# Mahesh Kumar & Ors v. Omaira Buildcon Proprietor Lalit Gogia

- **Citation:** (2025) 10 ILRA 593
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-10-15
- **Case number:** First Appeal From Order No. 2422 of 2025
- **Bench:** Sandeep Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahesh-kumar-ors-v-omaira-buildcon-proprietor-lalit-gogia-52704
- **Pages:** 7

## Headnote

594 INDIAN LAW REPORTS ALLAHABAD SERIES
Issue pertains to whether in a suit for specific
performance of a registered agreement to sell
wherein the plaintiffs/vendees are not in
possession
of
suit
property,
an
interim
injunction under O. XXXIX R. 1 & 2 read with s.
151 of Code of Civil Procedure, 1908, restraining
the
defendant/vendor
from
alienating
or
creating third-party rights in the suit property
during the pendency of the suit, ought to be
granted notwithstanding the applicability of
doctrine of lis pendens u/ s. 52 of Transfer of
Property Act, 1882, and irrespective of fact that
the agreement to sell does not by itself confer
any title or interest in immovable property upon
the intending purchaser.

Headnotes
Code of Civil Procedure, 1908 - O. 39, R. 1
and 2, s. 151 - Transfer of Property Act,
1882 - s. 52 - The plaintiffs instituted
Original Suit seeking specific performance
of registered agreement to sell dated
28.07.2022 in respect of land situated in
Khet No. 114M, admeasuring 3250 square
yards in Village Mirzapur, District Gautam
Buddha Nagar, asserting that pursuant to
negotiations held in November 2021, the
defendant executed the said registered
agreement after receiving ₹1.85 crores
out of the total sale consideration of ₹2.05
crores, with the balance of ₹20 lakhs
payable within three months for execution
of the sale deed, however, despite the
plaintiffs' readiness and willingness and
issuance of a legal notice requiring the
defendant to appear before the SubRegistrar on 28.10.2022, the defendant
failed to execute the sale deed, compelling
the plaintiffs to file the suit and to move
application under O.39 R. 1 and 2 CPC to
restrain the defendant from alienating the
disputed property, which was opposed by
the defendant on the grounds that no
agreement to sell had been executed, that
the amount received was merely a loan
secured by alleged agreement, and that
the plaintiffs were neither in possession
nor entitled to injunctive relief, leading to
rejection of injunction application by the
trial court on 17.09.2025, giving rise to
instant appeal.

Held: It is apparent that the plaintiffs,
apprehension is that the defendant is intending
to sell the disputed land and if the defendants
succeeds in doing so, it will create complications
in the suit and it will create third party rights
and for avoiding this, the plaintiffs have filed the
interim injunction application before the trial
court, which has been rejected on the erroneous
reasoning that neither the plaintiffs are the
owner of the disputed land nor in possession,
which is an admitted position of plaintiffs, but
the plaintiffs are not protecting their possession
of the disputed land - As such, the reasoning of
trial court is perverse and is liable to be set
aside
-
It
is
apparent
that
in
given
circumstances, the relief of interim injunction
can be granted in favour of plaintiffs against the
defendant for preventing the defendant from
alienating or transferring the disputed property,
even if the principle of lis pendens enumerated
in s. 52 of Transfer of Property Act is applicable,
as held by Apex Court in case of Ramakant
Ambalal Choksi (infra) - In view of facts, the
trial court has erred in rejecting the plaintiffs'
interim injunction application under O. 39 R. 1 &
2 C.P.C., which deserves to be allowed -
Accordingly, appeal is allowed and impugned
order dated 17.09.2025 is set aside. [Paras 17
to 20] (E-13)

