1. The substantial question of law involved, formulated and to be answered by this Court in this defendant No. 1's second appeal is as under :-

“Whether the plaintiff's suit for permanent injunction in relation to the lands possessed under the agreement to sell was not maintainable in view of the provisions of Section 41(h) of the Specific Relief Act, 1963 ?”

2. The imperative facts required for determination of above–stated substantial question of law are as under :-

[For the sake of convenience, the parties would be referred hereinafter as per their status shown in the plaint before the trial Court]

(2.1) Plaintiff Trilochan filed a bare suit for permanent injunction stating inter-alia that the original defendant No. 2 Bakshi has entered into agreement to sell the suit land bearing Khasra No. 304, area 1.04 acre and Khasra Nos. 478/2 and 481, area 0.10 acre of land and house situated therein on 25.03.1988 for cash consideration of Rs.12,000/- and obtained Rs.4,000/- and delivered the peaceful possession of the land/house to the plaintiff but defendant No. 1 got his name registered in the suit land/suit house therefore, defendant No. 1 be restrained by way of permanent injunction which was opposed by defendants by filing joint written statement. During the pendency of the suit, defendant No. 2 died and his LRs were substituted on record (and they have contested the suit on merits).

(2.2) The trial Court, after appreciating the oral and documentary evidence on record, held that though plaintiff has not filed suit for specific performance of contract/agreement (Ex. P/2) but he is entitled for permanent injunction under Section 38 of the Specific Relief Act, 1963 (hereinafter referred to as 'the Act of 1963') and restrained the appellant/defendant No. 1 from interfering with the peaceful possession of the plaintiff. The appeal preferred by the appellant/defendant No. 1 was dismissed by the First Appellate Court affirming the judgment and decree of the trial Court directing the plaintiff to file a suit for specific performance of contract expeditiously.

3. Questioning the judgment and decree passed by the First Appellate Court, this second appeal under Section 100 of the Code of Civil Procedure has been preferred by the appellant/defendant No. 1 in which substantial question of law has been framed and set out in the opening paragraph of the judgment.

4. Mr. Sanjay Patel, learned counsel appearing for the appellant/defendant No. 1 submits that remedy of plaintiff was to file suit for specific performance of the agreement dated 25.03.1988 under Section 19 of the Act of 1963 and as such, the bare suit for permanent injunction was barred in view of Section 41(h) of the Act of 1963 and therefore, both the Courts below are absolutely unjustified in granting permanent injunction in favour of the plaintiff ignoring the fact that instant suit is barred under Section 41(h) of the Act of 1963.

5. None appeared for the plaintiff/respondent No. 1 though duly served.

6. Mr. Arun Sao, learned Deputy Advocate General appears for the State, which is a formal party.

7. I have heard learned counsel for the appellant/defendant No. 1, considered his submissions and went through the records with utmost circumspection.

8. It is the case of the plaintiff that he has entered into agreement to sell with defendant No. 2 for purchase of suit land/suit house vide agreement dated 25.03.1988 (Ex. P/2) in which defendant No. 1 is interfering with his peaceful possession and therefore, defendant No. 1 be restrained by granting permanent injunction against him under Section 38 of the Act of 1963.

9. The question for consideration would be whether the plaintiff is entitled only for injunction under Section 38 of the Act in view of Section 41(h) of the Act of 1963.

10. In order to consider the plea raised at the bar, it would be appropriate to notice Sections 38 and 41(h) of the Specific Relief Act, 1963 which state as under :-

“38. Perpetual injunctions when granted. - (