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2010 DIGILAW 2997 (ALL)

Ranjana Prakash & others v. Neeti Talreja and others

2010-09-27

KASHI NATH PANDEY, SUNIL AMBWANI

body2010
Kashi Nath Pandey, J.;- We have heard Sri Rahul Sahai and Avanish Kumar for the plaintiff-appellants. Sri R.C. Singh appears for respondent Nos. 2 and 3. 2. In these First Appeals From Order under Order 43 Rule (1) (r) of CPC, the plaintiff-appellants are aggrieved by the orders of Civil Judge, Senior Division, Court No. 6, Allahabad dated 17.8.2010 in Original Suit Nos. 58 of 2009, and 57 of 2009, for cancellation of sale deed dated 13.4.2000 and for permanent injunction, rejecting the application for interim injunction, after hearing the parties. 3. The trial court found that the plaintiffs did not have prima facie case inasmuch as by the sale deed dated 13.4.2000, the right, title and possession of the disputed land was transferred to defendant No.1, who has on his part executed sale deeds dated 21.11.2008, in favour of defendant Nos. 2 and 3. 4. It is alleged in the plaint that the entire sale consideration was not paid at the time of the execution of sale deed. The sale deed dated 13.4.2000 stipulated a condition that the balance amount shall be paid over within three years. It is alleged that the defendant No.1 neither requested for extension of time as stipulated in the sale deed, nor paid the balance amount, and instead transferred the property in the year 2008 in favour of defendant Nos. 2 and 3, who are raising constructions over the same. 5. The trial court has prima facie found on an interpration of the terms and conditions of the sale deed dated 13.4.2000, that the right, title and possession was transferred by the sale deed to defendant No.1. The condition of payment of balance amount of Rs.1,56,000/- within three years, or within extended time did not affect the title of defendant No. 1. The disputed questions as to whether the time was extended, or whether the banker cheques as alleged were accepted, and receipts were not given, will be subject to decision on leading the evidence. The trial court has also prima facie found that the question of limitation will also arise, to defeat the claim of plaintiffs. The cause of action arose immediately after expiry of three years of the execution of the sale deeds in the year 2000, whereas the suit was filed after nine years. The trial court has also prima facie found that the question of limitation will also arise, to defeat the claim of plaintiffs. The cause of action arose immediately after expiry of three years of the execution of the sale deeds in the year 2000, whereas the suit was filed after nine years. The trial court has further found that although the sale deed stipulated a condition that on account of non-payment of balance amount the sale deed would stand cancelled, the consequences of cancellation of sale deed such as return of the admitted sale consideration has not been provided. The trial court found that the factors of balance of convenience and irreparable loss, would, in the circumstances of the case, be in favour of defendant Nos. 2 and 3, who have claimed to be bonafide purchaser for value after paying the entire sale consideration to defendant No.1. 6. We do not find any error in the order of trial court - either on fact or on law. The question with regard to limitation may be decided by the trial court as a preliminary issue between the parties. 7. The First Appeals From Order are accordingly dismissed.