MOHAMMED AKRAM HUSAIN Vs. BAIJNATH

JUDGEMENT

(1.) TARUN Agarwala, J. The plaintiffs instituted a suit for a permanent injunction restraining the defendants from interfering in the possession of the plaintiffs on the land in question and further restraining the defendants from digging the earth from the plot in question. The plaintiffs alleged that they had executed a registered sale-deed dated 3-9-1992 for a period of 16 years for a sum of Rs. 1 lac in favour of the defendants with regard to the eastern portion of the plot No. 228, for the purpose of running a brick kiln. It was alleged, that the defendants had also taken the adjoining land, for the same purpose, from other persons and now was forcefully interfering in the possession of the plaintiffs on the western portion of plot No. 228 and was threatening to dig up the earth. The defendants, on the other hand, submitted that apart from the registered sale-deed dated 3-9-2002, the plaintiffs had executed three more instruments and, by paper No. 31-C, the plaintiffs had executed an agreement in favour of the defendant for the remaining portion of plot No. 228 for a sum of Rs. 1, 12,000/- for digging the earth upto six feet. The defendants contended that based on this agreement, possession was given by the plaintiffs to the defendants and, on that basis, the defendant-petitioners are in possession and are also digging up the earth.

(2.) THE trial Court rejected the application for a grant of temporary injunction holding that the plaintiffs had placed their signatures on Paper No. 31-C and other documents and also held that since the defendants were in possession of the eastern portion of the plot and were also digging up the earth, no injunction could be granted to the plaintiffs. THE trial Court further held that even though the agreement was required to be registered, nonetheless, the said document could still be considered for collateral purpose and that the conduct of the plaintiffs was such that the plaintiffs were not entitled for a grant of an injunction. Aggrieved, the plaintiffs filed an appeal, which was allowed and the appellate Court granted a temporary injunction restraining the defendants from interfering in the peaceful possession of the plaintiffs over the disputed land and further restrained the defendants from cutting the trees standing on the plot in question and from damaging the boring located on the disputed land till the final disposal of the suit.

(3.) LEARNED Counsel for the petitioners submitted that the plaintiffs had executed an unregistered agreement and, on that basis the petitioners came into possession and had started digging up the earth. The plaintiffs therefore, acquiesced to the said agreement. Consequently, no injunction could be granted in view of Section 41[g] of the Specific Relief Act, which stipulated that an injunction could not be granted to prevent a continuing breach to which the plaintiffs had acquiesced in it. The learned Counsel for the petitioner further submitted that paper No. 31-C was not required to be registered as per Section 107 of the Transfer of Property Act, as applicable in the State of U. P. , which provided that all other lease of immovable property could be made either by a registered instrument or by an agreement oral or accompanied by a delivery of possession. The learned Counsel further submitted in the alternative that assuming that the document was required to be registered as per Section 17 read with Section 49 of the Registration Act, 1908, the said document could still be received as evidence for collateral purpose. The learned Counsel for the petitioner further submitted that the signatures on paper No. 31-C matched with the signatures of the plaintiffs and, therefore the plaintiffs, had infact, executed the said document and on that basis, the defendants had taken the possession of the land in question. Consequently, the plaintiffs had acquiesced in the matter and was prevented from applying for an injunction, as contemplated under Section 41 [g] of the Specific Relief Act.