Punjab-Haryana High Court
Subhram And Another vs M/S Malibu Estate Pvt. Ltd. And Another on 14 January, 2011
Author: A.N.Jindal
Bench: A.N.Jindal
Civil Revision No.3794 of 2010(O&M) [1]
IN THE HIGH COURT FOR THE STATES OF PUNJAB &
HARYANA AT CHANDIGARH
...
Civil Revision No.3794 of 2010(O&M) Decided on : January 14, 2011 Subhram and another ... Petitioners VERSUS M/s Malibu Estate Pvt. Ltd. and another ... Respondents CORAM : HON'BLE MR.JUSTICE A.N.JINDAL Present: Mr.Lokesh Sinhal, Advocate for the petitioners.
Mr.Arun Jain, Senior Advocate assisted by Mr.Ankur Soni, Advocate for the respondents.
A.N.JINDAL, J.-
Having failed to seek the injunction from the courts below, the plaintiffs - petitioners (herein referred as `the petitioners') have assailed both the orders dated 1.4.2010 passed by the Trial Court and order dated 20.4.2010 passed by the Appellate Court, by way of the present petition.
The facts in the background of the case are that the petitioners while claiming themselves to be co-sharers in possession of ¼th share in the land comprised in Khewat No.62, Khatoni No.68, Rect.No.12, Killa No.14/2(2-4) situated within the revenue estate of village Fatehpur, Tehsil and District Gurgaon and further alleged that remaining 3/4th share of the said land was owned by defendant No.1 - respondent No.1 (herein referred as `respondent No.1'). However, respondent No.1 had sold the whole of the land to defendant No.2 - respondent No.2 (herein referred as `respondent Civil Revision No.3794 of 2010(O&M) [2] No.2') vide registered sale-deed dated 11.6.2008. Thus, while challenging the said sale-deed, a declaration has been prayed for declaring the petitioner as owner in possession of the 1/4th share and further sought injunction against the respondents from alienating or making any construction or changing the nature of the suit property. Similarly, an application under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure, 1908 was also filed on the same grounds.
The respondents contested the claim of the petitioners stating that respondent No.1 had purchased the suit land measuring 3 Kanal 5 Marlas i.e. 3/4th share of the land measuring 2 Kanal 4 Marlas along with other land measuring 2 Kanal 2 Marlas comprised in Killa No.17, total measuring 4 Kanal 6 Marla vide sale-deed dated 6.2.1995. The disputed land, as claimed by the petitioners was earlier owned by them, their mother Dharam Kaur and sisters, namely; Jal Kaur and Krishna. Immediately after the purchase made by respondent No.1, the petitioners, their mother and sisters approached respondent No.1 to partition the joint holding. Respondent No.1 acceded to their request and consequently an oral partition took place, whereupon, respondent No.1 became the exclusive owner of the suit land and also the part of the land comprised in Killa No.17 to the extent of 1 Kanal ½ Marla on northern side. On the other hand, the petitioners, their mother and sisters became owner in possession of 1½ Kanals comprised in Killa No.17 on southern side. Respondent No.1 is a real estate developer and engaged in the sale and purchase of the land. After partition, the Company attained the license in respect of the suit land. Thereafter, in the year 2004, on the request of the petitioners, their mother Civil Revision No.3794 of 2010(O&M) [3] and sisters, respondent No.1 entered into a collaboration agreement dated 15.4.2004 with them and paid a sum of Rs.20,000/- in cash and also gave a plot of 120 square yards in lieu of their land in the event of license granted to it for development. However, since the petitioners and their mother as well as sisters were not sure of granting of licence, they entered into a collaboration agreement with respondent No.1 and also entered into an agreement to sell the said plot for a total sale consideration of Rs.11,42,200/- and received the entire sale consideration. In lieu of the said agreement, they executed a Special Power of Attorney and a General Power of Attorney in respect of the said land in favour of respondent No.1. They also further executed and got registered separate wills in favour of nominees and respondent No.1, and undertook to get the sale-deed registered as and when desired by it. As such, the petitioners are misusing their position and have filed the present suit in order to exploit respondent No.1.
The petitioners failed to seek injunction before both the Courts below.
The documents, as referred to, by the respondents in the written statements i.e. collaboration agreement between the petitioners, their mother and sisters on the one side and respondent No.1 on the other side dated 15.4.2004; the power of attorneys, as also the Wills prima facie reveal that there was some oral partition between the petitioners, their mother and sisters on one side and respondent No.1 on the other side and after the land was allotted to them, they had agreed to transfer the same by way of collaboration agreement for all intents and purposes at a cost of Rs.11,42,200/-, out of which a sum of Rs.2,30,000/- was received on the day Civil Revision No.3794 of 2010(O&M) [4] of agreement and the balance consideration was to be paid upto 20.6.2004. The receipt dated 18.6.2004 indicates that the remaining amount was received by the petitioners, their mother and sisters, out of which an amount of Rs.4 lacs was paid by way of cheque and the remaining Rs.5,12,200/- were paid in cash.
Irrespective of the fact that as per sub section 17(1-A) of the Registration Act, 1908, if the document containing agreement to transfer the immovable property for consideration, is not registered, then this document has no effect. However, the instant case is distinguishable as the agreement to sell is with respect to the suit land qua which the entire consideration has been paid by respondent No.1 to the petitioners and possession of the suit land transferred to the latter, therefore, non-registration of the document would not affect the plea raised under Section 53-A of the Transfer of Property Act, 1882 in its defence.
In any case, the Appellate Court while declining to grant the injunction has again protected the rights of the petitioners, if ultimately the suit is decided in their favour. The relevant paragraphs of the impugned order dated 20.4.2010 read as under:-
"19. The relief of injunction is an equitable relief and the party coming to the court to seek said relief must come with clean hands. In this case, the plaintiffs have not come to the court with clean hands and have concealed all the material facts and on said ground too they are not entitled to injunction as held by our Hon'ble High Court in Parmeshwari vs. Smt.Kauri and others, 1986 Punjab Law Journal 46, Parma Civil Revision No.3794 of 2010(O&M) [5] Nand vs. Ram Kala and others, 1986 Punjab Law Journal 685, Rashpal Singh Bahia & others vs. Surinder Kaur and others, 2008(2) Civil Court Cases 778, M/s Chandimandir Stone Crusher vs. Smt.Nirmala Devi and another 2008(1) Civil Court Cases, 152, and Shiv Dutt and others vs. Dharambir & others 2008(1) Civil Court cases 781.
20. Further, any construction raised by the defendants over the suit land shall obviously be subject to the outcome of the suit. If on trial, it is found that the suit land had not been partitioned and it was still joint property of the parties, then appropriate direction can be issued by the Court to demolish the construction and likewise any alienation made by the defendants during the pendency of the suit shall again be subject to the outcome of the suit."
Thus, on conspectus of the entire facts and circumstances of the case, it is apparent that the petitioners have no prima facie case or balance of convenience for grant of injunction in their favour.
No grounds to interfere.
Dismissed.
January 14, 2011 ( A.N.JINDAL ) `gian' JUDGE