IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No.524 of 2019 Decided on: 18.11.2025 Sanjay deceased through his LRs ...Appellants. Versus Arvind Kumar & others ...Respondents Coram Hon’ble Mr. Justice Satyen Vaidya, Judge Whether approved for reporting? For the appellants: Mr. Vipin Pandit, Advocate. For the respondents: Mr. Devyani Sharma, Senior Advocate with Ms. Srishti Negi, Advocate, for respondents No.1 and 2. Mr. P.S. Goverdhan, Senior Advocate with Mr. Rakesh Thakur, Advocate, for respondents No.3 and 4. Satyen Vaidya, Judge(oral) This is plaintiff’s appeal under Order 43 Rule 1(r) of the Code of Civil Procedure against the order dated 05.11.2019, passed by learned Additional District Judge-I, Solan, District Solan, H.P. in Civil Misc. Application No.63-S/6 of 2019. 2. The appellant/plaintiff has filed the above noted suit against the respondent/defendants, which is pending adjudication before learned Additional District Judge-I, Solan. The suit has been filed by the appellant/plaintiff for a decree, directing respondents/defendants No.1 and 2 to transfer the title of their 1/5th 2 share in the property comprised in Khata No.199, Khatauni No.239, Khasra No.366, measuring 91 Sq. Meters in Mauza Jawahar Park, Tehsil and District Solan (for short, “the suit property”) in favour of the appellant/plaintiff and to handover its possession in pursuance to oral agreement dated 06.03.2018 entered into between the appellant/plaintiff and defendants/respondents No.1 and 2 in the months of October/November 2017. 3. The appellant/plaintiff has also shown grievance against the agreement to sell executed between defendants No.1 and 2 with defendants No.3 and 4 with respect to 1/5th share of defendants No.1 and 2 in the suit land. As a consequential relief, a decree for permanent prohibitory injunction was also prayed. 4. It was averred in the plaint that the plaintiff, defendants No.1 and 2 along with others were co-owners of the suit land. Defendants No.1 and 2 had agreed to sell their 1/5th share in the suit land in favour of the plaintiff in the months of October/November 2017 for a total sale consideration of Rs.21,00,000/-. The plaintiff claimed to have paid a total sum of Rs.6,15,000/-to defendants No.1 and 2 as advance towards sale consideration at different times. Out of the aforesaid amount of Rs.6,15,000/-, a sum of Rs.1,00,000/- was stated to have been paid through bank transaction and the remaining amount in cash. As per plaintiff, the sale deed was to be executed on or before 15th July, 2019. 3 5. Defendants No.1 and 2 entered into defence by filing written statement. They have categorically denied the existence of oral agreement between the plaintiff and them, as alleged in the plaint. As per defendants No.1 and 2 they had never agreed to sell their share in the suit land in favour of plaintiff. The said defendants have also denied the receipt of sum of Rs.6,15,000/- as advance. As regards a sum of Rs.1,00,000/- paid by the plaintiff through bank transaction, it has been explained that the plaintiff owed such amount to defendants No.1 and 2 and in discharge of such liability, the bank transaction had been made. 6. Along with the suit, the plaintiff filed one application under Order 39 Rules 1 and 2 of the Code of Civil Procedure seeking interim relief in the following terms: “It is, therefore, prayed that the respondent No. 1 and 2 may be restrained from effecting transfer of their rights, title and interest in favour of respondent No. 3 and 4 or any other person or party and further all the respondents may be restrained from doing any such act which may in any manner whatsoever may cause any type of loss, injury or prejudice to the rights, title and interest of the applicant in and over the suit property which is ancestral property, during the pendency of suit, the applicant shall pray forever.” 4 7. The aforesaid application was also resisted and contested by the defendants. 8. Learned trial Court has dismissed the aforesaid application of the plaintiff vide impugned order and hence, this appeal. 9. Learned trial Court had formed an opinion that the plaintiff had failed to prove existence of prima facie case in his favour. According to learned trial Court, the plaintiff had not been able to prima facie disclose the settled and ascertained terms of oral agreement of sale allegedly executed between him and defendants No.1 and 2. It had also been observed that the plaintiff had not been able to prima facie establish the payment of part of sale transaction to defendants No.1 and 2. Learned trial Court has also observed that merely because the suit property was joint inter se the parties, it was not sufficient to hold existence of irreparable loss and injury in favour of the plaintiff. 10. It is more than settled that in order to succeed in application under Order 39 Rules 1 and 2 of Code of Civil Procedure as filed by the plaintiff, he was obligated to establish existence of prima facie case in his favour. As per plaintiff, he had intimate and close relations with defendants No.1 and 2 and for such reasons the understanding was arrived at orally. The stand taken by the defendants in their written statement has prima facie exposed the alleged good faith and trust existing between the parties. Even 5 otherwise, the plea raised by the plaintiff is not beyond suspicion for the reason that had the parties been maintaining close and intimate relations as alleged by the plaintiff, the time for execution of sale deed would not have been extended for an unreasonable period of two years. Further, there is no explanation from the plaintiff that how and under what circumstances, the alleged close and intimate relations came to an end inter se the parties. 11. In order to establish prima facie case, the plaintiff had to place on record material to convince the conscience of the Court. Keeping in view the fact that except for bald assertions, the plaintiff had not placed on record any tangible material, opinion formed by learned trial Court cannot be faulted. As regards the payment of Rs.1,00,000/-, being a disputed fact, could not be taken as a sole criteria by learned trial Court to prima facie believe the case of the plaintiff more particularly when the said amount of Rs.1,00,000/- was only a small part of the entire agreed sale consideration of Rs.21,00,000/-. 12. At the time of hearing, learned counsel for the appellant/plaintiff has contended that injunction as prayed should not have been refused as the suit property admittedly was joint and defendants No.1 and 2 could not have agreed to sell any specific portion of the suit property and also to put in possession the proposed purchasers of such specific portion. 6 13. The argument so raised deserves rejection for the reason that the plaintiff has not pleaded his cause of action for filing suit on the basis of his rights in the joint property. The cause of action for filing the suit has been pleaded on the basis of oral agreement of sale as already noticed above. Perusal of the agreement of sale dated 06.03.2018 executed between defendants No.1 and 2 and defendants No.3 and 4 clearly reveal that the subject matter of sale was shop No.1 in Ganj Bazar Solan on the premise that defendants No.1 and 2 were in possession of said shop. Strangely, the plaint is completely silent on aforesaid contents of agreement and only challenge to the agreement is on the premise that defendants No.1 and 2 had earlier agreed to sell their share in suit property to the plaintiff vide oral agreement, in October/November 2017. In this view of the matter, the plaintiff/applicant cannot be allowed to build a new case at this stage. 14. In result, I do not find any merit in the appeal and the same is dismissed along with pending application(s), if any. 15. Record be sent back forthwith. ( Satyen Vaidya ) Judge November 18, 2025 (vt)