KRISHNA DEVI Vs. MOHAN INDER SINGH

JUDGEMENT

(1.) This application under Order 39 Rules 1 and 2 of the Code of Civil Procedure (hereafter referred to as the Code) has been moved by the applicant -plaintiffs (hereafter referred to as the plaintiffs) for grant of temporary injunction restraining the respondents -defendants (hereafter referred to as the defendants) from transferring, selling, alienating or encumbering the suit land in any manner till the disposal of Civil Suit No. 42 of 2002, instituted by them against the defendants.

(2.) Brief facts relevant for the purpose of disposal of this application are that the said Civil Suit of the plaintiffs for specific performance of an agreement and possession with consequential relief of permanent perpetual injunction is pending disposal in this court. Case of the plaintiffs in brief is that defendant No. 2 as General Power of Attorney of defendant No. 1 executed agreement dated 6.12.2001 thereby agreeing to sell to the plaintiffs two plots of lands measuring 0 -8 -38 -40 Hectares, comprising Kharas No. 5 and 10/1, Khewat Khatauni Nos. 74/104, situate in Mohal and Mauza Gopalpur, Tehsil Palampur for a consideration of Rs.16,00,000/ - and received a sum of Rs.1,00,000/ - as part of the sale consideration through a cheque dated 6.12.2001. Since the land agreed to be sold is a Tea Garden and defendant cannot sell it without the permission of the State Government, therefore, it was agreed by the parties that the sale deed would be executed by the defendants in favour of the plaintiffs within a period of one month of the grant of requisite permission by the State Government. Pursuant to the terms of the agreement, plaintiffs applied to the State Government to accord permission for sale/purchase and the matter is pending with the Government. After the said agreement, the plaintiffs had always been ready and willing to perform their part of the contract. However, the defendants with intention to deprive the plaintiffs of their right under the agreement started negotiating for sale of the suit land to certain other persons and the prospective buyers had also applied to the State Government or grant of permission to purchase the suit land. The plaintiffs apprehend that the move of the defendants is going to prejudice their rights under the agreement, hence, the suit for specific performance of the agreement, possession of the land agreed to be sold and injunction not to transfer the suit land to any other person.

(3.) Defendant No. 1 contested the suit and raised preliminary objections in the written statement that the suit is "collusive qua plaintiffs and defendant No. 2", that the suit is bad for non -joinder of necessary parties, that the plaintiffs have no cause of action, that the suit is based on "such merit which is fraudulent", that the plaintiffs are estopped by their act, conduct and acquiescence from filing the present suit and the agreement to sell land executed by defendant No. 1 in favour of Faiz Murtaza Ali is well within the knowledge of the plaintiffs. On merits, while denying the claim of the plaintiffs it has been averred that defendant No. 2 who was admittedly at one point of time appointed General Power of Attorney by defendant No. 1 started misusing his authority under the power of attorney, therefore, the attorney give to defendant No. 2 was revoked vide revocation deed registered on June 26, 2000 and a registered notice in this regard was served on defendant No. 2. However, defendant No. 2 who had been represented by husband of Krishna Devi plaintiff No. 1 as a counsel in various litigations despite rejection of his application for grant of permission to sell the land without any authority executed the aforesaid agreement in favour of the plaintiffs with a view to fraudulently deprive defendant No. 1 of his valuable rights in the land by selling it at throwaway price and leaving no alternative to defendant No. 1 except to sell whole of his land at throwaway price. It is, therefore, claimed that the alleged agreement in favour of the plaintiffs being a fictitious and fraudulent document does not create any right in favour of the plaintiffs and defendant No. 1 is under no obligation to execute any sale deed pursuant to such agreement.