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Whether doctrine of part performance as per S 53A of transfer of property Act can be used by plaintiff as shield?

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

Appeal From Order No. 457 of 2016 and Civil Application No. 12575 of 2016 in Appeal From Order No. 457 of 2016

Decided On: 10.01.2017

Ghnshyambhai Dhirubhai Barvaliya
Vs.
Rasikbhai Dhirubhai Ambaliya and Ors.

Hon’ble Judges/Coram:S.H. Vora, J.
Citation: AIR 2017 Gujarat 164

1. With the consent of the learned advocates appearing for the respective parties, present Appeal from Order is taken up for final hearing.

2. Challenge in the present Appeal from Order preferred under Order 43 Rule 1(r) of the Code of Civil Procedure is the order dated 15.11.2016 passed by the learned 5th Additional Senior Civil Judge, Surat below injunction application Exh. 5 in Special Civil Suit No. 16 of 2015 whereby, the learned trial Judge allowed injunction application Exh. 5 preferred by respondent No. 1 herein – original plaintiff.

3. Parties to the present Appeal from Order would be hereinafter referred to as per their original status in the plaint.

4. It is the case of the plaintiff that he has agreed to purchase land bearing Block No. 236, Survey No. 167 situated at Village: Parab, Taluka: Kamrej, District: Surat from defendant No. 1 on 02.11.2008 in consideration of Rs. 51 lacs. That, amount of Rs. 1 lac was paid by the plaintiff to defendant No. 1 as token money in cash and it was agreed between the plaintiff and defendant No. 1 that the plaintiff would handover rest of the payment to defendant No. 1 after title clearance is obtained. It is the case of the plaintiff that on 12.12.2012, the plaintiff paid further consideration to the tune of Rs. 25 lacs to defendant No. 1 in cash and sale agreement dated 12.12.2012 came to be executed and notarized. That, the total amount of consideration of Rs. 51 lacs has been fixed. That, the plaintiff, in all, paid Rs. 26 lacs in cash and he was and is ready to pay the remaining amount of Rs. 25 lacs to defendant No. 1. It is the case of the plaintiff that title deed, namely, original sale deed and possession of the subject land was handed over to the plaintiff. That, one Special Civil Suit No. 405 of 2008 with reference to the sale deed dated 22.02.2008 in favour of the defendant No. 1 being under challenge and due to pendency of the said suit, dispute was not solved and, therefore, defendant No. 1 has not executed sale deed in favour of the plaintiff. Despite such facts, defendant No. 1 sold the subject land to defendant No. 2 i.e. respondent No. 3 herein and defendant No. 3 – appellant herein by executing registered sale deed on 03.09.2014 for consideration of Rs. 17,50,000/-.

5. Upon service of summons to the defendants, defendant No. 1 resisted the plaint and denied each and every averment made in the plaint and further alleged that the plaintiff has filed false suit by creating forged documents. It is the case of defendant No. 1 that he has purchased the subject land from original owner – Mr. Lallubhai Fakirbhai vide registered sale deed dated 22.02.2008 and due to dispute between the legal heirs of said Mr. Lallubhai Fakirbhai regarding legality and validity of the said sale deed, suit being Special Civil Suit No. 405 of 2008 was filed against defendant No. 1. Since the dispute came to be resolved on 12.09.2014, the said suit has been disposed of on 02.10.2014. It is the specific case of the defendant No. 1 that he has not received any amount of consideration and considering payment of huge amount in cash, the same is not believable. Further, copies of the sale agreement produced before the learned trial Court and the learned Mamlatdar are different inasmuch as, signatures of the witnesses are missing in one of the documents whereas, in the same document, it bears signatures of the witnesses.

6. Similarly, defendant Nos. 2 and 3 i.e. respondent No. 3 and the appellant herein have contested the suit and have submitted before the learned trial Court that they have purchased the subject land from defendant No. 1 through registered sale deed on 03.09.2014 and paid full consideration by cheque to defendant No. 1. Thus, respondent No. 3 and the appellant herein being bona fide purchasers and after having verified the title of the subject land and further verifying the dispute arose between defendant No. 1 and original owner of the subject land, they have purchased the subject land. The learned trial Judge, after considering the pleadings, documentary evidence and after hearing learned advocates appearing for the respective parties, found that prima facie case exists in favour of the plaintiff – respondent No. 1 herein and allowed the injunction application. Therefore, present Appeal from Order.