Case Law Cited
Guruswamy Nadar v. P. Lakshmi Ammal (Dead)
Through Lrs. and others, (2008) 5 SCC 796;
Rambhau Namdeo Gajre v. Narayan Bapuji
Dhotra (Dead) Through Lrs., (2004) 8 SCC
614; Shivshankara & Another v. H.P. Vedavyasa
Char, (2023) 13 SCC 1; Madhukar Nivrutti
Jagtap & Others v. Pramilabai Chandulal
Parandekar (Dead) through Lrs. & Others,
(2020) 15 SCC 731; Raheja Universal Limited
v. NRC Limited & Others, (2012) 4 SCC 148;
Vijay A. Mittal & Others v. Kulwant Rai (Dead)
through Lrs. & Another, (2019) 3 SCC 520;
Durg

## Text

10 All. Mahesh Kumar & Ors. Vs. Omaira Buildcon Proprietor Lalit Gogia
593
appeal would lie if the order passed has
been made expressly appealable under the
provisions contained in Section 104(1) read
with Order XLIII Rule 1, and that no
further appeal would be maintainable
against the decision in such appeal.

13. The embargo under Section 104(2)
is absolute and contains a clear interdict
against any further appeal from an order
passed in an appeal under Section 104.

14. The remedy of an appeal provided
under Section 104(1) is only in respect of
the orders specified therein and those as
referred to under Order XLIII Rule 1. The
orders which have been made appealable
under Section 104(1) have either been
specified therein or have been enlisted
under Rule 1 of Order XLIII. The language
of sub-section (1) of Section 104 provides
for an absolute embargo against the remedy
of appeal being available from any other
order.

15. The appealable orders having been
expressly provided, the remedy of appeal
under Section 104, cannot be understood to
extend by implication to interlocutory
appellate orders.

16. Section 104(2) unambiguously
states that no appeal shall lie from any
order passed in appeal under the said
section. The ambit and scope of an appeal
under
Section
104
is
thus
clearly
circumscribed and the only interpretation
possible is that an appeal would not lie
against orders passed in appeals filed under
Section 104 or Order XLIII C.P.C.

17. It may therefore be stated that once
an
appellate
Court
has
exercised
jurisdiction under Order XLIII Rule 1(r),
the Code of Civil Procedure does not
provide a further appeal under the same
rule.

18. The embargo against filing of a
further appeal under Section 104 read with
Order
XLIII
Rule
1,
being
uncompromisingly absolute and strict in
nature, and providing for no exception, the
instant appeal which has been preferred
against an order in appeal filed under Order
XLIII
Rule
1(r),
would
not
be
maintainable.

19. Counsel for the appellants, at this
stage, submits that he may be permitted to
withdraw the appeal with liberty to avail
the appropriate legal remedy.

20. The appeal is dismissed in terms of
the prayer so made.

21. Office to return the certified copies
of the orders to the counsel for the
appellants after retaining photostat copies
thereof.
----------
(2025) 10 ILRA 593
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.10.2025

BEFORE

THE HON'BLE SANDEEP JAIN, J.

First Appeal From Order No. 2422 of 2025

Mahesh Kumar & Ors. ...Appellants
Versus
Omaira Buildcon Proprietor Lalit Gogia
...Respondent

Counsel for the Appellant:
Aishwarya Pratap Shahi, Nipun Singh

Counsel for the Respondent:
Krishna Mohan Garg
Issue for Consideration
594 INDIAN LAW REPORTS ALLAHABAD SERIES
Issue pertains to whether in a suit for specific
performance of a registered agreement to sell
wherein the plaintiffs/vendees are not in
possession
of
suit
property,
an
interim
injunction under O. XXXIX R. 1 & 2 read with s.
151 of Code of Civil Procedure, 1908, restraining
the
defendant/vendor
from
alienating
or
creating third-party rights in the suit property
during the pendency of the suit, ought to be
granted notwithstanding the applicability of
doctrine of lis pendens u/ s. 52 of Transfer of
Property Act, 1882, and irrespective of fact that
the agreement to sell does not by itself confer
any title or interest in immovable property upon
the intending purchaser.

