Mst. Saleema and Others vs Habibullah and Others

Syed Bashir-Ud-Din, J.—The three contesting respondents have filed suit for specific performance and injunction in respect of 41 kanals

and 18 Marias of land situated at Rakh Shilwat Tehsil Sonawari District Baramulla, more specifically referred in para 2 of the plaint, on plaint

averments that three agreements to sell have been executed on 12-09-2002 by appellant-defendants in their favour. They have been put in

possession of land. Over 16 Lakh Rupees stand paid as consideration to defendants. As defendants are avoiding to execute the sale deeds and are

helt bent to interfere with plaintiffs possession over the land, hence this suit.

Alongside an application for temporary injunction was also filed. The trial court of District Judge Baramulla gave a provisional direction requiring

defendants ""not to cause any interference in the suit property."" This direction of December 13, 2004 is subject to objections. The defendants

appeared and filed objections. The trial court after hearing the parties made the above provisional ad-interim direction absolute and restrained

defendants, pending suit, from causing any interference with the possession of the plaintiffs' over the suit property. This order of May 12, 2004 is

impugned in this appeal.

I have heard the Ld. counsel for the parties and examined civil original suit file available on record besides the impugned order is perused.

The trial court has passed the impugned order in its discretion on the ground that the plaintiffs-applicants have a prima-facie case. Ex-facie the

possession has been handed over to plaintiffs who have parted with huge consideration amount received by the defendants. Notwithstanding the

question as to the proof of execution of the agreements, on trial, court below has opined that sufficient material exists and probabilities

preponderate on record to prima-facie show that the plaintiffs are not trespassers and instead have come in possession on the basis of agreement.

For these inferences of the trial court there is basis on record, in as much as, in all three agreements with receipt of consideration amount there is

recital of plaintiffs having been put in possession of the land with trees standing thereon by none other than the defendants, the party to the

agreement to sell in question.

In the written statement these defendants have no where specifically denied the execution of the agreement and the receipts. To say that the

agreements are not admissible in evidence, a preposition to be pronounced at trial, is not tantamount to denial of execution of agreements. What is

not specifically denied, is perforce rules of pleading, deemed admitted Reference to general irrevocable power of attorney obtained by defendants

6 & 7 from the defendants 1 to 5 a certified copy of which is on suit file, at pages 6, 7 & 8 it is unequivocally stated that the plaintiffs, referred as

Habibullah & Sons, have some dispute with defendants 1 to 5 regarding consideration amount with regard to the transaction of sale in respect of

suit land for which defendants have executed the agreements to sell in their favour and that the attorney holders are authorised to execute sale

deeds in their favour, in the event of consideration amount being settled and paid to their satisfaction. Obviously reference to these documents on

record go to show execution of the agreements and consequently the recitals as to handing over of the possession of the suit property in these

agreements would prima-facie show possession with the plaintiffs unless shown otherwise by the defendants.

In the fact situation and the circumstances referred above, the conclusion of the trial Judge that the petitioners have prima-facie case, reinforced

by considerations of balance of convience and irreparable loss, in their favour for an ad interim injunction cannot be said to be unreasoned or

unjust. In the matter of interference with discretion exercised by the trial court rule is that the appellate court has to be loath enough to interfere with

the exercise of discretion. Only because if the appellate court had dealt with the matter at the trial stage it may have to come a contrary

'conclusion', as suggest by the counsel for the appellant; cannot be a ground to up set the order so long the discretion is exercised reasonably and

in a judicial manner the impugned order cannot be set at naught. The appellate court is not to substitute its exercise of discretion for that of the trial

court so long the discretion exercised by the trial court is fair and reasonable, in the facts and circumstances of the case. The trial court has

considered the guidelines of prima-facie case, balance of convience and prevention of irreparable injury in the context of suit situation in the light of

material aspects of the case as discernable from record. The powers of appellate court are circumscribed in the matter of discretion in the field of

injunction.

See. i/ Mysore State Road Transport Corporation Vs. Mirja Khasim Ali Beg and Another, (paras 18 & 19)

ii/ Uttar Pradesh Co-operative Federation Ltd. Vs. Sunder Brothers of Delhi,

iii/ United Commercial Bank Vs. Bank of India and Others,

iv/ Firm Ishar Das Devichand and Another Vs. R. B. Prakash Chand and Another,

v/ Chetak Constructions Limited Vs. Om Prakash and Others, and

vi/ Laxman Pandu Khadke Vs. Pandharinath Purushottam Rane,

Ld. Counsel for appellant has referred to Krishnamoorthy Koundar Vs. Paramasiva Koundar, for his submission that temporary injunction

cannot be granted to the plaintiffs. This authority turns around its own facts. Even so the case is decided in the circumstances of the case by their

Lordships, after finding that actual delivery of possession of the suit properties on the date of agreement of sale in that case was not substantiated

on ground and claimed possession by plaintiff was not established. The trial court in granting interim injunction was found not justified after the

court observed that mere paper recital not supported by actual possession cannot be basis for issuing a direction to protect the claimed

possession.

The other two authorities cited are Smt. Hamida Vs. Smt. Humer and others, and U.N. Sharma Vs. Puttegowda and Another, . Both are on the

doctrine of part performance as contained in Central Transfer of Property Act, having no application in this State and to the facts and

circumstances of this case. The observations made are on the facts of those cases which have least parallel with the facts and circumstances of this

case.

In the aforesaid view of the matter, the appeal cannot succeed on merits. Dismissed.

Inform Court below of this order and send back the record.