Rajasthan High Court - Jodhpur
Gordhanlal @ Gordhanram vs Chuka Devi on 26 May, 2022
Author: Madan Gopal Vyas
Bench: Madan Gopal Vyas
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 820/2022
Gordhanlal @ Gordhanram S/o Moolchand, Aged About 56 Years,
B/c Brahman, R/o Village Mewda, Tehsil Degana, District Nagaur.
----Appellant
Versus
1. Chuka Devi W/o Ganeshlal @ Ganeshram, Aged About 52
Years, B/c Brahman, R/o Village Mewda, Tehsil Degana,
District Nagaur.
2. Sukharam S/o Dhannaram Jat, Aged About 59 Years, B/c
Brahman, R/o Village Mewda, Tehsil Degana, District
Nagaur.
3. Smt. Chotu Devi W/o Madhuram Jat, Aged About 47
Years, B/c Brahman, R/o Village Mewda, Tehsil Degana,
District Nagaur.
4. Tehsildar, Degana, District Nagaur.
5. Patwari, Village Mewda, Tehsil Degana, District Nagaur.
6. Sub Registrar, Tehsil Degana, District Nagaur.
----Respondents
For Appellant(s) : Mr. Jagdish Chandra Vyas
For Respondent(s) : Mr. N.S. Rajpurohit with
Mr. Prakash Bhati, for respondent
Nos. 1 to 3.
HON'BLE MR. JUSTICE MADAN GOPAL VYAS
Order 26/05/2022 Heard learned counsel for the appellant and learned counsel appearing for respondent Nos.1 to 3 on stay application.
The present civil misc. appeal has been preferred by the appellant-plaintiff against the order dated 04.05.2022 passed by learned Additional District Judge, Merta in Civil Misc. Case No. 11/2022, whereby the application filed by the appellant-plaintiff (Downloaded on 27/05/2022 at 08:49:30 PM) (2 of 4) [CMA-820/2022] under Order 39 Rule 1 and 2 read with Section 151 CPC has been dismissed.
The facts in nutshell are that Late Sh. Ganeshlal @ Ganeshram, who is the real uncle of the appellant and husband of respondent No.1-Smt. Chuka Devi, entered into an agreement to sale his 1/4th undivided share of agricultural land in favour of appellant-plaintiff on 26.09.1998 for a consideration of Rs.1,21,000/-and possession over the land in dispute has handed over to the appellant-plaintiff. It is submitted that Sh. Ganeshlal died on 30.05.2006, however, the sale-deed was not executed by Sh. Ganeshlal @ Ganeshram during his lifetime. Thereafter, respondent No.1-Smt. Chuki Devi, who is the only surviving legal heir of Sh. Ganeshlal, has denied for the execution of sale deed in favour of the appellant-plaintiff. Thereafter, when the appellant- plaintiff came to know about the transfer of the suit property in favour of respondent Nos.2 and 3 by executing a registered sale- deed on 04.03.2022, the present suit has been filed by the appellant-plaintiff seeking decree of specific performance of agreement to sale dated 26.09.1998 and cancellation of sale-deed dated 04.03.2022 as also, seeking permanent injunction over the suit property. Along with the aforesaid suit, an application under Order 39 Rule 1 & 2 read with Section 151 CPC seeking temporary injunction has also been filed. The said application was dismissed, therefore, the present appeal has been preferred by the appellant- plaintiff.
Arguing on stay application, learned counsel for the appellant-plaintiff submitted that an agreement to sale dated 26.09.1998 has been executed between Sh. Ganeshlal and (Downloaded on 27/05/2022 at 08:49:30 PM) (3 of 4) [CMA-820/2022] appellant-plaintiff for a consideration of Rs.1,21,000/- and in turn possession of the suit property has been handed over to the appellant-plaintiff. Learned counsel further submitted that the witnesses and writer of the agreement have also submitted their affidavits so as to prove that agreement to sale was executed between the parties. It is also submitted that as per the proviso to Section 49 of the Registration Act, there is no requirement for registration of the agreement to sale. Learned counsel for the appellant submits that while deciding the application under Order 39 Rule 1 and 2 of the CPC, the learned trial court has not considered the provisions of Section 53A of the Transfer of Property Act. Thus, it is prayed that interim order may kindly be granted in favour of the appellant-plaintiff.
Per contra, learned counsel appearing for the respondent Nos.1 to 3 submits that agreement is of the year 1998 and executor of the sale-deed namely Sh. Ganeshlal @ Ganesharam expired on 30.05.2006 and after almost sixteen years from the death of Sh. Ganeshlal @ Ganesharam and almost twenty four years from the date of execution of the agreement to sale, in the year 2022, the present suit was preferred by the appellant- plaintiff. It is also submitted that agreement to sale is not admissible in evidence. Lastly, it is submitted that the appellant- plaintiff has not come with clean hands. In support of his contention, learned counsel for the respondent has relied upon the judgment of Supreme Court in case of Ambalal Sarabhai Enterprise Limited Vs. KS Infraspace LLP Limited and Anr. along with three other connected matter : (2020) 5 Supreme court Cases 410.
(Downloaded on 27/05/2022 at 08:49:30 PM)
(4 of 4) [CMA-820/2022] Issue notice to the respondent Nos.4 to 6 only, returnable within a period of six weeks. Issue notice of stay application also.
Call for the record of Civil Misc. Case No.11/2022 from the court of Addl. District & Sessions Judge, Merta.
Having heard learned counsel for the parties and after perusing the material available on record, it is ordered that till the next date, status quo as it exists today with regard to the property in duspute shall be maintained by both the parties and they shall not create any third party rights.
(MADAN GOPAL VYAS),J 104-Bharti/-
(Downloaded on 27/05/2022 at 08:49:30 PM) Powered by TCPDF (www.tcpdf.org)