Julian D.J. Harry Vs. P.K. Khanna - Court Judgment

Excerpt:
civil procedure code, 1908 - order 39 rules 1 and 2--temporary injunction--grant of--plaintiff allegedly entering into agreement for purchase of property from defendant no. 1 in 1980--agreement on a plain paper--defendant no. 1 allegedly selling the property to defendant no. 2 in 1991 by way of registered sale deed--suit by plaintiff for specific performance of contract against defendants no. 1 and 2--plaintiff seeking temporary injunction only against defendant no. 2 restraining him from raising any construction and dropping proceedings against defendant no. 1--not justified--certain facts as to agreement to sale of 1980 were in the exclusive knowledge of defendant no. 1 and his reply was necessary--no plausible explanation as to why from 1980 to 1991, the plaintiff did not filed a suit for specific performance of contract against defendant no. 1--commissioner inspecting the site also finding defendant no. 2 in possession of the property--plaintiff has no prima facie case--temporary injunction rightly refused.;appeal dismissed - - the suit was filed by the plaintiff appellant for specific performance of contract dated 10th december, 1980 on 14.1.1994. in the original suit as well as in application for injunction, the original owner p. but at the same time if the facts are of the nature that for the grant of relief against the persons who are giving threat depends upon the personal knowledge of some other party and who is party in the suit and relief is sought against that other party, then in the event and circumstances, that other party also becomes necessary party to determine the fact in the knowledge of that other party against whom some allegations are there which are here in this case like execution of agreement to sale in favour of the plaintiff and execution of the sale deed by the defendant no. the reasons given by the learned counsel for the appellant for not getting the sale deed in favour of the plaintiff are that the plaintiffs father and thereafter plaintiff had very good relations with the defendant no. 2 since purchased the property by registered sale deed and the plaintiff failed to prove prima facie case in his favour then the defendant has a right to enjoy the property subject to the decision of the suit only. 2 raises any construction knowing it well that there is serious dispute and in case the plaintiff succeeds, the title may pass on to the plaintiff, even then if the defendant will raise the construction, the defendant will not get any equity in his favour nor he will be entitled for any relief on the ground of investing money over the plot in dispute for the purpose of raising the construction or doing anything advantageous to the respondent defendant no.prakash tatia, j.1. heard learned counsel for the parties.2. perused the impugned order and the record. the suit was filed by the plaintiff appellant for specific performance of contract dated 10th december, 1980 on 14.1.1994. in the original suit as well as in application for injunction, the original owner p.k. khana was impleaded as defendant no. 1 whereas subsequent purchaser by registered sale deed from defendant no. 1 which was registered on 10th january, 1994 was impleaded as defendant no. 2. but at the request of the plaintiff appellant, proceeding against the defendant no. 1 p.k. khanna was dropped on 18th january, 1994 in civil miscellaneous proceedings for grant of injunction. the original non-applicant no. 2 before the trial court filed the reply to the injunction application. the trial court appointed the commissioner for sight inspection and thereafter hearing the parties dismissed the injunction application of the appellant plaintiff by order dated 24th january, 1994 holding that the plaintiff was not the owner of the property. he has filed the suit for specific performance contract which was filed much more after three years of the agreement for sale and in view of the various judgments, the plaintiff has not acquired any right to seek relief of the injunction against the true owner or the successor to true owner. the trial court also considered the commissioner's report and observed that even if the plaintiff was visiting for the plot in dispute, he has not acquired any right and thereafter dismiss the application for injunction.3. the appellant plaintiff challenged the above order on the ground that the possession of the plot was with the appellant plaintiff which is proved from the fact mentioned in the agreement for sale and from the report of the commissioner dated 18.1.1994. this court passed the ad interim injunction order on 28.1.1994 to maintain the status quo. according to the learned counsel for the appellant if the respondent defendant be permitted to deal with the property in dispute, he may raise the construction on the plot or may sale the plot in dispute. according to the learned counsel for the appellant, the defendants are giving threat to dispossess the plaintiff and, therefore, relief of injunction should have been granted to the plaintiff.4. learned counsel for the respondent vshemently submitted that the proceedings initiated on application for grant of temporary injunction under order 39 rules 1 & 2 c.p.c. were dropped by the court against original owner defendant no. 1 at the request of the plaintiff on 18.1.1994. only on this ground alone, the injunction application of the plaintiff was liable for rejection because of the reason that the defendant no. 1, the original vendor was the necessary party. even in the application under order 39 rules 1 & 2 cpc. according to the learned counsel for the respondent, the defendant no. 1 was the only person who could have given adequate reply to the entire claim of the plaintiff, by showing the fact with respect to the alleged agreement to sale dated 10th december, 1980 whether it was executed at all or not and the events which took place thereafter till the execution of the sale deed in favour of the defendant no. 2 respondents and handing over the possession by the defendant no. 1 to defendant no. 2. learned counsel for the respondent also submitted that when the suit on the basis of the agreement for sale deed dated 10th december, 1980 has been filed in the year 1994, after about 14 years then also prima facie no equitable relief can be granted in the form of injunction. learned counsel for the respondent submitted that the respondent is in possession of the property and when the trial court considered the agreement for sale deed dated 10th december, 1980 and observed that its genuineness is doubtful and after considering the commissioner report did not find that the plaintiff was in exclusive possession and observed that mere plaintiffs visiting over its open piece of land, which is challenged by the respondent defendant, relief of injunction cannot