SUBHASH VERMA Vs. NARENDRA KUMAR

JUDGEMENT

(1.) HEARD Sri Mohan Srivastava, counsel for the appellant and Sri Ashish Kumar Singh for the respondents.

(2.) THIS appeal has been filed from the order of Civil Judge, (Senior Division), Hapur, Ghaziabad dated 28.1.2012, passed in Suit No. 89 of 2011, by which the application for interim injunction filed by the appellant has been rejected.

(3.) THE trial court issued notices in the application for temporary injunction and summons in the suit. On service of the summons and notices, the defendants appeared and filed their written statement in the suit as well as objection and counter affidavit in the application for temporary injunction. In the joint written statement filed on behalf of the defendants, they have admitted execution of the deed dated 12.6.2009 and taking Rs. 60,000/- each as earnest money. But they have stated that defendant-1 has 1/80 share while defendant-2 has 1/24 share in the property in dispute. Since the dispute between the co sharers was going on, as such, it was not possible to execute the sale deed by them in favour of the plaintiff. Accordingly after the notice dated 29.10.2009, there was a settlement between the parties before the Panches on 10.8.2010, in which earnest money received by defendants-1 and 2 had been returned to the plaintiff. However, the plaintiff did not return the deeds dated 12.6.2009 executed by defendants-1 and 2 on the pretext that these documents were not brought by them at that time. He assured that it would be returned later on as at that time, these documents were not with the plaintiff. The defendants have stated that the alleged documents dated 15.11.2009 are forged document. Neither the amount mentioned in this document has been paid to the defendants, nor they gave possession to the plaintiff over the property of their share. Since the property was joint and their share was not partitioned, as such, it was not possible to give possession to the plaintiff over the property of their share. As the contract between the parties has already been broken before the Panches on 10.8.2010 and earnest money has been returned, as such, the plaintiff has no right to file any suit and the suit is misconceived and is liable to be dismissed.