ORDER
G.K. Mathur, J.
1. The plaintiff has
preferred this appeal against the order dated April 12, 1990 passed by the Civil Judge, Bareilly, in Suit No. 225 of 1990 (Rajendra Kumar v. Mahendra Kumar Mittal) : whereby the application for issue of ad interim injunction has been rejected.
2. In the appeal, on the application of the appellant for injunction, respondents Nos. 1 to 4 were restrained from alienating the property by order dated May 23, 1990, in the meanwhile. The respondents Nos. 1 to 4 filed an application for vacation of the aforesaid interim order dated May 23, 1990, supported by counter-affidavit of Mahendra Kumar Mittal, respondent No. 1. The appellant Rajendra Kumar has filed rejoinder affidavit and supplementary affidavit.
3. With the consent of the counsel for the appellant and respondents Nos. 1 to 4 we proceeded to dispose of the appeal at the admission stage.
4. The facts of the case, in brief, are that respondents Nos. 1 to 4 entered into an agreement on December 9, 1988 to sell the land measuring 4,000 square yards, situate within the municipal limits of Bareilty City, for a sum of Rs. 8 lacs in favour of the plaintiff-appellant, which was registered on March 13, 1989 and Rs. 50,000/- were received by them as advance towards consideration on the date of the agreement. It is alleged that Sanjay Kumar, defendant No. 6, the appointed attorney of respondents Nos. 1 to 4, gave possession of the land in question on December 9, 1988 to the appellant after receiving sum of Rs. 1,10,000/- from the appellant and the appellant had developed, levelled and constructed kharanja. The respondents Nos. 1 to 4 have sold certain plots the total area of them comes to 1430 square yards through six sale deeds dated August 14, 1989 and three sale deeds dated September 6, 1989 and that there remains the area measuring 2564 square yards intact on the spot. It is alleged on behalf of the appellant that the sale deeds were executed with his consent in accordance with the terms of the agreement. It is further alleged on behalf of the plaintiff-appellant that the respondents Nos. 1 to4 had agreed to sell 150 square yards land out of the area in question for a consideration of Rs. 30,000/- to Rajendra Kumar, but did not execute the deed even after the receipt of the aforesaid sum. Plaintiff-appellant’s contention has been that the owners of the land, respondents Nos. 1 to 4, have in all received
Rs. 4,77,388/- towards consideration and that only a sum of Rs. 3,22,612/- remains to be paid. With these allegations the plaintiff-appellant, reserving his right to file suit for specific performance of the contract, filed suit in respect of the area measuring 2564 square yards for permanent injunction restraining the owners-respondents evicting him forcefully from the land and transferring it to any person other than the plaintiff-appellant. The Sub-Registrar, Bareilly, has also been made defendant No. 5 in the suit.
5. At the time of the institution of the suit the plaintiff-appellant applied for issuing of temporary injunction against the defendants Nos. 1 to 5 — they are respondents Nos. 1 to 5 here.
6. The respondents Nos. 1 to 4 opposed the application on the ground that the suit for injunction is not maintainable and that the agreement in question has been terminated by a legal notice and that the plaintiff-appellant has no means to purchase the land and had never been ready and willing to purchase and the suit is barred by S.80 and O. XXVII, R. 5 A of the Code of Civil Procedure against defendant No. 5.
7. The learned trial Court by the impugned order rejected the application of temporary injunction.
8. Feeling dissatisfied with the order of rejection, the plaintiff has preferred this appeal.
9. The learned counsel for the appellant, while arguing the appeal, did not challenge the finding of the Court below that the defendant No. 5, Sub-Registrar, Bareilly, is an unnecessary party and the suit against him was hit by the provisions of S. 80 and O. XXVII, R.5A of the Code of Civil Procedure.
10. The learned counsel for the appellant argued that the finding of the learned Court below that the suit for permanent injunction is not maintainable is not correct because the appellant is in possession of the land in question and he has every right to protect it as there existed subsisting agreement to sell
dated December 9, 1988 in his favour and a substantial sum towards consideration has been received by the owners. He submitted that time was not the essence of the contract and it has never been cancelled.
11. The main question involved in this case, therefore, is whether there exists a subsisting agreement to sell capable to be specifically enforced.
12. Section 41(h) of the Specific Relief Act lays down that an injunction cannot be granted when equally efficacious relief can certainly be obtained by any other ususal mode of proceeding. The usual mode of proceeding obviously is a suit for specific performance of contract and necessary relief can be obtained through such suit. In this view of the matter, in this suit for perpetual injunction only, no relief of injunction can be granted, muchless the temporary injunction sought for. We, therefore, do not consider it expedient to look to the question whether the agreement to sell the land in dispute is alive or has come to an end or whether time was the essence of the contract and whether the plaintiff-appellant has the means and is ready and willing the purchase et cetera.
13. On the question of balance of convenience and prima facie possession of the respondents Nos. 1 to 4 on the land in dispute, we do not find any fault in the finding of the learned Court below. In the agreement it is mentioned that the possession would be given at the time of the execution of the sale deed. The claim of plaintiff-appellant that Sanjay Kumar, defendant No. 6, gave possession of the land to him on December 9, 1988, does not appeal to reason because it was the date of the aforesaid agreement to sell. Sanjay Kumar, defendant No. 6, is the real brother of the plaintiff-appellant. In the counter-affidavit Mahendra Kumar, respondent No. 1, has stated that no documentary evidence was filed by the plaintiff-appellant in support of delivery of possession and payment of money from respondent No. 6. It is also the case of the contesting respondent that respondent
No. 6, under the power of attorney, had no right to deliver possession to the appellant or to deal with him in respect of the property in question. It is stated in the counter-affidavit that on August 11, 1989 the appellant expressed his final refusal to purchase the land in question and instead of making any endorsement of cancellation of the agreement in writing, he volunteered to become a witness of the six sale deeds executed by the respondents Nos. 1 to 4 on August 14, 1989 and August 21, 1989. The respondents Nos. 1 to 4, by three more sale deeds of September 4, 1989 and September 6, 1989, sold certain piece of plots. The respondents gave possession to the purchasers and there is nothing in the sale deeds to indicate that they had been executed in pursuance of the agreement in question dated December 9, 1988 or at the instance of the appellant or that the possession had been given to the purchasers by the appellant. Prima facie it is, therefore, made out that the respondents Nos. 1 to 4 have been dealing with the land in question and the contention of the appellant that he got possession of the land in question on December 9, 1988, prima facie, does not appear to be the correct, Admittedly, kharanja exists on the land in question. As the possession, prima facie, is of the respondents Nos. 1 to 4, therefore, in the absence of any convincing evidence it cannot be accepted that it has been constructed by the appellant. The report of the Vakil — Commissioner was ex parte report and is of no value on the question of possession because it was based on the basis of interrogations from certain persons on the spot. The Commissioner was not required to give report on the question of possession.
14. For the reasons given above, we hold that the appeal has no force and it is dismissed. The interim injunction order dated 23-5-1990 is vacated.
15. Appeal dismissed.