JUDGMENT N.K. Mehrotra, J.
1. This is a petition for issuing a writ in the nature of certiorari to quash the orders dated 29.5.2004 and 27.2.2004, passed by the opposite party Nos. 1 and 2 contained in Annexures-1 and 2 respectively to the writ petition and for issuing a writ in the nature of mandamus commanding the opposite party No. 3 not to interfere in peaceful possession of the petitioners over the suit property so far as it relates to Gata No. 324, Area 2.415 Hectare situate in village Kuerha Keshavpur, Thesil Sadar, District Faizabad and also not to change the nature of the suit property until disposal of the Regular Suit No. 672 of 2003 pending before the Civil Judge (Junior Division), Faizabad.
2. I have heard Shri Prashant Chandra, the learned counsel for the petitioner and Shri D.C. Mukherjee, Advocate for the opposite party No. 3 the caveator.
3. In short the facts of the case are that the petitioners claim themselves to be owners in possession of the disputed land. They had agreed to sell the disputed land by executing an agreement to sell. In the agreement the sale consideration was shown as Rs. 17 lacs. While according to the petitioners the agreed sale consideration was Rs. 24 lacs. According to the petitioners, they were paid Rs. 7 lacs through different cheques at the time of execution of the agreement to sell and the amount of Rs. 17 lacs was shown as sale consideration in order to save the stamp duty. The execution of the agreement is admitted. According to the opposite party No. 3, the total sale consideration was Rs. 17 lacs as mentioned in the agreement out which Rs. 8 lacs was given as an advance. The agreement is a registered document. Since there is a dispute about the sale consideration, the petitioners filed a suit for permanent prohibitory injunction from taking possession and raising constructions and from cutting trees standing over the land, which is the subject matter of the agreement against the opposite party No. 3. During the pendency of the suit, the petitioners moved an application for ad-interim injunction under Order XXXIX, Rules 1 and 2, C.P.C., which was dismissed, vide order dated 27.2.2004. The petitioners preferred a Misc. Appeal No. 34 of 2004 which was dismissed by the IInd Additional District Judge, Faizabad vide judgment and order dated 29.5.2004 (Annexure-1).
4. The two courts below refused the injunction that there is no balance of convenience in favour of the petitioners and in view of the admitted facts about the execution of the agreement only the sale consideration is disputed and even if the suit is decreed, the petitioners will get only remaining amount of sale consideration if, it is proved that the sale consideration was of Rs. 24 lacs. It was also held that there is no irreparable loss to the petitioners if, the injunction is not granted to them. Both the Courts accepted that since the petitioners are admittedly owners and title still vests in the petitioners and there is a prima facie case in favour of the petitioners but since the possession was delivered to the opposite party No. 3 at the time of execution of the agreement, no injunction can be granted under Order XXXIX, Rules 1 and 2, C.P.C.
5. The learned counsel for the petitioners have vehemently argued that admittedly since there is prima facie case in favour of the petitioners for getting an ad-interim injunction during the pendency of the suit, the opposite party No. 3 should be restrained from changing the nature of the suit property, from cutting the trees standing over the suit property and also from raising construction over the property in dispute.
6. In support of his contention, the learned counsel for the petitioners raised objection on some observations in Gujarat Bottling Co. Ltd. and Ors. v. Coca Cola Co. and Ors., (1995) 5 SCC 545, but in view of the facts of the instant case, I do not agree with the contention raised by the learned counsel for the petitioners. I have also seen the agreement entered into between the parties the execution of which is admitted to the petitioners. I am satisfied that at the time of execution of the agreement, the possession was delivered to the opposite party No. 3. It is admitted case that the receipt of Rs. one lac was shown in the agreement and the amount of Rs. 7 lacs was paid through cheques by the opposite party No. 3 to the petitioners. Therefore, there can be no prima facie case in favour of the petitioners for ad-interim injunction restraining the opposite party No. 3 from using the property in suit in his own way even if, the whole suit of the plaintiff is decreed, the petitioners cannot get the relief of injunction but at the most, they can get the rest of the amount of sale consideration. So far as the findings with regard to balance of convenience and irreparable loss are concerned. I agree with the findings recorded by the two courts below.
7. I may refer the provisions under Section 53A of the Transfer of Property Act under which the opposite party No. 3 can defend his possession, which he has got on the basis of the agreement to sell and on payment of Rs. 8 lacs as a part of consideration. The learned counsel for the opposite parties has referred the cases Anuruddha Vir Singh v. Singh Estate Pvt. Ltd. and Ors., 1993 ACJ 274 and Shrimant Shamrao Suryavanshi and Anr. v. Pralhad Bhairoba Suryavanshi, 2002 (2) AWC 918 (SC) : (2002) 3 SCC 676. There can be no dispute about the legal proposition laid down in these two cases referred to by the opposite parties.
8. In Surya Dev Rai v. Ram Chander Rai and Ors., JT 2003 (6) SC 465, it has been held by the Supreme Court that under Article 226 of Constitution of India a writ of certiorari is issued for correcting gross errors of jurisdiction, i.e., when a subordinate court is found to have acted (i) without jurisdiction of (ii) in excess of its jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.
9. In the instant case, I do not find any gross errors of jurisdiction or violation of principles of natural justice or law in passing the impugned orders.
10. In view of the above, the writ petition is dismissed.