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2018 DIGILAW 1685 (GAU)

Amit Kumar Singhal v. Kohinoor Plywoods Pvt. Ltd.

2018-12-04

SUMAN SHYAM

body2018
JUDGMENT : Heard Mr. P.J. Saikia, learned counsel for the appellants. I have also heard Mr. G. Choudhury, learned counsel representing the respondent No.1. None appears for the other respondents. 2. The order dated 29.05.2018 passed in Misc.(J) Case No.31/2018 arising out of Title Suit No.18/2018 whereby, an order of temporary injunction was granted by the learned Civil Judge, Tinsukia, Assam restraining the appellants herein from forcibly entering into the suit land and from disturbing the peaceful possession of the respondent No.1 and from alienating the suit land by creating third party right has been put under challenge in the present appeal. 3. The facts of the case, in a nutshell, are that the respondent No.1 as plaintiff had instituted Title Suit No.18/2018 in the Court of learned Civil Judge, Tinsukia, inter-alia, praying for a decree declaring its right, title and interest over the suit land measuring 5 Bigha 3 Katha 5.93 Lechas described in the schedule to the plaint; for confirmation of possession; for declaration that the sale deeds bearing Nos.424 of 2011, 1827/2013 as well as the sale deed bearing No.2250 of 2016 as null and void and for other consequential reliefs. In the said Title Suit the respondent No.1 had also filed a separate application registered and numbered as Misc.(J) Case No.31/2018 praying for an order of temporary injunction. In the Title Suit No.18/2018, the appellant Nos.1, 2 and 3 are the defendant Nos.1, 2 and 3 whereas the respondent No.1 is the plaintiff. 4. The case of the plaintiff as set out in the plaint is that the plaintiff is the owner in possession of the suit land which forms part of the larger area of land measuring 37 bigha 1 katha 9 lechas covered by Dag Nos.55, 54, 53, 52 and 51 of Periodic Patta No.49(N) situated at village No.1 Chota Hapjan Gaon under the Hapjan Mouza in Doomdooma Revenue Circle in the district of Tinsukia, Assam. On 20.03.2012, an agreement to sell a part of the land was entered by the plaintiff with the defendant Nos.1 and 2 for an agreed price of 4,18,000/- per bigha. Thereafter, with the approval of the Board of Directors, two registered deeds of conveyances were executed by the plaintiff/company in favour of the respondent Nos.1 and 2. On 20.03.2012, an agreement to sell a part of the land was entered by the plaintiff with the defendant Nos.1 and 2 for an agreed price of 4,18,000/- per bigha. Thereafter, with the approval of the Board of Directors, two registered deeds of conveyances were executed by the plaintiff/company in favour of the respondent Nos.1 and 2. By the registered deed of sale bearing No.424/2011 dated 23.03.2011 a plot of land measuring 2 bigha was sold to the defendant Nos.1 and 2. Similarly, by executing another sale deed bearing No.1827/2013 dated 06.11.2013 a plot land measuring 3 bigha 3 katha 5.93 lechas had been sold to the defendant Nos.1 and 2. The Title Suit was thereafter, instituted inter-alia contending that the defendants have failed to make payment of the total sale consideration as recorded in the agreement for sale in as much as an amount of Rs.12,50,587/- (approx) was due and payable by the defendant Nos.1 and 2 to the plaintiff for sale of the aforementioned plots of land. According to the plaintiff, the possession of the land was never delivered to the defendant Nos.1 and 2 and since the transaction is vitiated by fraudulent activities on the part of the defendant Nos.1 and 2 in their failure to transfer the balance amount of sale consideration despite having undertaken in the agreement for sale dated 20.03.2012, the sale deeds are liable to be declared as null and void. The plaintiffs have also challenged the registered deed of sale bearing No.2250/2016 dated 23.12.2016 by means of which the defendant Nos.1 and 2 have transferred the suit land to the defendant No.3 by way of sale. 5. The defendant Nos.1 to 3 had appeared in the suit as well as in the Misc.(J) Case No.31/2018 and filed written objection opposing the prayer made in the application for issuance of an order of temporary injunction. 5. The defendant Nos.1 to 3 had appeared in the suit as well as in the Misc.(J) Case No.31/2018 and filed written objection opposing the prayer made in the application for issuance of an order of temporary injunction. In the written objection filed on behalf of the defendant Nos.1 and 2 it has been inter-alia stated that on the date of handing over possession of the purchased land i.e. on 23.03.2011 the plucking season of the green tea leaves had already started and on the request of the representatives of the plaintiff company they were allowed to pluck tea leaves for that season on consideration of payment of a lump sum amount of Rs.30,000/- after deducting the expenses incurred on account of labour charges besides medicine etc. 6. The defendant No.3 had also filed a separate written objection inter-alia contending that the suit land was leased out to the plaintiff for a sum of Rs.1 lakhs for the plucking season of 2017. 7. Taking note of the materials available on record the learned trial Court had recorded a finding of fact that the plaintiff was in possession of the suit land since it was admittedly the original owner of the land. As such, there was a strong prima facie case in favour of the plaintiff and the balance of convenience was also in favour of issuing an order of temporary injunction. The learned trial Court had also held that if the order of temporary injunction is not granted, the same would result into irreparable loss and injury to the respondent No.1. 