NARESH JAIN Vs. RAMA

JUDGEMENT

(1.) These six appeals raise common questions of law and facts, parties to which are common and, therefore, for convenience, they are heard together and are being disposed of by this common judgment. For convenience, facts of S.B. Civil Misc. Appeals No. 411/2001 and 898/2001 are taken as leading case.

(2.) Three separate suits for specific performance of contract and permanent injunction were filed by plaintiff-appellants namely Rama v. Bhawani Singh and others, Civil Original Suit No. 8/2001; Rama and others v. Bhawani Singh and others, Civil Original Suit No. 9/2001; and Ganga and others v. Bhawani Singh and others Civil Original Suit No. 10/2001. For convenience appellants Rama and others and Ganga and others shall be referred hereinafter as the palintiffs' and Bhawani Singh and others shall be referred as 'the defendants' Along with the suits, plaintiffs filed three separate applications under Order 39, Rules 1 and 2 read with 151, C.P.C. against the defendants seeking temporary injunction during the pendency of the suit.

(3.) Facts of the case as set up by the plaintiffs are that agricultural lands description whereof is given in the plaint, was agreed to be sold to the plaintiffs by defendant Smt. Bhawani Singh son of late Shri Onkar Singh by three separate unregistered documents agreement to sale dated 29-10-1990. Defendants filed reply to the application, inter alia, stating therein that original the land in dispute was owned by Onkar Singh son of Nathu Singh of Udaipr. There was a partition suit between legal representatives of Shiv Singh, who was one of the sons of late Onkar Singh and Dalpat Singh son of Onkar Singh as plaintiff and against Smt. Vijay Kanwar wife of Onkar Singh and Bhawani Singh son of Onkar Singh in the Court of learned Additional District Judge No. 3, Udaipur, which came to be decreed vide judgment and decree dated 29-5-2000. It was further averred that the land in dispute came in the share of defendant Smt. Vijay Kanwar by the judgment and decree in the partition suit and accordingly, Smt. Vijay Kanwar became owner" of the land in dispute. Smt. Vijay Kanwar sold the land in favour of defendants Naresh Jain, Ashok Jain, Anil Singhvi and Ashok Jain (hereinafter referred to as 'the purchasers') by a registered sale.deed. It was averred that the defendant Bhawani Singh has to no right to enter into any agreement for sale of the land in dispute as the disputed land after having been partitioned by the learned Additional District Judge No. 3, Udaipur, came in the share of defendant Smt. Vijay Kanwar wife of late Shri Onkar Singh. Thus, defendant Bhawani Singh was neither owner nor in possession of the land in dispute and as such he was not competent to sell the land by way of agreement to sale or in the alternative if any agreement has been entered into by defendant Bhawani Singh, then it is void ab initio as Bhawani Singh has no right or title over the land in dispute. Therefore, the suit filed against Bhawani Singh seeking specific performance of the contract is without any basis. From the record, it appears that there arose a dispute between Smt. Vijay Kumar wife of Onkar Singh and the sons of late Shri Onkar Singh namely Shiv Singh (dead through L.Rs.), Dalpat Singh and Bhawani Singh, which ultimately, resulted in a suit for partition of the properties including disputed land owned by late Onkar Singh. Defendant Naresh Jain and others claimed title of the land through defendant Smt. Vijay Kanwar, whereas the claim of the plaintiff is through Bhawani Singh,son of Onkar Singh by way of agreement to sale. The trial Court after having considered the affidavits of the parties as also the documents filed by respective parties before it, reached to the conclusion that plaintiffs failed to establish prima facie case in their favour as also the point of balance of convenience and irreparable injury were also not found in favour of the plaintiffs. On the contrary, the trial Court found these two points namely balance of convenience and irreparable injury in favour of the defendants on the ground that purchaser defendants Naresh Jain and others have purchased the disputed land for consideration by a registered sale deed and on the basis of registered sale deed, disputed land has been mutated in favour of the purchaser defendants Naresh Jain and others. The trial Court also found possession of the disputed land with the purchasers. Thus, all the three essential ingredients namely prima facie case, balance of convenience and irreparable injury were not found in favour of the plaintiffs. The trial Court also noticed that the decree passed by learned Additional District Judge No. 3, Udaipur in a partition suit has been challenged before High Court by way of appeal being S.B. Civil Regular First Appeal No. 156/2000. This Court by an interim order, stayed the effect and operation of the partition decree dated 29-5-2000. In order to avoid multiplicity of procedings, the trial Court considered it expedient to grant temporary injunction to the extent that till the decision of the original suit, the defendants shall not transfer or alienate the disputed land. The defendants were further restrained not to raise any additional construction and alter the subject -matter of the suit by three separate impugned orders date 31 -3-2001. Against the orders impugned, the plaintiffs as well as defendants have preferred aforesaid appeals before this Court.