IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.191 of 2008 1. Most. Aasma Khatoon, daughter of Late Sheikh Qurban Ali, wife of Late Md. Ibrahim, resident of mohalla Chittikauri, Kanghaiya Tola, Lodikatra, P.S. Khajekalan, P.O. Jhauganj, Patna City district Patna, through the duly constituted attorney, Sri Dharmendra Kumar, son of Bundi Lal Rai and Sri Ajay Kumar sons of Sri Kedar Nath Rai, both residents of mohalla Rikabganj, Patna City, P.O. Katra Bazaar Samiti, P.S. Malsalami, District Patna. 2. Most. Salma Khatoon @ Salma Begam, daughter of Late Sheikh Quarban Ali, and widow of Late Md. Yusuf, resident of 37/B/4 Tiljala Masjid, Bari Lane, P.S. Karayan, Kolkata-39 through her duly constituted attorney, Sri Kedar Nath Rai, son of Sri Shyam Rai, resident of mohalla Rikabganj, Patna City, P.O. Katra Bazaar Samiti, P.S. Malsalami, District Patna. 3. Sri Kedar Nath Rai, son of Sri Shyam Rai, resident of mohalla Rikabganj, Patna City, P.O. Katra Bazaar Samiti, P.S. Malsalami, District Patna. Versus 1. Md. Moizuddin. 2. Md. Basruddin. 3. Md. Kalimuddin. Sons of Late Md. Rahimuddin. All residents of mohalla Didarganj, P.S. Didarganj, District Patna. ----------- 5 20.4.2009 Heard Mr. Jashawir Singh Arora, learned counsel appearing on behalf of the defendant- appellants and Mr. V. Nath, learned counsel for the plaintiff-respondents. The appellants are aggrieved by an order of injunction passed by the court below dated 15.1.2008. It is not in doubt that the plaintiff- respondents had filed a suit basically for a decree for specific performance of contract in terms of an agreement for sale dated 24.7.2003 2 executed by the defendant-appellant nos. 1 & 2 with a further prayer that the plaintiff- respondents be declared in possession of the property in question and in the alternative for restoration of their possession. The plaintiff-respondents had filed an injunction petition because the defendant- appellants nos. 1 & 2 had executed an agreement for sale in favour of the defendant- appellant no.3 which gave them cause of action to file an injunction petition. The court below after examining all aspects of the matter and basically being guided by the fact that the suit property was already in possession of the plaintiff- respondents even before execution of the agreement for sale, had in order to protect the property, restrained the defendant from making any change in the physical feature of the property and/or executing any document of sale. Mr. Arora, learned counsel for the defendant-appellants has basically raised three issues namely; it is almost a settled position in law that in any suit for specific 3 performance, no injunction can be granted and in this context, he had relied on the judgment of this Court in the case of Ramashish Rai Vs. Baijnath Mishra & Anr. reported in 1998(3) PLJR 862 and in the case of Lallan Prasad Vs. Parmeshwar Singh reported in 1998(2) PLJR 120. He next contends that the inconsistent plea of the plaintiff-respondents were itself sufficient to disentitle them for being granted injunction and in support of that he refers to the pleadings of the earlier suit filed by the plaintiffs being Title Suit No. 215 of 2003 from which he would like to show that the property in question after being given by a registered deed of Will dated 24.5.1987 had been claimed by the plaintiff from the defendant-appellants by way of Bazadawa and since the Bazadawa was not executed, the earlier suit had been filed. Mr. Arora, therefore, would submit that when that earlier suit was unconditionally withdrawn by the plaintiff, they cannot be permitted to be make out a new case in the present suit which came to be filed in April, 2004. The last submission of Mr. Arora was 4 that assuming that the property in question was not in possession of the defendant- appellant nos.1 & 2 and the same was in the hands of the plaintiff-respondents, even then in view of the subsequent events of the agreement for sale executed by the defendant- appellant nos. 1 & 2 in favor off defendant- appellant no.3, the cause of action had arisen for filing of the present suit and therefore, it must be held that even such possession of the plaintiff-respondents would itself disentitle them from getting any order of injunction in their favour. For this purpose, Mr. Arora relies on the judgment in the case of Dr. N.P. Tripathi Vs. Smt. Dayamanti Devi & Anr. reported in 1987 PLJR 724 which according to him also has received a seal of approval by the Apex Court in the case of M/s Jamana Flour & Oil Mill (P) Ltd. Vs. State of Bihar reported in 1987 PLJR 53 (SC). Mr. V. Nath, learned counsel for the plaintiff-respondents on the other hand would contend that an absolutely misconceived impression has been sought to be created by the counsel for the defendant-appellants that 5 the suit is out and out for specific performance of contract. He would then trace it to the history of Quarban Ali, an admitted owner of the land who by acquiring the suit property on the basis of a registered deed of Will as also the respondent-appellants being the sister parting away their right on the basis of such Will and possession thereof was continuous with the plaintiff-respondents from the year 1987 onwards. In this context, Mr. Nath has also drawn attention of this Court to the written statement filed by these very defendant-appellants in Title Suit No. 215 of 2003 wherein in no uncertain terms, they have admitted that for the suit property in question, the plaintiff of this suit who were also plaintiffs of Title Suit No. 215 of 2003 were admitted to be in possession of the suit property. According to Mr. Nath, paragraph no.22 of the written statement in fact would fully support the case of the plaintiff- respondents, inasmuch as, the defendants- appellants had admitted that on being persuaded, they had entered into an agreement for sale with regard to 2 bighas and 11 kathas 6 of land whose possession was already with the plaintiffs. Having given an anxious consideration to the aforementioned submissions and the connected materials on record, this Court is of the view that once this position becomes clear that the possession of the plaintiff- respondents was admitted by the defendant- appellants by a written document, it would be difficult for this Court to hold that if the