Headnotes
Code of Civil Procedure, 1908 - O. 39, R. 1
and 2, s. 151 - Transfer of Property Act,
1882 - s. 52 - The plaintiffs instituted
Original Suit seeking specific performance
of registered agreement to sell dated
28.07.2022 in respect of land situated in
Khet No. 114M, admeasuring 3250 square
yards in Village Mirzapur, District Gautam
Buddha Nagar, asserting that pursuant to
negotiations held in November 2021, the
defendant executed the said registered
agreement after receiving ₹1.85 crores
out of the total sale consideration of ₹2.05
crores, with the balance of ₹20 lakhs
payable within three months for execution
of the sale deed, however, despite the
plaintiffs' readiness and willingness and
issuance of a legal notice requiring the
defendant to appear before the SubRegistrar on 28.10.2022, the defendant
failed to execute the sale deed, compelling
the plaintiffs to file the suit and to move
application under O.39 R. 1 and 2 CPC to
restrain the defendant from alienating the
disputed property, which was opposed by
the defendant on the grounds that no
agreement to sell had been executed, that
the amount received was merely a loan
secured by alleged agreement, and that
the plaintiffs were neither in possession
nor entitled to injunctive relief, leading to
rejection of injunction application by the
trial court on 17.09.2025, giving rise to
instant appeal.

Held: It is apparent that the plaintiffs,
apprehension is that the defendant is intending
to sell the disputed land and if the defendants
succeeds in doing so, it will create complications
in the suit and it will create third party rights
and for avoiding this, the plaintiffs have filed the
interim injunction application before the trial
court, which has been rejected on the erroneous
reasoning that neither the plaintiffs are the
owner of the disputed land nor in possession,
which is an admitted position of plaintiffs, but
the plaintiffs are not protecting their possession
of the disputed land - As such, the reasoning of
trial court is perverse and is liable to be set
aside
-
It
is
apparent
that
in
given
circumstances, the relief of interim injunction
can be granted in favour of plaintiffs against the
defendant for preventing the defendant from
alienating or transferring the disputed property,
even if the principle of lis pendens enumerated
in s. 52 of Transfer of Property Act is applicable,
as held by Apex Court in case of Ramakant
Ambalal Choksi (infra) - In view of facts, the
trial court has erred in rejecting the plaintiffs'
interim injunction application under O. 39 R. 1 &
2 C.P.C., which deserves to be allowed -
Accordingly, appeal is allowed and impugned
order dated 17.09.2025 is set aside. [Paras 17
to 20] (E-13)

Case Law Cited
Guruswamy Nadar v. P. Lakshmi Ammal (Dead)
Through Lrs. and others, (2008) 5 SCC 796;
Rambhau Namdeo Gajre v. Narayan Bapuji
Dhotra (Dead) Through Lrs., (2004) 8 SCC
614; Shivshankara & Another v. H.P. Vedavyasa
Char, (2023) 13 SCC 1; Madhukar Nivrutti
Jagtap & Others v. Pramilabai Chandulal
Parandekar (Dead) through Lrs. & Others,
(2020) 15 SCC 731; Raheja Universal Limited
v. NRC Limited & Others, (2012) 4 SCC 148;
Vijay A. Mittal & Others v. Kulwant Rai (Dead)
through Lrs. & Another, (2019) 3 SCC 520;
Durga Prasad & Another v. Deep Chand &
Others, AIR 1954 SC 75; Dharma Naika v.
Rama Naika & Another, (2008) 14 SCC 517;
Bina Murlidhar Hemdev & Ors. v. Kanhaiyalal
Lokram Hemdev & Ors. AIR 1999 SC 2171;
Elitom Manne Mallesh v. Elitom Manne Kistaiah
& Ors. 2020 SCC OnLine TS 3049 - referred
to
10 All. Mahesh Kumar & Ors. Vs. Omaira Buildcon Proprietor Lalit Gogia
595
Ramakant Ambalal Choksi v. Harish Ambalal
Choksi & Others (2024) 11 SCC 351 - relied
on

