JUDGMENT
Syed Bashir-Ud-Din, J.
1. The three contesting respondents have filed suit for specific performance and injunction in respect of 41 kanals and 18 Marias of land situated at Rakh Shilwat Tehsil Sonawari District Baramulla, more specifically referred in para 2 of the plaint, on plaint averments that three agreements to sell have been executed on 12-09-2002 by appellant-defendants in their favour. They have been put in possession of land. Over 16 Lakh Rupees stand paid as consideration to defendants. As defendants are avoiding to execute the sale deeds and are helt bent to interfere with plaintiffs possession over the land, hence this suit.
2. Alongside an application for temporary injunction was also filed. The trial court of District Judge Baramulla gave a provisional direction requiring defendants “not to cause any interference in the suit property.” This direction of December 13, 2004 is subject to objections. The defendants appeared and filed objections. The trial court after hearing the parties made the above provisional ad-interim direction absolute and restrained defendants, pending suit, from causing any interference with the possession of the plaintiffs’ over the suit property. This order of May 12, 2004 is impugned in this appeal.
3. I have heard the Ld. counsel for the parties and examined civil original suit file available on record besides the impugned order is perused.
4. The trial court has passed the impugned order in its discretion on the ground that the plaintiffs-applicants have a prima-facie case. Ex-facie the possession has been handed over to plaintiffs who have parted with huge consideration amount received by the defendants. Notwithstanding the question as to the proof of execution of the agreements, on trial, court below has opined that sufficient material exists and probabilities preponderate on record to prima-facie show that the plaintiffs are not trespassers and instead have come in possession on the basis of agreement. For these inferences of the trial court there is basis on record, in as much as, in all three agreements with receipt of consideration amount there is recital of plaintiffs having been put in possession of the land with trees standing thereon by none other than the defendants, the party to the agreement to sell in question.
5. In the written statement these defendants have no where specifically denied the execution of the agreement and the receipts. To say that the agreements are not admissible in evidence, a preposition to be pronounced at trial, is not tantamount to denial of execution of agreements. What is not specifically denied, is perforce rules of pleading, deemed admitted Reference to general irrevocable power of attorney obtained by defendants 6 & 7 from the defendants 1 to 5 a certified copy of which is on suit file, at pages 6, 7 & 8 it is unequivocally stated that the plaintiffs, referred as Habibullah & Sons, have some dispute with defendants 1 to 5 regarding consideration amount with regard to the transaction of sale in respect of suit land for which defendants have executed the agreements to sell in their favour and that the attorney holders are authorised to execute sale deeds in their favour, in the event of consideration amount being settled and paid to their satisfaction. Obviously reference to these documents on record go to show execution of the agreements and consequently the recitals as to handing over of the possession of the suit property in these agreements would prima-facie show possession with the plaintiffs unless shown otherwise by the defendants.
6. In the fact situation and the circumstances referred above, the conclusion of the trial Judge that the petitioners have prima-facie case, reinforced by considerations of balance of convience and irreparable loss, in their favour for an ad interim injunction cannot be said to be unreasoned or unjust. In the matter of interference with discretion exercised by the trial court rule is that the appellate court has to be loath enough to interfere with the exercise of discretion. Only because if the appellate court had dealt with the matter at the trial stage it may have to come a contrary ‘conclusion’, as suggest by the counsel for the appellant; cannot be a ground to up set the order so long the discretion is exercised reasonably and in a judicial manner the impugned order cannot be set at naught. The appellate court is not to substitute its exercise of discretion for that of the trial court so long the discretion exercised by the trial court is fair and reasonable, in the facts and circumstances of the case. The trial court has considered the guidelines of prima-facie case, balance of convience and prevention of irreparable injury in the context of suit situation in the light of material aspects of the case as discernable from record. The powers of appellate court are circumscribed in the matter of discretion in the field of injunction.
See. i/ Mysore SRT Corporation v. MirJa Khasim Ali Beg, (AIR 1977 SC:747 (paras 18 & 19)
ii/ U.P. Corporation Federation Ltd. v. Sunder Bros. Delhi, (AIR 1967 SC:249 Para 8)
iii/ United Commercial Bank v. Bank of India, AIR 1981 SC 1426
iv/ Firm Ishardass Devi Chand and Anr. v. Parkash Chand, AIR 1969 SC 938
v/ Chetak Construction Ltd. Indore v. Omprakash, AIR 2003 MP 145 and
vi/ Laxman Pandu Khadke, v. Pandharinath Purushottam Rane, AIR 1988 Bombay 296
7. Ld. Counsel for appellant has referred to Krishnamoorthy Koundar v. Paramasiva Koundar, AIR 1981 Mad. 310 for his submission that temporary injunction cannot be granted to the plaintiffs. This authority turns around its own facts. Even so the case is decided in the circumstances of the case by their Lordships, after finding that actual delivery of possession of the suit properties on the date of agreement of sale in that case was not substantiated on ground and claimed possession by plaintiff was not established. The trial court in granting interim injunction was found not justified after the court observed that mere paper recital not supported by actual possession cannot be basis for issuing a direction to protect the claimed possession.
8. The other two authorities cited are Smt. Hamida v. Smt. Humera (AIR 1992 All. 346) and U.N. Sharma v. Puttegowada, AIR 1986 Kant. 99. Both are on the doctrine of part performance as contained in Central Transfer of Property Act, having no application in this State and to the facts and circumstances of this case. The observations made are on the facts of those cases which have least parallel with the facts and circumstances of this case.
9. In the aforesaid view of the matter, the appeal cannot succeed on merits. Dismissed.
Inform Court below of this order and send back the record.