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2007 DIGILAW 2058 (PNJ)

Darshan Lal v. Ram Parshad

2007-11-23

VINOD K.SHARMA

body2007
JUDGMENT Vinod K. Sharma, J. (Oral) - This civil revision petition has been filed against the order passed by the learned Courts below vide which application moved by the petitioner under Order 39 Rules 1 & 2 read with Section 151 of the Code of Civil Procedure, has been dismissed. 2. The plaintiff filed a suit for specific performance for enforcement of agreement of sale dated 11.7.2005. It has been pleaded that the defendant respondent had entered into an agreement of sale of land for total consideration of Rs. 6,00,000/- (Rs. six lacs only) out of which Rs. 2,00,000/- (Rs. two lacs only) was paid as earnest money and the date for execution of the sale-deed was fixed as 26.12.2005. It was also the case of the plaintiff that sale-deed was to be executed on furnishing of "no dues certificate" from the Bank but as the defendant failed to produce the "no dues certificate", the date of execution of agreement was extended. It was the case of the plaintiff petitioner that he was always willing to perform his part of contract. 3. Along with the suit for specific performance an application under Order 39 Rules 1 & 2 read with State Government 151 C.P.C. was moved seeking restraint order against the defendant from dispossessing him from the land in dispute. It was claimed that at the time of execution of the agreement of sale the possession was handed over to the plaintiff petitioner by the defendant though no mention of this was made, in the agreement of sale. It was the case of the plaintiff petitioner that at the time of extension of time it was incorporated therein that the possession of the land has been given to the petitioner plaintiff. The said endorsement was not signed by the defendant but by two of the attesting witnesses, who had witnessed the agreement of sale. 4. The learned Courts below have prima facie come to the conclusion that revenue record did not show that the possession of the land was handed over to the plaintiff petitioner and the learned Courts below also did not believe that the possession was handed over as mentioned in the endorsement at the time of alleged extension of time as no such stipulation was made in the agreement of sale. Though, no specific reference was made to the endorsement by the learned Courts below while coming to this conclusion. 5. The learned counsel for the petitioner contended that the learned Courts below misread the evidence brought on record as it was specifically stated that he was in possession of the land. The learned counsel for the petitioner also contended that the jamabandis relied upon by the learned Courts below are of the year 1998-99 whereas the agreement to sell was executed in the year 2003 and, therefore, the findings recorded by the learned Courts below cannot be sustained. The contention of the learned counsel for the petitioner cannot be accepted as no jamabandi was produced on record to show that possession of the land was with the petitioner. As a matter of fact, in the original agreement to sell no reference was made to handing over of possession because the agreement to sell vide which the possession of the land was handed over to the purchaser was to be by way of registered agreement of sale. 6. The learned counsel for the petitioner contends that though the document was required to be registered still in view of Section 49 of the Registration Act the document can be read into evidence for the purposes of specific performance. It is not in dispute that suit for specific performance is still pending. However, the said document cannot be used to prove the possession of the petitioner in absence of registration of agreement of sale. 7. The learned courts below while deciding the application under Order 39 Rule 1 & 2 read with Section 151 C.P.C. were required to see prima facie case, balance of convenience and irreparable loss. In the present case, it is not in dispute that only earnest money was paid by the petitioner and sale-deed was to be executed on payment of balance payment of Rs. 4,00,000/- (Rs. four lacs only). It is defendant/respondent, who is owner of the land till the execution of the sale and, therefore, it cannot be said that there was any prima facie case in favour of the petitioner to claim injunction. The rights of the petitioner have been duly protected by the learned courts below by observing that any transfer made during the pendency of the suit would be hit by principle of lis pendense. The rights of the petitioner have been duly protected by the learned courts below by observing that any transfer made during the pendency of the suit would be hit by principle of lis pendense. No ground is made out to interfere with the findings recorded by the learned Courts below. Dismissed. Petition dismissed.