IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.99 of 2011 1. Uma Nath Tiwary @ Uma Pati Tiwary, Son of Late Kapildeo Tiwary 2. Bishwanath Tiwary S/O Uma Nath Tiwary @ Umapati Tiwary Both residents of Village- Nauwadih, P.O. Khujwan, P.S. Raghunathpur, District- Siwan - Plaintiffs/ Appellants Versus Vidya Sagar Tiwary, Son of Ramayan Tiwary, resident of Village- Nauwadih, P.O. Khujwan, P.S. Raghunathpur, District-Siwan ---------------------- Defendant/ Respondent. ----------- 06 12-07-2011 Heard Sri Shashi Shekhar Dwivedi, learned Senior Counsel appearing on behalf of the plaintiffs/appellants and Sri Mahesh Prasad, learned counsel appearing on behalf of sole Respondent. The present appeal has been preferred under Order 43, Rule - 1(r) of the Code of Civil Procedure against an order dated 7.1.2011 passed by learned 1st Subordinate Judge, Siwan in Title Suit No.387 of 2010, whereby the learned court below has rejected the petition filed by the plaintiffs/appellants under Order 39 Rules 1 and 2 of the Code of Civil Procedure. Short fact of the case is that the plaintiffs/appellants filed a suit vide Title Suit No.387 of 2010 with a prayer to declare the sale deed executed in favour of Defendant/ Respondent as forged and void. After filing of the suit, a petition was filed for ad interim injunction under Order 39 Rules 1 and 2 of the Code of Civil Procedure. After hearing the parties, the learned court below by the impugned order has rejected the same. Sri Shashi Shekhar Dwivedi , learned Senior Counsel appearing on behalf of the appellants submits that the appellant no.1 is an affluent person and there was no reason for him to transfer / sale any property . He was an old man. However, the Respondent got a forged sale deed 2 prepared in respect of the suit land and the plaintiffs/appellants after noticing the fact regarding the said sale deed filed a suit for declaring the same as void. Accordingly, it was submitted that prima facie case was in favour of the plaintiffs/appellants and balance of convenience was also in his favour. He further submits that the land in question is at the door step of the appellants and if stay is not granted, the appellants will suffer irreparable loss. Learned Senior Counsel has submitted that the learned court below ignoring the law laid down by the Hon’ble Supreme Court , reported in 2005 (1) BBCJ ( SC) 123 ( Maharwal Khewaji Trust ( Regd) Vs. Baldev Dass) has rejected the petition for stay filed by the appellants. In this case, defendant/ Respondent has appeared and filed a counter affidavit and along with counter affidavit, number of documents have been brought on record. Sri Mahesh Prasad, learned counsel for the defendant/Respondent at the very outset submits that after receipt of entire consideration money, the plaintiff/appellant no.1 had executed sale deed in favour of defendant/Respondent. He submits that from the contents of the sale deed, it is evident that immediately after the execution of the sale deed, possession over the land was transferred to the transferee, i.e. defendant/ Respondent. Sri Mahesh Prasad, learned counsel for the Respondent has pointedly referred to paragraph-4 of the counter affidavit, wherein he has stated in specific terms that out of total consideration amount of Rs.2,40,000/-, Rs. 1,10,000/- was paid in cash and Rs.1,30,000/- was given to appellant no.1 through cheque . He has referred to Annexure-C to the counter affidavit, i.e. a photo copy of the 3 Bank Account. He submits that from the statement of the Bank Account, it is evident that the cheque amount i.e. amount of Rs.1, 30,000/- was debited from the account of defendant/ Respondent. He further submits that after the execution of the sale deed and taking possession over the land, the Respondent got the land mutated in his name and rent receipt has also been issued. He has placed Annexure-B to the counter affidavit. Learned counsel for the Respondent has also placed Annexure-A to the counter affidavit, which is a photo copy of the alleged sale deed. Sri Mahesh Prasad, learned counsel appearing on behalf of Respondent has argued that so long duly executed registered sale deed is in existence , it will be presumed that the defendant/ Respondent is the real title holder of the land in question and, as such, his right cannot be defeated by granting any interim stay. Besides hearing learned counsel for the parties, I have also perused the impugned order and materials available on record. Of course, at the stage of hearing, an appeal which has been preferred against the rejection of petition under Order-39 Rules 1 and 2 of the Code of Civil Procedure, this Court is not required to delve into the matter in detail but on the basis of materials brought on record prima facie this Court can draw an inference that the land in question was transferred to the Respondent through a registered sale deed. From the impugned order also, it is evident that the consideration money was paid to the appellant no.1. Moreover, while preferring a petition before the court below for granting ad interim injunction (typed copy of the same has been brought on record as Annexure-1 to the Memo of Appeal), it is evident that no material was brought to the notice of the court below showing any apprehension for 4 either alienation or transferring the land by the Respondent. Only a vague petition was filed by the appellant for granting ad interim injunction. So far Judgment relied upon by the learned Senior Counsel for the appellants is concerned, the Court is of the view that there is no dispute on the proposition of law, but the law is to be examined on facts and circumstances of a particular case. In the present case, the material on record makes it clear that the appellants had not brought on record anything to show that either balance of convenience was in favour of the appellants or he was going to suffer any irreparable loss in case of rejection of the petition for injunction nor prima facie case was in favour of the appellants. The fact remains that the Respondent is purchaser of the land in question through a registered sale deed. Unless the said sale deed is finally declared as void, presumption would be that the balance of convenience is in favour of Respondent. In view of the facts and circumstances as well as the fact that the entire consideration money was paid to the vendor, which is evident from the order impugned itself, the Court is of the opinion that while rejecting the petition filed by the plaintiffs/appellants for granting ad interim injunction, the court below has committed no error. Accordingly the appeal stands rejected. NKS/- ( Rakesh Kumar, J. )