IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.795 of 2010 Bharat Kasyup, son of Sri S. C. Sharma, resident of "Ram Niketan" Kagzi Mohalla, Biharsharif, P.S.Biharsharif, District- Nalanda- 803101. …..(Plaintiff) Appellant. Versus 1. Smt. Rama Sinha, widow of Late Kirani Singh of Village- Kulti, P.S.- Asthawan, District- Nalanda, at present Mohalla- Kagzi, Biharsharif, P.S.-Biharsharif, District- Nalanda. 2. Md. Zakir Hussan, son of Late Refique Allam. 3. Smt. Shaleha Perween, wife of Zakir Hussain. Both residents of Khasganj Sohasarai, District-Nalanda. …..(Defendants)Respondents. ----------- 2. 29. 09.2010. This Miscellaneous Appeal is directed against the order dated 14. 09. 2010, passed by the Sub Judge III, Biharsharif in Title Suit No. 77 of 2010 by which a petition for injunction has been dismissed. 2. The appellant is the plaintiff and the plaintiff filed the suit for specific performance of the contract to the defendant no. 1 with regard to the suit property and it is alleged that the defendant no. 1 in violation to the agreement of the sale deed sold the land to defendant no. 2 and 3 and the plaintiff is residing in one of the flat which is part of the suit property and has alleged that as per agreement for of Rs. 28,00,000/- (twenty eight lakhs), out of which he has paid Rs. 2,00,000/- (two lakhs). He has also prayed for declaring the sale deed as null and void. 3. However, in the said suit an injunction 2 petition has been filed with a prayer for issue a temporary injunction. However, there is no prayer that what is to be restrained. Show cause has been filed on behalf of defendant no. 1 and there is no cause of action on behalf of the plaintiff. After hearing the parties, the Trial Court rejected the petition. 4. However, at the outset granted interim injunction, but after final hearing taking into consideration the fact that defendant no. 1 and 2 have filed Eviction Suit bearing no. 8/10 before the court of learned Munsif, Biharsharif, against the plaintiff for eviction from the part of the suit building on the ground of personal necessity, but the plaintiff appellant is evading to appear before the court and rest portion of the suit building is not in possession of the plaintiff rather in the possession of the defendants and hence taken into consideration the facts and circumstance the Trial Court held that there is no prima facie case, balance of convenience also does not lies in favour of plaintiff and there will no irreparable loss to the plaintiff.. 5. However, the plaintiff has filed the suit for specific performance and on the ground that there is agreement to sale. However, agreement of sale does not give right to the plaintiff over the suit property and no 3 right, title and interest having acquired by contract for sale. 6. With regard to the contract of sale, the plaintiff has only get right to file the suit for specific performance of contract for getting a decree against defendant to execute sale deed regarding the property and after decree is passed and sale deed executed in favour of the plaintiff after the decree then only plaintiff get a right over the property but unless the plaintiff getting the decree in pursuance of the contract of sale and sale deed is executed, he does not get any right over the property. However, the suit property is a house in which the plaintiff claims to be a tenant and the plaintiff claims that he is living there. However, with regard to said premises, eviction suit has been filed by the defendant as from the apparent from the impugned order, but the plaintiff-appellant is avoiding to appear in the said eviction suit and making attempt to get an order of injunction in this case for reason best known to him. 7. However, learned counsel for the appellant admitted in the court that eviction suit is there and he is going to appear today itself in the said suit. However, learned counsel for the appellant is made argument that he is being evicted by force in which he has 4 possession of the part of the suit premises and he is being forcibly evicted by the defendant no. 2 and 3. However, there is no whisper in the injunction petition which has been annexed with memo of appeal as contained in Annexure-1 about any force being used for eviction nor any ground as such made out that commands defendants be restrained from evicting plaintiff for the suit premises forcibly. 8. However learned counsel for the plaintiff has contended that during the pendency of injunction some act of omission and commission has been made by the defendant no. 2 and 3 and even directed the Police to take steps. However, after hearing, the injunction petition has been rejected on merit. 9. However having regard to the facts of the case for specific performance of the contract, plaintiff has no right over the property on the basis of agreement of sale nor admittedly the property belongs to the plaintiff. 10. So far balance of convenience is concerned, the plaintiff is residing only part of the premises as the defendants filed the eviction suit and the eviction suit is pending, hence he may raise his grievance about any forcible dispossession before the court where the eviction suit is pending. However, 5 balance of convenience is concern in view of the fact that defendant has contract to sale the property to the plaintiff is no ground in favour of the plaintiff and if he will succeed in getting the decree for specific performance then he may get suit property. However, he filed the injunction for restrained the defendants not to evict the plaintiff. Hence in the facts and circumstance, there is no irreparable loss to the plaintiff, but irreparable loss of the defendants and hence I do not find any merit in this appeal. 11. However, the case of the plaintiff is that he is being forcibly evicted also does not find nor had any intention to evict the plaintiff by force. He may not have filed the suit even he is filed the suit and prayed for injunction in that suit, but his claim over the suit property on the basis of contract for sale is not sustainable at this point of time when the aforesaid contract does not give any right, title and interest of the plaintiff. 12. Hence I do not find any merit of this appeal, hence this appeal is dismissed. m.p. ( Gopal Prasad, J.)