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2016 DIGILAW 124 (UTT)

SANJAY VERMA v. OMSAI INFRA PROMOTERS (P) LTD.

2016-03-10

U.C.DHYANI

body2016
JUDGMENT U.C. Dhyani, J.(Oral) Since identical issue of law is involved in the aforementioned writ petitions, therefore, they are being decided together by this common judgment and order for the sake of brevity and convenience, with the consent of learned counsel for the parties. 2. By means of aforesaid writ petitions, petitioner/plaintiff Sanjay Verma, seeks following reliefs, among others: i) to quash the order dated 12.05.2015 passed by learned Addl. District Judge IV, Dehradun in M.C.A. no. 57 of 2014, Om Sai Infra Promoters Pvt. Ltd. and another vs Sanjay Verma and others as also in M.C.A. no. 115 of 2014, Uttar Pradesh Awas Evam Vikas Parishad vs Sanjay Verma and others, and further to allow the temporary injunction filed by the petitioner / plaintiff and further directing the parties to maintain status quo over the property in question. 3. A suit for permanent prohibitory injunction, cancellation of sale deed and partition was filed by the plaintiff/petitioner against the defendants/respondents. An application for temporary injunction (paper no. 6C) was filed. The defendants/respondents filed objections (paper no. 58C2) against the same. The trial court after hearing both the parties and after considering the documents brought on record directed, vide order dated 30.05.2014, that the parties shall maintain status quo over the suit property. Aggrieved against the same, two misc. civil appeals were filed on behalf of the defendants/respondents. Learned IV Addl. District Judge, Dehradun, vide order dated 12.05.2015, allowed the misc. civil appeals and hence aforesaid writ petitions were filed by the plaintiff/petitioner. 4. According to the plaintiff/petitioner, plaintiff alongwith defendant nos. 3, 9 and predecessor of defendant nos. 4 to 7 purchased the property through sale deed dated 26.07.2011 pertaining to khasra no. 96, admeasuring 2267 sq. mts. Defendant nos. 1 and 2 purchased share of defendant nos. 3 to 7 from the co-owners of the plaintiff vide sale deed dated 31.03.2012. Feeling aggrieved against the same, the plaintiff filed a suit for cancellation of the sale deed, permanent prohibitory injunction and alternatively for partition. 5. Defendant/respondent U.P. Awas Vikas Parishad did not file objections against the temporary injunction application. Objections were, however, filed by defendants/respondent nos. 3 to 7 from the co-owners of the plaintiff vide sale deed dated 31.03.2012. Feeling aggrieved against the same, the plaintiff filed a suit for cancellation of the sale deed, permanent prohibitory injunction and alternatively for partition. 5. Defendant/respondent U.P. Awas Vikas Parishad did not file objections against the temporary injunction application. Objections were, however, filed by defendants/respondent nos. 1 and 2 on the same, enumerating the facts contained therein that the property in dispute has been purchased by them from the Awas Vikas Parishad, vide allotment orders dated 04.08.2012 and 08.08.2012 and, therefore, the sale deed executed on 26.07.2011 by Durga Prasad in favour of the plaintiff was a void document, inasmuch as Durga Prasad had no share left in the property, which he sold in favour of the plaintiff. The sale deed executed in favour of the co-sharer of respondent nos. 1 and 2 cannot be cancelled. It is further submitted that a co-sharer cannot seek injunction against another co-sharer. 6. The trial court, after giving elaborate reasons, found in internal page no. 5 of the judgment that the plaintiff is co-owner in possession of khasra no. 96, the land which was purchased by him from Durga Prasad. Learned trial court has indicated that so long as the sale deed is not cancelled and declared void-ab-initio, the same will remain in force. According to trial court, U.P. Awas Vikas Parishad is not in possession of the disputed property and, therefore, the situation warrants that the same should be preserved. The trial court, therefore, directed the parties to maintain status quo over the suit property. 