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2004 DIGILAW 758 (MP)

RAJENDRA PRASAD DWIVEDI v. ATUL KUMAR DWIVEDI

2004-09-09

SHANTANU KEMKAR

body2004
Judgment ( 1. ) THIS appeal under Order 43 Rule 1 (r) of the Code of Civil Procedure has been filed against the order dated 15th July, 2003 passed by the Ist Additional district Judge, Rewa in Civil Suit No. 63-A/03 whereby the plaintiffs/respondent No. 1 to 3s application under Order 39 Rule 1 and 2 of the Civil Procedure code (hereinafter referred to as the code) for grant of temporary injunction has been allowed. ( 2. ) IN short the facts are: The plaintiffs/respondent No. 1 to 3 filed a suit for declaration and injunction against the defendant No. 1/appellant and defendant No. 2/respondent No. 4 challenging the sale deed dated 29-5-2003 executed by defendant no. 2 in favour of the defendant No. 1 on various grounds viz it was executed by defendant No. 2 without receiving any consideration from the defendant No. 1 and the defendant No. 2 while executing the sale deed was in the state of intoxication and was unable to understand the contents of the document, the property was ancestral and was sold without there being any legal necessity nor it was sold for the benefit of the estate. The plaintiffs also filed an application under Order 39 Rules 1 and 2 of the Code praying therein that till disposal of the suit, temporary injunction be granted restraining the defendant no. 1 from interfering in the possession of the plaintiffs in the suit property. ( 3. ) THE defendant No. 2 who is father of the plaintiffs No. 1 and 2 and husband of No. 3 by filing the reply supported the case of the plaintiffs. ( 4. ) DEFENDANT No. 1 denied the plaint averments and replied the application for temporary injunction. He stated that the defendant No. 2 in his full senses, executed the sale deed on receiving consideration of it. While executing the sale deed the defendant No. 2 was not in drunken state. It was further stated that the suit property is self acquired property of the defendant no. 2. The defendant No. 1 further stated that in pursuance of registered sale deed he is in possession of the suit property. ( 5. While executing the sale deed the defendant No. 2 was not in drunken state. It was further stated that the suit property is self acquired property of the defendant no. 2. The defendant No. 1 further stated that in pursuance of registered sale deed he is in possession of the suit property. ( 5. ) THE Trial Court on the basis of the documents, affidavits and averments of the parties came to hold that the plaintiffs have made out a case for temporary injunction and accordingly allowed the application on the ground that the property being joint family property of plaintiffs and the defendant No. 2, the same could not have been sold by defendant No. 2 alone. The Trial Court relying on Khasra entries of the year 2002-2003 recording the possession of defendant No. 2 held that the possession was not handed over to the defendant no. 1 in pursuance of the sale deed. ( 6. ) IN this appeal, Shri Chandrahas Dubey, learned counsel for the appellant/defendant No. 1 has contended that the Trial Court has erred on facts as well as on law in allowing the application of the plaintiffs. According to him, there was no prima facie case in favour of the plaintiffs. The defendant No. 2 delivered the possession of the suit property to the defendant No. 1 vide document which is a registered sale deed. He further submitted that the plaintiff nos. 1 and 2 are sons and plaintiff No. 3 is wife of defendant No. 2 and the suit has been filed in collusion to deprive the appellant/defendant No. 1 from enjoying the fruits of the registered sale deed of the suit land which he purchased after paying valuable consideration of Rs. 2,60,000/ -. ( 7. ) SHRI Harish Agnihotri, learned counsel for the respondent No. 1 to 4 has supported the impugned order and has contended that since the property was joint family property the sale deed executed by defendant No. 2 alone in favour of defendant No. 1 is not binding on the plaintiffs. He further contended that the defendant No. 2 is a habitual drinker and taking advantage of his ill habit, the defendant No. 1 got the sale deed executed in his favour. No consideration was paid by the defendant No. 1 to the defendant No. 2. He further contended that the defendant No. 2 is a habitual drinker and taking advantage of his ill habit, the defendant No. 1 got the sale deed executed in his favour. No consideration was paid by the defendant No. 1 to the defendant No. 2. It was thus, prayed that the plaintiffs having prima facie case, the impugned order is perfectly legal. ( 8. ) BEFORE dealing with the rival contentions of the parties it would be appropriate to discuss the principles of granting temporary injunction they are; (a) prima facie case, (b) balance of convenience and (c) irreparable injury. As laid down in case of Gopalnarain Vs. State of M. P. ( 1979 JLJ 662 ), these factors have to be shown to co-exist by a plaintiff to claim and/or sustain a grant of interim injunction. If any of the aforesaid factor is not shown to exist then interim injunction cannot be issued. ( 9. ) THE question whether the suit property being ancestral and has been sold by the defendant No. 2 to defendant No. 1 without there being any legal necessity or question that the sale deed has been executed by defendant no. 2 under influence of liquor and without consideration. All these questions will be required to be undergone by the Trail Court after recording evidence. At this stage, for deciding the application for grant of temporary injunction, the question which is important is to who was in actual possession of the suit property on the date of institution of the suit. ( 10. ) ADMITTEDLY, the defendant No. 2 executed the registered sale deed in favour of defendant No. 1. The sale deed contains recital of payment of rs. 2,60,000/- as consideration and also that possession has been given to the appellant/defendant No. 1. Prima facie there is no material to show that the sale deed was executed by defendant No. 2 in the state of intoxication without understanding or without receiving consideration. Thus, I am of the view that the appellant was prima