Puro Devi vs Dharma Ram (2026:Rj-Jd:12395) on 16 March, 2026

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    Rajasthan High Court – Jodhpur

    Puro Devi vs Dharma Ram (2026:Rj-Jd:12395) on 16 March, 2026

    [2026:RJ-JD:12395]
    
          HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                           JODHPUR
                         S.B. Civil Misc. Appeal No. 749/2026
    
    1.       Puro Devi W/o Thakra Ram, Aged About 38 Years, Ram
             Nagar, Barmer City, Tehsil And District Barmer, Rajasthan
    2.       Thakra Ram S/o Khartha Ram, Aged About 40 Years, Ram
             Nagar, Barmer City, Tehsil And District Barmer, Rajasthan
                                                                           ----Appellants
                                            Versus
    Dharma Ram S/o Hajri Ram, Chavaa, Tehsil Barmer Rural,
    District Barmer, Rajasthan
                                                                          ----Respondent
    
    
    For Appellant(s)              :     Mr. Sanjay Nahar
    For Respondent(s)             :     Mr. R.K. Thanvi, Sr. Advocate assisted
                                        by    Mr.    Narendra     Thanvi     &
                                        Mr. Mahendra Thanvi
    
    
    
              HON'BLE MR. JUSTICE MUKESH RAJPUROHIT

    Judgment

    16/03/2026

    SPONSORED

    1. The present civil misc. appeal has been preferred by the

    appellants-defendants aggrieved by the Judgment dated

    12.12.2025 passed by the District Judge, Barmer in Civil Appeal

    Decree No. 03/2025 (C.I.S. No. 11/2025) titled “Dharma Ram vs.

    Puro Devi & Anr.” whereby first appeal preferred by the

    respondent-plaintiff has been allowed and the order dated

    18.08.2025 passed by the Additional Civil Judge No. 2, Barmer in

    Civil Original Suit No. 59/2025 (C.I.S. No. Civil Suit/59/2025)

    titled “Puro Devi & Anr. vs. Dharma Ram”, whereby the application

    under Order VII Rule 11 of C.P.C. read with Section 41(h) of the

    Specific Relief Act was allowed, has been set aside.

    2. Heard learned counsel for the parties.

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    3. Learned counsel for the appellants submits that the appellate

    court below has failed to appreciate the settled position of law that

    agreement to sale dated 28.05.2025, on the basis of which the

    plaintiff has claimed possession, is an unregistered document,

    though, it is compulsorily registrable under Section 17(f) & (g) of

    the Registration Act, 1908 as amended by the Rajasthan

    Amendment Act, 1989, where possession of the immovable

    property is alleged to have been transferred. It is contended that

    such an unregistered agreement to sale is inadmissible in

    evidence and cannot be relied upon to claim protection of

    possession by way of injunction.

    4. According to learned counsel for the appellants, the proper

    remedy available to the plaintiff was to institute a suit for specific

    performance of the agreement, and not a suit for injunction

    simpliciter. Learned counsel drawing attention of this Court to

    Section 41(h) of the Specific Relief Act, 1963, contended that an

    injunction cannot be granted when an equally efficacious remedy

    is available to the plaintiff.

    5. It is further contended that the trial court had rightly allowed

    the application under Order VII Rule 11 of C.P.C. read with Section

    41(h) of the Specific Relief Act and rejected the plaint. However,

    the first appellate court has erred in setting aside the said order.

    6. In support of his submissions, learned counsel for the

    appellants has relied upon the following decisions:

           (i)    Balram Singh vs. Kelo Devi, 2022 INSC
                  1011;
    
    
    
    
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           (ii)    Vasava Lilaben D/o Kesurbhai & Anr. vs.
                   Bharatkumar            Baldevbhai             Desai,       R/Civil
                   Revision Application No. 68/2019 decided
                   on 03.07.2025;
    
           (iii) Priyanka Vivek Batra vs. Neeru Malik &
                   Ors., 2008 SCC OnLine Del 917
    
    
    7.    Per     contra,   learned       counsel          for   the    respondent      while
    
    

    supporting impugned judgment, submits that while considering an

    application under Order VII Rule 11 of C.P.C., the Court is required

    to examine only the averments contained in the plaint. It is

    argued that the bar contained under Section 41(h) of the Specific

    Relief Act relates to the grant of relief and does not render the

    institution of the suit itself non-maintainable at the threshold. It is

    submitted that whether the plaintiff is ultimately entitled to

    injunction or not, is a matter to be adjudicated upon after trial.

    8. In support of his submissions, learned counsel for the

    respondent has relied upon the following decisions:

    (i) Satwant Singh (deceased) through LR’s vs.
    Ranjit Singh & Ors.
    , 2023(4) Civil Court
    Cases 473 (P&H);

    (ii) Raj Kumar & Anr. vs. Alok Nanda, 2025(4)
    Civil Court Cases 705 (Uttarakhand);

    (iii) G. Nagaraj & Anr. vs. B.P. Mruthunjayanna
    & Ors.
    , 2023(2) Civil Court Cases 551 (SC);

    (iv) Vinod Infra Developers Ltd. vs. Mahaveer
    Lunia & Ors., 2025(3) DNJ (SC) 893;

           (v)     Jai    Hind     Buildcon            &    Anr.       vs.   Heeralal
                   Sharma & Ors., 2022(2) CJ (Civ.) (Raj.)
                   721;
    
    
    
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    (vi) Gurdev Singh vs. Harvinder Singh, 2022(4)
    Civil Court Cases 800 (SC);

    (vii) Manoj Shah & Ors. vs. Suresh Kumar &
    Anr., 2023(4) CJ (Civ.) (Raj.) 2143.

