JUDGMENT H.C. Goel, J.
(1) Smt. Kalawati, plaintiff/appellant, filed a suit against the defendants for a decree of possession by pre-emption of the house No. 4263, Gali Punjabiyan, Ansari Road, Darya Ganj, Delhi. The allegations of the plaintiff in the plaint are that she is the owner of property bearing No, 4264 (new), Gali Punjabiyan, Ansari Road, Darya Ganj, Delhi. Siri Chand, defendant No. 1, was the owner of property No. 4264 in question which is contiguous to the plaintiff's property No. 4263. Defendant No. I sold out his property bearing No. 4263,, for a sum of Rs. 70,000.00 , means of a registered sale deed executed on 31st July 1984 in favor of Ved Parkash Katyal, defendant No. 2. The further allegations of the plaintiff are that the provisions of the Punjab Pre-emption Act, 1913 (for short, the 'Act') are applicable to the property. No. 4263 in question and, besides, that the custom of pre-emption also prevails in the walled city of Delhi, wherein the property in question is situated. The plaintiff in para 11 of the plaint has stated that she claims pre-emption under Section 19 of the Act on the ground that the property No. 4263, Gali Punjabiyan, Ansari Road, Darya Ganj, Delhi, i.e. the property sold out by defendant No. I to defendant No. 2, is the dominant tenement, and the property owned by the plaintiff, namely, property No. 4624 (new) is the servient tenement and vice versa. The further averments in this para of the plaint are that there is a passage.of 18 feet wide running in front of both the properties, Nos. 4263 and 4264, on their western side and the drainage and rain water also passes in the common manhole in front of the plaintiff's house.
(2) Along with the suit, the plaintiff filed an application under Order 39 Rules 1and 2 and Section 151 of the Civil Procedure Code against the defendants for a temporary injunction against the defendants restraining them from selling, mortgaging, parting with possession or making any additions or alterations to the property in question during the pendency of the suit. The suit as also this application are contested by both, defendants Nos.1 and 2. Shri H.L. Malhotra, Additional District Judge, after hearing the parties' counsel, dismissed the application of the plaintiff by his impugned order dated 13th May 1986. It is against this order that the plaintiff/appellant has preferred this appeal.
(3) The appeal has been opposed by the defendants/respondents. I have heard arguments of Shri J.K. Jain, learned counsel for the appellant, and Shri D.R.Thadani and Shri J.C.Gupta, learned counsel for defendants Nos. 2 and I respectively. The learned Additional District Judge, in his impugned order, has observed that the present suit, being one for possession by pre-emption, the question of right to immovable property is directly and specifically in question in the suit, and, as such, the provisions of Sec- lion 52 of the Transfer of Property Act bar any transfer of the property in question during the pendency of the suit. That being so, any transferee of the property, by virtue of the transfer pendente lite, shall be bound by the decree of possession that may be passed in, favor of the plaintiff in the suit, and that, therefore, there was no deed for passing an order for temporary injunction in favor of the plaintiff against the defendants in that behalf, as Section 52 of the said Act provided enough safeguard to the rights of the plaintiff. It was also observed by the learned Additional District Judge that the plaintiff has not shown anything if any steps were being taken by defendant No. 2 for transferring the property in question to anyone. According to the Trial Court, the plaintiff/applicant was also unable to show as to how she would suffer an irreparable Joss in the event of the'temporary injunction asked for not being granted in her favor. On this basis, the application for grant of the temporary injunction was dismissed.
(4) Mr. Jain, learned counsel for the appellant, stated that even though Section 52 of the Transfer of Property Act may hit the transfer of the property in question that may be effected by defendant No. 2 during the pendency of the suit, that by itself was no bar to the grant of a temporary injunction in favor of the plaintiff restraining the defendants or defendant No. 2 from transferring the property in any manner. It was submitted that the grant of temporary injunction, as prayed for by the appellant, would avoid multiplicity of suits. Mr. Thadani, learned counsel for respondent No. 2, controverting the said submissions of Mr. Jain, submitted that the plaintiff had no prima facie case worth the trial and that even though the learned Trial Court did not go into that aspect of the matter, he would like to defend the ultimate conclusion of the Trial Court on that premise as well. The defendants/respondents, who had no right of appeal against the impugned order, can certainly defend the impugned order, on the ground that the application of the plaintiff was liable to be dismissed, amongst others, on the ground that the plaintiff had no prima facie case worth the trial. I also find merrily in this submission of Mr. Thandani. As mentioned by me already above, the first ground for pre-empting the property in question, as stated in para 11 of the plaint, is that the property in question -which was sold out by defendant No.1 to defendant No. 2 is the dominant property and the property of the plaintiff is the servient property to the property and vice versa. This, on the face of it, is a meaningless averment as two properties cannot be dominant as also servient of each other. Mr. Jain submitted that there was a mis-statement in para 11 of the plaint in this regard, and that the case of the plaintiff is that the property in question had been sold out by defendant No. 1 to defendant No. 2 and is servient property to his (plaintiff's) property. It does not appear as to how the said averment, which is a clear averment, can be considered to have been wrongly incorporated in the plaint which is the very basis of the case of the plaintiff. Secondly, Mr. Jain was unable to say anything as to how and on what basis the plaintiff says that his property is the dominant property and the property in question is servient thereto. No such ground is clearly available to the plaintiff in the case. Mr. Jain has submitted that the further averments in this very para, i.e. Para 11 of the plaint, incorporate the other ground for seeking pre-emption of the property, which is the fourth ground of Section 16 of the Act. He submitted that the case of the plaintiff is that there is a common entrance to both the properties, namely, the property as sold out by defendant No. I to defendant No. 2, and the property of the plaintiff, from the street. I am unable to see as to how the concerned averments in para 11 of the plaint can be reads meaning or amounting to that. The clear averment of the plaintiff in para 11 of the plaint is that both these properties only have a common passage on the western side of the properties and it has further been highlighted by staling that there is also a common drainage and rain water of both the properties passes in the same manhole lying in front of the plaintiff's house. Thus, the averments of the plaintiff arc to the effect that there are certain common amenities available to both the properties, and the plaintiff's case is not that the entrance to both the properties from the street is one and the same, i.e. there is a common entrance to both the properties from the street. It is obvious that the plaintiff has not stated any ground falling under Section 16 of the Act. She, therefore, cannot be said to be having any prima facie case worth the trial. That being so, the plaintiff was not entitled to the relief of temporary injunction as prayed for by her in the application, and the impugned order dated 13th May 1986 passed by the learned Additional District Judge is liable to be maintained on this premise.
(5) In this view of the matter, I need not go in the other submission made by the two sides in the appeal. In the end, the appeal is dismissed. The parties are, however, left to bear their own costs of the appeal. I need hardly say that the observations made by me in this order are only for the purposes of disposing of the appeal arising out of the application for the grant of temporary injunction and shall not affect the rights of the parties at the trial of the suit.