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2010 DIGILAW 403 (UTT)

UMA BHARDWAJ v. RANI DEVI

2010-06-25

V.K.BIST

body2010
JUDGMENT Hon’ble V.K. Bist, J. : This appeal has been filed by the plaintiff/appellant against the judgment and order dated 31.07.2009 passed by Civil Judge (Sr. Div.), Rishikesh, District Dehradun in Original Suit No. 329 of 2009 “Smt. Uma Bharadwaj vs. Smt. Rani Devi and others” whereby the interim injunction application (paper No. 6c-2) of the appellant was rejected. 2. Briefly stated that the plaintiff/appellant instituted the Suit No. 329 of 2009, before the Court of Civil Judge (Sr. Div.), Dehradun against the defendant/respondents for a decree of mandatory injunction to restore the status of the property in suit ante and to restore the property in suit to the plaintiff and for a decree of perpetual injunction whereby the defendants 2, 3 & 4, their heirs, successors, transferees, assigns, attorneys, agents, servants and employees or other person or persons etc. be restrained from raising any kind of construction on the property in suit and changing the nature thereof and to transfer and alienating the property in suit in any manner or to create the interest of any third party in the property in suit and part with and deliver the possession thereof in any other person. It was pleaded in the plaint that the respondent no. 1 was the owner of the property no. 60 (new no. 60-A, thereafter changed numbers 167 and 186), Mayakund, Chandreshwar Marg, Rishikesh, District Dehradun. On 22.02.1994, the respondent no. 1 agreed to sell transfer and alienate a portion of the said property consisting of land measuring 800 sq. feet, bearing Municipal No. 60 (new no. 60-A), to the plaintiff for a consideration of Rs. 27,000/- and the appellant paid a sum of Rs. 5,000/- as earnest money to the respondent no. 1. On 06.04.1994 the respondent no. 1 sold, transferred and alienated all her rights, title of ownership, possession and easements etc. in respect of the aforesaid plot to the appellant for a consideration of Rs. 27,000/- and executed a regular document of aforesaid sale, transfer and alienation on 06.04.1994 in favour of the appellant. After purchasing the land in property in suit, the appellant raised construction of a residential house on the aforesaid land and started living in the said house from January, 1995. In the month of April, 2002, the plaintiff/appellant constructed another room in the above land. In the year 2003, the appellant and respondent no. After purchasing the land in property in suit, the appellant raised construction of a residential house on the aforesaid land and started living in the said house from January, 1995. In the month of April, 2002, the plaintiff/appellant constructed another room in the above land. In the year 2003, the appellant and respondent no. 2 entered into a mutual arrangement whereby the appellant agreed to live in the adjacent house of respondent no. 2 and the respondent no. 2 was allowed to live in the house of the appellant with clear understanding and condition that as and when the appellant and the respondent no. 2 desire to change the arrangement and shift to their respective properties, that will be done on short notice of such intention to the other party. But on 10.05.2009 the respondent no. 2 alongwith his family members, defendant nos. 3 & 4 started collecting building materials with the intention to raise construction on the property in suit. Alongwith the plaint, the appellant moved application for the grant of interim injunction under Order 39 Rule 1 & 2 read with Section 151 of the Code of Civil Procedure, 1908. After receiving notice, the respondent nos. 2 to 4 filed their written objection and denying the averments made in the plaint it was stated that neither the plaintiff has any legal entitlement nor she is in possession in suit. The plaintiff has no prima-facie case. There is no agreement to sell of dated 06.04.1994 in favour of the appellant. There is no such land measuring 800 sq. feet bearing no. 26A at Chandreshwar Road, Rishikesh. No mutual arrangement was ever taken place on the basis of which the petitioner claims her title and possession. In fact, in the tax assessment of the Municipal Corporation, Rishikesh relating to the year 1977 the land at Chandreshwar Nagar is registered in the name of the respondent no. 2 and the respondent no. 2 is the sole owner and in possession of the said property from the beginning. The respondent no. 2 has given accommodation to the appellant at 186 Chandreshwar Nagar. The electricity and