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2013 DIGILAW 1532 (RAJ)

Laxmi Narain Sharma v. Sarla Mathur

2013-09-04

BELA M.TRIVEDI

body2013
JUDGMENT 1. - With the consent of the learned counsels for the parties, the appeal is being decided finally at the admission stage. 2. The present appeal filed under Order 43, Rule 1 (r) of CPC arises out of the order dated 4.1.13 passed by the Addl. District Judge No. 2, Ajmer (hereinafter referred to as 'the trial court') in Civil Misc. Case No. 81/11 (226/09) in Civil Suit No. 142/11, whereby the trial court has dismissed the application of the appellant-plaintiff filed under Order 39, Rule 1 and 2 of CPC. 3. In the instant case, it appears that the appellant-plaintiff has filed the suit against the respondents-defendants seeking specific performance of the agreement dated 10.6.08 executed by the respondent No. 1-defendant, for the land in question admeasuring 400 sq. yards for Rs. 16 lacs. According to the appellant-plaintiff he had already paid Rs. 3.5 lacs towards part payment of the sale consideration, however on the measurement having been made on the site, the area of the plot was found to be 300 sq. yards instead of 400 sq. yards. It is further case of the appellant-plaintiff that on the application having been made by the respondent No. 1 Sarla Mathur seller, the UIT, Ajmer had issued the amended lease deed on 23.9.09 and some changes were made with the dimensions of the plot, showing the area of 400 sq. yards. According to the appellant-plaintiff since he was apprehending that the respondent No. 1 would not perform her part of the contract, he filed the suit on 24.9.90. However, the respondent No. 1 executed two registered sale deeds in respect of the said plot in favour of the respondent No. 3 on 25.9.09. The appellant-plaintiff therefore, filed the application seeking temporary injunction against the respondents-defendants. The said application was resisted by the respondents. The trial court after considering the submissions made by the learned counsels for the parties dismissed the said application vide the impugned order, against which the present appeal has been filed. 4. It has been submitted by the learned counsel Mr. R.K. Agrawal for the appellant that the plaintiff was ready and willing to perform his part of contract, however the respondent No. 1 had clandestinely sold out the said plot to the respondent NO.3 jeopardising the right of the plaintiff. 4. It has been submitted by the learned counsel Mr. R.K. Agrawal for the appellant that the plaintiff was ready and willing to perform his part of contract, however the respondent No. 1 had clandestinely sold out the said plot to the respondent NO.3 jeopardising the right of the plaintiff. He also submitted that the trial court had misappreciated the documents on record, more particularly the application made by the respondent No. 1 before the UIT seeking clarification about the measurement and area of the suit plot and the amended lease deed issued by he UIT on 23.9.09. 5. However, the learned counsel Mr. R.K. Mathur for the respondent No. 3 submitted that the respondent No. 3 has become the owner of the entire plot by virtue of the registered sale deeds executed by the respondent No. 1 and she being bona fide purchaser and for value without notice, she could not be restrained from developing her land. He also submitted that the impugned order passed by the trial court being just and proper, this court should not interfere with the said order. 6. The learned counsel Mr. V.S. Shekhawat appearing for the respondent No. 1 has supported the submissions made by the learned counsel Mr. R.K. Mathur for the respondent No. 3. 7. Having regard to the submissions made by the learned counsels for the parties and to the impugned order passed by the trial court as well as the documents on record, it clearly transpires that the suit for specific performance was filed by the appellant-plaintiff on 24.9.09, after the UIT issued the amended lease deed on 23.9.09 and that the respondent No. 1 had executed the sale deeds in favour of the respondent No. 3 in respect of the suit plot on 25.9.09. It further appears that since there was ambiguity in the measurement of the plot in question, the respondent No. 1 had sought clarification from the UIT, Ajmer, pursuant to which the amended lease deed was issued by the UIT on 23.9.09. Under the circumstances, the Court finds substance in the submissions made by the learned counsel Mr. It further appears that since there was ambiguity in the measurement of the plot in question, the respondent No. 1 had sought clarification from the UIT, Ajmer, pursuant to which the amended lease deed was issued by the UIT on 23.9.09. Under the circumstances, the Court finds substance in the submissions made by the learned counsel Mr. R.K. Agrawal for the appellant that till the said ambiguity was clarified by the UIT to the respondent No. 1, there was no question the appellant making full payment towards the sale consideration pursuant to the agreement dated 10.6.08, and that on such clarification having been obtained from the UIT, the appellant had filed the suit on the very next day, showing his willingness to perform his part of the contract, however the respondent NO.1 had executed the sale deeds on 25.9.09, with a view to dupe the rights of the appellant-plaintiff under the agreement. Considering the said facts and circumstances, the court is of the opinion that the trial court has committed an error in not protecting the interest of the appellant-plaintiff pending the suit. Since the respondent No. 3 has been handed over the possession of the suit plot by the respondent No. 1 and since the respondent No. 3 has become the owner by virtue of the registered sale deed, pending the suit, the provisions contained in Section 52 of the Transfer of Property Act would be applicable to the suit land. However, the interest of both the parties could be protected if the respondent No. 3 is permitted to develop the land at her own cost and risk, with the further direction that she shall not transfer or create any third party interest in the suit plot pending the suit. 8. In that view of the matter, the respondent No. 3 is permitted to develop the suit plot at her cost and risk, however she shall not transfer or create any third party interest in the suit plot pending the suit. The impugned order dated 4.1.13 passed by the trial court is set aside and the appeal stands allowed accordingly.Appeal Allowed. *******