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2017 DIGILAW 988 (RAJ)

Sunil Kumar v. Sambhu Singh

2017-04-17

DINESH MEHTA

body2017
JUDGMENT : Dinesh Mehta, J. By way of the present writ petition under Article 226/227 of the Constitution of India, the petitioner has challenged the order dated 22.09.2012, passed by the Civil Judge, Junior Division and Judicial Magistrate No. 1, Bhilwara as affirmed vide order dated 06.02.2017 of the Additional District Judge No. 2, Bhilwara. 2. The facts in brief leading to filing of the present petition invoking extra ordinary jurisdiction of this Court are, that the plaintiff, petitioner herein had filed a suit for Permanent Injunction, seeking protection of his possession qua the subject property. The petitioner's case is that the defendant had orally agreed to sell a house admeasuring 20x40 feet for a sum of Rs. 6,50,000/- to the plaintiff and in furtherance thereof, he had accepted a sum of Rs. 1,00,000/- paid vide cheque No. 1249516. It was the specific case of the plaintiff that possession of the contentious house had been handed over to him in pursuance of the oral agreement. According to the fact stated by the plaintiff in his plant, on 18.01.2010, when plaintiff had gone out of station, defendant forcibly took possession of the subject property. 3. The defendant filed written statement in repose to the suit filed by the plaintiff and took a stand that though a sum of Rs. 1,00,000/- was accepted by him as an advance against the proposed sale, however said amount had been returned by him. It was further stated by defendant that since the subject property was joint family property, the consent of defendant's sister was necessary, it was agreed by the parties that the plaintiff would take consent of the sisters of the defendant and thereafter the agreement would be executed. According to the defendant, since the plaintiff could not convince his sisters whose rights were also involved in the property in question, their wish could not fructify and result into any agreement to sell. 4. With regard to plaintiff's assertion about handing over the possession, it was stated in the written statement that the keys of the house was given to the plaintiff for the purpose of seeing the property and when the plaintiff failed to get the consent of the sisters, he himself had handed over the keys to the defendant. 4. With regard to plaintiff's assertion about handing over the possession, it was stated in the written statement that the keys of the house was given to the plaintiff for the purpose of seeing the property and when the plaintiff failed to get the consent of the sisters, he himself had handed over the keys to the defendant. It has been specifically asserted in the written statement that the property in question was in possession of the defendant and the subject property is lying secured by a lock placed by the defendant. 5. The Trial Court as well as the Appellate Court have rejected the application for grant of temporary injunction filed under Order 39, Rule 1 and 2 of the Code of Civil Procedure and held that there is no prima facie case in favour of the plaintiff. Both the Courts have found that admittedly the property in question was ancestral property wherein the rights or claim of the sisters were involved as such the property in question could not be transferred sans consent of the sisters. Learned Trial Court has further held that the suit in question is a suit for permanent injunction and not a suit for specific performance of the alleged oral agreement, which agreement too does not confer any right in favour of the plaintiff. 6. The Appellate Court while affirming the findings of the Trial Court, observed that the element of prima facie case does not exist in favour of the plaintiff. Learned Appellate Court while rejecting petitioner's application for grant of temporary injunction has held that injunction cannot be granted to the plaintiff as per Section 41(h) of the Specific Relief Act 1993, as the plaintiff has not sought specific performance of the agreement. It was further held that the plaintiff has not produced any documentary evidence showing possession of the property as such it cannot be concluded that the plaintiff is/was having possession of the contentious property. 7. Mr. Bohra, learned counsel for the petitioner challenging the orders passed by the Trial Court as well as the Appellate Court argued that the factum of oral agreement has been clearly admitted by the defendant in the written statement by pointing out the averments made in para No.2(x) and (k) of the written statement. 7. Mr. Bohra, learned counsel for the petitioner challenging the orders passed by the Trial Court as well as the Appellate Court argued that the factum of oral agreement has been clearly admitted by the defendant in the written statement by pointing out the averments made in para No.2(x) and (k) of the written statement. He submitted that of course in para 2(p) of the written statement the defendant has improved his stand by stating that the plaintiff had handed over the keys to the defendant, saying that he would remove his otherwise useless articles lying in the house, but nevertheless the factum of possession with plaintiff stands admitted. 8. In light of there averments, Mr. Bohra submitted that the defendant has admitted handing over the possession as also admitted the factum of agreement to sell as such the petitioner/plaintiff has strong prima facie case in his favour and he is entitled for protection of his possession of the disputed property. In support of his argument Mr. Bohra firstly cited the judgment of this Court reported in the AIR 2003 (Raj.) page 21 particularly para No.12 thereof, to support his argument that once the possession of the plaintiff has been admitted, there is a prima facie case in favour of the plaintiffs. 