be granted and it is a sound exercise of judicial discretion by the trial court and is not liable for interference in the appeal.5. the important facts which are not in dispute that the plaintiff set up his case on the basis of the agreement dated 10th december, 1980 which is on a plain paper. the circumstances in which above agreement was executed were in the knowledge of the original vendor p.k. khanna. the fact from 1980 till 1991 when the sale deed was executed by the defendant no. 1 in favour of the defendant no. 2 respondent are also only in the knowledge of the defendant no. 1. the defendant no. 2 respondent came in picture only when he purchase the property in dispute on 1st august, 1991, therefore, even if the defendant no. 2 steps in the shoes of the defendant no. 1 being purchaser from the vendor defendant no. 1 even then what was in the personal knowledge of the defendant no. 1 could have been explained only by the defendant no. 1 only, therefore, in absence of p.k. khanna nothing can be determined with respect to the above agreement to sale deed dated 10th december, 1980.6. it is true that in a application for grant of injunction the court has power to grant relief of injunction against only those persons from whom there is an allegation of threat or against whom relief is required to be sought by the plaintiff. but at the same time if the facts are of the nature that for the grant of relief against the persons who are giving threat depends upon the personal knowledge of some other party and who is party in the suit and relief is sought against that other party, then in the event and circumstances, that other party also becomes necessary party to determine the fact in the knowledge of that other party against whom some allegations are there which are here in this case like execution of agreement to sale in favour of the plaintiff and execution of the sale deed by the defendant no. 1 in favour of the defendant no. 2 despite alleged agreement in favour of the plaintiff, whether the possession was handed over to the plaintiffs father by defendant no. 1? the circumstances in which the sale deed was executed in favour of the defendant no. 1 and circumstances in which the subsequent purchaser came into picture are the most relevant and important facts and in absence of recording any prima facie finding on these aspects, which cannot be recorded in absence of the original owner defendant no. 1 the plaintiff appellant cannot be granted relief.7. the agreement was found prima facie suspicious and the relevant fact is that the agreement was alleged to have been executed on 10th december, 1980 but, no satisfactory explanation has been given by the plaintiff that why the sale deed was not executed in favour of the plaintiff and no sufficient cause for not filing any suit for specific performance of contract by the plaintiff is given. the reasons given by the learned counsel for the appellant for not getting the sale deed in favour of the plaintiff are that the plaintiffs father and thereafter plaintiff had very good relations with the defendant no. 1 and defendant no. 1 was regularly assuring that he will execute the sale deed. another reason given by the learned counsel for the appellant is that the plaintiff was minor at the time of execution of agreement to sale. the grounds which are raised by the learned counsel for the appellant at this stage cannot be accepted because of fact that while granting relief of injunction, conduct of the parties is relevant and if the plaintiff slept over his alleged right for after about 14 years and filed the suit only when the registered sale deed has been executed by the vendor after about more than 10 years, the plaintiffs filing the suit by such a delay is also a relevant consideration, disentitles the plaintiff from the relief.8. this court by order dated 28.1.1994 directed the district judge, udaipur to appoint the commissioner so as to report may be submitted in this court. the report was submitted by the commissioner in the court of district judge, udaipur which was sent to this court. i have perused the above commissioner report and it appears that the lock was opened by one kamal khatri and it is reported that in the commissioner report that persons on the plot were the persons of the defendant no. 2. it is relevant to mention here that the commissioner submitted report before the trial court in pursuance of the trial court's order and this report of the commissioner dated 17th january, 1994 was objected by the defendant no. 2 by filing the application that on 17th january, 1994 the applicant broke the locks of the defendant. the affidavit was also filed in support of that objection by the defendant no. 2 rajendra kumar and one rajkumar bohra therefore, in view of the facts of the case, it cannot be believed that the appellant was in possession of the property or exercised his right to keep the possession, therefore, there appears to be no prima facie case in favour of the plaintiff.9. the commissioner report was considered by the trial court. the facts were considered by the trial court. the trial court did not recognize the possession of the plaintiff and in the commissioner report dated 29.1.1994 and the photographs sent by the learned district judge, udaipur in pursuance of this court's order dated 28.1.1994 proves possessions of the defendant no. 2 purchaser. therefore, it is clear that plaintiff is not in possession.10. there is an apprehension of the appellant that the respondent will raise the construction over the plot in dispute or may sale the property in dispute to any person. defendant no. 2 since purchased the property by registered sale deed and the plaintiff failed to prove prima facie case in his favour then the defendant has a right to enjoy the property subject to the decision of the suit only. the right against the alienation of the property during the pendency of the suit has been taken care by the statutory provision of lis pendens and if the respondent defendant no. 2 raises any construction knowing it well that there is serious dispute and in case the plaintiff succeeds, the title may pass on to the plaintiff, even then if the defendant will raise the construction, the defendant will not get any equity in his favour nor he will be entitled for any relief on the ground of investing money over the plot in dispute for the purpose of raising the construction or doing anything advantageous to the respondent defendant no. 2. it is made clear that in case if the property is alienated by the respondent defendant no. 2, he will mention the fact with respect to the pendency of this suit in the sale deed as any persons is bound to disclose the fact of litigation while selling the property.11. in view of the above facts, there is no merit in this appeal the same is dismissed with the above observations.