plaintiffs had found their such possession to be threatened on account of another agreement for sale executed by the defendant-appellant nos. 1 & 2 in favour of the defendant- appellant no.3 during the pendency of the suit, a situation was not created necessitating an order of injunction in favour of plaintiff-respondents for being protected from being dispossessed of their continued possession of nearly 20 years. Therefore, their case for injunction of the plaintiff- respondents could not have been rejected only on the ground that basically the suit was one for decree of specific performance of contract. In fact, Mr. Nath seems to be 7 correct that this is one suit which would also involve the determination of three aspects of the matter i.e. whether Quarban Ali had rightly made a Will or the Will which was made was followed by giving possession to the sisters, the defendant-appellants and whether the defendant-appellants had in fact given the plaintiff-respondents a right to enjoy the suit property which later on being was sought to put into controversy by the defendant- appellant nos. 1 & 2 by executing an agreement for sale in favour of the defendant-appellant no.3 for conferring the title of the suit property. Mr. Nath to that extent has rightly distinguished the ratio in the judgment of this Court in the case of Dr. N.P. Tripathi (supra) on facts by pointing out that the event of a subsequent agreement for sale by the defendant-appellants nos. 1 & 2 after disposal of Title Suit No. 215 of 2003 in favour of defendant-appellant no.3 gave rise to the occasion for threat in peaceful possession of the plaintiffs. All these questions in fact can be gone into effectively while deciding the suit but 8 if the sisters, the defendant-appellants, are allowed to change the nature of the suit, jeopardizing the interest of the plaintiff- respondents even in the presence of the own admission of the defendants-appellants in their earlier written statement, the plaintiff-respondents had definitely a strong prima facie case of their being in possession of the suit property. Thus nothing illegal can be said to have been done if the court below had passed an order of injunction restraining the defendants from either changing the nature of the suit property or alienating the same during the pendency of the suit. The two other necessary ingredients were also in favour of the plaintiffs inasmuch as if ultimately it is held that the suit property belongs to the sisters, the defendant-appellants, they can still enjoy the same either by themselves or through the purchaser, the defendant-appellant no.3 but on the other hand if the possession of the plaintiff is taken away and the nature of the suit property is changed, the same will in fact make the whole zone of dispute not only wider but also giving a new irreversible 9 twist. In such a situation, this Court would find no error in the impugned order granting injunction in favour of the petitioner and the reliance placed by Mr. Arora that the judgment of this Court in the case of Ramashis Rai (supra) and Lallan Prasad (supra) that they were by itself sufficient for the court below to hold that an injunction could never be granted in a suit for specific performance of contract, is wholly misplaced and can have no universal application and not at least in the facts of the present case. As has been already noted above, the suit in hand may appear to be one for specific performance of contract but in essence it is basically a suit relating to a family settlement between the brothers and sisters wherein the relief of specific performance of contract has been brought as a last resort, in the backdrop of registered Will followed by permissive possession and ultimately, the refusal on the part of the sister, defendant-appellants to execute a deed of disclaimer (Bajidawa). In that view of the matter, this Court 10 would find it difficult to accept that part of submission of Mr. Arora that the permissive possession given to the plaintiffs by the actions of the defendant-appellants, would not have conferred jurisdiction to the court below in passing the order of injunction. As noted above, the plaintiffs have remained in possession of the suit property at least from the period of Qurban Ali who had given their land in question by registered deed of will. This Court is not unmindful that the concept of a registered deed of Will or the alienating of more than 1/3rd share would be required to be gone into while examining the evidence of the parties in the suit but for the time being as there is no denial of this fact with regard to the execution of the registered deed of Will dated 24.5.1987, at least, the sisters as the beneficiaries also by getting land from Qurban Ali through the same mode cannot be allowed to complain in the matter of grant of injunction against them. This Court has been informed that the hearing in the suit has been concluded and now only the arguments are to be taken up. Thus 11 the life of the injunction order also would not remain in force for a longer period and therefore, this Court would direct the court below to ensure that the arguments in this case is taken up on day-to-day basis and the same is positively concluded within a period of two months from the date of receipt/ production of a copy of this order. As soon as the argument is concluded, the court below will fix a date of judgment and must deliver judgment within a period of one month from the date of conclusion of the argument. It goes without saying that whatever has been held above in relation to the findings of the court below and the submission of the parties in this order are basically confined to the facts of this case for the purpose of injunction and in any event would not come in the way of the either parties nor will be taken into consideration by the court below for deciding the suit on merits. In the event, the suit is before a Court where the hearing of the argument is not possible on account of some administrative reasons, it would be open for the parties to 12 approach the District Judge for transferring the suit before an appropriate Court to ensure expeditious disposal of the suit in the manner indicated above. With the aforementioned observations and direction, this appeal is dismissed. Rsh (Mihir Kumar Jha, J.)