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2014 DIGILAW 145 (ORI)

Durga Prasad Kanungo v. Madhusmita Rout

2014-02-24

R.DASH

body2014
JUDGMENT This appeal is against the Order Dated 24.1.2013 passed by the Learned Civil Judge (Senior Division), 1st Court, Cuttack in I.A. No.460 of 2012 arising out of C.S. (1) No.464 of 2012. 2. The Appellant is the Defendant-Opp. Party & the Respondent is the Plaintiff-Petitioner before the lower Court. On an application under order 39, Rule 1 & 2 read with Section 151 C.P.C. filed by the Plaintiff-Respondent, the Learned, lower Court has restrained the Appellant-Defendant from alienating the suit property to third party in any manner till disposal of the suit. 3. The undisputed facts are that the suit property is a piece of land appertaining to Plot No.917 under Khata NO.624 of Mouza Gopalpur. The total area of suit plot is AC.0.278 decimals. Late Binodini Kanungo was the owner of the suit plot. She died on 26.12.1999 leaving behind her husband & two sons. Her husband died on 3.2.2007. After the death of their parents, the suit land stood devolved by way of succession upon the two sons, namely, Durga Prasad Kanungo & Debi Prasad Kanungo. On 5.10.2009, both of them jointly executed a registered sale deed alienating an area of AC.0.082 decimals out of the suit plot to one Gitanjali Nanda. Out of the two brothers, Debi Prasad Kanungo who was a bachelor expired on 17.3.2012. 4. The case of the Plaintiff-Respondent is that after the death of their parents, the two brothers amicably partitioned the suit property in equal share & in that partition, Durga Prasad Kanungo got the southern side & Debi Prasad got the northern side. Further case of the Respondent-Plaintiff is that during his life time late Debi Prasad Kanungo entered into an agreement on 4.3.2011 with the Respondent-Plaintiff to sell a portion of the suit plot which had fallen in his share for a consideration of RS.15,00,000 & in terms of that agreement, a sum of RS.8,85,000 was paid by her to late Debi Prasad Kanungo on the date of execution of the agreement & also on subsequent dates differential amount were paid by her to Debi Prasad Kanungo amounting to Rs.5,50,000. But, Debi Prasad Kanungo died before execution of the sale deed. He being bachelor at the time of his death, the Appellant-Defendant, became the sole owner: of the property. He was approached by the Plaintiff to execute the sale deed by accepting the balance consideration amount. But, Debi Prasad Kanungo died before execution of the sale deed. He being bachelor at the time of his death, the Appellant-Defendant, became the sole owner: of the property. He was approached by the Plaintiff to execute the sale deed by accepting the balance consideration amount. But instead of doing so, the Defendant negotiated with third party to sell the suit property. Hence the suit for specific performance of contract & the prayer for interim protection. 5. The Defendant has taken the stand that the suit property was not partitioned between him & his deceased brother, that Debi Prasad Kanungo had no legal necessity as he was a flourishing advocate, that Debi Prasad Kanungo was addicted to alcohol, &, that he had not entered into any agreement with the Plaintiff. 6. Taking into consideration the notarized agreement purportedly executed by Debi Prasad Kanungo to sell the land to the Plaintiff & the money receipts showing payment of consideration money in advance from time to time together with the admitted facts narrated above, the Learned lower Court observed that the genuineness of the documents would be adjudicated in the original suit at the time of final hearing of the suit & if the Plaintiff.- Petitioner succeeds in proving her case, she would be entitled to the relief of specific performance of contract in respect of the suit property. So, the learned lower Court opined that the Plaintiff-Petitioner has got a prima facie case & the balance of convenience leans in her favour further observation of the lower Court is that if the Defendant-Opp. Party is not restrained from alienating the suit property to third party, the Plaintiff-Petitioner would suffer irreparable loss. On the said findings, the impugned order has been passed. 7. The Defendant-Appellant challenges the impugned order contending that a contract for sale of immovable property does not create any interest in or any discharge on the property & therefore, the interim relief could not have been granted in favour of the Respondent. Further contention is that if the learned Court below had looked at the sketch map attached to the plaint & compared it with the map attached to the sale deed executed by both the brothers in favour of Gitanjali Nanda, it would have come to a conclusion that the Respondent's claim on the agreement for sale is fraudulent one & no interim relief could have been granted. 8. Inviting attention to the various documents produced by the learned Counsel for the Appellant before this Court, it is pointed out that the portion of the suit plot, which has been alienated in favour of Gitanjali Nanda, is a part of the suit land over which the Respondent-Plaintiff has sought for the interim protection. Since there is no dispute over the portion of the land purchased by Gitanjali Nanda, the same portion should not have been shown as a part of the suit land covered under the agreement for sale. 9. Learned Counsel for the Respondent submits that after institution of the suit, when the Plaintiff became aware of the defective description of the suit property in the plaint, she filed a petition for amendment of the plaint but the same having been rejected by the learned lower Court, the Plaintiff has challenged the order of rejection before this. Court which is sub judice. 10. There is no dispute that out of total area of the suit plot, AC.0.082 decimal has been sold to Gitanjali Nanda & the rest portion is still available with the Defendant. The Respondent-Plaintiff claims to have paid a sum of Rs.14,35,000 in advance pursuant to the contract for sale. Since the contract for sale is with regard to immovable property, it cannot be said that the same cannot be specifically enforced. In that view of the matter, the Plaintiff has got prima facie case. Since the Appellant-Defendant is now the sale owner of the unsold part of the suit plot & the property in dispute is shown to be quite valuable & considering that the Respondent-Plaintiff has come forward with a suit for specific performance of contract in respect of Ac. 0.139 of land out of the suit plot claiming that she had paid almost the entire consideration, there is every Possibility of the unsold part of the plot being disposed of at any moment to frustrate the Plaintiff-Respondent's claim. In the facts & circumstances, the property must be retained in the hand of the Appellant-Defendant till disposal of the suit. For the aforesaid reasons the balance of convenience leans in her favour & she would suffer irreparable injury. In the facts & circumstances, the property must be retained in the hand of the Appellant-Defendant till disposal of the suit. For the aforesaid reasons the balance of convenience leans in her favour & she would suffer irreparable injury. If during pendency of the suit, the Appellant-Defendant creates third party interest in respect of the remaining portion of the suit plot, it would cause irreparable loss to the Plaintiff-Respondent in whose favour balance of convenience also leans. Therefore, the Learned lower Court has rightly restrained the Appellant from making any alienation of the suit land in favour of third party till disposal of the suit. But since it is found that the land which has already been sold to Gitanjali Nanda (who is not a party to the suit) .has been shown as a part of the suit land over which the Plaintiff does not lay any claim, the impugned order needs modification by way of a clarification to the extent that the impugned order shall not operate as against the portion of land sold to Gitanjali, but it shall operate with respect to the rest part of the suit plot till disposal of the suit. 11. With the aforesaid observation, the FAO is disposed of.