Rajasthan High Court - Jodhpur
Lrs.Of Bhagwanti vs Nand Lal & Ors on 12 December, 2008
Author: Prakash Tatia
Bench: Prakash Tatia
1
S.B. Civil Misc. Appeal No.1248/2008
Lrs. of Bhagwanti. vs. Nand Lal & Anr.
S.B. Civil Misc. Appeal No.1248/2008
Lrs. of deceased Bhagwanti. vs. Nand Lal & Anr.
Date : 12.12.2008
HON'BLE MR. PRAKASH TATIA, J.
Mr.SL Jain, for the appellants.
Mr.GR Goyal, for the respondents.
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Heard learned counsel for the parties.
The appellants/plaintiffs are aggrieved against the impugned order dated 18.8.2008 passed by the Additional District Judge No.2, Sri Ganganagar in Civil Misc. Case No.42/2006 by which the trial court rejected the appellants' application for grant of temporary injunction in a suit for specific performance of contract.
As per the facts stated by learned counsel for the appellants, the appellants entered into an agreement for purchase of land measuring 7 bighas 4 biswas vide agreement dated 30.4.2002 from respondent no.1 Nandlal. Out of this land, 5 bighas 4 biswas land was in fact 2 S.B. Civil Misc. Appeal No.1248/2008 Lrs. of Bhagwanti. vs. Nand Lal & Anr.
sold to the appellants by registered sale deed dated 5.12.2002. Two bighas land remained with the seller Nandlal. Out of this land, 12 biswas land was acquired by the State Government. Remaining 1 bigha 4 biswas land remained with respondent Nandlal. Out of this land, 1 bigha land was sold to the respondent no.2 by registered sale deed dated 6.6.2006. According to learned counsel for the appellants, again 1 bigha land was sold to Anil Kumar and Krishna Kumar who are respondents no.3 and 4.
According to learned counsel for the appellants, before filing this suit for specific performance of contract, the appellants themselves filed one suit in the revenue court and sought temporary injunction wherein interim order was passed. However, it appears that said order must have been vacated, therefore, the appellants preferred first appeal. Learned counsel for the appellants submits that thereafter, now the matter is pending before the Board of Revenue and he is not aware who has preferred appeal before the Board of Revenue.
Be it as it may be, the fact is that the plaintiffs filed revenue suit sought injunction and
that matter is pending and thereafter, the present suit has been filed in the year 2006 for seeking specific 3 S.B. Civil Misc. Appeal No.1248/2008 Lrs. of Bhagwanti. vs. Nand Lal & Anr.
performance of contract dated 30.4.2002. The trial court dismissed the injunction application after holding that the plaintiffs failed to prove their possession over the remaining part of the land and also observed that the land has been sold by the vendor to other purchasers and, therefore, there is no case made out for grant of injunction. While rejecting the injunction application, the trial court also held that the agreement for sale is not on proper stamps nor it is registered.
Learned counsel for the appellants further submitted that an unregistered agreement to sale could have been looked into by the trial court in a suit for specific performance of contract in view of the proviso to Section 49 of the Registration Act. He also submitted that the appellants are in possession of the land in dispute and, therefore, the trial court has committed serious error of law as well as fact in dismissing the injunction application.
I considered the submissions of learned counsel for the appellants and perused the record.
The broad facts which have been mentioned above clearly reveal that the agreement in question is dated 4 S.B. Civil Misc. Appeal No.1248/2008 Lrs. of Bhagwanti. vs. Nand Lal & Anr.
30.4.2002 and before filing the suit for specific performance of contract, a suit under Section 92A was filed by the plaintiff in the revenue court where she is agitating her rights. Under what circumstances, only land measuring 5 bighas 4 biswas was purchased by the plaintiff from the defendant by registered sale deed dated 5.12.2002 has not been made clear even after the agreement for sale of land measuring 7 bighas 4 biswas was made, whereas the defendant's case is that the plaintiff had no money, therefore, he purchased only 5 bighas 4 biswas land only from the vendor. Looking to the totality of the facts of the case, the trial court has not decided any legal issue finally and could not have decided finally, therefore, rest of the contentions are immaterial.
In view of the above, I do not find any illegality in the impugned order. Consequently, this appeal having no merits, is hereby dismissed.
(PRAKASH TATIA), J.
S.Phophaliya