The plaintiff was not entitled to the temporary injunction as the defendant was in possession of the suit property at the time of the suit's institution, and the suit itself was filed beyond the statutory limit of three years and was barred by limitation.

Arun Madan, J.-Surendra Kumar Baid, appellant herein who is defendant in the suit filed by Rajendra Kumar Baid the, plaintiff-respondent herein the challenged the order dated 210.99 (impugned in the appeal) passed by Addl. District & Sessions Judge No. 2 Jaipur in Civil Misc. Application No. 70/98 (12 1/98) whereby the application under Order 39 Rules 1 & 2 CPC filed by the plaintiff for granting interim injunction was allowed

2. The plaintitf filed a suit for Specific Performance of the agreement dated 112.1983 executed with the defendant-appellant regarding an immovable properly, for recovery of its maintenance charges and permanent injunction in the Court of District Judge, Jaipur City, Jaipur on 30.7.98. Alongwith the plaint an application for grant of temporary injunction under Order 39 Rules 1 & 2 CPC was also filed. The said application was allowed by the trial Court vide order dated 210.99 (impugned) restraining the defendant not to transfer, alienate or dispose of the property in dispute pending hearing and final disposal of the suit. The relief sought for in the suit was for specific performance of the agreement in question for sale consideration of Rs. 40,000/-which the defendant is purported to have received from the plaintiff for handing over the peaceful possession of the property to the plaintiff

3. The total area of the property as the been indicated in the plaint is 131.71 sq.metre, out of which 73.33 sq.metre is the covered area while the remaining 58.38 sq.metre is open. It has been averred in the plaint that on 112.83 on the basis of agreement of sale executed between the parties, the suit property was agreed to be sold by the appellant against the consideration of Rs. 40,000/-to the plaintiff

4. In para 14GA of the plaint it has been prayed by the plaintiff as under:

Þ¼x½ nkok oknh fo#) izfroknh fMxjh Qjek;k tkdj izfroknh dks tfj;s fu"k/skkKk ikcUn Qjek fn;k tks fd izfroknh oknxzLr lEifÙk of.kZr en uEcj-1 ¼,d½ okn&i= dks fdlh vU; ds gd easjgus] foØ;] c[khk vFkok vU; izkdj ls gLrkUrfjr ugha djsa vkSj bldk dCtk Hkh fdlh vU; dks ugha lEHkykosAß

5. Contrary to the prayer made as aforesaid in the plaint, in the application seeking relief of temporary irjunction it has been prayed that the appellant be restrained not to transfer the land in question nor to dispossess its’ occupants in any manner.

6. In para 2 of the application filed under Order 39 Rules 1 & 2 CPC it has been further contended that the property in dispute had been purchased in the name of the defendant who was minor at the time of execution of the sale agreement. The property was registered in the office of Sub Registrar, Jaipur vide Registration No. 1776 on 17.6.74. On attaining the age of majority, the defendant decided to sell the property and since the plaintiff was his real elder brother, taking all the circumstances into view, he decided to execute the sale agreement in his favour on 112.83 against the sale consideration of Rs. 40,000/-. In the prayer clause it has been prayed in the application that the defendant be restrained not to transfer, sell or alienate the property in question to anyone else pending hearing ad disposal of the suit.

7. In reply to the plaint, defendant controverted the aforesaid contentions of the plaintiff by specifically contending inter- alia that as on the date when the agreement was executed, the plaintiff was not having any concluded right in his favour. From the prayer made in the suit itself , it was apparent that the plaintiff was not in possession of the property in dispute and it is settled principle of law that no injunction can be granted in favour of a party who is not in possession of the property. The requirement of the provisions of Order 39 Rules 1 2 are not attracted to the instant case. Rules 1 & 2 CPC specifically stipulates, as under: 1 Cases in which temporary injunction may be granted -Where in any suit it is proved by affidavit or (a) that any property in dispute in a suit