DARSHAN KAUR Vs. PARMINDER SINGH

JUDGEMENT

(1.) This petition under Article 227 of the Constitution of India has been preferred by the plaintiffs against the judgment and order of the learned Appellate Court reversing the order passed by the learned trial Court granting an injunction in favour of the plaintiffs restraining the defendant from alienating, transferring or creating any third party interest/charge in the property or encumbering or parting with the possession of the suit property, in any manner.

(2.) The plaintiffs instituted an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure seeking injunction against the respondent. It was pleaded by the plaintiffs that the suit property is situated in Up Mohal, Lakkar Bazar, Patwar Circle Station Ward Bara Shimla in which plaintiff No. 1 Smt. Darshan Kaur is the owner to the extent of half share and Surjit Singh was the owner along with the first plaintiff of the other half share. The share of Surjit Singh was purchased by plaintiff No. 2 Shri Inderpreet Singh. Two agreements were entered into between the first plaintiff and Shri Surjit Singh with the father of the defendant on 6.9.1987. Pursuant to these agreements, Shri Surjit Singh agreed to sell a part of the suit land comprised in Khasra No. 521/7/8/9 measuring 84 Square yards. According to the first agreement, the consideration was Rs. 70,000/- and according to the second agreement, the consideration was Rs. 1,40,000/-. Thereafter, plaintiff No. 1 had executed a general power of attorney in favour of Darshan Singh, father of the defendant and Shri Surjit Singh with respect to the incomplete structure, raised on land measuring 84-4 square yards out of land measuring 215-3 square yards. It was stated in this power of attorney that father of the defendant will not claim any right over the structure or the land. The further case of the plaintiffs was that during the life time of Shri Darshan Singh, he did not pay the balance amount nor did he take steps to enforce the agreement dated 6.9.1987 and was neither ready nor willing to perform his part of the agreement. Shri Darshan Singh died about 10-15 years prior to the institution of the proceedings. Since the defendant was residing with Darshan Singh, therefore after the death of Darshan Singh, he (defendant) was allowed to reside in the premises. The plaintiff claimed the right of possession of the suit property and also claimed use and occupation charges. It is in these circumstances that the interim injunction was claimed till the final disposal of the suit.

(3.) The defendant contested the application stating that the application was not maintainable, the plaintiffs have no title in the land or building, but admitted their ownership and possession and the manner in which late Shri Darshan Singh and the defendant had acquired title. It was also admitted that the first plaintiff and Shri Surjit Singh had sold the land and transferred an area measuring 84-4 square yards of the plot along with the structure standing thereon which consisted six RCC pillars. The agreement to sell dated 6.9.1987 for Rs. 70,000/- is also admitted. It was added that Rs. 10,000/- was paid on 6.9.1987 when the agreement was executed and Rs. 60,000/- on 16.7.1988. These amounts were stated to have been paid by late Shri Darshan Singh to plaintiff No. 1 and Shri Surjit Singh. It was also stated that Shri Surjit Singh has executed a general power of attorney in favour of late Shri Darshan Singh on 16.7.1988 after receipt of the entire balance sale consideration. Shri Darshan Singh is stated to have completed the remaining construction of both storeyes of the building transferred and sold to him and after that he was put in possession. The defendant further submitted that Shri Darshan Singh was always ready to perform his part of the sale but the sale deed could not be executed and registered as some restrictions were imposed in the year 1988 for the transfer of land in the municipal area to non-agriculturist of the Himachal Pradesh by the State. Shri Darshan Singh died on 9.12.1995 and thereafter the defendant being his only legal heir had inherited all rights, title or interest in the land.