RAMCHARAN ATMA RAM SONKAR Vs. RADHESHYAM DUKHURAM PANDEY

JUDGEMENT

(1.) THIS appeal by plaintiff-appellant has been filed against the order dated 5-11-1996 passed by 4th Addl. District Judge, Durg, in Civil Suit No. 44-A/96. The plaintiff has filed a suit for specific performance of sale of agricultural land against the defendant. The agreement to sale on the disputed land was executed by defendant/respondent in favour of plaintiff on 1-10-1993. The sale price was fixed at Rs. 1,31,000/- and the advance paid was Rs. 20,000/ -. In the agreement to sell, there was no mention of delivery of possession. The land involved was Khasra No. 24 mentioning 5. 40 acres in village Kapsi. The appellant/plaintiff filed a suit on 30th September, 1996 for specific performance of contract further urging that in May, 1995, he had paid Rs. 30,000/- further without receipt and at that time he had obtained possession of land also and was in cultivation of the land. The plaintiff moved an application for interim injunction also under Order 39, Rules, 1 and 2 of Civil Procedure Code praying that the defendant be restrained from interfering with his possession during the pendency of suit. This was contested by defendant urging that he never transferred possession nor even obtained Rs. 30,000/- orally or without receipt in May, 1995. He, however, admitted the execution of agreement to sale and receipt of advance of Rs. 20,000/-, but urged that the plaintiff failed to perform his part of contract in paying the rest of the price and so the agreement has become discharged. He claims possession in himself and also asserted in reply to the application for interim injunction that the plaintiff wants to grab possession illegally in the garb of obtaining interim injunction and that he be restrained from doing so while the suit was pending.

(2.) BY the impugned order, the plaintiff's application for interim injunction was dismissed, and at the same time it was held that prima facie the defendant was in possession of the land and was entitled to retain its possession during the pendency of suit. It was directed that the plaintiff would not interfere in the possession of the defendant during the pendency of suit. So, not only the plaintiff's petition for interim injunction was dismissed, but, the defendant's counter prayer for injunction against plaintiff was granted.

(3.) IN this appeal, the appellant-plaintiff has challenged both parts of the order. The counsel for appellant asserts that there was sufficient material on record to show that even as far back as in July 1995 the plaintiff-appellant was in possession of the suit land. He had sown, the crop of Soyabin in that season. The defendant lodged a complaint Under Sections 447 and 379, Indian Penal Code against him with Police. The Police investigated and filed a challan. That complaint is on record which is Annexure A-3 before the trial Court. It was dated 14-7-1995. In this, the defendant has asserted that in July '95, the plaintiff had taken temporary possession by ploughing disputed field. He had also asserted theft of crop. In those investigations, the crop was seized by Police and ultimately on application by the present appellant for possession of crop Under Section 457, Criminal Procedure Code the Magistrate directed the crop to be handed over on Supardginama to the appellant, finding his possession as prima facie. A revision against that order was filed by the respondent before the Sessions Judge and the same was dismissed. It is urged that during those proceedings of Section 457, Criminal Procedure Code the dealing Magistrate had recorded statement of Patwari for prima facie evidence and the Patwari's statement was produced by him before the trial Court and the copy of the same is Annexure A-8. It is argued that Patwari had narrated that in fact this appellant had sown the crop, although the entry was made by him in favour of respondent in the Khasra entries because no order of change of entry had been obtained by that time from the revenue authorities and that he docs not make a change without orders. The argument of the learned counsel for appellant is that the trial Court in declining his petition for interim injunction against the defendant, relied upon entries of Khasra which were in favour of defendant, but this was a wrongful reliance. No discussion was made about the complaint of the defendant to Police, that plaintiff had taken possession in July 1995 by tilling the land, nor any consideration was given to the order of Supardginama passed by the Magistrate by the plaintiff and the rejection of the Revision filed by the defendant before the Sessions Judge. These documents were not even discussed in the order refusing injunction. Thus, the argument is that the trial Court has failed to consider material documents and has reached an arbitrary conclusion. The entries in the Khasra had been explained by patwari and so they had no evidentiary value to show possession of the defendant.