Rajasthan High Court - Jaipur
Smt Kanta vs Moji Sinha And Others on 4 May, 2012
Author: Prem Shanker Asopa
Bench: Prem Shanker Asopa
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. S.B.Civil Misc. Appeal No.6686/2011 Smt. Kanta Vs. Moji Sinha & Ors. Date of order : 04.05.2012 HON'BLE MR. JUSTICE PREM SHANKER ASOPA Mr. Jai Kishan Yogi, for the plaintiff-appellant. Heard learned counsel for the plaintiff-appellant. (2) By this Miscellaneous Appeal, the plaintiff-appellant has challenged the order dated 25th July, 2011 passed by Additional district & Sessions Judge, No.2, Ajmer (Rajasthan) (hereinafter to be referred as 'trial court') whereby she dismissed the temporary injunction filed under Order 39 Rule 1 and 2 CPC in Civil Suit No.12/2011(14/2011) by the plaintiff-appellant. (3) Briefly stated the facts of the case are that the plaintiff-appellant filed a civil suit against the defendants-respondents No.1 to 4 for cancellation of sale deed dated 28th April, 2006 on the ground that the plaintiff-appellant has given the Power of Attorney to defendant-respondent No.1 on 28th April, 2006 which was cancelled verbally on 15th August, 2006 in the presence of two witnesses and subsequently vide letter dated 23rd August, 2006, the information for cancellation of the Power of Attorney was also sent. Despite that defendant-respondent No.1 vide registered sale deed dated 05th August, 2010 sold the share of the property of the plaintiff-appellant to defendant No.2 and 3 for a consideration of Rs. 4,00,000/-.
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The plaintiff-appellant further gave a registered notice dated 23rd September, 2010 for cancellation of the Power of Attorney but despite that the defendants-respondents No.2 and 3 sold the said property on 03rd December, 2010 to defendant-respondent No.4.
The defendant-respondent No.1 has filed reply alongwith said Power of Attorney dated 28th April, 2006 and stated that he has rightly sold the property on 05.08.2010 to defendant-respondent No.2 and 3 without any fraud. Further, the said sale deed was executed with the consent of the plaintiff-appellant.
The defendants-respondents No. 2 and 3 have also filed reply by stating therein that they have purchased the property from the defendant-respondent No.1 on 5.8.2010 and subsequently it was sold to defendant respondent No.4 on 03rd December, 2010.
The defendant-respondent No.4 has also filed reply by stating therein that he is a bonafide purchaser of the property and taken all the precautions by publishing a notification in newspaper for transfer of the said property.
The trial court after consideration of the facts and circumstances of the case as well as the documents produced by the parties came to the conclusion that the fact of execution of the Power of Attorney is not disputed and further on 15th August, 2006 the verbal cancellation has been pleaded which was subsequently informed in writing on 23rd August, 2006 by UPC but it has not been
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proved whether the said UPC has been received by defendant-respondent No.1 or not ? Subsequently on 23rd September, 2010, the registered notice for cancellation of property was given to defendant-respondent No.1 but prior to that the property was sold to defendant-respondent No.2 and 3 on 05th August, 2010 for a consideration of Rs. 4,00,000/- which was subsequently further sold to defendant-respondent No.4 on 3rd December, 2010 by defendants-respondents No.2 and 3. There is no dispute between the parties that the Power of Attorney has been executed in favour of defendant-respondent No.1 by the plaintiff-appellant. The trial court after considering all the facts and circumstances, came to the prima facie conclusion that justification of first cancellation of the Power of Attorney by UPC and then by registered notice are subject matter of evidence, therefore, at this stage there is no prima facie case in favour of the plaintiff-appellant and as regards the balance of convenience, the trial court was of the view that the dispute has been raised on this issue is with regard to the consideration of sale which is also subject matter of evidence,therefore, the balance of convenience is also lies in favour of defendants-respondents and further any transaction of sale to any other person by them will be subject to the decision of the civil suit as per Section 52 of the Transfer of Property Act, 1882. Therefore, no irreparable loss will be caused to the plaintiff-appellant and the application for temporary injunction filed
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under Order 39 Rules 1 and 2 CPC was dismissed.
(4) Submission of the learned counsel for the plaintiff-appellant is that the Power of Attorney dated 28th April, 2006 was cancelled on 23rd August, 2006, therefore, the defendant-respondent No.1 was having no right to sale the property. Consequently, no right accrued in favour of defendants-respondents No.2,3 and 4 in the disputed property.
(5) I have gone through the Miscellaneous Appeal and further considered the above submission of the learned counsel for the appellant and on consideration of the same came to the conclusion that prima facie, the plaintiff-appellant has failed to prove that on 23rd August, 2006, there was any cancellation, the said cancellation appears to have been made on 23rd September, 2010 i.e. after selling out the property to defendants-respondents No.2 and 3 by the defendant-respondent No.1 on 5.8.2010 by a registered sale deed. However, prima facie aforesaid finding is the subject matter of evidence. Further the finding of balance of convenience and irreparable loss against the plaintiff-appellant is justified.
(6) No case for interference with the refusal of grant of temporary injunction order dated 25.7.2011 passed by learned trial court is made out. However, it is expected from the trial court that the trial of the case be expedited.
(7) With the above observations, the Miscellaneous appeal stands dismissed.
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(8) Consequent upon the dismissal of the Miscellaneous Appeal, the stay application does not survives and the same is also dismissed.
(PREM SHANKER ASOPA),J.
N.Gandhi 30 All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Naval Kishore Gandhi Jr.P