has executed the said agreement of sale dated 11.10.2001 by receiving full consideration of Rs.16,00,000/- and the possession was also delivered to him and as the appellants are trying to alienate the said property by dispossessing him, he is entitled to the injunction as granted by the lower Court. The agreement of sale is marked as Ex.P.1. The said document contains thumb impression of the vendor and attested by 5 persons and the same was alleged to have been executed on 11.10.2001 and after 7 days Ex.P.2 receipt of delivery of possession is said to have been executed by the vendor and the said document also bears thumb impression of the vendor. Appellants are disputing about the execution of the said documents by their father S.Raja Gopalan stating that he is a signatory and he is well educated person and he was worked as Lecturer in Mechanical Engineering in Government Polytechnic college. In support of their contention, they got marked the letters addressed by the said S.Raja Gopalan to the BSNL authorities for shifting of the Telephone and also addressing a letter to Lloyd Finance Limited for sending the maturity amount of the deposit made by him and also the cheques containing the signatures of the said S.Raja Gopalan. The application made by the said S.Raja Gopalan to BSNL is dated 08.10.2001 and received by the BSNL authorities on 10.10.2001 and it bears the signature of said S.Raja Gopalan. He also addressed a letter to the Branch Manager, SBI, Elareddy Guda Branch on 12.10.2001 for making his account as joint account with his daughter and on 23.10.2001 the said S.Raja Gopalan has submitted an application to Lloyd Finance Corporation for sending maturity amount to his address. The appellants also produced the certified copies of the cheques dated 29.09.2002, 22.10.2002, 5.11.2003 and 13.02.2004 and all the above said documents bears the signature of said S.Raja Gopalan. Since the said S.Raja Gopalan affixed his signatures on the documents, which were executed by him prior to the date of alleged agreement of sale and also subsequent to the date of alleged agreement. The alleged agreement Ex.P.1 dated 11.10.2001 and Ex.P.2 receipt dated 17.10.2001 for delivery of possession only contains the thumb impression of the vendor and no endorsement was made underneath the thumb impression that it belongs to S.Raja Gopalan. Thus, prima-facie the execution of the said agreements Exs.P.1 and P.2 by the said S.Raja Gopalan is doubtful. However, the execution of the said documents has to be established during the course of trial by the respondent/petitioner. Even though the agreement of sale was executed on 11.10.2001 and receipt on 17.10.2001, the respondent/petitioner has not taken any steps to get the registered sale deed executed in his favour and he has not issued any notice demanding for execution of the registered sale deed during the life time of Raja Gopalan as he died in 2004. The respondent/petitioner only issued a paper publication on 28.05.2008 calling upon the legal representatives of the deceased S.Raja Gopalan to execute the registered sale deed. According to the respondent/petitioner he used to go to the house of deceased S.Raja Gopalan and requested him for execution of the registered sale deed. According to him till 2004 he could able to contact the S.Raja Gopalan and subsequent to 2004, he could not able to find out his address and when he could not able to trace out the S.Raja Gopalan from the year 2004, he has not taken any steps to find out the said S.Raja Gopalan or his legal representatives till 28.05.2008. As per the plaint, the suit schedule property is a open plot, but the lower Court has observed that there is a compound wall with open plot with a small room raised therein. The lower Court further observed that such physical features shall not be disturbed during the pendency of the suit and thereby observed that balance of convenience is in favour of the petitioner. The petitioner is not seeking for relief of change of physical features of suit schedule property in either of the petitions, but he is only seeking for restraining the respondents from dispossessing him from the suit schedule property and to restrain the respondents from alienating the suit schedule property pending disposal of suit. In view of the above observations, the execution of the agreement of sale and the delivery of possession of the property to the respondent/petitioner is doubtful, the prima-facie case and balance of convenience are not in favour of the respondent/petitioner. Even if the appellants alienate the suit schedule property pending disposal of suit, and if the respondent/petitioner succeeds in the suit filed for specific performance, he can be compensated by awarding suitable damages, and the appellants/respondents cannot be compensated for the loss sustained by them in case the suit filed by the respondent/petitioner is dismissed. Thus the irreparable loss is not in favour of the respondent/petitioner. Since the respondent/petitioner has failed to establish the prima-facie case, balance of convenience and irreparable loss, he is not entitled for the reliefs as granted by the lower Court. Therefore, the findings recorded by the lower Court in favour of the respondent/petitioner are liable to be set aside. In the result, the Civil Miscellaneous Appeal Nos.93 of 2011 and 114 of 2011 are allowed with costs and the impugned common Order passed in I.A.Nos.1026 of 2008 and 1027 of 2008 in O.S.No.500 of 2008 by the III Additional District Judge (Fast Track Court), Ranga Reddy District on 12.08.2010 is hereby set aside. _______________________ JUSTICE N.V.RAMANA. _____________________________ JUSTICE P. DURGA PRASAD Dated:28-09 -2011 Ksp