facie in possession of the suit land since he was having a registered sale deed in his favour containing recital of possession being handed over to him and of payment of the consideration. In case of Nonitram Vs. Thus, I am of the view that the appellant was prima facie in possession of the suit land since he was having a registered sale deed in his favour containing recital of possession being handed over to him and of payment of the consideration. In case of Nonitram Vs. Hira [1980 (I) MPWN 148] this Court has observed :- "in the sale-deed dated 5-2-74, purported to be executed by laltobai and Halkibai, predecessors-in-title of the plaintiff-non-applicants there is a statement that the executants had delivered possession to the purchasers, viz, defendant- applicants. Undoubtedly this statement shows prima facie that possession was given to the purchasers. " In yet another case decided by this Court in case of Jambowati and others vs. Mohitram and another (1991 RN 186), while dealing with the case of similar nature this Court has held :- "accordingly, prima facie , there appeared to be no reason to doubt that pursuant to the sale deeds dated 5-2-1990 executed by defendant No. 1 in their favour the defendant No. 2 to 13 were put in possession of the suit lands on the execution of the sale deeds. " It is a settled law that registration of sale deed is prima facie evidence of its execution. In this context judgment of this Court in case of Geetabai Vs. State of M. P. and others (1981 RN 220) may be seen. ( 11. ) SO far as the contentions about the non-payment of the consideration, suffice is to say, that passing of the consideration cannot be challenged by a third party as held by Division Bench of this Court in case of Ramjilal Tiwari vs. Vijay Kumar and others ( 1970 JLJ 20 ). As per Section 114 of the Indian evidence Act, there is presumption that judicial and official acts have been regularly performed and therefore, if the sale deed is registered by a Sub-Registrar under Indian Registration Act in his official capacity it would deem that it is duly executed unless and until it is refuted by some cogent evidence. In the present case prima facie the plaintiffs suit appears to be collusive. The plaintiffs No. 1 and 2 are sons and plaintiff No. 3 is wife of defendant No. 2. The plaintiffs made allegations against the defendant No. 2 that he is a drunkard. The defendant No. 2 readily accepted the allegations in his reply. In the present case prima facie the plaintiffs suit appears to be collusive. The plaintiffs No. 1 and 2 are sons and plaintiff No. 3 is wife of defendant No. 2. The plaintiffs made allegations against the defendant No. 2 that he is a drunkard. The defendant No. 2 readily accepted the allegations in his reply. The defendant no. 2 has not taken any action, alleging the defendant No. 1 has not paid consideration to him. In the aforesaid premises at this stage the contentions of the plaintiffs cannot be accepted, being contrary to the registered sale deed. ( 12. ) THE appellant who has paid the valuable consideration and to whom the possession has been delivered cannot be deprived of enjoyment of the property and if he is deprived from it, he would certainly suffer irreparable injury. ( 13. ) THE Khasra entires relied by the Trial Court are of the year 2002-2003. The sale deed was executed in favour of the appellant on 29-5-2003 and therefore Khasra entires prior to it are hardly relevant for the present dispute. In the Khasra entries of 2002-2003 exclusive possession is shown of defendant No. 2 (Vendor) and not joint possession with plaintiffs. The Khasra entry ensure to the benefit of defendant No. 1 and not of any benefit to the plaintiffs as plaintiffs names are not recorded in it. Learned counsel for the appellant has filed copy of the order dated 8-8-2003 passed by Tehsildar Hazur, district Rewa. The learned counsel for the respondents has not disputed in regard to the existence of it. The Tehsildar in the mutation proceedings started at the instance of the appellant after execution of the sale deed dated 29-5-2003 after hearing the defendant No. 2 recorded the name of appellant in the revenue records. ( 14. ) TRUE, the grant of temporary injunction is a discretionary power and the discretion vest in the Court before whom an application is submitted, but it is also equally true that if principles of granting temporary injunction are overlooked the appellate Court can definitely interfere in the discretionary order. The powers are vested in the appellate Court under Order 43 Rule 1 of the CPC to correct the order of the Court below if the discretion has not been exercised judiciously or has been exercised on wrong principles of law. In this context reliance is placed on Watson Vs. The powers are vested in the appellate Court under Order 43 Rule 1 of the CPC to correct the order of the Court below if the discretion has not been exercised judiciously or has been exercised on wrong principles of law. In this context reliance is placed on Watson Vs. Rodwell, (1876) 3 Ch. D. 388. Later on the Division Bench of this Court in the case of Laxmi Chand Vs. Brij bhushandas ( 1969 JLJ 467 ) also place reliance on the said decision and has held that when the Judge did not apply correct principles of law while dealing the matter within its discretion his order may be set aside by the appellate Court. In the instant case, the Trial Court has adopted an erroneous approach and against the principles of temporary injunction has passed the impugned order and therefore, this Court is bound to interfere by exercising powers conferred under Order 43 Rule 1 CPC. ( 15. ) IN my considered view the Trial Court has ignored the registered sale deed and has placed reliance on conjectures and surmises, I find no prima facie case in favour of the plaintiffs and prima facie their possession is not found, on the contrary after the execution of the sale deed, possession of defendant no. 1 is prima facie established. ( 16. ) THUS, for the reasons stated above, the appeal is allowed. The order of the Trial Court, granting temporary injunction in favour of the plaintiffs is set aside and the application of temporary injunction is hereby rejected. No orders as to costs. Misc. Appeal allowed.