7. Learned advocate Mr. Vimal A. Purohit for the appellant vehemently argued that the appellant is the bona fide purchaser and after verification of the title and dispute pertaining to the subject land, the appellant has purchased the subject land by paying amount of consideration of Rs. 17,50,000/- by cheque and obtained possession of the subject land. During the course of hearing, learned advocate Mr. Vimal Purohit referred to the reply of defendant No. 1 to the injunction application and also placed on record written submissions for consideration of this Court. After placing reliance upon decision of the Hon’ble Apex Court rendered in the case of Suraj Lamp & Industries Pvt. Ltd. through Director Vs. State of Haryana & another reported in MANU/SC/1021/2009 : (2009) 7 SCC 363, learned advocate Mr. Purohit would contend that sale agreements dated 02.12.2008 and 12.12.2012 being unregistered, would fall short of requirements of Sections 54 and 55 of the Transfer of Property Act and will not confer any title nor transfer any interest in an immovable property. Such agreement would have no effect for the purpose of Section 53(A) of the Transfer of Property Act. Learned advocate Mr. Purohit would contend that the plaintiff has failed to produce income tax return as part consideration of Rs. 26 lacs is paid in cash to defendant No. 1 and since defendant No. 1 has disputed the said fact, the learned trial Judge erred in not calling upon the plaintiff to produce his income tax return in view of the decisions rendered in the case of Harshadkumar Kantilal Bhalodwala and another Vs. Ishwarbhai Chandubhai Patel and others reported in MANU/GJ/0873/2009 : 2010 (1) G.L.H. 151 and Gurbachan Singh Vs. Raghubir Singh reported in AIR 2010 Punjab and Haryana 77. Learned advocate Mr. Purohit would contend that copy of the sale agreement produced in the suit bears signatures of the witnesses whereas, the same documents produced before the learned Mamlatdar in Takrari Case No. 58 of 2014, do not bear signatures of the witnesses and thus, apparently, a fraud has been committed on the Court and, therefore, in view of the decisions rendered in the case of Patel Natwarlal Rupji Vs. Kondh Group Kheti Vishayak reported in MANU/SC/0296/1996 : (1996) 7 SCC 690, Commissioner of Customs, Kandla Vs. Essar Oil Ltd. reported in MANU/SC/0872/2004 : (2004) 11 SCC 364 and Meghmala Vs. G. Narasimha Reddy reported in MANU/SC/0608/2010 : (2010) 8 SCC 383, it would vitiate the transaction between plaintiff and defendant No. 1. Learned advocate Mr. Purohit would contend that the sale agreement between the plaintiff and defendant No. 1 is illegal and not maintainable in the eyes of law. In light of the decision rendered in the case of Syed Dastagir Vs. T.R. Gopalakrishna Setty reported in MANU/SC/0471/1999 : (1999) 6 SCC 337, learned advocate Mr. Purohit would contend that if two interpretations are possible, then, one which defeats justice should be rejected and the one which sub-serves to justice should be accepted. Learned advocate Mr. Purohit would contend that not believing the present appellant being bona fide purchaser for the reason that he has purchased the subject land during pendency of Special Civil Suit No. 405 of 2008 is flawed and not backed by law because purchase of the subject land by defendant Nos. 2 and 3 as pendente lite would not affect defendant No. 3 i.e. appellant herein in light of the decision rendered in the case of Thomson Press (India) Limited Vs. Nanak Builders and investors Private Limited and others reported in MANU/SC/0192/2013 : (2013) 5 SCC 397. Learned advocate Mr. Purohit would contend that argument pertaining to purchase on the part of defendant Nos. 2 and 3 pendente lite was not raised by the plaintiff before the learned trial Court and now, the plaintiff cannot be permitted to raise such argument before this Court in light of the decision rendered in the case of Ajmer Singh and others Vs. State of Haryana and others reported in MANU/SC/0018/1989 : (1990) 1 SCC 227. Further, learned advocate Mr. Purohit would contend that the plaintiff had not issued any notice to defendant No. 3 showing his readiness to purchase the subject land and to perform alleged agreement to sale and, therefore, the plaintiff is not entitled to the discretionary relief in view of the decision rendered in the case of Khimjibhai Harjivanbhai Patadia Vs. Patel Govindbhai Bhagvanbhai reported in MANU/GJ/8510/2006 : 2006 (4) GLR 2007.

