SHIV NATH MISRA Vs. DAULAT SINGH

JUDGEMENT

(1.) The present First Appeal from Order has been filed against the order dated 29th May, 1989, passed in Suit No. 51 of 1989 by the IV Additional Civil Judge, Varanasi allowing the application for temporary injunction filed by the plaintiff-respondent under Order 39, Rules 1 and 2, CPC. The defendant-appellant has also filed a writ petition (Civil Misc. Writ No. 10344 of 1989) for quashing the order dated 25th May, 1989, passed by the District Judge, Varanasi, in Misc. Case No. 16 of 1989 between the parties. Learned counsel for the parties requested and accordingly the said writ petition was also called and since the question involved in this is dependant on the result of the disposal of the First Appeal, the said writ petition is being disposed of by means of the present order.

(2.) A suit has been filed by the plaintiff-respondent for a specific performance of the contract on the basis of an agreement for sale dated 22nd Sept., 1986, alleged to have been executed by the defendant-appellant in favour of the plaintiff-respondent regarding plot no. 655, area 7.17 acres situate in Village Bhiti, Pargana Ram Nagar, tehsil and district Varanasi. According to the appellant, the plaintiff set up a case that the defendant-appellant agreed to transfer the aforesaid land to the plaintiff for a sum of Rs.3,11,000/ - for which he executed a registered agreement for sale on the 22nd Sept., 1986, and the defendant-appellant also executed a registered Mukhtarnrama in favour of the plaintiff on the same day and, in fact, out of the aforesaid sale consideration Rs. 40,000.00 was paid as earnest money at the time of execution of the aforesaid document. It was further pleaded by the plaintiff-respondent that the parties agreed that the plaintiff will be entitled to receive the compensation in respect of the land likely to be acquired by the state Government in future. Some part of the aforesaid land was already acquired by the State Government for which Rs. 87,185/- was awarded as compensation. Thereafter, the plaintiff filed an application before the Land Acquisition Officer to pay the aforesaid sum to him but the defendant-appellant withdrew the said amount and his application was rejected as the Land Acquisition Officer passed an order that since he had already decided the matter he cannot pass any order on the same. The defendant-appellant also filed a reference as against the aforesaid adjudication of compensation for the part of the land for its enhancement, which was numbered as Land Acquisition Reference No. 103 of 1988 (Shiv Nath Vs. Collector).

(3.) It is in this suit the plain tiff-respondent filed an application (Paper No. 6-c) for temporary injunction to restrain the defendant from alienating the property in dispute left after a part acquisition made by the State Government and further for restraining him from withdrawing the amount of compensation of the land already acquired either from the office of the Land Acquisition Officer or from the court of the VII Additional District Judge, Varanasi in Land Acquisition Reference No. 103 of 1988. In the objection to the said application as per appellant's case before this Court the defendant denied the execution of the aforesaid agreement and also the receipt of Rs. 40,000.00. The allegation was that the said agreement of sale was fictious as during the period when the defendant's legs were broken and he was unable to move Daulat Singh, plaintiff, took the defendant in his confidence and obtained a registered Mukhtarnama dated 22nd Sept., 1986, to act as Mukhtar-e-am on his behalf and in that connection he got the aforesaid ferzi and fictitious agreement of sale executed by playing fraud on the defendant. The Trial Court granted an interim injunction restraining the defendant from withdrawing the enhanced compensation of Rs. 7,28,400.00 awarded for the part of the land already acquired in the land acquisition proceedings and also restraining him from transferring the rest of the land in dispute to anyone during the pendency of the suit. The defendant feeling aggrieved as against the said order has filed the present First Appeal from Order in this Court. Learned counsel for the appellant vehemently urged that the Trial Court committed an error in granting such an injunction since on the facts of the present case no permanent injunction could be granted to the plaintiff as he is not entitled to the relief under the Specific Relief Act and thus the question of granting any temporary injunction does not arise. Further, the plaintiff, in fact, had a remedy by preferring a reference under Sec. 18 of the Land Acquisition Act against the order of the Land Acquisition Officer. He having not preferred the same, the present suit would be barred and, thus, his contention was, when there was other remedy, no injunction could be granted to him. Further, the present suit was filed for the future acquisition of land and not to the part already acquired and thus granting injunction restraining the defendant-appellant from withdrawing the amount of compensation was illegal.