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1997 DIGILAW 157 (PAT)

Arvind Kumar Bajaj v. Jeebachh Lal Sah

1997-02-25

R.N.SAHAY

body1997
Judgment R.N.Sahay, J. 1. This appeal is directed against the order dated 25.3.1996 passed by the Court below in R.S. No. 22 of 1994 refusing to grant injunction restraining the plaintiff for making any construction or changing the present physical feature of the suit land. 2. The facts of the case, in brief, are that the plaintiff-respondents filed a suit for specific performance of contract alleging therein that the appellant had negotiated to sell the suit property described in Schedule I of the plaint for a consideration of Rs. 90, 000.00 on 10.11.90 and an advance of Rs. 20, 100.00 was paid towards the total consideration of the land in suit. The plaintiffs have further claimed that the appellant in token of the said agreement issued a receipt of the amount received as an advance and also executed a Mahadhama, agreement for sate, on 9.5.1991. The plaintiffs respondents have further claimed in suit that on several occasions the defendants have received money towards the consideration of the said land for which kachha receipts were duly granted in favour of the plaintiff. The plaintiffs have also claimed that the suit land i.e. an area of 11 ft. north to south till the end of plot No. 1235 under khata No. 292 of mouja Nirmali, ward No. 8 was given in possession to the plaintiff by the appellant. 3. It is alleged that although negotiation for sale of the land was made on 10.11.90 but the said agreement for sale was executed on 9.5.1991 and the present suit was filed on 5.5.1994. The plaintiffs have admitted in the plaint that in the agreement for sale no date was fixed for the execution of the sale deed, though the plaintiffs have claimed that they paid money towards the consideration of the sale of the land several times as per demand made by the defendant from time to time and only Rs. 12.501.00 remained due to be paid towards the entire consideration money. It is further alleged that the defendant refused to execute the sale deed on 3.5.1994 for the said land. 4. The appellant in pursuance of the summon appeared and filed written statement contending therein that the defendant had never executed agreement for sale in favour of the plaintiff with regard to the suit land and the said agreement for sale is forged and fabricated. 4. The appellant in pursuance of the summon appeared and filed written statement contending therein that the defendant had never executed agreement for sale in favour of the plaintiff with regard to the suit land and the said agreement for sale is forged and fabricated. The appellant has further alleged that he has not received any sum towards the consideration of the land in question by way of advance. In the written statement, the appellant has stated that he had a talk with the plaintiff for giving on lease a shop to be constructed over a portion of land measuring 30 ft. x 11 ft. on a monthly rental. But the plaintiffs taking advantage of absence of the appellant started constructing a house over the said portion. The appellant usually resides in the town of Darbhanga and occasionally visits Nirmali to look after the property situated in the said town. 5. It is further submitted that the ownership of the property in question as well as other property of Nirmali belong to Anand Kumar Bajaj. The appellant hods general power of attorney executed the said Anand Kumar Bajaj. The ancestor of Anand Kumar Bajaj constructed the building in Nirmali Town, which is known as Manik Ram, Baidyanath Dharmshala in the year 1926 over a portion of land under plot Nos. 1232, 1233, 1234, 1235 and 1242 for the sole purpose of performing the functions and ceremony of their own family, which is known as Bajaj family. The said building was and is being used for the private ceremonial functions of the Bajaj family. The suit land is a part of the said Dharmshala. The said Dhramshala as well as the land adjoining to the Dharmshala was under the control of the said Anand Kumar Bajaj. 6. It appears that the Bihar Hindu Religious Trust Board declared the property of Dharamshala as a public trust and constituted a Committee under Sec. 32 of the Bihar Hindu Religious Trust Act to look after the affairs of the Dhramshala and its adjoining land. Anand Kumar Bajaj challenged the said order constituting the Committee in C.W.J.C. No. 8239 of 1990. The writ application is still pending in the High Court. 7. According to the plaintiff as per the agreement for sale they were allowed to construct the building over the suit land. Anand Kumar Bajaj challenged the said order constituting the Committee in C.W.J.C. No. 8239 of 1990. The writ application is still pending in the High Court. 7. According to the plaintiff as per the agreement for sale they were allowed to construct the building over the suit land. It is submitted on behalf of the appellant that there is nothing in the agreement to show that the possession was delivered to the plaintiffs. 8. Mr. S.C. Ghosh, learned senior Counsel for the plaintiff-respondents, on the other hand, contended, that possession was given to the plaintiff and started construction by way of part and parcel of the agreement. 9. Having heard the Counsel for the parties I am of the view that if the plaintiffs are allowed to make construction without adjudication of the rights of the parties this may create complication since Dharmshala property has been declared as public trust by the Bihar Hindu Religious Trust Board and that order has been stayed by this Court in C.W.J.C. No. 8239 of 1990. The plaintiff-respondents will not make further any construction over the suit land till the disposal of the suit. 10. As the suit does not appear to be of a complicated nature the Trial Court should make all efforts to dispose of the suit within three months from the date of receipt of a copy of this judgment. Parties are directed to appear before the Trial Court within two weeks from today with a copy of this judgment. There will be no order as to costs.