ORDER
V.K. Shrivastava, J.
1. This appeal is directed against the order dated 11-5-2005 passed by the First Additional District Judge, Mahasamund, in Civil Suit No. 34-A/2005 (Aujasya Agro Pvt. Ltd. v. Rani Jyoti Kumari and 3 Ors.) whereby allowing the application filed by the respondent No. 1/plaintiff under Order 39, Rules 1 and 2 read with Section 151 of the Code of Civil Procedure, for grant of temporary injunction against the defendant/appellant and respondent Nos. 2 to 4.
2. Facts material for disposal of this appeal, in brief compass, are that plaintiff/respondent No. 1 – Aujasya Agro Power Pvt. Ltd., filed a Civil Suit No. 34-A/2005 on 5-2-2005 for specific performance of the contract against the appellant and respondent Nos. 2 to 4 on the pleading that respondent Rani Jyoti Kumari – owner of the suit land executed agreement to sell the suit land on 3-12-2004 in his favour and received an advance of Rs. 2,00,000/- (Rupees two lakhs). Registered sale deed was to be executed in terms of the said agreement by 31-1-2005. Plaintiff/respondent No. 1 invited objections against the said sale by issuing public notice in daily newspaper and in response to that Central Bank of India, Main Branch, Raipur raised its objection dated 19-1-2005 alleging that the suit lands have been mortgaged with the Central Bank of India as collateral security against some agricultural loan thereafter some correspondence regarding dispute took place in between the plaintiff/respondent No. 1 and respondent No. 2. Afterwards, respondent No. 2 terminated the said agreement to sell and refunded the amount taken in advance along with interest.
3. After termination of the agreement respondent No. 2 on 3-2-2005 sold the suit land to appellant. Plaintiff/respondent No. 1 also filed an application under Order 39 Rules 1 and 2 read with Section 151 of the CPC, for issuance of injunction against the appellant and respondent Nos. 2 to 4. Appellant denied the claim of plaintiff/respondent No. 1 and pleaded that respondent No. 1-Smt. Rani Jyoti Kumari who executed the agreement to sell has cancelled the agreement and thereafter for consideration sold the suit land on 3-2-2005 in his favour by executing a sale deed. Sale deed has already been produced registration in the office of the District Registrar, Raipur, from where after necessary formalities the registered sale deed is to be handed over to him. Respondent No. 2-Smt. Rani Jyoti in his averment has stated that she was not knowing the fact that suit land is mortgaged by her predecessor with Central Bank of India. She cancelled the agreement to sale dated 3-12-2004 and also returned the amount taken in advance along with interest to plaintiff/respondent No. 1 and thereafter for the same consideration she sold out the suit land on 3-2-2005 by executing a sale deed in favour of the appellant.
4. Learned Court below holding the principle of prima facie case, balance of convenience and irreparable loss in favour of the plaintiff/respondent No. 1, allowed the application and issued directions that respondent No. 2 shall not sell or alienate the suit property. Appellant and respondent Nos. 2 to 4 shall maintain status quo and no new construction should be made. Respondent No. 3 shall not register and deliver the sale deed to appellant.
5. Appellant’s contention is that after cancelling the agreement to sale dated 3-12-2004 and after redeeming the property from Central Bank of India, owner of the property who is respondent No. 2 has vide sale deed dated 3-2-2005 for consideration sold out the suit land to him and also delivered possession thereof. Appellant is in possession of the suit land under valid sale deed. Appellant is exempted from stamp duty. Sale deed has been submitted in the office of the District Registrar, Raipur, for registration from where after registration the same will be handed over to him. Registration of the documents has been made by the Registrar and only it is to be handed over to the appellant. Agreement to sell in favour of plaintiff/respondent No. 1 when the property was under mortgage that too cancelled by the real owner does not give any right to get it performed and to restrain the appellant who is real purchaser and in possession thereof. Learned Counsel for respondent No. 2 also supports the contention of the appellant.
6. Per contra, learned Counsel for respondent No. 1 submits that the cancellation of agreement to sale is not valid and in case plaintiff/respondent No. 1 succeeds, in absence of injunction if construction is made over the suit land it will create many problems.
7. Admittedly, on 3-12-2004 when respondent No. 2 and respondent No. 1 entered into contract, i.e., agreement to sell, the suit land was under mortgage with the Central Bank of India and the mortgage was done by real owner of the suit land towards security against loan therefore, till the suit land is redeemed, it cannot be sold. Prima facie, it appears that on 3-12-2004 it was not permissible for respondent No. 2 to enter into agreement to sell with respondent No. 1. Admittedly, agreement to sale dated 3-12-2004 has been cancelled by respondent No. 2 who after cancellation, returned the amount taken by her in advance along with interest to plaintiff/respondent No. 1. It is also not in dispute that before executing the sale deed in favour of appellant by real owner/respondent No. 2 on 3-2-2005, the loan taken from the Central Bank of India, has been cleared and the seller, i.e., respondent No. 2 has delivered possession of the suit land to appellant. It is also not in dispute that after execution of sale deed, same was handed over to the District Registrar, Raipur.
8. From all the above facts, prima facie, it appears that appellant after execution of sale deed for consideration purchased the suit land and is in possession thereof. Therefore, the suit land which is purchased by the appellant for consideration after execution of sale deed in his favour by real owner is in his possession has to suffer irreparable loss, if he is deprived of from taking fruit of it. It is evident that the balance of convenience and principle of irreparable loss do not find in favour of plaintiff/respondent No. 1. Therefore, no injunction could have been passed in his favour.
9. In the result, the appeal is allowed. The impugned order passed by the Lower Court is set aside.
Parties to bear their own costs.