O R D E R
This is a defendant's Writ Petition challenging the concurrent findings recorded by the Courts below that the plaintiff has made out a prima facie case of an agreement of reconveyance and, therefore, during the pendency of the suit, the defendant was restrained from alienating the property.
2. The facts are not in dispute. The plaintiff was the owner of the schedule property. He executed a registered sale deed in favour of the defendant on 27.5.1992. It is the case of the plaintiff that it was not an out and out sale, but only a loan transaction. Therefore, on the very day, the defendant executed an agreement of reconveyance.
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Subsequently, one more agreement of reconveyance was executed on 27.12.2007. When the defendant refused to execute the sale deed, the plaintiff was constrained to file the suit for specific performance. As the defendant was attempting to alienate the property, the plaintiff sought for an order of temporary injunction restraining him from alienating the property during the pendency of the proceedings.
3. The application was contested. However, the trial Court, on appreciation of the material on record, found that, a prima facie case for grant of temporary injunction is made out and, passed the order in favour of the plaintiff. Aggrieved by the same, the defendant preferred a Miscellaneous Appeal in M.A.No.11/2012. The lower Appellate Court on re-appreciation of the entire material on record came to the conclusion that the prima facie case made out by the plaintiff was rightly accepted by the trial Court and therefore, affirmed the said finding. It is against
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the concurrent finding of the Courts below, the present Writ Petition is filed.
4. Learned counsel for the petitioner assailing the impugned order contended that, if really there was a deed of reconveyance, the same should have found place in the sale deed; no consideration is paid. The defendant disputes the said deed of reconveyance. In the circumstances, the Courts below were not justified in holding that a prima facie case for grant of temporary injunction is made out and, therefore, he submits that a case for interference is made out.
5. When two fact finding authorities, after considering the material on record, have concurrently held that the plaintiff has made out a prima facie case of execution of the deed of reconveyance and when the plaintiff was admittedly the owner of the property before due execution of the sale deed, the property is to be preserved during the pendency of the suit. For preservation of the property, if an order of temporary injunction is granted by both the Courts, I do not
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see any grounds to interfere with the well considered order passed by the Courts below. There is no merit in the Writ Petition and accordingly it is dismissed. Sd/-
JUDGE
ckl/-
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