MINATI MOHAPATRA Vs. NIRAJ KUMAR DAS

JUDGEMENT

(1.) This Civil Misc. Petition involves a challenge to the judgment dated 8.2.2017 passed in F.A.O. No.168/2016, vide Annexure-1.

(2.) Short background involved in the case is that the opposite party, as plaintiff filed C.S. No.1428/2016 before the Civil Judge (Jr.Divn.), Balasore for permanent injunction seeking direction to restrain the defendant, the petitioner from alienating the suit land in favour of others except the plaintiff during the agreement period from 12.5.2016 to 12.5.2018. Fact reveals that the plaintiff-opposite party offered the defendant-petitioner Rs.90.00 lakh as consideration money for purchasing the suit land. The defendant-petitioner having agreed with the purchase value of the suit land received Rs.50.00 lakh as advance consideration money from the plaintiff-petitioner and both parties entered into an agreement for sale in respect of the suit land with condition that both the parties will execute and register the sale deed within two years on payment of balance consideration of Rs.40.00 lakh. Accordingly, an agreement indicating the above was executed between the parties on 12.5.2016. It is on the premises that the defendant-petitioner was trying to alienate the suit land after execution of the agreement to the outsider on refusal of the disposal of the same in favour of the plaintiff-opposite party, the plaintiff was compelled to file the suit for permanent injunction. Along with the suit the plaintiff-opposite party also filed an application under Order 39 Rules-1 & 2 of C.P.C. and prayed for temporary injunction against the defendant-petitioner restraining the defendant from alienating the suit land at least till expiry of the agreement period. This application was disposed of on contest with an order of refusal by the trial court after observing that the defendant is in continuous possession of the disputed property. This order was challenged by the plaintiff-opposite party in F.A.O. No.168/2016 against the order dated 20.12.2016 passed in I.A. No.1/2016 arising out of C.S. No.1428/610 of 2016-I. Learned District Judge, Balasore after hearing both sides though refused to grant injunction but considering the fact of pendency of another suit bearing C.S. No.116/2017 involving a relief for specific performance of contract between the same parties directed both the parties to maintain status quo over the disputed property till disposal of the suit.

(3.) Assailing the impugned judgment, Sri Satapathy, learned counsel representing the defendant-petitioner contended that a suit for permanent injunction without any ancillary or consequential relief is not maintainable. The plaintiff having relied on an unregistered agreement for sale following the provision contained in Section 17(1)(f) of the Registration Act, 1908 requiring registration of any such instrument, the claim of the plaintiff on the basis of such unregistered document remains un-sustainable. Sri Satapathy also claimed that the lower appellate court giving emphasis on the payment of Rs.50.00 lakh as advance on the basis of forged agreement remains erroneous for the payment of such huge amount opposed to the provision of Income Tax Act . Finding of the appellate court also opposes the settled position of law holding the agreement for sale does not create right, title and interest in favour of a party. Sri Satapathy next contended that since the appellate court has a clear finding with regard to possession in favour of the defendant-petitioner, there is no question granting any sort of interim protection. Further for the possibility of suitable compensation to the plaintiff, the defendant's right over the disputed property could not be interfered with.