An injunction cannot be granted to prevent breach of a contract that cannot be specifically enforced, particularly when the defendant lacks transferable rights.

ORDER

1. Heard learned counsel for the appellant/plaintiff.

2. Issue notice to the respondents.

3. Since, the respondent No. I/defendant is represented through the learned counsel Mr. Muktesh Maheshwari by filing caveat on his behalf, let the notices be issued to the other respondents. Rule is made returnable within a period of four weeks.

4. Heard learned Senior Counsel Mr. R.K. Thanvi appearing on behalf of the appellant/plaintiff as well as learned counsel Mr. Muktesh Maheshwari appearing on behalf of the respondent No.l/ defendant in caveat on the prayer for grant of interim relief.

5. Learned counsel for the appellant/plaintiff stated that with the suit for specific performance of the contract, an application under Order 39 Rule 1 & 2 read with Section 151 of the CPC seeking injunction has been filed by the appellant/plaintiff, inter alia, with the averments that an agreement to sale has been executed by the respondent No.1/defendant in favour of the appellant/plaintiff and at that time, possession of the land in question has also been handed over to the appellant/plaintiff and since then, the appellant/ plaintiff is in possession over the land in dispute. It is also stated that the learned Trial Court has wrongly rejected the application aforesaid seeking injunction vide its impugned order dated 23.07.2021. He further stated that although it was admitted by the learned Trial Court that whether the agreement to sale is false or fabricated, this point can be decided in the suit itself and in the application for interim injunction, it cannot be decided. It was also admitted by the learned Trial Court that whether the suit land was a Government land (jdckjkt) or not and this point cannot be decided at this stage but despite of that, the point of prima facie case has not been found in favour of the appellant/plaintiff and, therefore, the impugned order has been passed against the spirit of law laid down by Hon'ble the Supreme Court and this Court. Learned counsel also stated that the learned Trial Court has decided the issue of prima facie case against the appellant/plaintiff on the ground that the plaintiff is an encroachee upon the Government land; that even an encroachee cannot be dispossessed without adopting due process of law. In support of his arguments, learned counsel for the appellant/plaintiff has referred to and relied upon the following judgments:-

(1) In the case of Ram Nath Sao @ Ram Nath Sahu since deceased through LR's & Ors. Vs. Goberdhan Sao since deceased through LR's & Ors., reported in 2017 DNJ (SC) 262;

(2) In the case of Sirajuddin @ Vajir Miyan Vs. Abdul Gaffar & Ors., reported in 2015 (1) WLC (Raj.) 448;

(3) In the case of Ranjodh Singh Vs. Chanduram & Ors., reported in R.R.T. 2001 (2) 818; and

(4) In the case of Prataprai N. Kothari Vs. John Braganza, reported in RLW 1999 (2) SC 292.

6. On the other hand, learned counsel Mr. Muktesh Maheshwari appearing on behalf of the respondent No.1/defendant in caveat has vehemently and fervently opposed the arguments advanced by the learned Senior Counsel on behalf of the appellant/plaintiff and stated that the disputed land was temporarily allotted to the respondent No.1/defendant under the Rajasthan Colonisation (Allotment of Government land to Pong Dam Oustees in the Rajasthan Canal Colony), Rules, 1972 (in short, "the Rules of 1972" hereinafter) and as per Rules 5 & 6 of the Rules of 1972, the land in dispute cannot be transferred. He further stated that the allotment as made in favour of the respondent No.1/ defendant has been cancelled by the State Government. It is also stated that Section 41(e) of the Specific Relief Act, 1963 says that:-

"41. Injunction when refused.- An injunction cannot be granted -

?

(e) to prevent the breach of a contract the performance of which would not be specifically enforced;

? "

7. Learned counsel Mr. Maheshwari further stated that as per the law laid down by this Court in the cases of Gurdeep Singh Vs. Special Judge, Pong Dam Oustees Mat