List of Acts
Code of Civil Procedure, 1908; Transfer of
Property Act, 1882

List of Keywords
O. 43 R. 1(r), O. 39 R. 1 & 2 C.P.C.; s. 52 of
Transfer of Property Act; Interim injunction;
Registered agreement to sell; Consideration;
Readiness
and
willingness;
Specific
performance; Legal notice; Plaint averments;
Alienating and selling the property; Malafide
intention; Affidavit; Written objections; Owner in
possession; Tenure holder; Revenue record;
Security for loan; Market value; Balance of
convenience; Irreparable injury; Principle of lis
pendens; Transferee; Right, title and interest;
Creating third party rights

Case Arising From
APPELLATE JURISDICTION: First Appeal From
Order No. - 2422 of 2025)
From the Order dated 17.09.2025 passed by the
Court of Civil Judge (Senior Division), Gautam
Buddha Nagar in Original Suit No.751 of 2023

Appearances for Parties
Advs. for the Appellants:
Aishwarya Pratap Shahi, Nipun Singh
Adv. for the Respondent:
Krishna Mohan Garg
(Delivered by Hon'ble Sandeep Jain, J.)

1. The instant appeal under Order 43
Rule 1(r) of the C.P.C. has been preferred
by the plaintiffs against the impugned order
dated 17.09.2025 passed by the court of
Civil Judge (Senior Division), Gautam
Buddha Nagar in Original Suit No.751 of
2023 (Mahesh and others vs. Omaira
Buildcon Proprietor Lalit Gogia) wherein
plaintiffs' interim injunction application
under Order 39 Rule 1 & 2 C.P.C. has been
rejected on merits.

2. Factual matrix is that the plaintiffs
have filed Original Suit No.751 of 2023
against the defendant with the averments
that the defendant is owner of land situated
in khet No.114M, area 3250 square yard,
village Mirzapur, Pargana Dankaur, Tehsil
and District Gautam Buddha Nagar which
was agreed to be sold to plaintiffs for a
consideration of Rs.2.05 crores, regarding
which there were talks between him and the
defendant in November, 2021 and in
furtherance of that, a registered agreement
to sell in presence of the witnesses was
executed by the defendant in favour of the
plaintiffs on 28.07.2022. According to
which, the defendant had already received
consideration of Rs.1.85 crores prior to the
execution of the agreement and it was
agreed that after paying the remaining
consideration of Rs.20 lacs within a period
of three months till 28.10.2022, the
defendant will execute the sale deed in
favour of the plaintiffs, but inspite of the
plaintiffs readiness and willingness to
fulfill the terms and conditions of the above
agreement, the defendant defaulted and
failed to execute the sale deed in favour of
the plaintiffs, inspite of the legal notice by
the plaintiffs to appear on 28.10.2022
before
the
concerned
Sub-Registrar,
Gautam Buddha Nagar. It is the case of the
plaintiffs that when the defendant failed to
execute the sale deed in their favour, then
they was compelled to file the suit for the
relief of specific performance of registered
agreement to sell dated 28.07.2022.

3. During the pendency of the suit, the
plaintiffs
filed
an
interim
injunction
application under Order 39 Rule 1 & 2
C.P.C. on the ground that the defendant be
restrained from selling the disputed land in
favour of third parties. The application was
supported by an affidavit of plaintiff
Mahesh Kumar, which reiterated the plaint
averments and further mentioned that the
defendant's intention had turned malafide
596 INDIAN LAW REPORTS ALLAHABAD SERIES
and he was intending to sell the disputed
land
to
other
persons,
which
will
complicate the issue, as such, the defendant
be restrained from alienating and selling
the property.

4. The defendant opposed the above
interim injunction application by filing his
written objections in which it was averred
that the defendant was the owner in
possession of the disputed land and he was
recorded as a tenure holder in the revenue
record. It was further averred that no
agreement to sell was executed by the
defendant in favour of the plaintiffs and an
amount of Rs.1.85 crores was taken as loan
by the defendant. The plaintiffs wanted to
usurp the disputed land.The defendant was
ready to return the amount of Rs.1.85
crores to the plaintiffs, but plaintiffs were
unwilling to accept it. The alleged
agreement to sell was executed as a
security for the loan taken by the defendant
from the plaintiffs. The defendants never
sold the disputed property to the plaintiffs.
It was further submitted that two months
after the execution of alleged agreement to
sell, the defendant had arranged the money
and offered it to the plaintiffs in lieu of
cancelling the agreement to sell but the
plaintiffs refused. The plaintiffs were not
ready and willing to fulfill the terms of the
agreement to sell. It was further averred
that the market value of the disputed land
was at least Rs.8 crores.

