Ahmad Raza vs Sapna Wadhwani

With the consent of learned counsel for the parties, the appeal is heard finally.

This appeal under Order 41 Rule 1 (r) of the Code of Civil Procedure, 1908 (for short CPC) has been filed by the plaintiff being aggrieved by order dated 24.01.2023, passed by the learned Third Additional District Judge, Rajnandgaon, CG in Civil Suit No. 20-A/2022 by which the application of the plaintiff filed under Order 39 Rule 1 & 2 of CPC was rejected.

Facts of the case in brief are that the plaintiff and one Smt. Sapna Wadhwani and Smt. Mamta Jagwani resident of Sindhi Colony, Lalbagh Tahsil & District Rajnandgaon, CG entered into an agreement on 07.02.2020 with regard to a suit property comprised in piece of Khasra No. 350/2 area 0.90 and Khasra No. 350/3 area 0.29 acres total area 1.19 acres situated in P.H. No. 33 at Village Dhaba, Tahsil and District Rajnandgaon, CG for a consideration of Rs. 30 lacs. Out of the said consideration, Rs. 10 lacs as advance amount was paid. The sale agreement also purports that the possession of the suit land was also handed over. It is also stipulated in the sale agreement that between 07.02.2022 to 22.05.2022, the remaining sale agreement consideration would be received and registration would be done. When the defendants did not perform their part of agreement, the plaintiff filed a suit for specific performance of contract before the learned Court below. The plaintiff also filed an application under Order 39 Rule 1 & 2 of CPC for grant of interim injunction with a prayer that the defendants may be restrained from selling the suit land during the pendency of the civil suit and retraining the defendants from interfering the possession of the plaintiff. The suit was filed against the defendant Smt. Sapna Wadhwani, Amarlal Jagwani, Jatin Jagwani, Priya Jagwani and State of Chhattisgarh. The defendants entered their appearance before the learned trial Court and filed their reply to the application for injunction. It is the case of the defendants that no such agreement was ever executed by them. The agreement is forged and fabricated and on the date when the agreement was executed i.e. 07.02.2020, the scriber of the agreement Smt. Mamta Jagwani had already passed away on 24.04.2019 and a death certificate was also produced before the learned trial Court. Apart from this, the report of handwriting expert indicating that the signature of Mamta Jagwani in the sale agreement is forged and it is not signed by her.

Ms. Nupur Trivedi, learned counsel for the appellant vehemently argued that the agreement was executed between the plaintiff and the defendants and huge amount of Rs. 10 lacs was already paid in cash to them and possession of the suit land was also handed over by the defendants to the plaintiff. She further submits that the learned trial Court committed manifest error of law in holding that prima facie case, balance of convenience, irreparable loss is not in favour of the plaintiff. She further submits that the said agreement is also notarized to enhance the credibility of the agreement. She further submits that at this stage, the only claim of the plaintiff is that the defendants may be restrained from alienating the suit property during the pendency of the suit, otherwise, if the suit property is sold out, it would lead to multiplicity of the suit. She further submits that since prima facie there is execution of an agreement, the possession is in favour of the plaintiff. Therefore, the ingredients for grant of injunction i.e. prima facie case, balance of convenience and irreparable loss is in favour of the plaintiff and the impugned order may be set aside granting injunction as claimed in favour of the plaintiff. Further with regard to the handwriting expert report submitted by the defendants, she submits that the plaintiff has also submitted a report of handwriting expert which is in favour of the plaintiff.

Shri Sinha learned senior counsel with Mr. Buxy, learned counsel for the defendants No. 1 to 4 vehemently argued that the alleged agreement is a forged and fabricated document. He submits that the document contains signature of Smt. Mamta Jagwani on the second page. The agreement is alleged to be executed on 07.02.2020 whereas Smt. Mamta Jagwani had already passed away on 24.04.2019 and death certificate was also produced before the learned trial Court. Therefore, prima facie it creates the shadow of doubts on the execution of the said agreement. He further submits that no signature of any of the parties is taken on the front page of the agreement where the details of the property and the payment of advance amount is mentioned and it also create suspicion on the execution of the said documents. He further submits that handwriting expert report filed by the defendant Nos. 1 to 4 is also against the plaintiff. He further submits that there is no dispute with fact that the defendant Nos. 1 to 4 of the title holder and owner of the suit property and even if during pendency, the said property is sold, the parties would be governed by the principle of Section 52 of the Transfer of Property Act. He further submits that the agreement is unregistered as the value of the property mentioned in the agreement is more than hundred rupees, it requires compulsorily registration under Section 17(1-A) of the Registration Act, 1908. He relied upon the judgment of Hon’ble Supreme Court in the case of Balram Singh Vs. Kelo Devi reported in (2022) 7 SCR 226.

I have heard learned counsel for the parties, considered their rival submissions and perused the records.

The case of the plaintiff is based upon an agreement of sale executed on 07.02.2020. The recital of the said agreement in the first page gives a description of the property, the sale consideration and the amount of advance paid by the plaintiff to the defendant Nos. 1 to 4 the seller. Prima facie perusal of the documents would suggest that it is two page documents and in the first page, signature of neither of the purchaser nor the seller is taken. Though the signature of Smt. Sapna Wadwani and Smt. Mamta Jagwani and the plaintiff is there on the second page and the two witnesses are also mentioned but only the signatures and name of one of these two witnesses are mentioned. Neither their father’s name nor their address has been specifically stated. The learned trial Court after due appreciation of the material and documents placed before it, relying upon the various provisions of law, came to a categorical findings that prima facie case, balance of convenience and irreparable loss is not in favour of the plaintiff. The submissions of learned senior counsel has some force with regard to prima facie case that Mamta Jagwani who alleged to have signed the agreement had already died prior to the execution of the agreement which creates prima facie doubts on execution of the said agreement. Even otherwise, the plaintiff’s right is protected under Section 52 of Transfer of Property Act, 1882. The alleged amount of Rs. 10 lacs is said to have been paid to the seller in the said agreement by cash but before this Court, no substantial document has been filed to demonstrate that on the date of payment of such amount, the plaintiff herein had sufficient balance to pay such an amount and no income tax documents substantiating this fact has been filed. From perusal of the impugned order and documents appended, this Court is of the considered opinion that the learned trial Court has not committed any illegality or irregularity in rejecting the application for injunction.

The appeal therefore sans merit and is liable and is hereby dismissed.

No order as to cost.