8. Mr. Saikia has invited the attention of this Court to the observations made in the impugned order dated 29.05.2018 to contend that the learned trial Court has erroneously recorded a finding that the possession of the plaintiff over the suit land had been admitted by the defendant Nos.1 and 2 by failing to consider that the statement made in the written objection was in the context of the facts stated in the previous paragraphs. Mr. Saikia submits that in the registered deed of sale the factum of delivery of possession has been clearly mentioned and therefore, the learned trial Court had committed manifest illegality in coming to the conclusion that the respondent No.1/plaintiff was in possession of the suit land despite having executed the registered deed of sale. Mr. Saikia submits that in the registered deed of sale the factum of delivery of possession has been clearly mentioned and therefore, the learned trial Court had committed manifest illegality in coming to the conclusion that the respondent No.1/plaintiff was in possession of the suit land despite having executed the registered deed of sale. The learned counsel further submits that since the land was sold by executing a registered deed of sale followed by delivery of possession, the order of temporary injunction restraining its owner from entering the suit land is per se illegal and hence, liable to be set aside by this Court. 9. Mr. G. Choudhury, learned counsel for the respondent No.1, on the other hand, has vociferously argued that the fact that the plaintiff was in possession of the land and was carrying out plucking activities of the tea leaves has been admitted by the defendants in the written objection. Having stated as above, it would not be open to the appellants to now resile from the said admission and take a contrary stand that they were in possession of the land. Mr. Choudhury submits that although the execution of the registered deeds of sale in favour of the defendant Nos.1 and 2 is not denied by his client, yet, due to non-payment of the full consideration amount, the sale deeds do not have any force in the eye of law. Under such circumstances, Mr. Choudhury submits that the respondent No.1/plaintiff cannot be thrown out of the suit land without following the due process of law. In support of his aforesaid argument Mr. Choudhury has relied upon two decisions of the Supreme Court, viz., AIR 2009 SC 2122 [Kaliaperumal vs. Rajagopal and others] and 1987 (Supp) SCC 161 [Bruce vs. Silva Raj and others] to contend that mere execution of a sale deed is not a conclusive proof of passing over title on the land and an order of temporary injunction cannot be granted in favour of a party which is not in possession of the land. The learned counsel for the respondent No.1 has also referred to the pleadings on record to contend that the defendants have admitted that some amount have not been paid to the respondent No.1 pursuant to execution of the registered deed of sale. 10. The learned counsel for the respondent No.1 has also referred to the pleadings on record to contend that the defendants have admitted that some amount have not been paid to the respondent No.1 pursuant to execution of the registered deed of sale. 10. I have considered the submissions advanced by the learned counsel for the parties and have also meticulously gone through the materials available on record. 11. Since the impugned order, in so far as the finding as regards the existence of a prima facie case is concerned, is based on alleged admission made by the defendant Nos.1 and 2, it would be necessary to extract the relevant paragraph from the written objection filed by the defendant Nos.1 and 2 which was relied upon by the learned trial Court :- “ii. That during the plucking season of green leaves M/s. Bhawani Traders with whom the opposite party Nos.3(a), 3(b) and 3(c) are maintaining good relations, approached them to lease out the Tea plantations of the suit land for plucking but since the petitioner Company was well interested in taking the same on lease, and therefore, on the initiation of the father of the opposite party Nos.1 and 2, the opposite party Nos.3(a), 3(b) and 3(c) leased out their said tea cultivation of the suit land to the petitioner at Rs.1,00,000/- for the plucking season of 2017 (i.e. March to December) and accordingly the petitioner issued a Cheque No.102384 dated 16.01.2018 which was issued in favour of M/s. Bhawani Traders on the request of the opposite party Nos.3(a), 3(b) and 3(c) with whom they were maintaining business transactions and the said Cheque on presentation to the bank on 29.01.2018 was en-cashed in the account of M/s Bhawani Traders on 03.02.2018.” 12. Taking note of the aforementioned statements made by the defendant Nos.1 and 2 the learned trial Court has recorded the following findings of fact as regards the existence of prima facie case in favour of the respondent No.1 :- “Considering the fact that the OPs admits the possession of the petitioner over the suit land as a lessee for plucking tea leaves, the submission of the OPs as to their possession over the suit land is contradictory and as such in view of the judgments cited and the fact that admittedly the petitioner were original owner of the land prior to their sale to the OPs, I am of the considered opinion that the dispute as to possession needs full trial to arrive at a concrete opinion and considering the documents furnished by both the sides in proof of their possession at this stage, shows the claim of the petitioner to be bonafide. Considering the fact that the plaintiff does not claim declaration over the whole land of the suit Dags, whether the plaintiff claims ownership over 37 bighas or 27 bighas is not a question debarring declaration as prayed for and as such, the plea of suppression of facts raised by the OPs is not tenable. Considering the submission of both the sides, I am of the considered opinion that the question as to maintainability of the suit even on the ground of limitation can be decided in suit at relevant stage and not in the present Misc.(J) case. Hence, considering the discussions made above and also the documents furnished by the parties and the Rulings cited by the petitioner, I find a prima facie case in favour of the petitioner.” 