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2001 DIGILAW 1253 (RAJ)

Gyan Singh v. Ranjeet Singh

2001-08-13

H.R.PANWAR

body2001
JUDGMENT 1. This appeal is directed against the order dated 3.4.1992 passed by learned Additional District Judge Raisingh Nagar arising from an application under Order 39 Rule 1 and 2 read with Section 151 C.P.C. By this order, the learned trial court allowed the said application filed by the respondent-plaintiff and directed that during the pendency of the main suit both the parties are restrained by injunction to transfer or alienate the land in dispute. It was further directed that the appellant-defendant shall not alter the possession of the plaintiff-respondent and shall not encroach upon the land in dispute. It was further directed that the appellant-defendant shall not interfere in plaintiff's use and occupation of the land in dispute. 2. Briefly stated facts which are necessary to dispose of this appeal are that the respondent-plaintiff (hereinafter referred to as the plaintiff') filed a suit for specific performance of the contract (agreement) dated 6.9.1989 in respect of the disputed land situated in Murba No. 218/430 measuring 15 bighas and 19 biswas command land and 2 bighas and 5 biswas uncommand land total 18 bighas and 4 biswas in chak No. 2 DJM tehsil Sri Vijaynagar. It was averred that the appellant defendant (hereinafter referred to as the defendant') agreed to sell the aforesaid land for consideration of Rs. 55,000/-. It was averred that the originally the defendant agreed to sell the aforesaid land for a sum of Rs. 55,000/- on 2.5.1986. He received Rs. 20,000/- in advance and executed the agreement which was authenticated by the Tehsildar Sir Vijaynagar. It was also averred that on 2.5.1986 physical possession of the land in dispute was handed over to the plaintiff. Plaintiff further paid Rs. 10,000/- to the defendant and a fresh agreement was entered into on 6.9.1989 whereby the defendant agreed to sell the aforesaid land for consideration of Rs. 55,000/- and he acknowledged receipt of Rs. 30,000/- in advance as against the said price of Rs. 55,000/- and further the defendant agreed to receive Rs. 20,000/- at the time of execution and registration of the sale deed before the concerned Sub-Registrar. The possession of the land from the date on which initial agreement was executed continued to remain with the plaintiff. 30,000/- in advance as against the said price of Rs. 55,000/- and further the defendant agreed to receive Rs. 20,000/- at the time of execution and registration of the sale deed before the concerned Sub-Registrar. The possession of the land from the date on which initial agreement was executed continued to remain with the plaintiff. The defendant agreed that on acquiring khatedari rights and on permission to sell being given, he will intimate the plaintiff for registration of title of land in favour of him by a registered post and on receipt of such information the plaintiff would obtain the certificate of bonafide resident so as to sale can be registered in his favour. It was also agreed that on receipt of intimation by registered post, the plaintiff will deposit the amount for drainage (Khala). The plaintiff was ready and willing to do all acts which he was required to do as per the contract and was willing to pay the balance amount of the sale consideration as also he was prepared to bear the expenses for registration of the sale deed. It was also averred that when the plaintiff came to know that defendant has acquired the Sanad (Khatedari rights) and has not intimated this fact by registered post to the plaintiff and also that defendant filed a suit under Section 183 of the Rajasthan Tenancy Act, 1955, against the plaintiff which amounted to refuse to execute the sale and under these circumstances, the suit for specific performance was filed. Along with the suit an application under Order 39 Rule 1 and 2 read with Section 151 C.P.C. was also filed by the plaintiff whereby a temporary injunction was prayed. The defendant appellant filed the reply to the aforesaid application wherein the execution of agreement was denied. However, in the additional pleas raised by the defendant, it was averred that in consideration of some previous transaction the land in dispute was given on Theka to the plaintiff for a period of 2 years and on demanding the possession of the land the plaintiff avoided to release the possession of the land in dispute. It was also averred that the said agreement to sale is without consideration and has been executed by the deceitful means and as such it is void. It was also averred that the said agreement to sale is without consideration and has been executed by the deceitful means and as such it is void. Even if it is assumed that the said agreement was executed then also the plaintiff has not carried out the responsibilities which were on his part after having received the information regarding grant of khatedari rights and as such the plaintiff himself has not complied with the condition of the agreement. It was also averred that the plaintiff has not deposited the emotion for the drainage (cost of khala) nor he obtained the certificate of bonafide resident and, therefore, under the circumstances the agreement automatically gets cancelled and the possession of the plaintiff becomes unauthorised. The learned trial court on the basis of material placed before it found prima facie case in favour of the plaintiff. The learned trial court also found the balance of convenience in favour of the plaintiff as also came to the conclusion that in case the temporary injunction is not granted the plaintiff would suffer irreparable injury, accordingly, the trial court allowed the application filed by the plaintiff. Aggrieved by the order impugned, the appellant defendant preferred this appeal. 3. I have heard learned counsel for the parties and perused the record. 