7. The lower appellate court, relied upon the documents thus filed, and on the basis of statement of Durga Prasad observed that Durga Prasad had no authority to execute the sale deed in favour of the plaintiff. Such an observation of lower appellate court finds support from the statement of Durga Prasad, who said that the plaintiff got the sale deed executed from him fraudulently. Durga Prasad, therefore, filed a suit for cancellation of sale deed dated 26.07.2011, which is pending adjudication before the trial court. According to learned lower appellate court the plaintiff has not been able to bring out a prima facie case in his favour, inasmuch as the possession of khasra no. 96 was already handed over to the Awas Vikas Parishad. According to learned Addl. According to learned lower appellate court the plaintiff has not been able to bring out a prima facie case in his favour, inasmuch as the possession of khasra no. 96 was already handed over to the Awas Vikas Parishad. According to learned Addl. District Judge, Durga Prasad did not handover the possession of the disputed land either to plaintiff or his co-sharers. The lower appellate court has, therefore, concluded that Durga Prasad has no authority to execute the sale deed and, therefore, refused to grant temporary injunction to the plaintiff and, accordingly, allowed the misc. appeal of the respondents. 8. The parameters of deciding the application for permanent prohibitory injunction and temporary injunction application are different, inasmuch as, whereas the former is governed by Sections 38/41 of the Specific Relief Act, 1963, the latter is governed by Order 39 Rules 1 and 2 C.P.C./Section 151 C.P.C. The oft repeated concepts for deciding the application for temporary injunction are – prima facie case, irreparable loss and balance of convenience etc. This Court need not deliberate on those concepts for the sake of brevity. 9. The narrow inspection hole through which a trial court is expected to look into the temporary injunction application and objections thereon envisages the aforesaid concepts only. A court, much less a trial court, while deciding application 6C and lower appellate court while entertaining misc. civil appeal cannot say, with certainty, unless found prima facie and on the face of it that any person had no right to execute a sale deed in favour of someone, which has been done in the instant case by the lower appellate court by holding that Durga Prasad had no authority to execute the sale deed in favour of the plaintiff. 10. Since it is an abadi land and non-revenue paying land, therefore, there is no extract of khasra in favour of any of the parties, to show, with conformity, as to who is in possession of the disputed land. Both the parties have filed the photographs of the land indicating their possession over the same. A document (paper no. 93C) has, however, been filed (Annexure CA2 and CA3 to the counter affidavit) to show that Durga Prasad handed over the possession of the disputed land to the Junior Engineer of the U.P. Awas Vikas Parishad on 22.02.2012, on the basis of a compromise dated 04.03.2010. A document (paper no. 93C) has, however, been filed (Annexure CA2 and CA3 to the counter affidavit) to show that Durga Prasad handed over the possession of the disputed land to the Junior Engineer of the U.P. Awas Vikas Parishad on 22.02.2012, on the basis of a compromise dated 04.03.2010. An affidavit has also been filed on behalf of Durga Prasad stating therein that he is ready for the compromise and will hand over the possession of khasra no. 96 to U.P. Awas Vikas Parishad, but the fact of the matter is that the possession letter is dated 22.02.2012 and the date on which sale deed was executed by Durga Prasad in favour of the plaintiff is 26.07.2011. A compromise was entered into between the parties in the year 04.03.2010. Thus after the compromise, the sale deed was executed by Durga Prasad in favour of the plaintiff and thereafter the possession was given to Awas Vikas Parishad by Durga Prasad. It may be reiterated, at this stage, that Durga Prasad has already filed a suit for cancellation of sale deed in favour of the plaintiff, which is pending adjudication before the trial court. Thus, it is clear that the sale deed which was executed by Durga Prasad in favour of the plaintiff/petitioner has not been declared a nullity, even as on today. 11. When a suit for cancellation of sale deed is pending adjudication before a competent court, how can another court, in a misc. civil appeal arising out of temporary injunction order can give such a finding? In other words, when Durga Prasad has admittedly filed a civil suit for cancellation of sale deed in favour of plaintiff/petitioner, how can another court of equivalent jurisdiction give a categorical finding in respect of the same sale deed that it is a void document and grant the benefit of same in favour of the U.P. Awas Vikas Parishad, who did not file objections against temporary injunction application of the plaintiff and the other respondents? The concept of void and voidable document is also being explained by this Court in one of the subsequent paragraphs of this judgment. 