BRIJGOPAL SHIVGOPAL LULANI Vs. BARAKATBHAI HABIBHAI SOMANI

JUDGEMENT

(1.) The original defendant in special Civil Suit No. 201/2004 pending on the file of Joint Civil Judge, Senior Division, nagpur has filed this appeal challenging the order dated 6-11-2004 passed by that court below exhibit 5 which is an application under order 39, Rule 1 and 2 of the Code of Civil procedure for grant of temporary injunction. The present respondent claimed temporary injunction to restrain present appellants from creating any third party interest in the Suit property during pendency of Suit and by the impugned order, the Court below has granted it.

(2.) The Suit property consists of land survey No. 149 admeasuring 3. 06 hectors or 7.5582 acres and survey No. 150 admeasuring 1.94 hectors or 4.7918 acres, totalling to 12.35 acres. One of the lands is non-agricultural land and present respondent is claiming an agreement for sale with present appellant No. 1 while the remaining appellants are stated to be power of attorney holders of first appellant. The case of present appellants is that there was never any agreement/concluded agreement between them and present respondent.

(3.) Looking to the nature of controversy, parties were asked to argue the matter finally at admission stage itself on 26-4-2005. Accordingly rule was made returnable forthwith and parties were heard finally on 12-9-2005. The respondent has contended that on 31-12-2003 appellant No. 1 orally agreed to sell his agricultural field admeasuring 12 acres for total consideration of Rs. 10 Lakhs. He submits that the consideration was finalised after full negotiations and after respondent published a notice inviting objections from public at large in this respect, and if it was found thereafter that present appellant No. 1 had good title, the agreement was to be reduced into writing. Accordingly, by letter dated 5-1-2004 appellant permitted respondent to give public notice inviting objections. Accordingly, respondent published a public notice in leading english and Hindi daily newspaper (Hitavada and Navbharat) respectively through his advocate on 9-1-2004. This advertisement was objected to by present appellant No. 3 on the ground that without agreement such advertisement could not have been issued. The respondent states that this dispute was mutually settled by parties and he forwarded a letter dated 10-1-2004 to the appellants in this respect. After this, there was fresh agreement between respondent and appellants and ultimately appellants Nos. 2 and 3 agreed to execute agreement of sale in favour of respondent. Said agreement in writing is alleged to have been entered into on 22-1-2004 and at that time respondent paid Rs. 20,000/- (twenty thousand) in cash as earnest money and balance amount of Rs. 9,80,000/- (nine lakh eighty thousand only) was to be paid at the time of sale deed. It is further alleged that at that time appellants handed over physical and actual possession and since then he is in actual possession of Suit property. It is further mentioned that though the respondent requested the appellants to accept balance amount and to execute sale deed, the appellants avoided it and wanted to create third party interest in Suit property to the prejudice of respondent The application was opposed by present appellants who stated that the Suit itself was false. They denied the very agreement dated 22-1-2004 as fraudulent and bogus document. They denied their signatures on any such document and also denied that possession was handed over to respondent. They pointed out that field survey No. 149 is non-agricultural land and its value in market is about Rs. 1 crore 35 lakhs They further stated that before filing such Suit, Respondent did not issue any notice to them. The appellants further stated that the public notice issued on 9-1-2004 was for limited purpose and there was no agreement between parties. They also denied receipt of rs. 20,000/- as alleged by respondent. They further pointed out that they are in possession.