Failure to challenge a sale deed or prove possession of the land can lead to the dismissal of an application for specific performance.

1. - The present appeal has been filed by the appellant-plaintiff, challenging the order dated 09.01.2015 passed by the District Judge, Jhalawar (hereinafter referred to as "the trial court") in Civil Misc. Application No. 31/2014 filed under Order 39, Rule 1 & 2 of CPC, whereby the trial court has dismissed the said application.

2. It is sought to be submitted by the learned counsel for the appellant that the respondent No.1 after having entered into an agreement with the appellant had sold out the land in question to the respondent No.2, and hence the appellant has filed the suit for specific performance of the contract. According to him pending the said suit, the interest of the appellant is required to be protected, in order to avoid multiplicity of proceedings. However, the learned counsel for the respondents has submitted that the respondent No.1 had executed the sale deed in favour of the respondent No.2 prior to filing of the suit, and still the appellant has not prayed for setting aside of the sale deed, and that even otherwise the possession is not prima facie proved to be of the appellant. He also submitted that the agreement sought to be specifically performed is a forged agreement.

3. Having regard to the submissions made by the learned counsels for the parties and to the impugned order passed by the trial court, it appears that the appellant-plaintiff has filed the suit seeking specific performance of the agreement dated 28.12.2010 allegedly executed by the respondent No.1 in his favour. However, the respondent No.1 had already sold out the land in question to the respondent No.2 by executing the sale deed on 27.05.2011. Learned counsels for the respondents have rightly submitted that the appellant-plaintiff has not challenged the said sale deed nor has prayed for cancellation of the said sale deed. On the contrary, they have contended that the alleged agreement dated 28.12.2010 is a forged agreement. Be that as it may, the appellant has also not been able to show that the respondent No.1 had handed over the possession of the disputed land to him. Under the circumstances, the trial court has rightly dismissed the application of the appellant under Order 39, Rule 1 & 2 of CPC.

4. In that view of the matter, there being no merit in the present appeal, the same is accordingly dismissed. By this order, the stay application also dismissed. It is needless to say that any transfer or sell if made by the respondent No.2 shall be subject to the result of the suit.Petition dismissed.

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