AMIT KAPUR Vs. RAJ KUMAR

JUDGEMENT

(1.) This appeal under Order 43 Rule 1 of the Code of Civil Procedure, 1908 (hereinafter referred to as the CPC) is directed against the order dated 26.10.2009 passed by Civil Judge (Sr. Div.), Nainital in Civil Suit No. 29 of 2009 'Amit Kapur v. Raj Kumar and Ors'.

(2.) Brief facts, arising out of the appeal, are that the plaintiff/appellant instituted a suit before the Civil Judge (Sr. Div.), Nainital against the respondents for a decree of mandatory injunction directing the defendants to execute a fresh agreement to sell in accordance with the agreement of sale dated 13.08.2008 and get the same registered and deliver the same to the plaintiff in respect of 3.5 acres of land situated at village Haripur Dhamola, Tehsil Kaladhungi, District Nainital bearing Khata No. 00002, Khet No. 2 measuring 0.1900 hectares, Khet No. 7/1 measuring 7.1020 hectares, Khet No. 7/2 measuring 1.2650 hectares and Khet No. 9 measuring 6.1550 and further a decree for permanent prohibitory injunction restraining the defendants from alienating, transferring or creating third party interest in the land in dispute. The case was registered as Civil Suit No. 29 of 2009 Amit Kapur v. Raj Kumar and Ors. It was stated in the suit that the defendant Nos. 1 to 21 are the owners of the property situated at village Haripur Dhamola, Tehsil Kaladhungi, District Nainital bearing Khata No. 00002, Gata No. 2 measuring 0.1900 hectares, Gata No. 7/1 measuring 7.1020 hectares, Gata No. 7/2 measuring 1.2650 hectares and Gata No. 9 measuring 6.1550 hectares, admeasuring a total area of 14.7120 hectares. It is asserted in the suit that the defendants entered into a sale agreement of the aforesaid land with the plaintiff whereby the defendant executed a unregistered sale deed agreement on 13.08.2008 in respect of 3.5 acres of land @ Rs. 20,85,000/- per acre and on the same day received a sum of Rs. 5,00,000/- as an advance. It was further agreed that the balance amount was to be paid at the time of getting the sale deed registered within three months i.e. till 12.11.2008. The agreement to sell was duly verified before the Notary Public on 14.08.2008. Under the terms and conditions of the aforesaid agreement, the sale deed was to be executed after payment of entire balance sale consideration and the defendants agreed to get the land free from all encumbrances of the bank till 12.11.2008. According to the appellant, he approached the respondents on several occasions personally as well as over the telephone for payment of balance sale consideration and getting the sale deed registered. The appellant had always been ready and willing to perform his part to pay the balance sale consideration and to get the sale deed registered in his favour but the defendants have failed to perform their part of the agreement and have deliberately avoided the same. In this regard, a notice was sent to the defendants through his Advocate Mr. Siddhartha Sah, asking them to receive the balance sale consideration and to execute the sale deed in respect of land in dispute in accordance with the agreement to sell dated 13.08.2008, however the defendants despite the service of said letter, did not execute sale deed rather sent a wrong reply to the aforesaid notice. The reply clearly shows that the defendants have turned dishonest and they do not want to honour their promise and are avoiding execution of sale deed as agreed. Since the agreement to sell has not been registered, the defendants are liable to be directed to execute a fresh agreement to sell in favour of the appellant and get the same registered at the cost of the appellant. It has been further stated in the suit that the plaintiff/appellant came to know that the defendants are negotiating for selling the land in dispute with some other persons, to which they have no right until the claim of the appellant is not settled. Alongwith the suit, the plaintiff/appellant moved an application (paper No. 7-c) for temporary injunction supported with an affidavit. Notices were sent to the respondents and they turned up before the Trial Court. The respondents filed their objection and stated that the plaintiff had to pay the balance sale consideration within stipulated time i.e. till 12.11.2008. The respondents came up with the case that being an unregistered document, the alleged agreement is not binding. On one hand the plaintiff is declining ownership of the defendants on the land in dispute but on the other hand he is urging for executing of new agreement. The respondents have every right to use their Bhumidhary land and the plaintiff/appellant is not entitled to get any relief. In order to prove the case, the plaintiff filed 5 documents per list-9c, however the defendants did not produce any documentary evidence. The learned Trial Court vide order dated 26.10.2009 dismissed the interim injunction application of the plaintiff/ appellant. Being aggrieved with the order dated 26.11.2009, the plaintiff/appellant come up in the present appeal.

(3.) I have heard Shri Sarvesh Agarwal with Shri Mohit Maulekhi, Advocates for the appellant, Shri Yogesh Pandey, Advocate for respondents and perused the material available on record.