ORAL JUDGMENT

(PER: THE HON'BLE MR JUSTICE RAVI V HOSMANI)

Challenging order dated 05.04.2024 passed by VII Addl.

Senior Civil Judge, Bengaluru Rural District, in O.S.no.189/2024 on IAs no.1 and 2 filed under Order XXXIX Rules 1 and 2 of CPC, this appeal is filed.

2. Sri Subramanaya and Vinayak S. Pandit, learned counsel for appellant submitted, appellant was plaintiff in suit filed for specific performance of agreement of sale dated 17.08.2019. In said suit, plaintiff had filed I.A.no.1 for temporary injunction restraining defendant no.2 from creating third party rights over suit schedule property. Plaintiff had also filed I.A.no.2 for temporary injunction restraining defendant no.2 from changing nature of suit schedule property. It was submitted though, plaintiff had made specific assertion in plaint as well as affidavit filed in support of applications to substantiate his interest/possession in suit property under registered agreement of sale dated 17.08.2019, and produced relevant documents, trial Court under impugned order rejected applications on wholly untenable grounds. Hence, this appeal was filed.

3. It was submitted, defendant no.1 had executed registered agreement of sale in favour of plaintiff on 17.08.2019, agreeing to sell suit property for total sale consideration of Rs.1,35,00,000/-. By receiving entire sale consideration, it was submitted, possession was also handed over. On same day, he had also executed a registered General Power of Attorney (GPA).

4. Since terms of agreement did not stipulate any time, defendant was required to come forward and execute registered sale deed as and when called upon. On 28.09.2020, defendant no.1 got issued legal notice informing plaintiff about cancellation of GPA and also published notice in 'Kannada Prabha' and 'Times of India' daily newspapers on 27.09.2020. Thereafter, plaintiff got issued legal notice demanding withdrawal of cancellation of GPA. On 25.05.2021, defendant no.1 got issued notice of cancellation of agreement of sale and called upon plaintiff to register cancellation deed by receiving back advance money.

5. Plaintiff replied stating that delay in performing his part of contract was due to failure by defendant no.1 to produce 11-E sketch. Immediately thereafter defendant no.1 executed registered GPA in favour of defendant no.2 and on 20.09.2023, executed sale deed in respect of suit property for total sale consideration of Rs.1,63,35,000/-. Said sale was contrary to agreement of sale in favour of plaintiff. But he was unaware of same until he noticed efforts by defendants to change nature of suit property, constraining to file suit.

6. On other hand, Sri T. Seshagiri Rao, learned counsel for defendant no.1 and Sri S.R. Hegde Hudalmane, learned counsel appearing for Sri Prasiddaraj and Sri Manju Byral R, learned counsel for defendant no.2 sought to oppose appeal. At outset, it was submitted, suit filed on 31.01.2024, for enforcement of agreement of sale dated 17.08.2019, which was cancelled by defendant no.1 by issuing legal notice on 25.05.2021 and paper publication, would be barred by time. Relying on decision in case of M/s. Patel Enterprises v. M.P. Ahuja, reported in ILR 1992 KAR. 3772, it was contended, prima facie for temporary injunction would include nature of suit and its maintainability. If, suit was prima facie not maintainable, temporary injunction could not be issued.

7. Further, after cancellation of Agreement of sale, suit property was purchased by defendant no.2 on 20.09.2023 by paying Rs.1,65,35,000/-. As per sale, possession was delivered and khata was also issued to him. On contrary, though plaintiff asserted to be in possession over suit property, he failed to produce any material to establish possession. Under circumstances, trial Court considered order of conversion dated 15.11.2023 and khata standing in name of defendant no.2, to conclude that plaintiff was not in possession. Thus, findings of trial Court were based on material on record and c