CITIZEN CONSTRUCTIONS THROUGH PROPRIETOR NISAR AHAMAD MOHARAMALI KHAN Vs. PARVEZ MOHAMMED YUSUF KOKANI

JUDGEMENT

(1.) The Appeal challenges the order dtd. 11/10/2022 passed by the Extra Joint Civil Judge Senior Division, Nashik on application at Exhibit-5 filed by the Plaintiff-Respondent No. 1 for grant of temporary injunction. By way of temporary injunction, the Trial Court has directed the parties to maintain status-quo in respect of possession as well as transfer. The Appellant-Defendant No. 7 is restrained from transferring the suit property till disposal of the suit. Defendant No. 7 has filed the present Appeal challenging the order dtd. 11/10/2022.

(2.) Some factual narration to comprehend the issue at hand would be necessary. Facts, as captured from the pleadings in the Plaint, are as follows. The entire land in Survey No. 511/10/2 was owned by Pramilabai Ramkrishna Mirajkar, who sold the same to Mangal Garden Pvt. Ltd, Pooja Kutir Nirman Pvt. Ltd, Bhakti Nirman Pvt. Ltd. And Thakkar Kutir Nirman Pvt. Ltd. (together referred to as Developers). The said purchasers nominated Thakkar Developers for development of the land, who prepared a layout and got the same sanctioned. Defendant Nos. 1 to 6 decided to purchase Plot No. 2 in the layout. Accordingly, they claim to have paid several amounts to the Developers from time to time. However, Defendant Nos. 1 to 6 were not in a position to pay the balance consideration for purchase of Plot No. 2. Plaintiff claims that since permission for non-agricultural use was yet to be issued, it was not possible for the Developers to execute a sale-deed in favour of Defendant Nos. 1 to 6 in respect of Plot No. 2. Plaintiff claims that he has close relations with Defendant Nos. 1 to 6, who requested him to purchase Plot No. 2. Plaintiff had already purchased Plot Nos. 4 to 14 in the same layout through separate transactions. Therefore, he agreed to purchase Plot No. 2 from Defendant Nos. 1 to 6. Accordingly, it is claimed that Defendant Nos. 2 to 6 executed General Power of Attorney in favour of Defendant No. 1 for the purpose of effecting the transaction of sale of the Plot in Plaintiff's favour on their behalf. Acting on that Power of Attorney, Defendant No. 1 executed Agreement for Sale dtd. 28/9/2011 in Plaintiff's favour in respect of Plot No. 2. Under that Agreement, the purchase price was fixed at Rs.75,00,000.00, out of which, Plaintiff paid amount of Rs.35,00,000.00 in cash as detailed in the Agreement. The balance amount was not paid as Defendants No. 1 to 6 were yet to get the sale-deed executed in their favour. On 28/5/2012, permission for non-agricultural use of the land was issued by Collector, Nashik and accordingly sale-deed dtd. 30/3/2013 came to be executed by the Developers in favour of Defendant Nos. 1 to 6. Plaintiff claims that possession of the suit property was handed over to him by Defendant Nos. 1 to 6 vide Possession Receipt dtd. 26/7/2013. Plaintiff paid further amounts of Rs.17,14,000.00 on 20/4/2012, Rs.12,00,000.00 on 3/6/2015 and Rs.6,86,000.00 on 6/4/2017. This is how the Plaintiff claims to have paid Rs.71,00,000.00 to Defendant Nos. 1 to 6 by 6/4/2017. Plaintiff was willing to pay the balance amount of Rs.4,00,000.00. However, on 17/8/2017, Defendant Nos. 1 to 6 executed sale-deed in respect of Plot No. 2 in favour of Defendant No. 7, which came to be registered on 18/8/2017. Plaintiff also came to know that Defendant No. 7 obtained development permission in respect of Plot No. 2 from Nashik Municipal Corporation on 6/8/2019.

(3.) Plaintiff thereafter instituted Special Civil Suit No. 83/2020 in the Court of Civil Judge Senior Division, Nashik for specific performance of agreement for sale dtd. 28/9/2011. The Plaintiff has also challenged registered sale-deed dtd. 17/8/2017 executed by Defendant Nos. 1 to 6 in favour of Defendant No. 7. Plaintiff has made an alternate prayer for compensation of Rs.5,00,00,000.00. In his suit, Petitioner filed application for temporary injunction to restrain Defendants from creating third party rights in the suit property or from changing its nature or from disturbing Plaintiff's possession. It is Plaintiff's case that Defendant No. 7 forcibly took possession of the suit plot from Plaintiff on 10/2/2020. It appears that Defendant No. 7 filed application at Exhibit-104 on 15/6/2022 contending that Defendant No. 7 is in possession of the suit plot and that he had commenced construction thereon. Inviting attention of the trial Court to Plaintiff's application dtd. 5/5/2022 admitting commencement of construction by Defendant No. 7, it was prayed in that application that Plaintiff's application at Exhibit-5 be held to be infructuous. The Trial Court however rejected the application at Defendant No. 7 at Exhibit-104 by order dtd. 4/7/2022 and proceeded to hear and decide Plaintiff's application for temporary injunction at Exhibit-5.