Anuj Kumar Srivastava And Another vs Smt. Ratna Rani And 4 Ors. on 1 September, 2014

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Allahabad High Court

Anuj Kumar Srivastava And Another vs Smt. Ratna Rani And 4 Ors. on 1 September, 2014

Present first appeal from order has been filed by plaintiff-appellants under Order 43 Rule 1(r) of Civil Procedure Code against order dated 20.5.2014 passed by learned Additional Civil Judge (Senior Division), Court No.14, Allahabad in Original Suit No.1217 of 2012 (Anuj Kumar Srivastava and another Vs. Smt. Ratna Rani and others) whereby learned Additional Civil Judge (Senior Division), Court No.14, Allahabad has rejected application 6-C moved by plaintiff-appellants under Order 39 Rule 1 of Civil Procedure Code for temporary injunction.

Appellants are represented by Shri Sharad Malviya advocate while Shri Anoop Trivedi advocate is present on behalf of defendant-respondent no.5.

We have heard learned counsel for the parties and have perused the impugned order passed by learned Additional Civil Judge (Senior Division), Court No.14, Allahabad. We have examined the records also.

Relevant facts for determination of this first appeal are:

The plaintiff-appellants filed O.S. No.1217 of 2012 (Anuj Kumar Srivastava and another Vs. Smt. Ratna Rani and others) against defendant respondents for permanent injunction with further relief of declaration to the effect that they are owner in possession of disputed property and sale deed dated 5.7.2012 executed by defendant respondent no.4 in favour of defendant respondent no.5 is null and void. In the aforesaid suit plaintiff-appellants filed application 6-C for temporary injunction under Order 39 Rule 1 of Civil Procedure Code alongwith affidavit.

According to plaint as well as the affidavit filed in support of application 6-C it has been contended by plaintiff appellants that lease of nazul plot no. 18-B, Hamilton Road, George Town, Allahabad was granted in favour of Lala Gauri Shankar vide registered lease deed dated 9.5.1912. Lala Gauri Shankar constructed a house on the said plot which was House no.29, Amar Nath Jhan Marg (Hamilton Road), George Town, Allahabad. After the death of Lala Gauri Shankar said house was inherited by his son Uma Shankar Gupta, who expired on 26.12.1988 leaving behind him, his daughter defendant no.1 and sons defendant respondent no. 2 and 3, who inherited the said property as successors of late Uma Shankar Gupta.

The disputed portion of said nazul plot and house which has been specifically described at the foot of the plaint was possessed by defendant respondent no.1 Smt. Ratna Devi with mutual consent of defendant respondents no. 2 and 3, who with consent of defendants no. 2 and 3 agreed to sell the same for Rs.2,10,000/- to late Kunwar Vijay Singh and plaintiff appellant no.2. Out of which Rs.1,01,000/- was paid to defendant respondent no.4, who received the said amount on behalf of defendant respondents no.1 to 3 through cheque no.409839.

Thereafter defendant respondent no.1 Smt. Ratna Devi herself took a sum of Rs.91,000/- from plaintiff appellant no.2 and Kunwar Vijai Singh. Thus she has has taken Rs.1,92,000/- out of agreed sale price of Rs.2,10,000/-.

It has further been contended by plaintiff appellants that on 19.10.1991 defendant respondent no.1 Smt. Ratna Devi acknowledged receipt of aforesaid Rs.1,92,000/- and in part performance of agreement delivered possession of disputed property to plaintiff appellants. She executed an agreement to sell on the same day which is annexure no.2 to affidavit filed by plaintiff appellant in this first appeal. Thereafter defendant respondent no.4 power of attorney holder of defendant respondents no.1 to 3 also executed an agreement to sell on 24.10.1991 in favour of plaintiff appellants. Copy of this agreement dated 24.10.1991 is annexure no.5 to affidavit filed in the present appeal.

It has been contented by plaintiff appellants that plaintiff appellants are in physical possession of property in dispute since 19.10.1991 and they have made addition, alteration and repairs in disputed property.

It has been contended by plaintiff appellants that on 19.11.2012 after 21 years of aforesaid agreement to sell dated 29.10.1991 and 24.10.1991, defendant respondent no.4 alongwith 15 to 20 persons forcibly entered in the house of plaintiff appellants and tried to evict them and threatened them to vacate the premises. Consequently plaintiff appellants filed present suit on 19.11.2012.

It has been contended by plaintiff appellants that defendant respondent no.4 has executed a sale deed in favour of defendant respondent no.5 on 5.7.2012 fraudulently with object to defeat legal rights of the plaintiff appellants.

Defendant respondents no.4 and 5 filed objections 36-C and 56-C respectively against application 6-C moved by plaintiff appellants for temporary injunction. Both respondents filed counter affidavits in support of their objections.

Rejoinder affidavits were filed by plaintiff appellants against counter affidavits filed by above two defendant respondents alongwith their objections.