5. The trial court by impugned order
dated
17.09.2025
has
rejected
the
plaintiffs? interim injunction application on
the ground that the plaintiffs were neither
in possession of the disputed land nor
registered as tenure holder in the revenue
records. It was further opined by the trial
court that on the basis of the alleged
agreement to sell, plaintiffs were not
owners of the disputed land, which
belonged to several co-owners and the
specific land was unidentifiable. Further,
the plaintiffs were not in possession of the
disputed land. On the basis of the above
reasoning, the trial court concluded that a
prima facie case was not made out in
favour of the plaintiffs and as such, the
balance of convenience was also not in
their favour. It was further opined that if
any transfer of the disputed land was made
by the defendant during the pendency of
the suit, then it will barred by the principle
of lis-pendens which will remain binding
on the transferee and as such, no
irreparable injury will be caused to the
plaintiffs. With this reasoning, the trial
court
has
rejected
the
plaintiffs'
application, aggrieved against which, the
plaintiffs has filed this appeal.

6. Learned counsel for the plaintiffsappellant submitted that the reasoning of
the trial court is perverse and is liable to be
set aside because the plaintiffs never
averred that they have got any title in the
disputed land nor the plaintiffs were in
possession. The title and possession of the
disputed land was never in issue. Learned
counsel submitted that only issue was that
defendant was intending to sell the disputed
land and if that occurred, then it will create
complications in the suit, as such, interim
injunction application was moved to
restrain the defendant from alienating or
creating third party rights in the disputed
land. Learned counsel submitted that the
Apex Court in the case of Ramakant
Ambalal Choksi vs. Harish Ambalal
Choksi & Others(2024) 11 SCC 351 , has
specifically dealt with this contention and
held that notwithstanding the Rule of lispendens in Section 52 of the Transfer of
Property Act, injunction under Order 39
CPC, restraining the pendente lite transfers
10 All. Mahesh Kumar & Ors. Vs. Omaira Buildcon Proprietor Lalit Gogia
597
can be granted. With these submissions, it
was prayed that the appeal be admitted and
decided on merits.

7. Per contra, learned counsel for the
defendant-respondent submitted that there
is no illegality in the impugned order
because no such agreement to sell was
executed by defendant in favour of the
plaintiffs.
Learned
counsel
further
submitted that the doctrine of lispendens
enumerated in Section 52 of Transfer of
Property Act is applicable and if the
defendant sells the disputed land then the
subsequent purchaser will be bound by the
decision passed in the original suit. Learned
counsel submitted that in view of Section
52 of the Transfer of Property Act, the
plaintiffs are not entitled to get interim
injunction in their favour. Learned counsel
further submitted that merely on the basis
of registered agreement to sell, no right,
title and interest was created in favour of
the plaintiffs, the plaintiffs also are not in
the possession of the land, as such, neither
there was any title in favour of the
plaintiffs nor they are in possession, as
such, the plaintiffs are not entitled to get
the relief of interim injunction from the
Court. In support of his contention, learned
counsel has relied upon the following case
law:-

1. Guruswamy Nadar vs. P.
Lakshmi Ammal (Dead) Through Lrs. and
others, (2008) 5 SCC 796.

2. Rambhau Namdeo Gajre vs.
Narayan Bapuji Dhotra (Dead) Through
Lrs., (2004) 8 SCC 614.

3. Shivshankara & Another vs.
H.P. Vedavyasa Char, (2023) 13 SCC 1.

4. Madhukar Nivrutti Jagtap &
Others
vs.
Pramilabai
Chandulal
Parandekar (Dead) through Lrs. & Others,
(2020) 15 SCC 731.

