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2004 DIGILAW 500 (MP)

HANUMAN PRASAD GUPTA v. JAGYA BHAN GUPTA

2004-06-22

A.K.SHRIVASTAVA

body2004
A. K. SHRIVASTAVA, J. ( 1 ) BY this appeal the appellant/ plaintiff has assailed the order dated 16-10-1997 passed by the trial Court rejecting his application filed under Order 39, Rules 1 and 2 read with Section 151, CPC. ( 2 ) A suit for specific performance of contract and to declare the sale-deed dated 4-9-1997 executed by respondent No. 1 in favour of respondent No. 2 to be null and void, has been filed by the plaintiff/appellant. The plaintiff has also filed an application under order 39, Rules 1 and 2, CPC, praying therein that till the disposal of the suit the defendants may not create any hindrance in the peaceful possession of plaintiff on the suit property. ( 3 ) ACCORDING to the plaint averments and the application filed under Order 39, Rules 1 and 2, CPC, the defendant No. 1, Jagya bhan Gupta, was the owner of the suit property. Since he was in need of money as a result of which on 27-6-1996 he mortgaged the suit property in favour of plaintiffs father bhola Prasad Gupta and delivered possession to him. The possession of plaintiffs father on the suit property was of a mortgagee till 27-6-1997. The suit property was mortgaged for 45 days only, however, there was a condition in the mortgage deed that in case defendant Jagya Bhan fails to repay the loan amount with interest, the mortgagee shall retain possession of the suit property. Since defendant Jagya Bhan did not repay the loan amount along with interest within the stipulated period of forty-five days, as a result of which, plaintiffs father insisted the defendant to get the property redeemed, but, according to the defendant, he was unable to get the property redeemed without selling it. He further requested plaintiffs father to abandon the amount of interest so that he may get the property sold and would be able to pay the loan amount. The request was accepted by plaintiffs father. ( 4 ) THEREAFTER, the plaintiff became ready to purchase the suit property from defendant jagya Bhan for a consideration of Rs. 70,000/ -. A document of agreement to sell was also executed on 26-7-1997. It is said that defendant obtained entire sale price Rs. 70,000/- on 26-7-1997 and delivered possession to the plaintiff. ( 4 ) THEREAFTER, the plaintiff became ready to purchase the suit property from defendant jagya Bhan for a consideration of Rs. 70,000/ -. A document of agreement to sell was also executed on 26-7-1997. It is said that defendant obtained entire sale price Rs. 70,000/- on 26-7-1997 and delivered possession to the plaintiff. Since the "rin pustika" was lost, the sale-deed could not be executed and, therefore, a document of agreement to sell was executed on 26-7-1997. In this manner the plaintiff came into possession of the suit property. Since defendant no. 1, Jagya Bhan, in collusion with defendant No. 2, Gulsher Ahmed, alienated the suit property to him, a civil suit for specific performance of contract and for declaration that the sale-deed executed by defendant jagya Bhan in favour of defendant no. 2, Gulsher Ahmed, is null and void, has been filed and a prayer by way of temporary injunction has been sought that pending disposal of the suit, defendants be restrained from interfering in possession of the plaintiff on the suit property. ( 5 ) THE respondents opposed the averments made in the application filed under order 39, Rule 1 and 2, CPC. They specifically denied the execution of document of mortgage dated 27-6-1996 in favour of plaintiffs father, Bhola Prasad Gupta. It was also denied that the possession was delivered to him. The defendants also denied execution of document of agreement to sell by defendant no. 1, Jagya Bhan, in favour of the plaintiff. Passing of consideration of Rs. 70,000/- has also been denied. The signature on the document has also been denied. According to the defendant, the documents are manufactured and are forged. ( 6 ) THE defendants also denied that the plaintiff is in possession of the suit property. In the additional plea, it has been averred by them that the defendant No. 1 sold the suit property to the defendant No. 2 on 4-9-1997 for a consideration of Rs. 86,000/- and possession was delivered to defendant No. 2 by executing the sale-deed in his favour and since then the defendant no. 2 is possessing the suit (sic) has been prayed by the defendants that the application be dismissed. 86,000/- and possession was delivered to defendant No. 2 by executing the sale-deed in his favour and since then the defendant no. 2 is possessing the suit (sic) has been prayed by the defendants that the application be dismissed. ( 7 ) THE trial Court on the basis of documents, affidavits and pleadings of the parties came to hold that no case of grant of temporary injunction is made out by the plaintiff and, hence, dismissed the application by the impugned order. ( 8 ) IN this appeal Shri Sanjay Seth, learned counsel for the appellant, has contended that the trial Court erred on facts as well as on law in dismissing the application posfiled under Order 39, Rules 1 and 2, CPC. According to the learned counsel, there is a prima facie case and because the plaintiff is possessing the suit property, therefore, the balance of convenience is also in his favour. It has been prayed that the impugned order be set aside and the appeal be allowed. ( 9 ) ADMITTEDLY, defendant No. 1, Jagya bhan Gupta, was the owner of the suit property. According to the plaintiff, the suit property was mortgaged by Jagya Bhan Gupta in favour of his father, Bhola Prasad Gupta, on 27-6-1996. It was on usufructuary mortgage because, according to the plaintiff, the possession was delivered to the mortgagee i. e. Bhola Prasad. A document of agreement dated 27-6-1996 in that regard was executed. ( 10 ) ON going through this agreement it is gathered that to secure the payment of loan of Rs. 70,000/- the disputed property was mortgaged and its possession was delivered to the mortgagee. Thus, prima facie the transaction would come under the ambit of usufructuary mortgage as defined under section 58 (d) of the Transfer of Property Act, 1882. Since the interest in the suit property, which is an immoveable property, has been transferred for Rs. 70,000/- and the possession was also delivered, it could have been made only by a registered document and not by an agreement. Therefore, prima facie it cannot be said that the document of agreement is a valid document of usufructuary mortgage. ( 11 ) THE execution of agreement of sale in favour of the plaintiff on 26-7-1997 has been emphatically denied by the defendant jagya Bhan. Therefore, prima facie it cannot be said that the document of agreement is a valid document of usufructuary mortgage. ( 11 ) THE execution of agreement of sale in favour of the plaintiff on 26-7-1997 has been emphatically denied by the defendant jagya Bhan. The execution of sale-deed by defendant No. 1, Jagya Bhan Gupta, in favour of the defendant No. 2, Gulsher Ahmed, has been admitted by both the parties i. e. plaintiff and defendants. Thus, the next question for consideration is whether the plaintiff is in possession of the suit property or defendant No. 2, Gulsher Ahmed, is possessing the suit property. ( 12 ) IN the registered sale deed dated 4-9-1997 executed by the defendant No. 1 in favour of the defendant No. 2 there is a recital of delivery of possession to the defendant no. 2. This document is a registered document and is admitted to all the parties while the documents which are being relied by the plaintiff, are disputed. Their execution is also disputed by the defendant No. 1. It be seen that after the execution of the sale deed the name of Gulsher Ahmed had also been mutated by Tahsildar vide order dated 23-9-1997. The learned trial Judge after appreciating the pleadings, affidavits and documents came to hold that prima facie possession of plaintiff is not established. I have considered the reasonings assigned by the learned trial Judge and find them to be cogent. ( 13 ) IN the result the appeal is devoid of any substance and the same is hereby dismissed. The record of the trial Court be sent by the registry post haste so as to reach on or before 31-7-2004. Looking to the facts and surrounding circumstances the parties are directed to bear their own costs. Appeal dismissed. .