8. Per contra, learned Senior Counsel Mr. Shalin Mehta appearing for learned advocate Mr. J.J. Bhatt for the plaintiff would contend that defendant No. 3 – appellant herein is not the bona fide purchaser of the subject land because, despite pendency of Special Civil Suit No. 405 of 2008, defendant No. 1 executed registered sale deed of the subject land in favour of defendant No. 3 for a consideration of Rs. 17,50,000/- on 03.09.2014. It is matter of fact that defendant No. 1 settled the dispute with the original predecessor in title of the subject land and settlement pursis came to be filed in the said suit on 12.09.2014. (Court passed order on 02.10.2014). In this connection, learned Senior Counsel Mr. Shalin Mehta drawn attention of the Court with regard to the averments made in para 19 of the written statement to demonstrate that defendant No. 3 is not a bona fide purchaser, inasmuch as, he has made false averments in the written statement to the effect that after adjudication of the dispute between defendant No. 1 and his predecessor in title, defendant Nos. 2 and 3 have purchased the subject land. In fact, before settlement of the dispute between defendant No. 1 and his predecessor in title, on 12.09.2014 (Court passed order on 02.10.2014), defendant Nos. 2 and 3 got executed registered sale deed from defendant No. 1 on 03.09.2014. Further, the defendant No. 1 withdrew cash from his account before the matter is actually disposed of by the Court. Not only that, defendant No. 3 did not make any inquiry nor invited objection through public notice and in collusion with defendant No. 1, purchased the subject land so as to defeat the rights of the plaintiff accrued in favour of the plaintiff. It is vehemently argued by learned Senior Counsel Mr. Shalin Mehta to the effect that defendant No. 1 has not only handed over possession of the subject land to the plaintiff but also handed over original sale deed dated 22.02.2008 executed by the predecessor in title of the defendant No. 1. There is no worth explanation as to why, defendant No. 1 handed over original title deed of the subject land to the plaintiff. Lastly, learned Senior Counsel Mr. Mehta would contend that defendant No. 1 has not challenged the impugned order and, therefore, findings of fact recorded by the learned trial Judge with regard to transaction between plaintiff and defendant No. 1 attained finality and defendant No. 3 not being party to such transaction, he cannot agitate such facts in the present appeal, more so, when defendant No. 1 has not challenged it and the same has attained finality so far as it relates to disposal of injunction application Exh. 5 qua defendant No. 1.

9. At the outset, it requires to be noted here that one of the subsequent purchasers i.e. defendant No. 2 – respondent No. 3 herein and original owner of the subject land i.e. defendant No. 1 – respondent No. 2 herein have not challenged the impugned order. In other words, findings of fact recorded by the learned trial Judge qua original owner and respondent No. 3 herein i.e. one of the subsequent purchasers attained finality. However, one of the subsequent purchasers i.e. defendant No. 3 – appellant herein challenged the impugned order on various grounds recorded hereinabove which now require to be dealt with.

10. The first contention raised by learned advocate Mr. Vimal Purohit is that the suit agreement requires to be registered compulsorily in view of the provisions contained under Section 17(aa) of the Registration Act. Since, it is not registered, it cannot be admitted in evidence as provided under Section 49 of the Registration Act. It is true that the agreement to sale is required to be registered as per amended Section 17(aa) of the Registration Act. Since there is no corresponding amendment in Section 49 of the Registration Act, the suit of the plaintiff would not fail on the ground of non-registration of the agreement to sale. Even otherwise, document, required to be registered, if unregistered, can be admitted in evidence as evidence of contract in a suit for specific performance. Thus, unregistered agreement can be used as an evidence of collateral purpose as provided in proviso to Section 49 of the Registration Act. Therefore, it is neither appropriate nor necessary to consider the contention raised by learned advocate Mr. Vimal Purohit about maintainability of the suit as framed by the plaintiff. If any issue in that regard is settled by the learned trial Court, obviously, such issue would be decided in accordance with law. There is no doubt in the mind of this Court that the sale agreement by itself does not create any interest or charge in the immovable property. In the case of Suraj Lamp & Industries Pvt. Ltd. (supra), the Hon’ble Apex Court has held that the immovable property can be legally and lawfully transferred/conveyed only by registered deed of conveyance. While holding so, the Hon’ble Apex Court held that observations regarding SA/GPA/WILL transactions are not intended to apply to such bona fide/genuine transactions. Therefore, contention raised by learned advocate Mr. Purohit that doctrine of part performance incorporated in Section 53A of the Transfer of Property Act can be pressed into service only as a defence and the holder of agreement of contract cannot file a suit against the transferor in respect of the suit property for any purpose, cannot be accepted. Scrutiny of Section 53A of the Transfer of Property Act would indicate that when necessary conditions for application of the provisions are fulfilled, the transferor or any person claiming under him is debarred from enforcing against the transferee or any person claiming under him any right in respect of the property in question, even though, required to be registered, is not registered or where there is an instrument of transfer, the transfer is not legally complete. So, attempt on the part of learned advocate Mr. Purohit is to drive the Court to hold that the transferee can use the unregistered deed as shield only as a defendant and not as a plaintiff would defeat the very spirit of Section 53A for it will be possible for an over-powering transferor to forcibly dispossess the transferee even against the covenants in the contract and compel him to go to the court as a plaintiff. If the right as a shield is available to the transferee as a defendant, there is no justification that it would be denied to the transferee even if by force of circumstances, he is compelled to approach the Court as a plaintiff to use that shield.