Said defendant respondents opposed application 6-C for temporary injunction moved by plaintiff appellants. Defendant respondent no.4 contended that neither defendant respondent no.1 agreed to sell disputed property to Kunwar Vijay Singh nor any agreement for sale was executed by her or on her behalf. Defendant respondent no.4 further contended that plaintiff appellant no.2 is unknown to him.

Both defendant respondents contended that plaintiff appellants are not in possession of disputed property. They are residing in house situated at 5- A Zero Road, Allahabad.

Learned trial court after having heard the parties found that plaintiff appellants have no prima facie case and balance of convenience is also not in their favour. Therefore, plaintiff appellants are not entitled to any interim injunction as prayed.

In view of above learned Civil Judge (Senior Division), Court No.14, Allahabad rejected application 6-C moved by plaintiff appellants for temporary injunction vide impugned order dated 20.5.2014. Consequently, plaintiff appellants have filed this appeal before the High Court.

Learned counsel for the plaintiff appellants contended that plaintiff appellants have prima facie case and they are in possession of disputed property. Court Commissioner's report also establishes their possession. Therefore, finding recorded by learned trial court regarding no prima facie case of plaintiff appellants is against facts and material on record.

Learned counsel for plaintiff appellants contented that even if for the sake of argument it is accepted that no prima facie case of plaintiff appellants regarding title is made out, even then plaintiff appellants are entitled to temporary injunction on the basis of possession and they cannot be evicted from the disputed property otherwise than in due course of law.

Learned counsel for the plaintiff appellants placed reliance of on the following pronouncements of Hon'ble Apex Court.

(1) Anamallai Club Vs. Government of T.N. And others reported in (1997) 3 S.C.C. 169.

(2) Ramesh Chand Ardawatiya Vs. Anil Panjwani reported in 2003 (2) ARC 171.

Learned counsel for defendant respondents in reply contended that impugned order passed by learned Civil Judge (Senior Division), Court No.14, Allahabad is in accordance with law and material on record. He further contended that learned Civil Judge (Senior Division), Court No.14, Allahabad has rightly held that there is no prima facie case of plaintiff appellants and balance of convenience does not lie in favour of them. He further contended that learned Civil Judge (Senior Division), Court No.14, Allahabad has rightly rejected the application 6-C for temporary injunction moved by plaintiff appellants.

Learned counsel for defendant respondents contended that there is no reasonable ground for the High Court to interfere with the impugned order passed by learned trial court.

We have considered the submissions made by the parties.

The legal position in the matter of grant of temporary injunction in pending suit has been repeatedly settled by the Hon'ble Supreme Court as well as by the Division Benches of this Court. It has been laid down that for a temporary injunction being granted following three conditions must be satisfied simultaneously:

(a) prima facie case;

(b) balance of convenience; and

(c) irreparable loss or injury, which could not be compensated in terms of money.

It has been explained that even if one of the aforesaid three conditions is not satisfied, no temporary injunction can be granted. Reference-S.M. Dyechem Ltd. v. Cadbury (India) Ltd.; (2000) 5 SCC 573 and Anand Prasad Agarwalla v. Tarkeshwar Prasad; (2001) 5 SCC 568.

It is in this legal background that we proceed to examine the case set up by the parties.

In view of plaint allegation as well assertion made in affidavit filed by plaintiff appellants in support of application 6-C it is clear that plaintiff appellants are claiming ownership of property in dispute on the basis of two agreements for sale, one is dated 19.10.1991 annexure no.2 of affidavit of plaintiff appellants and the other is dated 24.10.1991 annexure no.5 to said affidavit. According to plaint itself no sale deed has been executed in pursuance to said agreements. No relief for specific performance has been claimed by plaintiff appellants rather they have relinquished the relief of specific performance, as per Order 2 Rule 2 of Civil Procedure Code. It is established position of law that no title can pass on the basis of agreement for sale.

Defendant respondents have denied both the agreements and the original of the said agreements have not been brought on record.

However, perusal of aforesaid annexure no.2 shows that it is an agreement for sale with transfer of possession executed on 19.10.1991 by defendant respondent no.1 in favour of plaintiff appellant no.2 and Kunwar Vijai Singh. This agreement is neither registered nor on stamp paper. It is on plain paper. It has not been signed by proposed vendees Kunwar Vijai Singh and plaintiff appellant no.2. No reliance can be placed upon such a documents. Moreover the alleged agreement dated 24.10.1991 executed by defendant respondent no.4 as attorney of defendant respondents no. 1 to 3 in favour of Kunwar Vijai Singh is an agreement for sale without possession. Agreement dated 24.10.1991 is subsequent to agreement dated 19.10.1991 and has been signed by both parties. Therefore even if for sake of argument agreement dated 19.10.1991 is taken into consideration it shall be deemed to have been substituted and rectified by agreement dated 24.10.1991 which is signed by Kunwar Vijay Singh. The plaintiff appellants are bound by this agreement dated 24.10.1991. In the plaint reliance has been placed upon this agreement by the plaintiffs. Therefore delivery of possession in pursuance of alleged agreements for sale prima facie cannot be accepted.

