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2011 DIGILAW 969 (RAJ)

Bhikha Ram v. Jagdish Ram

2011-05-09

SANGEET LODHA

body2011
JUDGMENT : Sangeet Lodha, J. 1. This miscellaneous appeal is directed against order dated 03.08.2010 of Additional District Judge, Raisinghnagar passed in Civil Misc. Case No. 1/10 allowing the application preferred by the respondent/plaintiff under Order 39 Rule 1 and 2 of Civil Procedure Code. 2. The respondent/plaintiff filed a suit against the appellant/defendant for specific performance of the agreement to sell dated 22.09.2009 in respect of .063 hectare un-command land out of total 177 hectare land of kila No. 1, Murbaba No. 5. Stone No. 188/374 in Chak No. 2 BLD (A) held by the appellant/defendant. The respondent/plaintiff also filed an application seeking temporary injunction in terms that the appellant/defendant be restrained from dispossessing him from the land in question forcibly and may not interfere with the cultivation of the land in his possession and further, to restrain the appellant from alienating the property in question to anybody else. The application was contested by the appellant/defendant. 3. After due consideration of the submissions of the parties, the court below found that the dispute raised by the respondent/plaintiff is bona fide and he has strong prima facie case in his favour and the balance of convenience is also in his favour. The court further arrived at the finding that if the temporary injunction prayed for is not granted, the respondent/ plaintiff is bound to suffer irreparable loss inasmuch as, the very purpose of filing the suit shall stand frustrated. Accordingly, by the order impugned by way of temporary injection, the appellant/defendant has been directed to maintain the status quo with regard to the disputed land and has been restrained from alienating the disputed property to anybody else during the pendency of the suit. Hence, this appeal. 4. Learned counsel for the appellant submitted that the appellant/defendant never entered into agreement to sell with the respondent/plaintiff in respect of the land in question. Learned counsel submitted that the court below has seriously erred in accepting the case set out by the respondent/plaintiff that he purchased north-western part of the agriculture land of the appellant/defendant and thereafter, constructed a well on the said land. Learned counsel submitted that it has come on record that the well alleged to have been constructed recently is old one and was existing as on the date alleged agreement to sell was executed. Learned counsel submitted that it has come on record that the well alleged to have been constructed recently is old one and was existing as on the date alleged agreement to sell was executed. Learned counsel submitted that it is settled law that a person claiming equitable relief must come with clean hands and since in the instant case, the respondent/defendant has made misstatement on oath, and therefore, he was not entitled to relief of temporary injunction as prayed for. Learned counsel submitted that as a matter of fact, taking advantage of illiteracy of the appellant/defendant, the respondent/plaintiff had tried to grab better part of agriculture land of the appellant. Learned counsel submitted that the court below has seriously erred in arriving at the finding that the respondent/plaintiff has prima facie case in his favour without recording even a prima facie finding as to factum of possession over the disputed land i.e. north-western part of the agriculture land of the appellant. It is submitted that on the facts and circumstances of the case, the appellant has no prima facie case in his favour and if the order impugned is allowed to stand, it will cause irreparable loss to the appellant/defendant. Learned counsel submitted that the court below has seriously erred in granting temporary injunction in respect of the land for which the appellant never entered into agreement to sell or received any consideration and never parted with the possession thereof. Accordingly, it is submitted that the order impugned deserves to be quashed and set aside. 5. On the other hand, learned counsel for the respondent submitted that the agreement to sell has been executed by the appellant/defendant in favour of the respondent/plaintiff is a registered document which clearly shows that the appellant/defendant has agreed to sell north western part of the land in question and possession thereof has also been handed over. It is submitted that the facts that possession of the land was handed over, stands fortified from the affidavit of the appellant/defendant himself. Learned counsel submitted that the observation made by the survey commissioner that the well does not appear to have been constructed recently is uncalled for and cannot be treated to be conclusive evidence in this regard. It is submitted that the facts that possession of the land was handed over, stands fortified from the affidavit of the appellant/defendant himself. Learned counsel submitted that the observation made by the survey commissioner that the well does not appear to have been constructed recently is uncalled for and cannot be treated to be conclusive evidence in this regard. Accordingly, it is submitted that the findings arrived at by the court below on the basis of the material on record cannot be said to be capricious or perverse so as to warrant interference by this court in exercise of its appellate jurisdiction. 6. I have considered the rival submissions and perused the material on record. 7. It is settled law that in the matter of the temporary injunction, the jurisdiction of the appellate court is not co-extensive with that of the trial court. The appellate court can interfere with an order of the trial court granting or refusing injunction only when it is satisfied that (i) the trial court has acted contrary to law or (ii) has acted arbitrarily, or (iii) that the finding of trial court regarding the three requirements of grant of injunction are perverse or capricious or (iv) that there has been a misreading of the pleadings of evidence, (vide RSEB v. Mool Chand Jangir, 1993 (3) WLC (Raj.) 388). 8. In Skyline Education Institute (Pvt.) Ltd. v. S.L. Vaswamin & Anr. 2010 AIR SCW 628, the Hon'ble Supreme Court after considering its various earlier decisions dealing with the scope of appellate court's power to interfere with the discretion exercised by the court of first instance in granting or refusing the prayer for temporary injunction observed: "The ratio of above noted judgments is that once the court of first instance exercises its discretion to grant or refuse to grant relief of temporary injunction and the said exercise of discretion is based upon objective consideration of the material placed before the court and is supported by cogent reasons, the appellate court will be loath to interfere simply because on a de novo consideration of the matter, it is possible for the appellate court to form a different opinion on the issues of prima facie case, balance of convenience, irreparable injury and equity." 9. Indisputably, the appellant/defendant has agreed to sell part of agriculture land in question in favour of the respondent/plaintiff for consideration of Rs. 1,30,000/- . Indisputably, the appellant/defendant has agreed to sell part of agriculture land in question in favour of the respondent/plaintiff for consideration of Rs. 1,30,000/- . It is to be noticed that the agreement to sell alleged to have been executed by the appellant/defendant in favour of the respondent/plaintiff is a registered document wherein the appellant/ defendant has agreed to sell north western part of his agriculture land in favour of the respondent/plaintiff. In the affidavit dated 22.09.2009, the appellant/defendant has deposed in unequivocal terms that he has handed over the possession of .063 hectares north western part of the un-command khatedari land in chak 2-BLDA to the respondent/plaintiff. Thus, on the facts and in the circumstances of this case, at this stage, the court cannot proceed with the assumption that the said agreement to sell has been got executed by the respondent/plaintiff by committing fraud. It is to be noticed that vide order dated 21.01.2010, the trial court directed the survey commissioner to inspect the site and submit the report, however, while giving the report the survey commissioner made observation on his own that the well constructed over the land in question does not appear to be constructed recently, which is considered opinion of this court, was uncalled for and cannot be given any credence at this stage. 10. Thus, in view of the discussion above, the findings arrived at by the court below regarding the prima facie case, balance of convenience and irreparable loss in favour of the respondent/plaintiff cannot be said to be capricious or perverse so as to warrant interference by this court in exercise of its appellate jurisdiction. 11. For the aforementioned reasons, the appeal lacks merits, and therefore, the same is hereby dismissed. Appeal dismissed.