5. Raheja Universal Limited vs.
NRC Limited & Others, (2012) 4 SCC 148.

6. Vijay A. Mittal & Others vs.
Kulwant Rai (Dead) through Lrs. &
Another, (2019) 3 SCC 520.

7. Durga Prasad & Another vs.
Deep Chand & Others, AIR 1954 SC 75.

8. Dharma Naika vs. Rama Naika
& Another, (2008) 14 SCC 517.

9. Bina Murlidhar Hemdev &
Ors. vs. Kanhaiyalal Lokram Hemdev &
Ors. AIR 1999 SC 2171.

10. Elitom Manne Mallesh vs.
Elitom Manne Kistaiah & Ors. 2020 SCC
OnLine TS 3049

8. With these submissions, it was
prayed that the appeal has got no merits
and is liable to be dismissed at the
admission stage.

9. I have heard learned counsel for the
parties and perused the impugned judgment
and the documents annexed with the
appeal.

10. Appeal is admitted.

11. It is apparent that the plaintiffs
have filed the suit for specific performance
of registered agreement to sell dated
28.07.2022,
according
to
which, the
disputed land was agreed to be sold to the
plaintiffs
by
the
defendant
for
a
consideration of Rs.2.05 crores, out of
which Rs.1.85 crores have already been
paid by the plaintiffs to the defendant and
the remaining amount of Rs.20 lakhs is to
be paid within three months from the date
of execution of the agreement, failing
which the plaintiffs have filed the instant
suit.

12. It is evident that in the registered
agreement to sell, it is itself mentioned that
the disputed land was in possession of the
598 INDIAN LAW REPORTS ALLAHABAD SERIES
defendant and its possession will be given
to the plaintiffs at the time of execution of
sale deed in their favour. It is also well
settled that on the basis of the registered
agreement to sell, no right, title and interest
is created in favour of the vendee. It is
apparent
that
the
plaintiffs
are
not
protecting their possession of the disputed
land. They are only claiming the interim
relief that the defendant be restrained from
alienating or transferring the disputed land
in favour of the third party, which is
perfectly in accordance with law.

13. The Apex Court in the case of
Ramakant Ambalal Choksi vs. Harish
Ambalal Choksi and others, 2024 (11)
SCC 351, has held as under:-

"44. Quite often, in these types of
litigations, it is sought to be argued that an
injunction restraining the defendant from
transferring
the
suit
property
was
absolutely unnecessary as no post-suit
transfer by the defendant can adversely
affect the result of the suit because of the
provisions of Section 52 of the TP Act
whereunder all such transfers cannot but
abide by the result of the suit. It is true that
the doctrine of lis pendens as enunciated in
Section 52 of the TP Act takes care of all
pendente lite transfers; but it may not
always be good enough to take fullest care
of the plaintiffs interest vis-a-vis such a
transfer. We may give one appropriate
illustration
of
a
suit
for
specific
performance of contract based on an
agreement of sale. In a suit wherein the
plaintiff prays for specific performance and
if the defendant is not restrained from
selling the property to a third party and
accordingly a third party purchases the
same bona fide for value without any notice
of the pending litigation and spends a huge
sum for the improvement thereof or for
construction thereon, the equity in his
favour may intervene to persuade the Court
to decline, in the exercise of its discretion,
the equitable relief of specific performance
to the plaintiff at the trial and to award
damages only in favour of the plaintiff. It
must be noted that Rule 1 Order 39 of the
Code
clearly
provides
for
interim
injunction restraining the alienation or sale
of the suit property and if the doctrine of lis
pendens as enacted in Section 52 of the TP
Act was regarded to have provided all the
panacea against pendente lite transfers, the
legislature would not have provided in Rule
1 for interim injunction restraining the
transfer of suit property. Rule 1 Order 39,
in our view, clearly demonstrates that,
notwithstanding the Rule of lis pendens in
Section 52 of the TP Act, there can be
occasion for the grant of injunction
restraining pendente lite transfers in a fit
and proper case. (See Muktakesi Dawn v.
Haripada Mazumdar [Muktakesi Dawn v.
Haripada Mazumdar, 1987 SCC OnLine
Cal 51 : AIR 1988 Cal 25] .)"