11. The facts, as surfacing on record, show that defendant No. 1 – original owner denied the case of the plaintiff in toto. The total denial of the case of the plaintiff on the part of defendant No. 1 – original owner is no denial in the eyes of law for the simple reason that the plaintiff has obtained opinion of handwriting expert on 10.12.2014 wherein, forensic experts have compared the signatures of defendant No. 1 on all the documents, more particularly, sale agreements dated 02.12.2008 and 12.12.2012, sale deed dated 03.09.2014 and other affidavit which bear signature of defendant No. 1 – original owner and, ultimately, found that the signatures in all such documents are that of the original owner i.e. defendant No. 1. Apart from it, it has come on record that defendant No. 1 – original owner handed over original registered sale deed executed in his favour by his predecessor in title on 22.02.2008 to the plaintiff. There is no explanation as to why and how, the plaintiff came into possession of the original title deeds, except contended in para 14 of the written statement that the plaintiff has illegally detained the documents and, therefore, custody of the documents with the plaintiff is an illegal act. But, no any other explanation is furnished as to why, defendant No. 1 – original owner handed over the original title deed to the plaintiff. Not only that, the sale deed executed in favour of the appellant herein by defendant No. 1 is also silent as to handing over of possession of the original title deed of the subject land. Thus, conduct of defendant No. 1 – original owner shows that he is out to frustrate the right of plaintiff accrued on the basis of the agreements to sale in question.

12. At this stage, it requires to be noted that there is no need to call upon the plaintiff to disclose or show the means of cash payment made to defendant No. 1 – original owner. The conduct of defendant No. 1 stands proved that he had executed agreements to sale in question and in pursuance thereof, he has parted with possession of the subject land and obtained part consideration and handed over original sale deed to the plaintiff. Therefore, the moot question to be adjudicated is whether the subsequent purchasers are bona fide purchasers for value without notice. Once there is conveyance, the concept would be different and primary relief could be only cancellation of sale deed executed by defendant No. 1 in favour of the subsequent purchasers. Moreover, when it is a case of total denial on the part of defendant No. 1, provisions of Section 16(C) of the Specific Relief Act become insignificant or inconsequential. The findings as to non-discloser of sources/means to pay the part consideration in cash also become insignificant. Moreover, when it is a case of fraud and total denial of transactions on the part of defendant No. 1, the issue of non-discloser of means or sources to raise and pay in cash and also, the provisions of Section 16(C) of the Specific Relief Act become insignificant or inconsequential to be examined in light of the decisions cited at bar. In view of these peculiar facts of the case, reliance placed by learned advocate Mr. Purohit on the decisions in the case of Harshadkumar Kantilal Bhalodwala and Gurbachan Singh (supra) are not helpful to him.

13. One other contention that the copy of the sale agreement produced in the suit bears signatures of the witnesses whereas, the same document produced before the learned Mamlatdar in Takrari Case No. 58 of 2014 does not bear signatures of witnesses is inconsequential. The reason is that except this, no any other terms and conditions alleged to have been tampered with nor altered. The presence or absence of signatures of the witnesses in the sale agreements do not lead to believe the case of defendant No. 1 – original owner that the fraud has been committed either on the Court or defendant No. 1 and, therefore, it cannot vitiate the transaction between the plaintiff and defendant No. 1. The issue raised with regard to signatures of the witnesses is a matter of evidence and requires explanation on the part of the plaintiff and, therefore, the sale agreement cannot be discarded at this stage, more so, when it is not challenged by defendant No. 1 – original owner and one of the subsequent purchasers i.e. respondent No. 3 herein by way of appeal.

