D NIRMALA Vs. SHAH CERAMICS LTD

JUDGEMENT

(1.) The unsuccessful plaintiffs are the appellants in this miscellaneousappeal. They laid a suit for specific performance of Ex. B. 1 alleged to have been executed by K. Yenkatachalam Chetty, first defendant-respondent- owner. They also laid the suit for perpetual injunction restraining the first respocder.t-owner-first defendant from interfering with their possession. They also filed an application I.A. 438/88 for ad interim injunction. The trial court granted ad interim injunction oa April 22, 1988. The respondent filed LA. 549/88 to dissolve the ad interim injunction. The court below by its order dated August, 25, 1988 dissolved the ad interim injunction as against which this appeal has been filed.

(2.) The case of the appellants is that the owner executed the contractof sale to an extent of Ac. 6-87 cents of land for a total consideration of Rs. 1,17,000/-. He received Rs. 50,000/- as earnest money. The contract is to be completed within a period of six mouths. He delivered possession as on the date of Ex. B. 1. ie., on Sept. 15, 1987. He demanded a further sum of Rs. 8,000/- towards the value of the tamarind trees.

(3.) The appellants paid the said amount. They were also willing topay the balance amount but sine they, could not obtain the Incometax Certificate a part of the consideration was paid and the first defendant agreed to execute "C" Schedule land to the extent of Ac. 3-20 cents in Survey Nos. 645 and 659. The draft sals deed Ex. B. 2 of the even date was executed but thereafter he rescinded from getting it registered. As a result the appellants filed an application before the Sub-Registrar for registration of Ex B. 2 which was refused under Ex. B. 3. They also deposited the balance consideration to the account of the first respondent under Ex.B.8 dated 15-9-1987. They have been in possession and enjoyment of the property and therefore they sought for injunction. Though initially the first defendent did not file a written statement, later he filed a written statement denying the execution of the sale deed and consideration. The case of the respondent herein is that the owner has agreed to execute the contract of sale Ex. A-1 dated 10-9-1987 for a consideration of Rs. 1,15,000/-. An earnest money of Rs. 20,000/- was paid and the balance consideration was paid through a Demand Draft on 16-9-1987 and got the sale deed Ex. A-2 registered on Sept. 16, 1987 and possession was delivered on that date. Thereafter they have applied to various authorities like the Gram Panchayat for permission for construction of the factory. Under Ex. A-13 the Gram Par.cbayat, Panapakam, resclved to permit the respondents to set-up the Industry. It also wrote to the various authorities, namely, the A.P. Pollution Control Board under Ex. A-7 dsted Sept. 24, 1987 and to the District Collector under Ex. A-6 of the even date. A certificate was also issued on 22-9-1987 under Ex. A-5 by the Chartered Accountant. The respondent also applied for construction to the Chandragiri Mandai Officer under Exs. A-8 and A-9. He also wrote a letter to the Electricity Board for temporary connection under Ex. A-15, dated Feb. 22, 1988. Posts and Telegraphs Department was also approached and the P. & T. Dept. issued a Demand draft for payment of the amount under Ex. A-16 dated 31-12-1987. These documents show that the respondent has been put in possession and was attempting to construct a factory in the premises. An Advocate- Commissioner was appointed who submitted his report under Ex. C-1, wherein he stated that the respondent is in possession. He also submitted a plan Ex. C. 2. On a consideration of the evidence, the lower Court found that there is a dispute regarding the title and that is a matter to be adjudi- ca'ed. As regards possession, relying upon Exs. A-2 and A-4 to A-17, the lower Court found that the respondent is in possession. Accordingly, it dissolved the ad interim injunction.