14. The Apex Court in the case of
Ramakant Ambalal Choksi (supra) has
held that interim injunction under Order 39
Rule 1 of the C.P.C. can be granted in
favour of the plaintiff for restraining the
defendant from alienating or selling of the
disputed property and a plea of Section 52
of the Transfer of Property Act cannot be
taken for not granting the above relief. The
Apex Court has specifically held that if
Section 52 of the Transfer of Property Act
was regarded to have provided, all the
panacea against the pendente lite transfer
then legislature would not have provided
the remedy of interim injunction under
Order 39 C.P.C.. The Apex Court has
specifically held that in a particular case, a
relief of injunction can be granted in favour
of the plaintiffs for restraining pendente lite
transfers
in
an
appropriate
case.
10 All. The New India Insurance Co. Ltd. Vs. Smt. Vidya Devi Alias Masnahi & Ors.
599

15. I have considered the case laws
submitted by learned counsel for the
respondent, which are not applicable on the
facts of the case. All the case laws deal
with an agreement to sell, which reiterate
the settled legal position that the agreement
to sell does not confer any right, title or
interest in the disputed property. Further, it
has been mentioned that for obtaining the
decree of specific performance in its
favour, the plaintiff has to prove readiness
and willingness to perform its part of the
agreement.

16. In the case of Guruswamy Nadar
(supra), the Apex Court has considered the
effect of lispendens between the original
parties and has held that party purchasing
the property after the suit had been filed by
the original purchaser, does not get good
title. It was further held that the benefit of
exception was not available to that party in
view of doctrine of lispendens. There is no
quarrel with the above proposition of law.

17. It is apparent that the plaintiffs,
apprehension is that the defendant is
intending to sell the disputed land and if the
defendants succeeds in doing so, it will
create complications in the suit and it will
create third party rights and for avoiding
this, the plaintiffs have filed the interim
injunction application before the trial court,
which has been rejected on the erroneous
reasoning that neither the plaintiffs are the
owner of the disputed land nor in
possession, which is an admitted position
of the plaintiffs, but the plaintiffs are not
protecting their possession of the disputed
land. As such, the above reasoning of the
trial court is perverse and is liable to be set
aside.

18. It is apparent that in given
circumstances,
the
relief
of
interim
injunction can be granted in favour of the
plaintiffs
against
the
defendant
for
preventing the defendant from alienating or
transferring the disputed property, even if
the principle of lispendens enumerated in
Section 52 of the Transfer of Property Act
is applicable, as held by the Apex Court in
the case of Ramakant Ambalal Choksi
(supra).

19. In view of the aforesaid facts, the
trial court has certainly erred in rejecting
the
plaintiffs?
interim
injunction
application under Order 39 Rule 1 & 2
C.P.C., which deserves to be allowed.

20.
Accordingly,
this
appeal
is
allowed.
The
impugned
order
dated
17.09.2025 is set aside. The plaintiffs'
application 6C-2 under Order 39 Rule 1 &
2 C.P.C. stands allowed. Consequently, the
defendant is restrained from alienating,
transferring or creating third party rights in
the disputed land, during the pendency of
the suit.

21. The trial court is directed to decide
the original suit preferably within a period
of six months from the date of production
of certified copy of this order, without
affording unnecessary adjournments to the
parties, on merits, in accordance with law.
----------
(2025) 10 ILRA 599
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.10.2025

BEFORE

THE HON'BLE SANDEEP JAIN, J.

First Appeal From Order No. 4129 of 2011

The New India Insurance Co. Ltd.
...Appellant
Versus
Smt. Vidya Devi Alias Masnahi & Ors.
...Respondents