12. Attention of this Court is drawn towards a judgment rendered by Hon’ble Allahabad High Court in Awadh Narain vs IV Addl. The concept of void and voidable document is also being explained by this Court in one of the subsequent paragraphs of this judgment. 12. Attention of this Court is drawn towards a judgment rendered by Hon’ble Allahabad High Court in Awadh Narain vs IV Addl. District Judge, Jaunpur and others, 2002 (1) Civil Court Cases 347 (Allahabad), wherein it was held that if the partition has not taken place by metes and bounds, an application for temporary injunction of the joint property restraining the defendant (co-sharer) from raising construction, is maintainable. It was held by Hon’ble Supreme Court in Tanusree Basu and others vs Ishani Prasad Basu and others, [2008 (2) ARC 197], that in a suit for partition, if a party takes recourse to any contrivance to dispossess another, the court undisputedly have the jurisdiction to restore the parties back to the same jurisdiction. 13. Following was observed by Hon’ble Apex Court in Esha Ekta Apartments C.H.S. Ltd. and others vs Municipal Corporation of Mumbai and another, [2012 (92) ALR 897]: “15. We have considered the respective submissions and carefully scrutinized the record. The scope of the Appellate Court’s power to interfere with an interim order passed by the Court of first instance has been considered by this Court in several cases. In Wander Ltd. v. Antox India (P) Ltd., 1990 Supp. SCC 727, the court was called upon to consider the correctness of an order of injunction passed by the Division Bench of the High Court which had reversed the order of the learned Single Judge declining the respondent’s prayer for interim relief. This Court set aside the order of the Division Bench and made the following observations : “In such appeals, the Appellate Court will not interfere with the exercise of discretion of the Court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the Court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate Court will not reassess the material and seek to reach a conclusion different from the one reached by the Court below if the one reached by that Court was reasonably possible on the material. An appeal against exercise of discretion is said to be an appeal on principle. Appellate Court will not reassess the material and seek to reach a conclusion different from the one reached by the Court below if the one reached by that Court was reasonably possible on the material. The Appellate Court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the Trial Court reasonably and in a judicial manner the fact that the Appellate Court would have taken a different view may not justify interference with the Trial Court’s exercise of discretion.” 14. Further, in Skyline Education Institute (India) Pvt. Ltd. v. S.L. Vaswani, (2010) 2 SCC 142 , the Three-Judge Bench considered a somewhat similar question in the context of the refusal of the Trial Court and the High Court to pass an order of temporary injunction, referred to the judgments in Wander Ltd. v. Antox India (P) Ltd. (supra), N.R. Dongre vs Whirlpool Corpn., (1996) 5 SCC 714 , and observed : “The ratio of the abovenoted 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 nove 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.” 15. It has further been observed by Hon’ble Apex Court in Anand Prasad Agarwala vs Tarkeshwar Prasad and others, [2002 (48) ALR 295] that it is not appropriate for any court to hold a mini trial at the stage of grant of temporary injunction. 16. It will also be useful to quote paragraph 22 of the judgment rendered by Hon’ble Apex Court in Dhurandhar Prasad Singh vs Jai Prakash University and others, (2001) 6 SCC 534 , as below: “Thus the expressions “void and voidable” have been the subject-matter of consideration on innumerable occasions by courts. The expression “void” has several facets. 16. It will also be useful to quote paragraph 22 of the judgment rendered by Hon’ble Apex Court in Dhurandhar Prasad Singh vs Jai Prakash University and others, (2001) 6 SCC 534 , as below: “Thus the expressions “void and voidable” have been the subject-matter of consideration on innumerable occasions by courts. The expression “void” has several facets. One type of void acts, transactions, decrees are those which are wholly without jurisdiction, ab initio void and for avoiding the same no declaration is necessary, law does not take any notice of the same and it can be disregarded in collateral proceeding or otherwise. The other type of void act, e.g., may be transaction against a minor without being represented by a next friend. Such a transaction is a good transaction