9. He also relied upon judgment of Karnataka High Court dated 04.07.2006 rendered in case of Ranjan Kumar Sinha v. Prabir Kumaar Sinha and Ors. particularly para No. 24 thereof; judgment of Andhra Pradesh High Court dated 03.03.2010 in the matter of Gone Rajamma v. Chennamaneni Mohan Rao (para 18); and judgment of this Court reported in 2008 Western Law Cases (Raj.) UC page 356 in support of his cause. 10. I have heard the counsel for petitioner and perused the material available on record, including the orders of the Courts below. 11. A perusal of the pleadings of the parties goes to show that the plaintiff has filed the suit for Temporary Injunction seeking protection of his possession, which allegedly had been given by the defendant, as a part performance of the oral agreement. A perusal of the plaint filed by the plaintiff shows that the plaintiff has simply relied upon, the factum of payment of Rs. 1,00,000/- vide cheque No.249516, which was encashed on 30.10.2009, to contend that such amount was paid as part of the oral agreement. A perusal of the plaint filed by the plaintiff shows that the plaintiff has simply relied upon, the factum of payment of Rs. 1,00,000/- vide cheque No.249516, which was encashed on 30.10.2009, to contend that such amount was paid as part of the oral agreement. There is no pleading of the plaintiff about the date of agreement and other ingredients of an agreement such as witness etc. in whose presence the parties had agreed orally. As far as the factum of the possession is concerned, the same has been specifically refuted by the defendants in his written statement by saying that the amount of Rs. 1,00,000/- was tendered by the plaintiff with a hope that he would be able to get the consent of the sisters/signatures of defendant's sisters on the sale deed who also had a right and interest in the contentious ancestral property. It has also been categorically stated in the written statement that on the plaintiff failed to get the consent of the sisters, he willingly handed over the keys of the house, which were given to him for the purpose of viewing the property. 12. Having heard the arguments of the parties, particularly when both the Courts have found that the plaintiff has no prima facie case, inasmuch as the factum of oral agreement itself is in shadow of doubt and the factum of possession is seriously disputed I am not persuaded to take a different view even on the appreciation of pleadings. I do not find any infirmity or perversity in the findings of facts recorded by the Courts below. 13. Coming to the judgment cited by the learned counsel for the petitioner, the first case sited by him was the one, reported in AIR 2003 (Raj.) page 21, in para No. 12 of the judgment this Court has observed as under. "The third essential in gradient for grant or refusal of temporary injunction is balance of convenience. Keeping in view the admitted fact that the plaintiff-appellants are in long settled possession under the agreement though execution of the agreement has been denied but the possession of the appellants has specifically been admitted by respondent No.2 on affidavit. In this view of the matter, I am of the considered view that the appellants, who are admittedly in possession, have a prima facie case in their favour." 14. In this view of the matter, I am of the considered view that the appellants, who are admittedly in possession, have a prima facie case in their favour." 14. A perusal of the case relied upon by the learned counsel for the petitioner shows that this Court has found that the possession of the appellant has been admitted by the respondent No.2 on affidavit, therefore in light of such admission the Court had granted interim order protecting possession of the plaintiff. While in present case the factum of possession has not at all been admitted by the defendant rather seriously disputed; what has been admitted by the defendant was that the keys of the house were handed over to the plaintiff for seeing the house, which in turn had been returned by the plaintiff on his failure to get the consent of the sisters or getting sale deed signed by them. Since, the property in question was admittedly a property involving rights of the sisters of the defendant for which, according to the defendant, the plaintiff had under taken the responsibility of convincing the sisters to the transactions, the transitory possession of the house cannot be believed to be with plaintiff, particularly in view of the stand of the defendant that the plaintiff himself had returned the keys to the defendant and it is the defendant's lock which is lying on the property in question. Such permission of the plaintiff is nothing more than a 'bailment'. 15. In view of the assertion made in the written statement, it cannot be said that there is an admission regarding possession of the plaintiff, in the present case. In absence of admission in relation to the possession coupled with the stand taken by the defendant in his written statement, it cannot be said that there is an admission of the plaintiff's possession by the defendant. As such the judgment cited by the learned counsel for the petitioner is not applicable in the present case and the same is clearly distinguishable. 16. As such the judgment cited by the learned counsel for the petitioner is not applicable in the present case and the same is clearly distinguishable. 