IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.513 of 2008 SATYA NARAYAN SHARMA Versus JHULAN SHARMA & ANR ----------- 5 ……05.2010 Heard the learned counsel Shri Prakash Srivastava on behalf of the appellant under Order 41 rule 11 C.P.C. 2. The plaintiff/appellant has filed this appeal against the order dated 30.02.2008 passed by the learned Sub Judge-IV, Motihari in Title Suit No. 319 of 2007 rejecting the application for injunction filed by the appellant. 3. The plaintiff filed the suit for cancellation of sale deed dated 22.05.2007 said to have been executed in favour of defendant (IInd set) by the defendant No. 1. Thereafter, the plaintiff filed injunction application on 10.01.2007 alleging that the defendant (IInd set) is constructing boundary wall on the land said to have been purchased by them and, therefore, it was prayed that the defendant (IInd set) may be restrained from constructing boundary wall. 4. The defendant (IInd set) appeared and filed show cause and after hearing the parties, the learned court below came to the conclusion that the plaintiff has got no prima facie case and balance of convenience is not in their favour. The learned court below also found that the 2 appellant shall not suffer serious injury or irreparable loss as the plaintiff had undertaken that if the suit is decided ultimately in favour of the appellant, the defendant will demolish the constructed wall and hand over the possession. 5. The learned counsel for the appellant submitted that the learned court below has wrongly rejected the injunction application. According to the learned counsel, the plaintiffs are in possession over the suit land, and the sale deed in favour of defendant No. 2 is without consideration and it was executed by the defendant No. 1 without any right, title or possession. 6. Admittedly, the plaintiff has filed this suit for setting aside the sale deed executed by defendant No. 1 in favour of defendant No. 2. Now, therefore, it becomes admitted fact that unless the sale deed is set aside, it cannot be said that the defendant No. 2 has got no title over the property. Moreover, the prayer for injunction was made in January, 2007 which was rejected by the court below. More than three years have passed. Therefore, now at this stage, it cannot be said that the plaintiff has got prima facie case. Since the sale deed is in favour of defendant No. 2, it cannot be said that balance of convenience is also in favour of the appellants. The learned court below after due consideration of all aspect of the matter has rejected the injunction 3 application. 7. In view of the above consideration, after such a long period of three years, I am not inclined to interfere with the impugned order. 8. In the result, I find no merit in this Misc. Appeal and, accordingly, this appeal is rejected. AKV/ (Mungeshwar Sahoo,J.)