14. Now, this takes the Court to decide whether one of the subsequent purchasers i.e. the appellant herein is a bona fide purchaser of the subject land or not. In order to examine this aspect, it is necessary to consider the conduct of the subsequent purchasers before execution of sale deed dated 03.09.2014. It is settled principle of law under Section 19(b) of the Specific Relief Act that specific performance of contract may be enforced against any other person claiming under him by a title arising subsequently to the contract. If a person, as an owner of the property, has entered into an agreement to sale, he cannot, thereafter, convey the same property to any other person, as after prior agreement to sale, he cannot be said to be free owner of the property. If the owner alienates the property, he can alienate it only subject to the rights created under the prior agreement to sale. It is the case of the appellant i.e. subsequent purchaser that he has no knowledge about execution of sale agreement inter se between plaintiff and defendant No. 1 and, therefore, they have bona fidely entered into the registered sale deed dated 03.09.2014 without notice of prior sale agreements and paid full value in good faith. Upon re-appreciation of the events, which occurred before and after registered sale deed dated 03.09.2014, it shows that the defendants with unusual haste, carried out the sale deed. The obvious reason is such that the sale deed executed and registered on 03.09.2014 discloses that the appellant was aware of pending proceedings being Special Civil Suit No. 405 of 2008 between defendant No. 1 and his predecessor in title. Admittedly, the dispute came to be resolved between the parties to the said suit on 12.09.2014 and prior to it, the sale deed was executed and registered. The said sale deed indicates that the appellant and respondent No. 3 herein have paid amount of consideration by way of various cheques of the date 01.09.2014 to 04.09.2014. Admittedly, the amounts of cheques were withdrawn by defendant No. 1 on 16.09.2014 and 17.09.2014 as per the statement of account annexed with the affidavit produced before this Court during the course of hearing. It is a matter of fact that though the dispute has been resolved on 12.09.2014, the suit was disposed of only on 02.10.2014. Normally, there is no reason to consider about withdrawal of the amounts on the part of the original owner – defendant No. 1 but, in view of the peculiar facts of this case, conduct of the defendants goes to suggest that before the issue is resolved in a pending suit between defendant No. 1 and his predecessor in title, the sale deed was executed and registered and meanwhile, the amounts of consideration were withdrawn in cash by the original owner i.e. defendant No. 1 and thereafter, the Court has passed the order of disposal of the suit on 02.10.2014. This speaks a lot about conduct of the defendants, who in collusion, joined hands to frustrate the sale agreements in question. It requires to be considered here that the defendants with unusual haste, carried out the sale deed, where such transactions, as a rule, are carried out with appropriate inquiry and, more particularly, after obtaining title clearance certificate and also by publishing notice in newspaper before purchase. Admittedly, no such steps have been taken by the subsequent purchasers i.e. the appellant and respondent No. 3 herein. Not only that, they have not bothered to inquire about the whereabouts of the original title deeds. One more significant aspect of the case required to be considered is such that defendant No. 1 agreed to sale the subject land to the plaintiff for consideration of Rs. 51 lacs which was fixed in the year 2008 whereas, the defendants inter se fixed the sale price of the subject land of Rs. 17,50,000/- in the year 2014. Meaning thereby, from 2008 to 2014, price of the subject land has been reduced to about 66% which can never be believed by any prudent man dealing in the transaction of the immovable property and further, the Court cannot overlook or ignore the existing scenario in the market about the prices of the land during the period in question.

15. The plain language of Sub-Section (b) of Section 19 of the Specific Relief Act shows that subsequent transferee can retain the benefit of transfer by purchase, which prima facie, he had right to get, only after satisfying two conditions i.e. (1) he must have paid the full value for which, he purchased the property and; (2) he must have paid it in good faith and without notice of prior contract. The burden of proof is upon the subsequent purchaser to establish existence of these two conditions in order to see that his right prevails over the prior agreement of sale. In the case on hand, the conduct of the defendants themselves indicates that the appellant herein is not a bona fide purchaser because, the sale deed came to be executed and registered with unusual rapidity. Normal procedure for sale/purchase of immovable property as a rule is not such which is adopted in the present case. Hence, required ingredients of Section 19(b) of the Specific Relief Act are missing in this case and hence, protection of Section 19(b) is not available to the subsequent purchaser i.e. appellant herein.