16. Another judgment cited by the petitioner was a judgment dated 04.07.2006 passed by the Karnataka High Court in Ranjan Kumar Sinha v. Prabir Kumar Sinha para 24 whereof relied upon by the paras is reproduced here under:- "In the guise of the tentative findings, learned judge of the Court below has virtually expressed his final opinion with regard to the possession in respect of the suit premises aw well as the tenancy in question which cannot be sustained." 17. With the help of para No.24, Mr. Bohra contended that the learned Courts below have virtually expressed a final opinion with regard to the possession regarding the suit premises, which is against by law. 18. Suffice it to say that though in the present case, the Courts below have recorded prima facie finding about the existence of the oral agreement and the possession, however, such findings have been invited by the plaintiff himself and the Court was called upon to express prima facie opinion in light of the pleadings of the parties while deciding the application for Temporary Injunction. It is needless to observe that such findings are only prima facie observation of the Court and the same does not effect or influence the final judgment of the Court, which shall be passed after appreciation of complete evidence. As such this judgment cited by Mr. Bohra is of little avail to him. 19. Third judgment which has been relied by Mr. Bohra was the judgment dated 03.03.2010, rendered by Andhra Pradesh High Court in case of Gone Rajamma v. Chennamaneni Mohan Rao. "From the above decisions, it is clear that a person who is in the settled possession of the property, cannot be evicted forcibly even by the true owner. But the true owner has every right to dispossess or throw out a trespasser, who is in settled possession of property can seek an injunction even against the true owner, if he is going to be dispossessed forcibly. If the true owner is not shown to be in possession of the property, the remedy available is to evict him through process of law." 20. If the true owner is not shown to be in possession of the property, the remedy available is to evict him through process of law." 20. He relied upon observation made by Andhra Pradesh High Court in para 18 of the judgment reproduced above to contend that even a trespasser cannot be evicted forcibly by the true owner. 21. In the instant case, the petitioner has come with a case that he is in possession of the subject property, pursuant to an oral agreement, and has sought protection of his possession. The defendant has denied the assertion or allegation of possession of the property by showing that the property in question is in defendant's possession. As such the possession of the plaintiff in relation to the contentions house itself is not established, hence the judgment of Andhra Pradesh High Court relied upon by Mr. Bohra does not serve his cause. Possession of the plaintiff, as a rightful possessor or as a trespasser, itself is a subject matter of dispute. More so there is no question of eviction, as according to plaintiff's own showing the possession had been forcibly taken by the defendant. Another judgment was cited by Mr. Bohra was 2008 WLC (Raj.) UC page 356. 22. A perusal of the aforesaid judgment shows that it is based upon the peculiar facts of the case and the same does not lay down any law. For the purpose of convenience it would be worthwhile to reproduce para 3 to 5 of the one page judgment, read over by the counsel for the petitioner, which suns as under:- "A notice to show cause was issued to the respondents and the interim order maintaining the status-quo was passed way back on 13.05.2004 by this Court and since then the same is operating, therefore, without going into merits and demerits of the case, I think it fit and proper to direct the trial Court to expedite the suit itself and try to dispose of the suit within a period of one year" 23. Arguundo if it is assumed that the plaintiff is/was having possession of the house, as a part of the oral agreement to sell, such possession is per se illegal till the plaintiff shows his willingness or persisting rights to get specifice performance of such agreement. Arguundo if it is assumed that the plaintiff is/was having possession of the house, as a part of the oral agreement to sell, such possession is per se illegal till the plaintiff shows his willingness or persisting rights to get specifice performance of such agreement. It is not in dispute that the plaintiff has not asserted as claimed his right to purchase the property nor has he filed any such suit, as such he cannot claim possession of the property much less seeking protection of such illegal possession. As observed earlier the transitory possession was nothing more than a permissive possession, which cannot be protected sans any legal right. 24. Needless it is, to observe that Hon'ble Supreme Court and this Court has in catena of decision observed that High Court's powers under the Supervisory jurisdiction are limited and it should not interfere in the discretion exercised by the Trial Court. Being guided by such principle and having examined the orders passed by the Court below, this Court is of considered opinion that Courts below have decided the application for grant of temporary injunction after due application of mind and there is no infirmity much less perversity in these orders. Even if for a moment, it is assumed that another view is possible, the equity demands that the injunction as prayed for cannot be granted against the defendant, who is having title over the property. More particularly when according to the plaintiff's own pleading, the possession rests with the defendant. 25. In view of the above discussion this Court finds no substance and force in petitioner's case. The petition under Article 226/227 of the Constitution of India, invoking extra ordinary jurisdiction this Courts, fails and same is dismissed summarily.