KAMAL KUMAR SHARMA Vs. VEENA AGRAWAL(GOYANKA)

JUDGEMENT

(1.) The appellant/plaintiff has preferred this appeal under Section 100 of the CPC being aggrieved by the judgment dated 07.08.2014 passed by the Third ADJ, Katni, in regular Civil Appeal No.29-A/13, affirming the judgment and decree dated 16.05.2013 passed by the Fourth Civil Judge, Class IInd , Katni in Civil Suit No.47-A/12, whereby the suit of the appellant filed for relief of perpetual injunction against respondent Nos.1 to 3 to restrain them from alienating disputed agricultural lands in any form was dismissed.

(2.) The facts giving rise to this appeal in short are that the appellant herein filed the suit contending that late Vinod Kumar Goyanka R/oJabalpur was recorded Bhoomiswami of related agricultural lands situated in village Mudwara of Tehsil & District Katni. In his lifetime, Vinod Kumar Goyanka has executed a power of attorney in favour of respondent No.4 Sheikh Mubaraq, in respect to his agricultural lands, because Vinod Kumar Goyanka was unable to manage the lands being resident of different district. On behalf of Vinod Kumar Goyanka, respondent No.4 Sheikh Mubaraq had executed an agreement to sell of agricultural land on 31.01.2011 in favour of the appellant after receiving earnest money of rupees one lac. Appellant always remain ready for execution of sale-deed, but later on, Vinod Kumar Goyanka cancelled the power of attorney executed in favour of respondent No.4. Thereafter, Vinod Kumar Goyanka executed a power of attorney in favour of respondent No.4 Mohd. Jawed. After consulting with Vinod Kumar Goyanka, appellant got executed an agreement to sell by respondent No.5 in presence of Vinod Kumar Goyanka on 19.07.2011. Some proceedings were pending in the Revenue Court of Tehsil Katni, about correction of record in relation to the concerned agricultural lands.

(3.) Respondent Nos.1 to 5 remained absent and ex-parte before the trial Court. The trial Court after recording plaintiff's evidence, by abovementioned judgment and decree, dismissed the suit filed by the appellant mainly on the ground that appellant had not filed the civil suit for the relief of specific performance of the contract to sell the agricultural lands and instead of it has only filed a suit for perpetual injunction and there was no any evidence produced by the plaintiff that respondent Nos.1 to 3 were trying to alienate the concerned lands in any manner. The first appeal filed by the appellant before the ADJ, Katni, also remained unsuccessful. In appeal, the respondent had also remained absent and ex-parte. Before Appellate Court, the appellant had filed an application under 41 Rule 27 of the CPC for taking on record a photocopy of the power of attorney executed by late Vinod Kumar Goyanka in favour of respondent No.5. That application was also dismissed by the appellant Court by the passed judgment.