KUNTLABAI Vs. DHRUVKUMAR SAHU

JUDGEMENT

(1.) This is an appeal under Order 43, Rule 1(r) of CPC by the defendant against the order by which the plaintiffs' application under Order 39, Rule I and 2 for temporary injunction for restraining the appellants/defendants from interfering with their possession over the suit property was allowed.

(2.) Facts of the case, in brief, are that the respondents No.1 and 2/plaintiffs filed a suit for specific performance of contract and permanent injunction inter alia, on the ground that the plaintiff and late Devi Chandra i.e., husband of appellant No.1 and father of appellants No.2 to 4 entered into agreement to sell with regard to suit property i.e., a piece of Khasra No.158/ 1 area 0.90 hectare (2.24 acre) on 12.04.2007, according to which, in the year 2001-02 the plaintiffs have paid entire sale consideration and obtained its possession and sale deed has to be executed after redemption of mortgage of the said land from the State Bank of India (Agricultural Branch), Balod where the same is mortgaged. According to them, the said agreement was also signed by the defendant No. 1 and 4. After the death of said Devi Chandra, when the said land was released by the Bank, the plaintiffs approached the defendants to execute the sale deed in their favour of the said land. Since the sale deed was not executed, the plaintiffs sent notice through their Advocate. In its reply, the defendants denied execution of agreement of sale and also denied to execute sale deed, therefore, the plaintiffs instituted the instant suit claiming relief of specific performance of contract and also of permanent injunction restraining the defendants from interfering with their possession over the suit property if they deny the execution of the sale deed. They have also preferred an application for grant of temporary injunction to restrain the defendant from interfering in their possession over the suit property as well as restraining them to alienate the suit property pending decision of suit. After service of notice, the defendants filed their reply, denied the execution of agreement to sell, denied their signature over the document and of late Devi Chandra, denied receipt of any consideration and handing over of possession of suit property, also filed their reply to the application for temporary injunction.

(3.) Learned Trial Court recorded a finding that the agreement to sell has been denied by the defendant, therefore, it is a matter of evidence whether or not, the said agreement to sell has been executed by the Devi Chandra but the plaintiffs are in possession of the suit land in prima facie proved by the affidavit of plaintiff Dhruv Kumar Sahu contents of which have been specifically not controverted by the defendants in the affidavit of Smt.Kuntlabai filed by them in support of their reply to the application for temporary injunction; the plaintiffs are entitled to protect their possession under Section 53 of the Transfer of Property Act (briefly, 'the Act"); the defendants are bound to execute the sale deed in favour of the plaintiffs in accordance with the agreement to sell executed by late Devi Chandra; earlier late Devi Chandra entered into agreement to sell with the plaintiffs and since the land was mortgaged with the State Bank of India, Balod, therefore, sale deed could not be executed at that time, now since the land is released from mortgage; Devi Chandra has already died and the defendants do not want to execute the sale deed, therefore, the plaintiffs are forced to file the instant suit; thus the plaintiffs have succeeded in proving prima facie case in their favour; the plaintiffs are in possession of the suit land and they are entitled to protect the same under Section 53 of the Act, therefore, balance of convenience also lies in their favour and if the defendants will not be restrained from interfering with plaintiffs' possession over the suit property then, the plaintiffs are likely to sustain irreparable injury; and granted temporary injunction in plaintiffs' favour.