water connections are installed in the name of the respondent no. 2. The appellant has neither purchased nor made any construction at Chandreshwar Road. All the property is recorded in the name of the respondent no. The respondent no. 2 has given accommodation to the appellant at 186 Chandreshwar Nagar. The electricity and water connections are installed in the name of the respondent no. 2. The appellant has neither purchased nor made any construction at Chandreshwar Road. All the property is recorded in the name of the respondent no. 2 since 32 years and the respondent led documentary evidence before the Trial Court. On 31.07.2009, while considering the interim injunction application, the learned Trial Court did not find favour of the plaintiff and rejected her interim injunction application holding that the plaintiff failed to prove her prima facie case, balance of convenience and irreparable loss. Hence this appeal. 3. I have heard Mr. Neeraj Garg, the learned counsel for the appellant and Mr. Rattan Lal, the learned counsel for the respondent and perused the record. 4. Vide Court’s order dated 22.03.2010, this appeal has been dismissed as abated so far the respondent no. 1, namely, Smt. Rani Devi is concerned. 5. Mr. Neeraj Garg, the learned counsel for the appellant first of all argued that while rejecting the interim injunction application, the learned Trial Court failed to consider that on 06.04.1994 there was no provision for compulsory registration of the agreement for sale and such provision for compulsory registration of agreement of sale came into force in the year 2001 by Registration (Amendment) Act, 2001 which was inserted by Section 3(a) of the Act No. 48 of 2001 and came into force w.e.f. 24.09.2001. The effect of the amendment had no retrospective effect rather it was prospective. He further submitted that according to Section 17 (1A) of the Registration Act, 1908 there is no provision for compulsory registration of the agreement for sale. He also submitted that appellant’s title has been completed by virtue of Section 53A of the Transfer of Property Act and there is sufficient evidence on record to prove the ingredients, but the Trial Court did not give its findings in this regard. Learned counsel for the appellant relied on the judgment of Hon’ble Apex Court reported in 2006 (7) Supreme-202. 6. On the other hand Mr. Ratan Lal, the learned counsel for respondents submitted that plaintiff has no prima facie case. He contended that there is no agreement to sell dated 06.04.1994 in favour of the appellant. There is no such land measuring 800 sq. feet bearing no. 6. On the other hand Mr. Ratan Lal, the learned counsel for respondents submitted that plaintiff has no prima facie case. He contended that there is no agreement to sell dated 06.04.1994 in favour of the appellant. There is no such land measuring 800 sq. feet bearing no. 26A at Chandreshwar Road, Rishikesh. No mutual arrangement was ever taken place on the basis of which the petitioner claims her title and possession. In fact, in the tax assessment of the Municipal Corporation, Rishikesh relating to the year 1977 the land at Chandreshwar Nagar is registered in the name of the respondent no. 2 and the respondent no. 2 is the sole owner and in possession of the said property from the beginning. The electricity and water connections are installed in the name of the respondent no. 2. The appellant has neither purchased nor made any construction at Chandreshwar Road. Lastly he contended that the property is recorded in the name of the respondent no. 2 since 32 years and the respondent is paying all the taxes in this regard. 7. I have heard learned counsel for the appellant. The argument advanced by him will not help him at the time when Court is considering appellant’s interim injunction application. The learned Trial Court has given findings that neither appellant has prima facie case nor there is any balance of convenience in her favour. Agreement dated 06.04.1994 is subject matter of suit and issue regarding to the same has to be adjudicated finally. It is also not disputed that at present appellant is not in possession over the property in question. In my view, the learned Trial Court has rightly rejected the application of the appellant. Case law cited by learned counsel for appellant will also not help him at this stage. I do not find any illegality, infirmity or perversity in the order dated 31.07.2009 passed by the Trial Court. The appeal lacks merit and is liable to be dismissed. 8. Consequently, the appeal is dismissed. No order as to costs.