SBCWP No.9690/2008 Om Singh Vs. Dhirendra 1 SBCWP No.9690/2008 Om Singh Vs. Dhirendra DATE OF ORDER : - 21.1.2009 HON'BLE MR. PRAKASH TATIA, J. Mr.J. Gehlot,for the petitioner. <><><> Heard learned counsel for the petitioner. The petitioner is defendant in the suit filed by the respondent-plaintiff wherein ad-interim injunction order was passed by the trial court on 2nd June, 2007 only restraining the defendant-petitioner from alienating (from selling) the property in dispute to anybody. Ultimately, the matter reached to this Court and as per the order of this Court, the applicant-petitioner was allowed to let out plots nos. 8 and 9 on rent so that he may earne rent from the said properties. The said order was passed by this Court only on 3rd July, 2008. The petitioner-defendant submitted another application before the trial court and sought permission to sell some of the properties involved in the present litigation, which has been denied by the trial court vide order dated 24th Nov., 2008. According to learned counsel for the petitioner, the SBCWP No.9690/2008 Om Singh Vs. Dhirendra 2 trial court has committed serious error of fact and law in rejecting the petitioner's application seeking permission to sell the properties. It is submitted that the petitioner is old person having age of 67 years and nobody is taking care of him. Learned counsel for the petitioner relied upon the judgment of the Hon'ble Apex Court delivered in the case of Mandali Ranganna & Ors Vs. T. Ramachandra & Ors reported in 2008 DNJ (SC) 951 wherein while allowing the prayer for further construction and denying the relief of demolition of the construction already raised, the Hon'ble Apex Court in addition to allowing the respondent to carry out the construction of the building though subject to ultimate decision of the suit observed that if any third party interest is created upon completion of the construction, the deeds in question shall clearly stipulate that the matter is subjudice and all sales shall be subject to the ultimate decision of the suit. In view of the above, according to learned counsel for the petitioner, the sale permission can be granted to the parties to the suit even with respect to the property which is subject matter in the suit. Learned counsel for the petitioner also relied upon the SBCWP No.9690/2008 Om Singh Vs. Dhirendra 3 judgment of this Court delivered in the case of Narain Singh Vs. Narin Singh & 18 ors reported in RLR 1993(2) 631 wherein in the suit claiming easementary right, this Court modified the order of the trial court to the extent that defendants non-applicants in the injunction application are restrained through temporary injunction for interfering with the use of 6 ft. wide land situated from South to North towards Eastern side of Khasra no.1861 from being used as way and doing so, this Court held that the alienation if made by the defendants during the pendency of the suit property excluding the aforesaid way, shall be subject to final decision of the suit and this fact may be mentioned as a condition in any deed of transfer that may be executed by the defendants. So far as jurisdiction of the court to pass appropriate order after taking into account the particular facts into consideration even permitting the sale of the property is concerned, there is no dispute that if a case is made out, such permission with reasonable restrictions or condition, the order can be passed by the Court. Here, in this case, the contention of the learned counsel for the petitioner is SBCWP No.9690/2008 Om Singh Vs. Dhirendra 4 that the petitioner is old of the age of 67 years and, therefore, he may be allowed to sell the two of the properties out of several properties involved in the suit. The argument is that if the petitioner cannot get the benefit of his own properties during his life time then what will be the use of the properties for the petitioner who is claiming that those properties are his self-acquired properties. The argument may have been advanced to get the sympathy, but in the property dispute, normally, the litigant may not get the relief even in life time of the parties, is not unknown and that cannot be ground to permit alienation of the properties and if the contention is accepted as such then how that property will be given to the successful party in case the applicant looses the litigation stand not explained in any manner. Be it as it may be, since the injunction matter itself has been decided in the year 2008 itself with the permission to the petitioner to let out two properties so that he can earn rent, I do not find that the court below has committed any error of jurisdiction warranting interference by this Court under Article 227 of the Constitution of India. SBCWP No.9690/2008 Om Singh Vs. Dhirendra 5 Hence, there is no merit in this writ petition and the same is hereby dismissed. (PRAKASH TATIA), J. c.p.goyal/-