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2021 DIGILAW 518 (HP)

Narinder Kumar v. Krishan Chand

2021-08-06

JYOTSNA REWAL DUA

body2021
ORDER Jyotsna Rewal Dua, Judge (Oral). - With respect to an agreement to sell, the purchaser as well as the seller have filed their respective civil suits. In the civil suit filed by the purchaser, on the application moved under Order 39 Rule 1 and 2 of the Code of Civil Procedure (CPC), status quo order as to the nature, user, construction, alienation and possession of the suit land etc. has been passed, which has attained finality. However, in the civil suit filed by the seller in respect of the same suit property by way of a subsequent interim order passed under Order 39 Rule 1 and 2 CPC, the purchaser has been restrained from causing any interference and encroachment over the suit land in any manner. Aggrieved, the purchaser has preferred instant petition under Article 227 of the Constitution of India. For convenience, hereinafter, the purchaser is being referred to as the petitioner and the seller as respondent. 2. Suit filed by the petitioner:- 2(i). The petitioner filed a civil suit for specific performance of the contract and consequential relief of permanent prohibitory injunction under Sections 10 and 38 of the Specific Relief Act. The suit was filed in respect of Khata No.92, Khatoni No. 116, Khasra Nos.225, 226 and 230 Kita 3, measuring 0-04-72 hectares, located at Village Kusiar Mouza Hathol, Tehsil Nadaun, District Hamirpur. The gist of petitioner's case was that the suit property was jointly owned and possessed by the respondent alongwith other co-sharers. The respondent entered into an agreement to sell his 12764th share to the petitioner on 22.10.2003 for sale consideration of Rs.40,000/-. The entire sale consideration was paid by the petitioner to the respondent on the date of executing the agreement. In terms of the agreement to sell, the sale deedwas to be executed within one year from the date of the agreement. It was further alleged that the petitioner was put in possession of the suit land on the date of the agreement. The agreement dated 22.10.2003 was renewed on 29.02.2004. While renewing the agreement, the respondent disclosed that he was gair marushi over the suit land and therefore, he would not be in a position to sell the suit land till 17.09.2015. The sale deed was not being executed by the respondent, therefore, the suit was filed. 2(ii). The agreement dated 22.10.2003 was renewed on 29.02.2004. While renewing the agreement, the respondent disclosed that he was gair marushi over the suit land and therefore, he would not be in a position to sell the suit land till 17.09.2015. The sale deed was not being executed by the respondent, therefore, the suit was filed. 2(ii). The respondent in his written statement admitted the execution of the agreement to sell. However, his case was that no consideration had been transferred to him. Possession of the suit land was not delivered by him to the petitioner and that it was the respondent, who was in possession over the suit land. The agreement was a sham transaction. Respondent was not even competent to execute the agreement to sell in view of bar under Section 113 of the H.P. Tenancy & Land Reforms Act. 2(iii). Learned Trial Court after considering the respective pleadings and contentions of the parties, observed that the respondent had admitted the execution of the agreement to sell dated 22.10.2003. In the agreement, there was recital about transfer of entire consideration money in favour of the respondent. There was also a recital in the agreement about possession of suit land having been delivered to the petitioner. Therefore, learned Court held that a prima facie case existed in favour of the petitioner/ plaintiff. Holding that the petitioner was able to make out a prima facie case in his favour, learned Trial Court vide order dated 01.01.2018, directed the parties to maintain status quo as to the nature, user, construction, alienation and possession of the suit land. The order passed on 01.01.2018 was accepted by the respondent. No further challenge was made to the order. 3. Suit filed by the respondent:- 3(i). The respondent filed a separate civil suit against the petitioner. He submitted that he is the owner in possession of Khasra No.230, measuring 0-01-80 hectares, located at Mahal Kusiar, Tappa Hathol, Tehsil Nadaun, District Hamirpur. It was contended that the petitioner was interfering in his possession over the suit land. In an application moved under Order 39 Rule 1 and 2 CPC in this civil suit, the learned Trial Court vide order dated 01.02.2018, declined to grant any interim order in his (present respondent) favour. It was contended that the petitioner was interfering in his possession over the suit land. In an application moved under Order 39 Rule 1 and 2 CPC in this civil suit, the learned Trial Court vide order dated 01.02.2018, declined to grant any interim order in his (present respondent) favour. Learned Trial Court observed that the suit land was part of the agreement to sell dated22.10.2003, in which there was a recital that the land had been agreed to be sold for Rs.40,000/- to the petitioner and that the entire consideration amount of Rs.40,000/- was transferred in favour of the respondent. Learned Trial Court also observed that the agreement had another recital of possession of suit land having been transferred in favour of the petitioner. Learned Trial Court vide order dated 01.02.2018, concluded that case for grant of interim injunction was not made out. 3(ii). The order passed by the learned Trial Court, declining the interim relief in favour of the respondent, was assailed by him before the learned Additional District Judge, Hamirpur. Vide impugned order dated 30.01.2021, learned Additional District Judge, Hamirpur allowed the interim application under Order 39 Rule 1 and 2 CPC. The petitioner was restrained from causing any interference and encroachment over the suit land in any manner. Aggrieved against the order dated 30.01.2021 passed by the learned Additional District Judge, Hamirpur, the petitioner has preferred the instant petition. 4. Heard learned counsel for the parties and gone through the documents on record. It is not in dispute that the order dated 01.01.2018 passed in the application under Order 39 Rule 1 and 2 of the Code of Civil Procedure moved by the petitioner in his civil suit, has become final. This order had been accepted by the respondent. In terms of this order, both the parties were directed to maintain status quo as to the nature, user, construction, alienation and possession of the suit land. The suit filed by the respondent was in respect of Khasra No.230, measuring 0-01-80 hectares, located at Mahal Kusiar, Tappa Hathol, Tehsil Nadaun, District Hamirpur. This khasra number was part of suit land in the civil suit filed by the petitioner. The suit filed by the respondent was in respect of Khasra No.230, measuring 0-01-80 hectares, located at Mahal Kusiar, Tappa Hathol, Tehsil Nadaun, District Hamirpur. This khasra number was part of suit land in the civil suit filed by the petitioner. Once an order of maintaining status quo in a particular manner had already been passed in respect of the suit property including Khasra No.230 in the civil suit filed by the petitioner, then there arises no question of passing a different order with respect to the same property in the civil suit filed by the respondent. More so, when parties to both the suits are also the same and the respondent had accepted the order dated 01.01.2018 passed by the learned Trial Court in the civil suit filed by the petitioner. There has to be consistency in the orders involving same subject matter, between the same parties, arising out of same dispute and in view of acceptance of the first order (dated 01.01.2018) by the parties. Therefore, this petition is allowed. The impugned order dated 30.01.2021, passed by the learned Additional District Judge, Hamirpur in Civil Miscellaneous Appeal No. 3 of 2019, titled Krishan Chand Versus Narinder Kumar and another, is quashed and set aside. Both parties are directed to maintain status quo as to nature, user, construction, alienation and possession of the suit land till the disposal of the suit. In view of observations made above, the order dated 01.02.2018, passed by the learned Trial Court shall also give way to the order passed in this petition. It is, however, clarified that observations made above are only for the purpose of adjudicating instant petition. The petition stands disposed of in the above terms, so also the pending miscellaneous application(s), if any.