FOOL KUMARI DEVI Vs. KRISHNA DEO UPADHYA

JUDGEMENT

(1.) THIS appeal under Order XLIII Rule 1(r) of the Code of Civil Procedure by the defendant is directed against the order allowing the plaintiffs petition for mandatory injunction and directing the defendant appellant to demolish the disputed wall on the suit premises.

(2.) THE plaintiff respondent No. 1 filed Title Suit No. 16 of 1996 for specific performance of contract of sale and for setting aside the subsequent sale deed dated 11.12.95 executed by the defendant No. 1 in favour of defendant No. 2 with respect to the suit property. His case, so far as relevant, is that defendant No. 1 agreed to sell the property mentioned in Schedule 'Ka' of the plaint to him for Rs. 70,000/ out of which Rs. 55,000 was Paid as advance on 8.12.95. When the parties reached Buxar where the deed was to be executed, defendant No. 1 changed his stance and demanded a higher price. The Plaintiff sent lawyer's notice asking the defendant to execute the sale deed. He later learnt that on 11.12.95 the defendant No. 1 had executed sale deed with respect to the property in question in favour of defendant No. 2. He got the facts verified from the Registration office and later filed the suit.

(3.) MR . Hariji Upadhyay, learned Counsel for the appellant, Submitted that in a suit for specific performance of contract the Court has no power to issue injunction muchless restrain the defendants from making any construction over the suit property. Mr. Rajendra Narayan, learned Counsel for the a Plaintiff Submitted that as the impugned construction was made after the order of status quo, the Court rightly directed the defendant appellant to remove the construction. Since the impugned act of construction was in contravention of the order of the Court, this Court Should not interfere in the matter.