13. What would be relevant for consideration of this Court in the present case is that the suit land was admittedly transferred by the plaintiff company in favour of the defendant Nos.1 and 2 on the strength of two registered deeds of sale which are under challenge in the suit. There is also no dispute about the fact that the defendant Nos.1 and 2 have subsequently transferred the suit land in favour of the defendant No.3 by executing the registered deed of sale bearing No.2250/2016. All these registered deeds of sale contain a specific stipulation to the effect that on the date of execution of the deeds, physical possession of the land had been delivered to the purchaser. All these registered deeds of sale contain a specific stipulation to the effect that on the date of execution of the deeds, physical possession of the land had been delivered to the purchaser. That apart, the registered deed of sale executed by the plaintiff company in favour of the defendant Nos.1 and 2 also record the fact that the full consideration amount being the price of the land has been received by seller. It is in the backdrop of such stipulation contained in the registered deeds of sale that the plea raised by the plaintiff company would be required to be considered in the present appeal. 14. Section 91 of the Evidence Act provides that where the terms of contract or of a grant or of any other disposition of property have been reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property except the document itself or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions of the Act. Section 92 of the Evidence Act provides that when the terms of such contract, grant or other disposition of property or any matter required by law to be reduced to the form of a document have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted as between the same parties to any such instruments or their representative interest for the purpose of contradicting, varying, adding to or subtracting from its terms. 15. A plain reading of Sections 91 and 92 of the Evidence Act would go to show that it is the requirement of law that the terms and conditions of any contract or of any disposition of property which is reduced to the form of document would override any oral evidence contradicting or varying such terms. 16. In the instant case, as noted above, the plaintiff company has not denied the execution of the sale deeds in favour of the appellant Nos.1 and 2 nor has the terms and conditions of sale, as contained therein, been disputed by it. Under the circumstances, I am of the view that the learned court below was not correct in accepting the contention that the sale deed was executed without delivery of possession of the land in favour of the purchasers. Under the circumstances, I am of the view that the learned court below was not correct in accepting the contention that the sale deed was executed without delivery of possession of the land in favour of the purchasers. I do not find any other material available on record so as to enable the learned court below to record a prima facie satisfaction that it was the plaintiff which continued in possession of the land even after the execution of the sale deeds. 17. It is settled law that normally title in an immovable property would pass with the execution of a registered deed of sale and the purchaser would be deemed to be in possession of the land if such delivery of possession is indicated in the sale deed. Until such time the deed of sale itself is declared as null and void by the competent court of law, the purchase of such immovable property cannot be deprived of possession over the purchased land. Since in the present case, there is a specific clause contained in the sale deed regarding delivery of physical possession of the land, the learned trial Court, in my opinion, was not correct in holding that the purchasers were not in possession of the land without there being any cogent evidence to arrive at such a conclusion. 18. Coming to the question of admission of possession of the plaintiff over the suit land, I find from the record that the defendant Nos.1 and 2 had merely narrated the circumstances under which the plaintiff was permitted to pluck the tea leaves on condition of payment of certain amount of money. Even if such statement is taken in the face value, even then, the same, in the absence of any other contradicting evidence, would not be sufficient for the court to presume that the plaintiff had continued in possession of the land to the exclusion of the rights and interests of its purchasers in contradiction of the terms contained in the sale deed. As such, I am of the opinion that the learned trial Court had committed manifest illegality in coming to the conclusion that the plaintiff was in possession of the land. As such, there was no prima facie case to go for trial in this case. 19. As such, I am of the opinion that the learned trial Court had committed manifest illegality in coming to the conclusion that the plaintiff was in possession of the land. As such, there was no prima facie case to go for trial in this case. 19. Once it is held that the plaintiff could not establish a prima facie case, the question of balance of convenience and irreparable loss in the facts of this case, cannot be recognised in favour of the plaintiff. 20. Having held as above, this Court cannot be oblivious of the fact that the contentious issues raised in the Title Suit are yet to be decided by the court and during the pendency of the suit the defendants cannot be allowed to alienate the suit property so as to frustrate the suit of the plaintiff. 21. In view of the above and balancing the equities, it is hereby provided that the order of temporary injunction restraining the defendants from entering into the suit land stands set aside. However, the defendants are also restrained from alienating the suit land or from creating any third party right thereupon without obtaining the leave of the court. The order dated 29.05.2018 stands modified to the above extent. It is, however, made clear that the appellants shall not, henceforth, be obstructed from entering into the suit land. The appeal stands allowed to the above extent. No order as to cost.