    9. I have considered the submissions advanced by learned

    counsel for the parties and perused the material available on

    record.

    10. It is well settled that while deciding an application under

    Order VII Rule 11 of C.P.C., the Court is required to examine only

    the averments made in the plaint and the documents relied upon

    by the plaintiff. The defence raised by the defendants cannot be

    taken into consideration at that stage. If on a meaningful reading

    of the plaint, the suit appears to be maintainable, the plaint

    cannot be rejected at the threshold.

    11. In the present case, the respondent-plaintiff has pleaded

    possession over the suit property and has sought protection of

    such possession by way of permanent and mandatory injunction.

    Whether the agreement to sell dated 28.05.2025 is compulsorily

    registrable, whether it is admissible in evidence and whether the

    plaintiff can ultimately claim protection of possession on the basis

    of such document, are questions which require adjudication after

    the parties lead evidence.

    12. The contention of the appellants that the suit is liable to be

    rejected under Order VII Rule 11 CPC on the ground that an

    equally efficacious remedy is available under Section 41(h) of the

    Specific Relief Act, is not sustainable at this stage, as the said

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    issue can appropriately be considered only at the time of final

    adjudication after completion of pleadings and evidence.

    13. In Satwant Singh (deceased) through LR‘s (supra), the

    Punjab & Haryana High Court observed as under :-

    “5. It is trite that while deciding an application under Order VII
    Rule 11 CPC
    only the averments of the plaint are to be seen. The
    plaintiff-respondents have filed a suit for permanent injunction
    specifically averring therein that they are in possession and have
    sought an injunction restraining the defendant-petitioners from
    dispossessing them from the suit property. It is further averred that
    the development plan had been got approved and sanctioned qua
    the land measuring 06 acres 07 kanals 03 marlas as per possession
    taken, however, the area has fallen short by more than 01 acre,
    which materially affected the development of the colony and the
    entire project has been adversely affected. The argument of counsel
    for the defendant-petitioners that the defendant-petitioners are in
    possession and not the plaintiff-respondents, cannot be gone into at
    this stage since there is a categoric averment in the plaint that the
    plaintiff-respondents are in possession of the suit property. Further,
    the argument that an alternate equally efficacious remedy is
    available to the plaintiff-respondents also cannot be gone into at the
    stage of deciding the application under Order VII Rule 11 CPC and
    would be a matter of evidence. The third argument regarding the
    reliance on an unregistered agreement to sell in the suit also cannot
    be a ground for rejection of the plaint under Order VII Rule 11
    CPC
    . Learned counsel for the petitioners has been unable to
    convince this Court that there is any ground made out under Order
    VII Rule 11 CPC
    for rejection of the plaint. No other argument has
    been raised by the counsel for the defendant-petitioners.”

    In Manoj Shah (supra), a coordinate Bench of this Court

    has held as under :-

    “4. In the specific opinion of this Court, so far as the issue of
    constructive res judicata is concerned, even otherwise, in view of
    latest judgment of Hon’ble Apex Court in Keshav Sood vs. Kirti
    Pradeep Sood & Ors., Civil Appeal No.
    5841/2023 (decided on
    12.09.2023), the issue of res judicata is beyond the purview of
    Order VII Rule 11, CPC and the same cannot be decided on an
    application under Order VII Rule 11, CPC. Hence, the finding of the
    Court below to that extent does not deserve any interference.
    So far as the second ground of the suit being barred in terms of
    Section 41(h) of the Act is concerned, the finding as given by the
    Court below is totally in consonance with law as the said provision

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    does not bar maintainability of the suit. Section 41 of the Act of
    1963 spells out the conditions when an injunction has to be refused.
    Whether any decree for injunction can be granted in favour of the
    plaintiff; whether the relief as prayed for by the plaintiff falls within
    the purview of Section 41(h) of the Act of 1963; etc. are the
    questions which can be decided only after adjudication. By all
    means, it cannot be a ground for rejection of the plaint under Order
    VII Rule 11, CPC.”

    In Jai Hind Buildcon (supra), a coordinate Bench of this

    Court at Jaipur Bench has held that objection with regard to bar of

    granting the relief of injunction under Section 41(h) of the Specific

    Relief Act cannot be examined at the stage of deciding the

    application under Order VII Rule 11 of C.P.C.

    14. So far as judgments relied upon by the learned counsel for

    the appellants in Balram Singh (supra), Vasava Lilaben (supra) vs.

    Bharatkumar Baldevbhai Desai and Priyanka Vivek Batra (supra)

    are concerned, same were rendered in the context of final

    adjudication of rights of the parties, where the courts were

    examining the entitlement of the plaintiff to the relief of injunction

    on the basis of an unregistered agreement to sell. Those decisions

    do not lay down that a plaint seeking injunction on the basis of

    such averments must necessarily be rejected at the threshold

    under Order VII Rule 11 of C.P.C. without permitting the parties to

    lead evidence. Hence, the said judgments are distinguishable on

    facts and on the stage at which the issue was considered.

    15. In the considered opinion of this Court, the first appellate

    court below has, therefore, rightly held that the rejection of the

    plaint by the trial court at the threshold was not justified and that

    the issues raised by the defendants can appropriately be

    examined during the course of trial.

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    16. This Court finds no illegality or perversity in the judgment

    dated 12.12.2025 passed by the District Judge, Barmer setting

    aside the order of the trial court and directing restoration of the

    suit for decision in accordance with law.

    17. In view of the above, present appeal fails and is dismissed.

    The judgment dated 12.12.2025 passed by the appellate court

    below is affirmed.

    18. Stay petition as well as all pending application(s), if any,

    shall also stand disposed of accordingly.

    (MUKESH RAJPUROHIT),J

    23-/Inder//-

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