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2017 DIGILAW 2162 (RAJ)

Parba Singh v. Bheem Singh

2017-10-06

ARUN BHANSALI

body2017
JUDGMENT : ARUN BHANSALI, J. 1. This appeal is directed against the order dated 13.1.2017 passed by the Additional District Judge No. 5, Jodhpur Metropolitan, Jodhpur ('the Tribunal'), whereby, the application filed by the respondent-plaintiff under Order 39, Rule 1 & 2 CPC has been allowed and the appellant has been restrained from transferring the suit property and a direction to maintain status quo has been granted. 2. A suit for cancellation of sale deed dated 24.6.2016, was filed by the respondent-plaintiff, inter alia, with the averments that on 24.6.2016, the parties had entered into an agreement for exchange of properties belonging to the plaintiff and defendant respectively. However, in the garb of executing the documents pertaining to the said exchange, the sale deed of the plot belonging to the plaintiff was fraudulently got executed. Based on the said allegations, the cancellation of the sale deed was sought. 3. Along with the suit an application under Order 39, Rule 1 & 2 CPC was filed seeking a direction to the defendant to maintain status quo regarding the suit property and not to transfer the same during pendency of the suit. 4. The suit as well as the application seeking temporary injunction were contested by the appellant. It was not denied that the agreement to exchange the properties was executed on 24.6.2016, however, it was submitted that as the plaintiff was apprehending coercion by his children for the consideration received by him, he wanted a document to show to his children to indicate that he did not receive any amount as the exchange deed envisaged that no amount was required to be paid by either of the parties and, therefore, the document pertaining to exchange was only a make believe document; the appellant had paid consideration of Rs. 14,00,000/- and the document was duly registered and, therefore, the suit as well as the temporary injunction application were liable to be dismissed. 5. The trial court after hearing the parties on application seeking temporary injunction came to the conclusion that there was a prima facie case in favour of the plaintiff and that he would suffer irreparable injury, in case, injunction was not granted. Further the balance of inconvenience was also found in favour of the plaintiff and consequently, the order impugned as noticed, hereinbefore, was passed by the trial court. 6. Further the balance of inconvenience was also found in favour of the plaintiff and consequently, the order impugned as noticed, hereinbefore, was passed by the trial court. 6. It is submitted by learned counsel for the appellant that there is no substance in the plea raised by the plaintiff in the suit, inasmuch as, property in question was purchased on payment of consideration of Rs. 14,00,000/-, the possession thereof, was handed over to the appellant and the appellant started raising construction. 7. Submissions were made that the plaintiff has not filed any suit seeking specific performance of the agreement pertaining to the exchange of the plots and in view thereof, there was no substance in the plea raised by him. 8. Submissions were also made that though the trial court may be justified in directing stay on further transfer of the suit property, the direction to maintain status quo is depriving the appellant from utilizing the suit property despite paying a huge consideration and, therefore, the direction at least to the extent of status quo deserves to be quashed and set aside. 9. Learned counsel for the plaintiff vehemently opposed the submissions made by learned counsel for the appellant. It was submitted that from the bare perusal of the entire sequence of events, whereby, the exchange deed was executed on 24.6.2016 itself whereby the plots in question were agreed to be exchanged and possession thereof, was handed over to the appellant, the execution of the sale deed on alleged payment of entire consideration on the same day in those circumstances, does not arise. 10. Further submissions were made that the plaintiff had given a cheque of Rs. 1,11,000/- to the appellant towards the payment of registration charges/stamp duty, which cheque was got bounced by the appellant after filing of the suit by the plaintiff and proceedings under Section 138 of the Negotiable Instructions Act, 1881, have been instituted against the plaintiff, which clearly proves that the transaction in question pertained to exchange of the plot only and the sale deed was got executed fraudulently. 11. It was submitted that if the appellant was permitted to raise the construction over the plot in question, the same would result in irreparable harm to the respondent and would change the equities between the parties and, therefore, the trial court was justified in passing the order impugned. 12. 11. It was submitted that if the appellant was permitted to raise the construction over the plot in question, the same would result in irreparable harm to the respondent and would change the equities between the parties and, therefore, the trial court was justified in passing the order impugned. 12. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 13. The appellant has not denied the execution of the agreement to exchange the plots in question, however, a plea has been raised that the same was only a make believe document, further the entire consideration of Rs. 14,00,000/- for transfer of plot, which is said to have been paid, is claimed to have been paid in cash. The sale deed of the plot in question has been alleged to have been executed by the respondent fraudulently. The defence raised by the appellant that as the plaintiff has not claimed any specific performance of the agreement to exchange the plots, he is not entitled to seek injunction, also has no basis, inasmuch as, once the plot in question is shown to have been transferred on payment of consideration till such time the said document exists, the respondent cannot succeed in his plea for exchange as the agreement envisages non-payment of any consideration for such transfer. 14. In view thereof, till such time the plea that agreement for exchange was executed for the reasons as claimed by the appellant are not established, the suit filed by the plaintiff indicates a prima facie case in his favour. Once a prima facie case is found and on the plot of land, at the time of agreement, there was no construction standing, if the appellant is permitted to raise construction as per his requirement, the same is likely to cause irreparable harm to the plaintiff. In those circumstances, directions issued by the trial court cannot be faulted. 15. In view thereof, a possible.