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2008 DIGILAW 2275 (ALL)

Dhani Ram v. Omwati

2008-11-15

TARUN AGARWALA

body2008
JUDGMENT With the consent of the parties, the present writ petition is being disposed of at the admission stage itself without calling for a counter affidavit. 2. The petitioner is a defendant and has filed the present writ petition against the grant of an injunction in favour of the plaintiff/ opposite party No.1. It transpires that the petitioner executed a power of attorney in favour of the opposite party No.2, who in turn executed a sale deed in favour of his wife, opposite party No.1 with regard to the agricultural land of the petitioner. When the petitioner came to know about this sale, he filed a civil suit for the cancellation of the sale deed on the ground of fraud which is pending consideration. The defendant No.,1upon coming to know of the filing of the suit, also filed a suit for perpetual injunction and, in this suit, filed an application for the grant of a temporary injunction. 3. The trial court, by an order dated 28.7.08 allowed the injunction application and restrained the petitioner from interfering in the possession of the land with the opposite party No.1. The petitioner, being aggrieved by the said order, filed an appeal under Order 43 Rule 1(r) of the C.P.C. which was dismissed by an order dated 30.9.2008. The petitioner, being aggrieved, has filed the present writ petition. 4. Heard Sri Umesh Narain Sharma, the learned Senior Counsel assisted by Sri Chandan Sharma and Sri Ashok Mehta, the learned counsel for the opposite party No.1. 5. The learned counsel for the petitioner submitted that the power of attorney executed by the petitioner in favour of the defendant No.2 was misutilised and a fraud has been played by the opposite party No.2 in executing a sale deed in favour of defendant No.1. Further, the trial court committed a manifest error in granting an injunction on the basis of an order, being passed by the Tehsildar under Section 34 of the Land Revenue Act and submitted that no finding of actual physical possession, has been given by the trial court. The learned counsel further submitted that admittedly, the land is an agricultural land and consequently, the suit filed by the respondent was not maintainable before the civil Ccurt and that a suit for declaration ought to have been filed before the revenue court. The learned counsel further submitted that admittedly, the land is an agricultural land and consequently, the suit filed by the respondent was not maintainable before the civil Ccurt and that a suit for declaration ought to have been filed before the revenue court. The learned counsel also urged that in any case the suit filed by the opposite party, was subsequent to the suit filed by the petitioner, and therefore, was hit by the provision of Section 10 of the C.P.C. 6. On the other hand, the learned counsel for the opposite party, Sri Ashok Mehta submitted that the petitioner has admitted the execution of the power of attorney which included a condition permitting the power of attorney holder to execute a sale deed and that a valid sale deed was duly executed for consideration. On the basis of the sale deed, the defendant No.1 is in physical possession and since the petitioner was threatening to interfere in the possession of the property of the defendant, a suit for injunction was filed and the trial court had rightly granted an injunction restraining the petitioner. The learned counsel submitted that the order of the trial court does not suffer from any error of law and that a prima facie case, balance of convenience and hardship was all in favour of the plaintiff and that the order of the trial court does not require any modification. 7. Having considered the submissions of the learned counsel for the parties, this Court finds that the agricultural land has been sold for the purpose of colonisation. The power of attorney holder has also executed a sale deed in favour of his wife. On these two circumstances, this Court is of the opinion that the injunction order passed by the trial court needs to be modified. Since the trial court has held that the plaintiff/respondent No.1 is in physical possession which is a finding of fact, consequently, this court is not inclined to interfere in the said finding at this interim stage and the writ petition is being disposed of with the following conditions:- 8. In addition to the injunction order granted by the trial court, the plaintiff/ opposite party No.1 is restrained from alienating the property in question or creating any further encumbrance on it during the pendency of the suit. In addition to the injunction order granted by the trial court, the plaintiff/ opposite party No.1 is restrained from alienating the property in question or creating any further encumbrance on it during the pendency of the suit. Parties are at liberty to move an application before the court below for consolidation of the two suits. If such an application is filed, both the suits would be consolidated and the trial court is expected to dispose off the suits expeditiously.