HARAPARBATI THAKURANI BIJE Vs. RAMAKANTA GUPTA

JUDGEMENT

(1.) The plaintiff's prayer for restraining the defendant respondent from alienating the suit property by sale, deed, mortgage or otherwise having been rejected by the learned Civil Judge (Senior Division), First Court, Cuttack, this appeal has been preferred.

(2.) The plaint schedule property originally belonged to one Kamala Devi who is the mother of the defendant. After death of said Kamala Devi the defendant succeeded to the property as the sole owner. Plaintiff is the public deity installed in a temple and the suit land is situated in front of the temple intervened by a road. The Unnayana Samiti representing the deity with intent to acquite some immoveable properties for the diety, approached the defendant having come to know that the defendant intends to sell the plaint schedule property. It is the case of the plaintiff that the Secretary of the said Unnayana Samiti convened a meeting on 3-2-1997 to discuss about the purchase of plaint schedule property and prior notice of the meeting was given to the defendant which he received on 28-1-1997. In the meeting a resolution was passed to purchase the said suit property since it would be beneficial for the deity. In the said resolution not only the representatives of the plaintiff but also the defendant had signed. After the said resolution was passed and a decision was taken, a sub-committee consisting of five members was constituted to enter into negotiation with the defendant. On 20-11-1998 it was decided that the defendant would sell the suit property to the plaintiff for a consideration of Rs.2.00 lakhs and pursuant to the resolutionsdated 3-12-1997 and 7-12-1998 and the negotiation held on 20-11-1998, a sum of Rs.50,000/-was paid as advance towards part consideration of the sale price by the plaintiff to the defendant on 25-12-1998. It was further agreed that the rest of the amount would be paid at the time of registration of the sale deed. The defendant was also requested to obtain necessary permission from the Urban Land Ceiling authorities for transfer of the suit land. Though Rs.50,000/- had been paid towards part of the consideration money, no document could be obtained from the defendant in support of the same as 25-12-1998 was a public holiday and stamps were not available. On the day the defendant received the money he also handed over some original documents relating to the suit land to the plaintiff. Thereafter though the defendant was approached several times for obtaining the permission from Urban Land Ceiling authorities and executing the sale deed, he did not do so. The case of the plaintiff is that though it is ready and willing to pay the balance consideration money of Rs.1,50,000/-, the defendant is avoiding to execute the sale deed on some plea or the other. On 9-5-2000 the plaintiff came to know that defendant is attempting to transfer the property to somebody else for a higher consideration and therefore, a suit was filed for specific performance of contract. Another application under Order 39, Rules 1 and 2 was also filed for restraining the defendant from alienating the suit property. The averments made in the application under Order 39 Rules 1 and 2 of the Code of Civil Procedure are the same as the averments made in the plaint.

(3.) The defendant appeared in the Misc. Case for grant of injunction and filed his objection challenging the maintainability of the Misc. Case. In the objection the defendant denied all the allegations made in the plaint as well as in the Misc. Case for grant of injunction. The specific stand taken by the defendant is that no contract had been entered into between the parties at any point of time for sale of the land. No payment was made as claimed by the plaintiff towards part of the consideration money. In absence of any contract or payment of part of the consideration money and undisputedly the defendant being the owner in possession of the disputed land, no injunction could be granted against him. The specific case of the defendant was that the suit property belonged to his mother and the building standing on the suit land is in possession of tenants. The mother of the defendant died on 16-3-1999 and he succeeded to the property. In the objection also he denied to have signed any document as claimed by the plaintiff.