Even if it is accepted for a moment that the alleged agreement (page 75 of the paper-book) had been executed by the property owners, then from the reading of the agreement along with the boundaries of the property transferred, mentioned therein, it is apparent that only 222 square yard of open land (called 'plot') is agreed to be sold.

It is admitted to the parties before this Court that the total area of the property, being House No. 18-B, Hamilton Road, George Town, Allahabad is around 2528 square yard. It is, therefore, writ large on record that according to his own case of the plaintiff petitioner the agreement to sale is in respect of only 1/10 of the total property described as 18-B, Hamilton Road, George Town, Allahabad. Further no construction standing thereon had been agreed to be sold to the petitioner under the first agreement, which according to the petitioner contains a recital of possession having been delivered. Therefore, at best what is claimed by the petitioner is that he was put in possession of open piece of land measuring 222 square yard and nothing beyond it.

A perusal of agreement dated 24.10.1991 further shows that the Bungalow No.29 situated at A.N. Jha Marg (Hamilton Road) George Town, Allahabad is agreed to be sold by respondent no.4 as attorney of defendant respondents no. 1 to 3 on 10.9.1991 in favour of Anant Awas Sahkari Samiti Limited. The agreed sale price had been paid by said Samiti'. Agreement dated 24.10.1991 shows that Kunwar Vijai Singh had made this agreement alleging him to be nominee of said Samiti. Therefore it is apparent that plaintiff appellants claims in this agreement to be nominee of said Samiti. But neither Samiti is party in said two agreements for sale nor Samiti has been impleaded in this suit. No authority of Samiti has been shown by plaintiff appellant.

According to plaint allegation Rs.18000/- is yet to be paid out of agreed sale price of Rs.210000/-. But plaintiff appellants have not shown their readiness and willingness to pay remaining amount. In plaint there is no averment to the effect that plaintiff appellants had been willing and ready to pay the remaining amount for execution of sale deed. Contrary to this they have relinquished the relief of specific performance.

Perusal of impugned order passed by trial court shows that in the records of Nagar Nigam name of Mukesh Kumar Srivastava has been entered as owner of disputed house.

Lower Court had appointed an Advocate Commissioner who had inspected the disputed property and has filed report and map, copy of which are papers no.155 to 161 of this appeal. A commission was also issued to Advocate Commissioner by this Court who has also filed his report.

According to report commission filed before trial court plaintiff appellants opened lock of disputed rooms and claimed their possession while defendant respondent no.5 told him that he has got registered sale deed of disputed land on 5.7.2012 and has obtained possession of it.

It is apparent from averment made in para no.28 of plaint that Nazul plot no.18-B including disputed land has been converted into free hold land in favour of defendant respondents no.1 to 3 on 4.1.2008.

In view of discussions made above, we are of the view that plaintiff appellants have no prima facie case and balance of convenience does not lie in their favour. In view of discussions made above, we are of the view that conduct of plaintiff appellants is not fair and they have come to court not with clean hand.

In the case of Kishor Singh Ratansinh Jadeja Vs. Maruti Corporation and others (2009) 11 SCC 229 Hon'ble Apex Court has relied upon its previous judgement rendered in the case of Mandali Ranganna Vs. T. Ramachandra reported in 4 (2008) 11 SCC in which Hon'ble Apex Court had held that in addition to prima facie case, the balance of convenience and irreparable loss the court granting injunction must also take into consideration the conduct of the parties.

In view of discussions made above as well as principles laid down by Hon'ble Apex Court in above pronouncements rendered in the case of Kishor Singh Ratansinh Jadeja Vs. Maruti Corporation and others (2009) 11 SCC 229 (supra), we are of the view that plaintiff appellants are not entitled to any temporary injunction prayed.

We are of the view that in the facts and circumstances of the case plaintiff appellants are not entitled to get benefit of pronouncement of Hon'ble Apex Court rendered in the case of Anamallai Club Vs. Government of T.N. And others (1997) 3 S.C.C. 169 as well as in the case of Ramesh Chand Ardawatiya Vs. Anil Panjwani reported in 2003 (2) ARC 171 (supra).

In view of discussion made and conclusion drawn above, we are of the view that learned trial court has rightly rejected application 6-C moved by plaintiff appellants for temporary injunction. We find no sufficient ground for interference in the impugned order passed by learned trial court. The appeal has no merit and is dismissed accordingly.

However, we direct trial court to make all efforts for expeditious disposal of original suit preferably within a period of six months from the date of production of certified copy of this order before trial court.

Order Date :- 1.9.2014 RU Court No. - 10 Case :- FIRST APPEAL FROM ORDER No. - 1917 of 2014 Appellant :- Anuj Kumar Srivastava And Another Respondent :- Smt. Ratna Rani And 4 Ors.

Counsel for Appellant :- Sharad Malviya Counsel for Respondent :- Anoop Trivedi Hon'ble Arun Tandon,J.

Hon'ble Akhtar Husain Khan,J.

Dismissed.

For orders see our order of date passed on separate sheets.

Order Date :- 1.9.2014 RU

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