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2016 DIGILAW 752 (MP)

Kamal Kumar Sharma v. Veena Agrawal (Goyanka)

2016-08-30

ASHOK KUMAR JOSHI

body2016
JUDGMENT : Ashok Kumar Joshi, J. The appellant/plaintiff has preferred this appeal under Section 100 of the CPC being aggrieved by the judgment dated 07.08.2014 passed by the Third ADJ, Katni, in regular Civil Appeal No. 29-A/13, affirming the judgment and decree dated 16.05.2013 passed by the Fourth Civil Judge, Class IInd, Katni in Civil Suit No. 47-A/12, whereby the suit of the appellant filed for relief of perpetual injunction against respondent Nos.1 to 3 to restrain them from alienating disputed agricultural lands in any form was dismissed. 2. The facts giving rise to this appeal in short are that the appellant herein filed the suit contending that late Vinod Kumar Goyanka R/o-Jabalpur was recorded Bhoomiswami of related agricultural lands situated in village Mudwara of Tehsil & District Katni. In his lifetime, Vinod Kumar Goyanka has executed a power of attorney in favour of respondent No. 4 Sheikh Mubaraq, in respect to his agricultural lands, because Vinod Kumar Goyanka was unable to manage the lands being resident of different district. On behalf of Vinod Kumar Goyanka, respondent No. 4 Sheikh Mubaraq had executed an agreement to sell of agricultural land on 31.01.2011 in favour of the appellant after receiving earnest money of rupees one lac. Appellant always remain ready for execution of sale-deed, but later on, Vinod Kumar Goyanka cancelled the power of attorney executed in favour of respondent No. 4. Thereafter, Vinod Kumar Goyanka executed a power of attorney in favour of respondent No. 4 Mohd. Jawed. After consulting with Vinod Kumar Goyanka, appellant got executed an agreement to sell by respondent No. 5 in presence of Vinod Kumar Goyanka on 19.07.2011. Some proceedings were pending in the Revenue Court of Tehsil Katni, about correction of record in relation to the concerned agricultural lands. Appellant got publication of a public notice in a daily newspaper on 22.11.2011 about the agreement to sell. In reply, Vinod Kumar Goyanka through his counsel published his reply to the public notice on 15.12.2011 that he has revoked the power of attorney previously executed in favour of respondent No. 5 on 26.11.2011. After death of Vinod Kumar Goyanka, his LR's respondent Nos.1 to 3 are trying to alienate the concerned lands to any other person by any mode. 3. Respondent Nos.1 to 5 remained absent and ex-parte before the trial Court. After death of Vinod Kumar Goyanka, his LR's respondent Nos.1 to 3 are trying to alienate the concerned lands to any other person by any mode. 3. Respondent Nos.1 to 5 remained absent and ex-parte before the trial Court. The trial Court after recording plaintiff's evidence, by above-mentioned judgment and decree, dismissed the suit filed by the appellant mainly on the ground that appellant had not filed the civil suit for the relief of specific performance of the contract to sell the agricultural lands and instead of it has only filed a suit for perpetual injunction and there was no any evidence produced by the plaintiff that respondent Nos.1 to 3 were trying to alienate the concerned lands in any manner. The first appeal filed by the appellant before the ADJ, Katni, also remained unsuccessful. In appeal, the respondent had also remained absent and ex-parte. Before Appellate Court, the appellant had filed an application under 41 Rule 27 of the CPC for taking on record a photocopy of the power of attorney executed by late Vinod Kumar Goyanka in favour of respondent No. 5. That application was also dismissed by the appellant Court by the passed judgment. 4. Learned counsel for the appellant Shri Piyush Jain contended that the judgments and decree passed by the Courts below are contrary to law on established facts and circumstances, this suit filed for the relief of perpetual injunction in relation to alienation only was maintainable, the appellate Court also erred in rejecting the appellant's application filed under Order 41, Rule 27 of the CPC for taking additional evidence of power of attorney. 5. It is clear from the perusal of record of civil suit that these were original pleadings of the appellant/plaintiff that later on respondent No. 5 had executed an agreement to sell in his favour on behalf of Shri Vinod Kumar Goyanka. Thus, it could not be said that the appellant was not having knowledge of the alleged power of attorney executed by late Vinod Kumar Goyanka in favour of respondent No. 5. No sufficient reason was established by the appellant before the Appellate Court about non-production of the documents relating to power of attorney before the trial Court. 6. Appellant has produced affidavits of five witnesses under Order 18, Rule 4 of the CPC before the trial Court and had produced agreement to sell Ex. P/1 and Ex. No sufficient reason was established by the appellant before the Appellate Court about non-production of the documents relating to power of attorney before the trial Court. 6. Appellant has produced affidavits of five witnesses under Order 18, Rule 4 of the CPC before the trial Court and had produced agreement to sell Ex. P/1 and Ex. P/7, but had not produced any evidence in relation to the alleged power of attorney executed by Vinod Kumar Goyanka before the trial Court. 7. It is well settled that the intending purchaser does not acquire any interest in immovable property on the basis of agreement of sell executed in his favour. According to the provision of Section 38 of the Specific Relief Act, for getting perpetual injunction, there should be an interest of the plaintiff in the relating immovable property and the defendant should have been trying to cause damage to the interest of the plaintiff. On the basis of agreement to sell only, plaintiff was not having any title or interest in immovable property, thus, he was not entitled for any perpetual injunction. 8. Besides this, according to pleadings of the appellant/plaintiff, respondent Nos.1 to 3 were not ready to execute any sale-deed in favour of the appellant, thus, the plaintiff should have filed a suit for the relief of specific performance of the contract to sell. Under the provision of Order-2 Rule-2(3) of the C.P.C, the suit filed only for relief of perpetual injunction to restrain respondent Nos.1 to 3 from alienation was not maintainable. There was no any evidence produced by the appellant that respondent Nos.1 to 3 were trying to alienate the relating agricultural lands to any other person. Thus, the findings recorded by the lower Courts appear to be based on proper appreciation of evidence. 9. It is apparent that there are concurrent findings of the Courts below and such findings being based on appreciation of the evidence, are findings of fact, thus, the same could not be interfered by this Court at this stage in second appeal re-appreciating the evidence under Section 100 of the CPC and therefore, this appeal does not have any circumstance to frame any substantial question of law. 10. In view of aforesaid discussion, I have not found any substance or the circumstance in the matter rise to any question of law rather than substantial question of law. 10. In view of aforesaid discussion, I have not found any substance or the circumstance in the matter rise to any question of law rather than substantial question of law. Consequently, this appeal being devoid of any merit deserves to be and is hereby dismissed at the stage of motion hearing. There shall be no order as to costs.