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2021 DIGILAW 2174 (RAJ)

Manoj Kumar v. Vijay Kumar S/o Budha Bai

2021-11-18

DEVENDRA KACHHAWAHA

body2021
ORDER 1. Heard learned counsel appearing for the appellants and learned counsel for the respondent No.l. 2. Respondent No.2 is the bank. 3. Both the counsel are agree on the fact that no relief has been claimed against the respondent No.2, therefore, as requested by learned counsel appearing for the parties, service upon respondent No.2 is dispensed with. 4. Initially, property was mortgaged by respondent No. l in favour of respondent No.2 and therefore, respondent No.2 was impleaded as party to the suit and thereafter, impleaded as party to the present appeal. 5. Learned senior counsel appearing for the appellants stated that agreement to sale has been executed by defendant respondent No. l on 08.06.2005 in favour of the plaintiffs-appellants and the possession was of the property has been handed over to the respondent No. l. Appellants and respondent No. l are real brother. Although, the possession of the property in question has been handed over by the appellants to the respondent No. l but, learned counsel stated that the land was given on contract by the defendant-respondent No. l to the appellants and since times, the appellants are in possession of the land in question. 6. It is an admitted position that there was no document which shows that such type of contract was executed between the parties. 7. A plea has been taken by the respondent-defendant that document was executed for the residential plot not for the agricultural land and disputed land is agricultural land. It is also one of the plea taken by the respondent No. l-defendant that signature was obtained on blank stamp and the same has wrongly been executed thereafter. It is also an admitted position that learned trial Court has gone beyond the scope and pleadings of the parties, while deciding the issue No.2 in regard to possession over the disputed land and the suit for specific performance has been dismissed by learned trial Court. 8. Learned counsel appearing for the respondent No. l vehemently and fervently opposed the prayer for interim relief and stated that as per para 39 of page 32 of the impugned judgment, it is an admitted position that only an amount of ^ 2,00,000/- was given at the time of execution of the document, not Rs. 8. Learned counsel appearing for the respondent No. l vehemently and fervently opposed the prayer for interim relief and stated that as per para 39 of page 32 of the impugned judgment, it is an admitted position that only an amount of ^ 2,00,000/- was given at the time of execution of the document, not Rs. 15,00,000/-, as alleged by the plaintiffs and it is also stated that as per para No.23 of page 29 of the impugned judgment, document was executed before the deceased father Laxminarayan but, in fact the same was not executed during his life time. He opposed the fact that he was not a lived and, it is clear case of defendant respondent that signature upon exhibit-1 was taken upon blank stamp. 9. Learned counsel for the respondent No. l also stated that it was stated later on that an amount of ^ 13,00,000/- was given earlier whereas as per document, an amount of ^ 15,00,000/- was given at the time of execution of document. Learned counsel also stated that suit for possession was also filed by respondent defendant is also pending. He further stated that in reply to the stay application, he mentioned that during the pendency of the present appeal, appellants may be directed to pay mesne profits for occupation and use of the land in question. 10. Having regard to the facts and circumstances of the case, particularly to the fact that it is an admitted case that signature of the respondent No. l-defendant was obtained on the blank stamp; it is also an admitted position that plaintiffs are in possession over the disputed land. It is an admitted position that there is no such document which shows that the land was given on contract basis. Therefore, it can be held that appellants are in possession upon disputed land because at the time of agreement to sale possession was handed over to appellants, not on the basis that land was given to the plaintiffs on contract basis, as no receipt of rent, mesne profit etc. has been presented before the learned trial Court or before this Court by respondent No. l-defendant which shows that at any stage rent/mesne profit was given by the plaintiffs-appellants to the respondent No. l-defendant. 11. has been presented before the learned trial Court or before this Court by respondent No. l-defendant which shows that at any stage rent/mesne profit was given by the plaintiffs-appellants to the respondent No. l-defendant. 11. In view of the above, the present appeal is admitted and it is directed that till the final disposal of the appeal, appellants shall not be dispossessed from the disputed land. 12. So far as the argument advanced by learned counsel for the respondent No. l-defendant in regard to payment of mesne profit during the pendency of the present appeal, in the considered opinion of this Court, if the appeal of the appellants fails and it is found at the time of judgment that appellants-plaintiffs were not in possession of the disputed property in the grab of exhibit-1, in lieu of agreement to sale and they were in possession over the disputed land pursuant to contract, the Court would pass any appropriate order in regard to payment of mesne profit. 13. The stay application stands disposed of accordingly. 14. It is made clear that this order will not create any obstructions in the suit pending for possession which is filed by plaintiff respondent. 15. Let the appeal be placed in due course.