16. It is required to be kept in mind that the present Appeal from Order is filed under the provisions of Order 43 Rule 1(r) of the Code and challenge in this appeal is a discretionary order passed by the learned trial Judge under the provisions of Order 39 Rules 1 and 2 of the Code. In case of Matrix Telecom Pvt. Ltd. Vs. Matrix Cellular Services Pvt. Ltd. reported in MANU/GJ/1081/2011 : 2011 (3) GLR 1951, this Court, in paras 6 and 6.1, observed as under:-

“6. Before proceeding further it is required to be noted that the present appeal is against the rejection of interim relief and the main suit is still pending. If this court elaborately deals with the matter on merits it is likely that the same would prejudice the case of either side. Therefore, it is well settled law that this Court is not required to go into the merits of the entire matter at this stage and what is required to be seen is whether the appellant-plaintiff has made out a prima facie case or not for grant of interim injunction.

6.1. It is required to be noted that it is well settled law that the Appellate Court may not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. The Appellate Court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by the court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion.

17. Similarly, in the case of Wonder Ltd. and another Vs. Antox India Pvt. Ltd. reported in MANU/SC/0595/1990 : 1990 (Supp.) SCC 727, the Hon’ble Supreme Court in para 9 of the said decision, after considering the scope of Order 43 Rule 1(r) of the Code in an appeal wherein, the discretionary order passed by the learned trial Court is under challenge, observed as under:-

9. Usually, the prayer for grant of an interlocutory injunction is at a stage when the existence of the legal right asserted by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. The court, at this stage, acts on certain well settled principles of administration of this form of interlocutory remedy which is both temporary and discretionary. The object of the interlocutory injunction, it is stated

… is to protect the plaintiff against injury by violation of his rights for which he could not adequately be compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The court must weigh one need against another and determine where the “balance of convenience lies”.

The interlocutory remedy is intended to preserve in status quo, the rights of parties which may appear on a prima facie. The court also, in restraining a defendant from exercising what he considers his legal right but what the plaintiff would like to be prevented, puts into the scales, as a relevant consideration whether the defendant has yet to commence his enterprise or whether he has already been doing so in which latter case considerations somewhat different from those that apply to a case where the defendant is yet to commence his enterprise, are attracted.

18. So, in light of the limited powers of this Court, the Appellate Court can interfere with the discretionary order passed by the trial Court only in exceptional circumstances and the Appellate Court cannot interfere with the exercise of discretion of the Court of first instance and substitute its own discretion except, where the discretion has been shown to have been exercised arbitrarily, capriciously or perversely or where the Court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. In nutshell, an appeal against exercise of discretion is said to be an appeal on principle. To put it differently, the Appellate Court cannot reassess the entire evidence so as to come to its own conclusion contrary to the conclusion arrived at by the trial Court, if two views are possible.

11. While parting with the order, it is clarified that this Court has examined the impugned order passed by the learned trial Judge within the limited scope of provisions of Order 43 Rule 1(r) of the Code, whereas the main controversy involved in the suit is at large before the trial Court to be adjudicated through full-fledge trial. Therefore, the learned trial Judge shall not be influenced by any observations recorded in the impugned order and observations recorded by this Court herein above while deciding the suit at the end of trial. The findings recorded either by the trial Court or by this Court at interlocutory stage of the suit are tentative in its nature and the learned trial Judge shall decide the case on its merit and as per evidence that may be led during the course of trial and decide the suit in accordance with law.
19. The cumulative effect of the above discussion is such that there is no merit in the contentions raised by learned advocate Mr. Vimal Purohit on the basis of various case-laws cited at bar by him and, therefore, this Court is not inclined to entertain the present Appeal from Order filed by the appellant i.e. one of the subsequent purchasers.

20. In the result, present Appeal from Order, being devoid of merits, both on law and facts, is hereby dismissed. Consequent to disposal of the present Appeal from Order, connected civil application does not survive and the same also stands disposed of.

21. It is clarified that the learned trial Judge shall decide the suit on its merits uninfluenced by the observations/findings recorded in the impugned order or present order and shall decide the suit as per evidence that may be led by the parties to the suit. Since the findings recorded at the time of considering application under Order 39 Rule 1 and 2 of the Code of Civil Procedure are always of tentative in nature and, therefore, all the issues raised in support and/or defence of the case are kept open to be agitated before the learned trial Court on the basis of the evidence that may be led in the suit.

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