4. It was contended by the learned counsel for the appellant-defendant that the suit is based on unregistered agreement to sale dated 6.9.1989, execution of which has been denied by the defendant. Although, the possession of the plaintiff has not been disputed but according to the learned counsel for the defendant, the possession of the plaintiff is that of trespasser for which the defendant has already filed a suit for possession under Section 183 of Rajasthan Tenancy Act, 1955 which is pending before Revenue Board. Although, the possession of the plaintiff has not been disputed but according to the learned counsel for the defendant, the possession of the plaintiff is that of trespasser for which the defendant has already filed a suit for possession under Section 183 of Rajasthan Tenancy Act, 1955 which is pending before Revenue Board. During the pendency of the suit pending before the Revenue Board an application under Section 212 of the Rajasthan Tenancy Act for appointment of receiver was moved, which was allowed by the learned SDM before whom the revenue suit is pending, against which the plaintiff filed an appeal before the Revenue Appellate Authority Sri Ganganagar who vacated the order of appointment of receiver and against the order of Revenue Appellate Authority Sri Ganganagar a revision petition was filed before Revenue Board at Ajmer by Gyan Singh the appellant-defendant which came to be decided on 29th Jan., 1992 against the order of Board of Revenue dated 29.1.1992, a review petition was fled by the plaintiff which was allowed by the Board of Revenue and the Board of Revenue corrected its earlier order dated 29.1.1992 and set aside the portion of the judgment with regards to the deposit cash security of Rs. 500/- per bigha annually. The Board of Revenue by its earlier order dated 29th Jan., 1992 set aside and quashed the order of appointment of receiver thus, by the order of Board of Revenue dated 29.1.1992 and 26th Aug., 1994 the ad interim order passed in favour of the defendant stand quashed. It is contended by the learned counsel for the plaintiff that the plaintiff is in possession of the land in dispute under a valid agreement to sale right from 2nd of May, 1986 till date and he is ready and willing to perform his part of contract. It is the defendant who somehow wants to avoid the performance of the contract which was executed by him. He further contended that it is settled law that when the plaintiff was put in possession of the land lawfully then his possession is legally required to be protected during the pendency of the suit for specific performance of contract. The learned counsel for the appellant relied upon the judgment of this Court in Smt. Devi v. Banwari 1998(1) WLC 633 (Rajasthan) . The learned counsel for the appellant relied upon the judgment of this Court in Smt. Devi v. Banwari 1998(1) WLC 633 (Rajasthan) . In that case a suit for specific performance of contract was filed by the plaintiff therein and along with the said suit an application for temporary injunction was filed. However, in that case the land in dispute was not belonging to defendant alone, but Its title and ownership vested in some other persons and, therefore, the defendant therein alone was not competent to enter into agreement to sale. The document agreement to sale in that case was of dated 31.12.1992 in which recital regarding transfer of possession was mentioned and the so-called agreement to sale was unregistered document. By the amendment in the Registration Act which came into force w.e.f. 18.9.1989 by which the delivery of possession by an agreement was required compulsory registration under Section 17(F) of the Indian Registration Act (Rajasthan Amendment 18 of 1989) since in that case the agreement to sale was executed much after coming into force of amendment Act in 1989 and, therefore, this was one of the strong ground for not relying on the document of agreement to sale. In the instant case the document agreement to sale dated 6.9.1985 and, therefore, it was not compulsorily registrable document. In the instant case, the defendant, appellant is a sole owner of the land in dispute and, therefore, he was competent to enter into agreement. From the record, it appears that in this case defendant did not file application under Section 10 of the C.P.C. before the trial court for staying the subsequent suit filed by the plaintiff as envisaged under Section 10 of the Code of Civil Procedure . Not only that the defendant has not filed the copy of the plaint which he filed before the Revenue Court and thus, it cannot be said that the matter in issue pending before Revenue Board is also directly and substantially in a issue in suit filed before the Civil Court. Indisputedly, the defendant who is said to have been filed the suit before the Revenue Court could not succeed for getting interim order in his favour upto Board of Revenue which is evident from the last order by the Board of Revenue dated 29th Jan, 1992 and the order dated 26th Aug., 1994. 5. Indisputedly, the defendant who is said to have been filed the suit before the Revenue Court could not succeed for getting interim order in his favour upto Board of Revenue which is evident from the last order by the Board of Revenue dated 29th Jan, 1992 and the order dated 26th Aug., 1994. 5. In the State of Punjab v. M/s. Gangubal Bablya Choudhary and others v. Sita Ram Balchandra Sukhtankar and others etc., reported in AIR 1983 SC 742 the Hon'ble Supreme court held as under : "When an interim injunction is sought, the Court may have to examine whether the party seeking assistance of the Court was at any time in lawful possession of the property and if it is so established one would prima facie ask the other side contesting the suit to show how the plaintiffs were dispossessed?" 6. In the instant case Indisputedly the plaintiff came into lawful possession by the agreement dated 3.5.1986 which was subsequently executed denovo on 6.9.1989 said to have been with valid consideration and under these circumstances, the long possession of the plaintiff further goes to show that the plaintiff's possession was initially lawful, and therefore also the possession of plaintiff is otherwise required to be protected during the pendency of suit. 7. In this view of the matter, I find no error and illegality in the order passed in the trial Court. 8. Consequently, this appeal fails and it is hereby dismissed. No order as to costs.Appeal dismissed. *******