SMT. KANAK DWIVEDI AND ANR. Vs. SUDESH KUMAR

JUDGEMENT

(1.) PRESENT writ petition has been filed by the petitioners challenging the order dated 07.01.2005 passed by the Civil Judge (Jr. Div.), Haridwar in Original Suit No. 276 of 2002 'Sudesh Kumar v. Smt. Kanak Devi and Anr.' and the order dated 01.10.2007 passed by the learned Addl. District Judge/IV Addl. F.T.C., Haridwar in Misc. Civil Appeal No. 10/2005.

(2.) BRIEF facts of the case, arising out of the record are that plaintiff/respondent -Sudesh Kumar instituted a suit for cancellation of sale deed dated 01.03.2001 executed by respondent in favour of defendant/petitioners -Smt. Kanak Dwivedi and her son Aashish Dwivedi, alleging non -receipt of full consideration. The said suit was numbered as Original Suit No. 276 of 2002 'Sudesh Kumar v. Smt. Kanak Devi and Anr.' in the Court of Civil Judge (Jr. Div.), Haridwar. Alongwith the suit, the plaintiff moved an interim injunction application (paper No. 7C -2) restraining the defendants from interfering in the land of his share in Khasra No. 1121 Rakba 3.873 hectares situated in village Jwalapur, Pargana -Jwalapur, Tehsil and District Haridwar. The plaintiff had come up with the case that out of his 1/3rd share he sold 0.861 hectares of land to the defendants for a sum of Rs. 4,25,000/ - and at the time of sale deed, the defendants have paid a sum of Rs. 25,000/ - in cash and a cheque of Rs. 4,00,000/ - was handed over to the plaintiff, but the cheque was dishonoured by the bank. The plaintiff has prayed that the sale deed dated 01.03.2001, which was executed in favour of the defendants alleging payment of inadequacy of consideration, may be cancelled. After the institution of the said suit notices were sent to the defendant/petitioners. The defendants filed their objection (paper No. 36c -c) with the assertion that out of the sale consideration of Rs. 4,25,000/ -, a sum of Rs. 25,000/ - was paid in cash and the balance sum of Rs. 4 lac was paid by cheque, but this cheque was not presented before the bank in time and on presentation the same on 22.06.2001 it was returned for insufficient funds. Thereafter, the defendant/petitioners had drawn another cheque for a sum of Rs. 2 lac and for the rest amount of sale consideration, a sum of Rs. 2 lac was also paid in cash to the plaintiff on 18.10.2001. On 28.02.2002 the plaintiff executed another sale deed in favour of the defendants. It has been further stated that had there been a dishonest dealing by the petitioners with the respondent, he would have never executed the next sale deed for the remaining land. The plaintiff/respondent did not file any suit for recovery of dues and he did not resort to prosecution under Negotiable Instrument Act, alleging dishonour of any cheque in the year 2001, instead filed the said suit for cancellation of sale deed in the year 2002 i.e. after a lapse of 1 1/2 years. It has been further stated that the defendant/petitioners are the actual owners in possession and no injunction or an order of status -quo can be passed against the true owners. Having heard the learned Counsel for the parties and after perusing the record the Trial Court vide order dated 07.01.2005, while disposing of the interim injunction application (paper No. 7C -2), directed the parties to maintain status -quo. Being aggrieved with the order of Trial Court the defendant/petitioners preferred the Misc. Civil Appeal before the District Judge, Haridwar which was received by transfer to the Court of Addl. District Judge/IV F.T.C., Haridwar, who after hearing the learned Counsel for both the parties dismissed the appeal and affirmed the order dated 07.01.2005 passed by the Trial Court. Hence this petition.

(3.) I have heard Shri Rattan Lal, the learned Counsel for the petitioners and Shri Sharad Sharma, Senior Advocate for the respondent and carefully perused the judgment and orders passed by the Courts below.