BALRAJ RUPANI Vs. SHANTI DEVI

JUDGEMENT

(1.) Challenge in this appeal is to the order dated 14.12.2011 passed by Addl. Civil Judge (S.D.)/Addl. Chief Judicial Magistrate (Court no. 5), Kanpur Nagar in O.S. no. 1056 of 2011 whereby the application of the plaintiff-appellant for ad interim injunction has been rejected.

(2.) Facts in brief germane to this appeal are that the plaintiff-appellant filed the aforesaid suit for declaration of sale deed dated 20.10.2010 executed by defendants-respondents no. 1 and 2 in favour of the defendant-respondent no. 3 in respect of premises no. 7/126, Swarup Nagar, Kanpur as ultra virus, null and void and not binding on the plaintiff. Relief for permanent injunction to restrain the defendants their workers, agents and assignees from selling, transferring, alienating or disturbing the peaceful possession and enjoyment of the plaintiff and from carrying out any constructions/ demolition work over the suit property had also been sought. The plaintiff alleged that the defendants no. 1 and 2 being the owners agreed to sell the suit property for Rs. 4.0 lacs to plaintiff and executed a registered agreement for sale on 16.1.1995 after receiving earnest money of Rs. 50,000/-. The same day the defendants no. 1 and 2 executed a registered general power of attorney in favour of Mukesh Kumar to perform all legal necessities/requirements in connection with execution of the sale deed. Pursuant thereto Mukesh Kumar executed registered sale deed in favour of the plaintiff on 8.7.2005 for higher sale consideration of Rs. 10.5 lacs and he received symbolic possession over the suit property and the tenants also adorned him as their owner and landlord. Thereafter the defendants no. 1 and 2 filed suit no. 1871/2005 for cancellation of sale deed dated 8.7.2005 on the ground that the general power of attorney executed in favour of Mukesh Kumar had already been revoked by them prior to execution of the sale-deed. The plaintiff further alleged that in negotiations it was settled between the parties that in case the plaintiff surrenders his right in respect of suit property he would get Rs. One Crore as compensation and a sum of Rs. 31.0 lacs were actually paid to the plaintiff by defendant no. 1 through defendant no. 3. However, defendants no. 1 and 2 subsequently resiled from their oral commitment to pay balance of Rs. 69.0 lacs which was also assured to be paid by defendant no. 3 and instead surreptitiously and fraudulently they executed sale deed in favour of defendant no. 3 on 20.10.2010. The contention of the plaintiff is that the second sale deed has no legal sanctity unless and until the sale deed in his favour was cancelled or set aside by a competent Court. Thereafter the defendants withdrew their suit no. 1871/2005, so the sale deed in favour of the plaintiff is valid and effective till today. The defendants no. 1 and 2 gave evasive replies and made false pretext to pay balance sum aforesaid to the plaintiff. When the plaintiff knew about the sale deed, he threatened the defendants to take criminal action against them for cheating him and the oral agreement between the parties also came to an end as the defendants no. 1 and 2 refused to pay the balance amount to the plaintiff. The plaintiff is still owner of the suit property and sale deed dated 20.10.2010 does not confer any right or title on defendant no. 3. Along with the plaint, the plaintiff filed application for ad interim injunction supported with affidavit.

(3.) Defendants-respondents filed separate objections inter alia admitting the execution of agreement for sale in favour of plaintiff dated 16.1.1995 as also appointment of Mukesh Kumar as general power of attorney of defendants no. 1 and 2, but further stated that the said power was revoked by them through registered deed dated 28.2.1998 and charged the plaintiff for having committed fraud in collusion with Mukesh Kumar with regard to execution of sale deed dated 8.7.2005 on the ground that both the plaintiff and Mukesh Kumar knew about revocation of general power of attorney, so on that date Mukesh Kumar has no right to execute any sale deed in favour of the plaintiff on their behalf. It was contended that defendants no. 1 and 2 filed suit no. 1871/2005 for cancellation of the sale-deed, in which the plaintiff on 19.10.2010 filed an application supported with affidavit wherein he admitted that he is not the owner of the suit property as on the date of sale deed Mukesh Kumar has no right to execute the deed in his favour. Since the plaintiff admitted that sale deed executed in his favour is a nullity, so the defendants no. 1 and 2 filed application for withdrawal of the suit on the basis of admission of the plaintiff which was allowed by the Court. They have further stated that there was no occasion for the plaintiff to get possession over the suit property and this fact has also been admitted by him in the afore stated application. The plaintiff has already deposed on affidavit that he will not claim any title in respect of the suit property, so no question arose to claim any possession and the plaintiff has submitted false affidavit. Denying any oral settlement to pay Rs. One crore to the plaintiff it has been stated that on the request of the plaintiff the matter was negotiated and settled between the parties and pursuant thereto defendants no. 1 and 2 have paid Rs. 31 lacs to the plaintiff through defendant no. 3, which had also been acknowledged by the plaintiff in suit no. 1871 of 2005. The claim of the plaintiff in this regard is misconceived as there was no occasion for such an agreement when the plaintiff has admitted that he has no right, title or interest in the disputed property of defendants no. 1 and 2, and only on humanitarian grounds an amount of Rs. 31 lacs were paid to the plaintiff by defendant no.3. The story of outstanding amount of Rs. 69 lacs has been concocted by the plaintiff with ulterior motive and in the facts and circumstances of the case the instant suit is not maintainable and he cannot be permitted to take back his own admission made in the Court through affidavit and it was on this basis that the defendants no. 1 and 2 have executed sale deed on 20.10.2010 in favour of the defendant no. 3, who is now owner in possession of the disputed property. After purchase of suit premises the defendant no. 3 got the building vacated from the tenants and he has demolished the entire building and started raising constructions and plaintiff did not raise any objection though he knew about the sale transaction. The defendants have altogether denied the oral agreement between the parties to pay Rs. One crore to the plaintiff stating that as per terms of the agreement a sum of Rs. 31.0 lacs have already been paid to the plaintiff, which had been acknowledged by him, so no question arises to pay any more amount to him. The plaintiff has no right to seek injunction against the true and bonafide purchaser of the property for value and the application for ad interim injunction is liable to be rejected and he will not suffer any irreparable loss in case ad interim injunction is refused and on the contrary the defendant no. 3 would suffer irreparable loss in case interim relief is granted to the plaintiff. The defendant no. 3 in his objections has reiterated the facts alleged by defendants no. 1 and 2.