against the whole world. So far as the minor is concerned, if he decides to avoid the same and succeeds in avoiding it by taking recourse to appropriate proceeding the transaction becomes void from the very beginning. Another type of void act may be which is not a nullity but for avoiding the same a declaration has to be made. Voidable act is that which is a good act unless avoided, e.g., if a suit is filed for a declaration that a document is fraudulent and/or forged and fabricated, it is voidable as the apparent state of affairs is the real state of affairs and a party who alleges otherwise is obliged to prove it. If it is proved that the document is forged and fabricated and a declaration to that effect is given, a transaction becomes void from the very beginning. There may be a voidable transaction which is required to be set aside and the same is avoided from the day it is so set aside and not any day prior to it. In cases where legal effect of a document cannot be taken away without setting aside the same, it cannot be treated to be void but would be obviously voidable.” 17. Learned counsel for the defendants/respondents placed reliance on para 5 of the judgment rendered by Bombay High Court in Prakash Sukhdev Akotkar vs Mansoorkha Gulabkha, [1995] 0 Supreme(Mah) 326. In cases where legal effect of a document cannot be taken away without setting aside the same, it cannot be treated to be void but would be obviously voidable.” 17. Learned counsel for the defendants/respondents placed reliance on para 5 of the judgment rendered by Bombay High Court in Prakash Sukhdev Akotkar vs Mansoorkha Gulabkha, [1995] 0 Supreme(Mah) 326. Paragraph 5 of said judgment is reproduced here-in-below for ready reference: “As noticed, the character of possession of the plaintiff in the circumstances can only be that of a co-owner even if the possession passed under agreement to sell. The Division Bench of Punjab High Court in the case of (Sant Ram Nagina Ram v. Daya Ram Nagina Ram) 6 A.I.R. 1961 Punjab 528, has considered the whole question as to the rights and liabilities of co-owners and also the condition under which one could presume ouster. It is held therein that a co-owner has an interest in the whole property and also in every parcel of it; and that possession of the joint property by one co-owner is, in the eye of law, possession of all even if all but one are actually out of possession. Then it proceeds to hold that this condition will prevail unless ouster is proved. With due regard to the aforesaid facts and circumstances, particularly the fact that defendants 1 to 4 are governed by Mahammaden Law, there can be no doubt that their interest is that of co-owners. The first defendant has no right prima facie to bind the interest of defendants 2 to 4. Having found so, the alienees of the defendants 1 to 4 who are defendants 5 and 6 must be deemed to have stepped into shoes of at lest defendants 2 to 4 through prima facie the rights of first defendant is annexed with the obligation under the agreement to sell. Having found the character of possession as co-owner, as indicated above, the only question that arises for determination is, whether a co-owner in possession is entitled to an injunction of this nature against the other co-owners. Once it is found that the possession of co-owner is for and on behalf of other co-owners, the other co-owner cannot claim injunction of this nature so as to exclude the other co-owners from exercising their right as co-owners. Therefore, the respondents plaintiffs have no prima facie case. Once it is found that the possession of co-owner is for and on behalf of other co-owners, the other co-owner cannot claim injunction of this nature so as to exclude the other co-owners from exercising their right as co-owners. Therefore, the respondents plaintiffs have no prima facie case. Consequently on the short ground, the order of the Civil Judge, Sr. Division, is liable to be set aside. The order is therefore set aside and the instant Appeal is allowed. It need hardly be mentioned that the observations made in this order are only for the purposes of disposal of the claim of the respondents under Order XXXIX, Rules 1 and 2, Code of Civil Procedure.” But as has been discussed above, the Hon’ble Allahabad High Court has held otherwise in Awadh Narain vs IV Addl. District Judge, Jaunpur and others (Supra). 18. It is, therefore, concluded that the lower appellate court ought not have set aside the order of learned trial court. The judgments impugned both dated 12.05.2015 are, accordingly, set aside. The order passed by the trial court is affirmed. Both the writ petitions, accordingly, stand disposed of.