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2010 DIGILAW 6 (JK)

Javed Chowdhary (Dr. ) v. Aniece Chowdhary (Dr. )

2010-01-01

SUNIL HALI

body2010
1. Two brothers are litigating over a property situated at Residency Road, Jammu. It is contended that 1/3rd share in the property as discussed by the learned trial court has been handed over to the defendant/respondent after execution of an Agreement to Sell for an amount of Rs. 12.00 lacs (rupees twelve lacs). It is also admitted that Rs. 11.00 lacs (rupees eleven lacs) have been paid by the respondent/defendant to the plaintiff and remaining Rs. 1.00 lac (rupees one lac) was to be paid at the time of execution of sale deed. Refusal on the part of defendant to execute the sale deed has prompted the petitioner to file a suit for possession of the said property before the trial court. An application for grant of temporary injunction has also been filed. After hearing the parties, trial court has rejected the same. Under these circumstances the present appeal has been preferred. 2. I have heard learned counsel for the parties. 3. Perusal of the record shows that a settlement was arrived at between the parties on 13.8.2001 and the same was presented before this Court with the following terms. 1. The Srinagar Property has fallen to the share of Dr. Javed Choudhary. 2. Mst. Gulab Bibi Choudhary with a view to compensate Dr. Aniece Choudhary has put Master Aamir Choudhary s/o Dr. Aniece Choudhary under guardianship of Dr. Aniece Choudhary in possession of her 1/3rd share of the property situated at residency Road, Opposite Church, Jammu and possession of the same was delivered when the property at Srinagar was transferred in favour of Javed Choudhary i.e. On 13.8.2001. 3. That no written settlement was entered into at that time now a memorandum of settlement has been entered into in the property at Srinagar which was owned by Gulab Bibi Choudhary & Fateh Ali Choudhary, Dr. Aniece Choudhary or Fateh Ali Choudhary or their legal heirs would have no share and so far as Dr. Javed Choudhary or for that matter Fateh Ali Choudhary or their legal heirs are concerned, they would have no claim in the property situated at Residency Road, Jammu which was in the name of Gulab Bibi Choudhary and possession whereof was delivered simultaneously to Dr. Aniece Choudhary on 13.8.2001. 4. That so far as the 1/3rd share of the property situated at Residency Road Jammu in the name of Dr. Aniece Choudhary on 13.8.2001. 4. That so far as the 1/3rd share of the property situated at Residency Road Jammu in the name of Dr. Javed Choudhary is concerned, he has agreed to sell the said property including the Clinic(shop) located at Residency Road, Jammu to Dr. Aniece Choudhary. This would be on the same terms and conditions on which reliance is being placed by Dr. Aniece Choudhary. The price which has been fixed is Rs. 12.00 lacs. The amount of Rs. 7 lacs has been paid through a cheque bearing No. QZU484391 dated 10.2.2003 which has been duly certified as good for payment. Dr. Aniece Choudhary has also endorsed the cheque No. 123819 dated 10.2.2003 amount to rupees four lacs to Dr. Javed Choudhary towards the sale consideration amount having been received from Sh. Tateh Ali Choudhary who has repaid his earlier loan. An amount of rupees one lac already received by Mrs. Gulab Bibi Choudhary and Sh. Fateh Ali Choudhary by cheque No. QSY612519 from Dr. Aniece Choudhary would remain with Sh. Fateh Ali Choudhary by way of Guarantee. This amount would not be withdrawn by Fateh Ali Choudhary till sale deed is executed. After the sale deed is executed Dr. Aniece Choudhary would have no lien on this amount and Fateh Ali Choudhary would make payment of this amount to Dr. Javed Choudhary. 5. The possession of the entire premises including his one shop(clinic) in possession of Dr Javed Choudhary at Residency Road, Jammu has been handed over to Dr. Aniece Choudhary and a lien on the property to the extent of rupees one lac would remain. This would be paid at the time of registration of sale deed as indicated above. The sale deed would be executed within two weeks. 4. This settlement deals with all the properties including one situated at Residency Road, Opposite Church, Jammu which has been transferred in the name of Dr. Aniece Choudhary and qua which criminal proceedings are pending. 5. So far as other ancestral properties are concerned they shall be dealt within accordance with the law of inheritance and the shares of Dr. Aniece Choudhary and Dr. Javed Iqbal Choudhary shall be maintained. The water and electricity dues, sales tax and income tax etc pending if any of the share of Dr. Javed Choudhary including his shop (clinic) upto 10.2.2003 shall be paid by Dr. Aniece Choudhary and Dr. Javed Iqbal Choudhary shall be maintained. The water and electricity dues, sales tax and income tax etc pending if any of the share of Dr. Javed Choudhary including his shop (clinic) upto 10.2.2003 shall be paid by Dr. Javed Choudhary and thereafter it shall be the liability of Dr. Aniece Choudhary. 6. In pursuance to the settlement arrived, the possession of entire premises including one shop/clinic which is in possession of Dr Javed Choudhary has been handed over to Dr.Aniece Choudnary and lien on the property of rupees one lac would continue to remain with the plaintiff. It is also admitted that in pursuance to the aforementioned settlement, defendant was required to execute the sale deed in favour of the plaintiff. Record reveals that plaintiff has denied to have received this amount of rupees eleven lacs from the defendant. According to the trial court, this fact has not been disclosed in his plaint. It is also revealed that plaintiff has challenged this memo of settlement before the Additional District Judge, Jammu while filing the Civil Suit thereby showing his own unwillingness to execute the sale deed. 7. After going through the facts as emerged from the order passed by the trial court, it is clearly affirmed that the defendant is in possession of the suit property and has also paid an amount of Rs. 11.00 lacs(rupees eleven lacs) as consideration for the sale of said property. No order of injunction can be issued in a case where party is admittedly out of possession. Defendant admittedly is prima facie entitled to hold the property in view of the fact that there is an Agreement to Sell between the parties for which an amount of rupees eleven lacs has already been paid by the defendant and remaining rupees one lac is to be paid at the time of execution of sale deed. The issue as to whether defendant is refusing to execute sale deed is to be determined during the course of trial which is yet to conclude. Defendant having a prima facie title to the property, his right to remain in possession of the same till the controversy is resolved during the trial. 8. In view of this, I find no force in this appeal and same is dismissed along with connected CMP(s). 9. Parties are directed to appear before the trial court on 21.01.2010.