Ratan Lal vs Mangi Lal and Others

Arun Bhansali, J.—This appeal is directed against the order dated 15.10.2011 passed by the learned District Judge, Chittorgarh, whereby, the application filed by the appellant-plaintiff-applicant under Order XXXIX, Rule 1 and 2 CPC has been rejected. The facts in brief are that the plaintiff filed a suit for specific performance of contract executed between the plaintiff and respondent No. 1 Mangi Lal regarding agricultural land situated at village Chogawadi; wherein it was, inter alia, submitted that though half portion of the land was recorded in the name of Smt. Ganga and half portion was recorded in the name of vendor Mangi Lal and Smt. Anopi Bai; the entire land belongs to the vendor Mangi Lal only; the agreement to sale was executed on 12.06.2003 for land ad measuring 3-4 bighas @ Rs. 24,000/- per bigha and a sum of Rs. 35,000/- was paid on the same date. It was also claimed that the possession of the land was handed over to him and ever since he was in possession of the land in question; it is claimed in the plaint that now the vendor Mandi Lal was refusing to execute sale deed and despite notice dated 09.09.2010 he has refused to execute the sale deed and trying to interfere with his possession and, therefore, alongwith seeking specific performance of the contract dated 12.06.2003 a prayer for injunction was also made in the suit; alongwith the suit an application seeking temporary injunction during pendency of the suit was also filed.

A joint reply was filed by defendant Nos. 1 to 4 indicating that while respondent No. 4 had half share in the land in question, defendant Nos. 1 to 3 had 1/6th share each, no agreement was executed by Mangi Lal and that the land was of joint possession; the suit was barred by limitation, however, the land in question has been jointly sold to Janaki Lal defendant No. 5, who is in possession. In the alternative, it was stated that the defendant No. 1 Mangi Lal had right only to the extent of 1/6th share and he could have executed the sale regarding entire land in question. Further, the agreement was not bearing proper stamp duty and, as such, the same could not be read in evidence.

The defendant No. 5 also filed reply and opposed the prayer by filing copy of registered sale deed executed by defendant Nos. 1 to 4. It was claimed that he was in possession of the land in question, the mutation stands in his name and he has paid consideration of Rs. 4,00,000/-.

The learned trial court after prima facie coming to the conclusion that the plaintiff was not in possession of the land in question and, therefore, he cannot seek any relief with regard to his possession, dismissed the application filed under Order XXXIX, Rule 1 and 2 CPC.

It is submitted by learned counsel for the appellant that from the proceedings u/s 145 Cr.P.C., it was apparent that the appellant was in possession. However, the learned trial court has wrongly rejected the said evidence. It was further submitted that agreement was executed way back in the year 2003 and the land in dispute has been sold by the defendants in the year 2010, whereas, the possession was handed over to the appellant in the year 2003 itself.

The learned counsel for respondent No. 5 vehemently opposed the submissions in this regard. It was submitted that no injunction can be granted against the true owner and from the averments made in the application, it is apparent that Mangi Lal had only 1/6th share in the suit property and he could not have executed agreement for the whole land and the plaintiff is not in possession of the suit property, as such, there is no requirement of grant of any injunction in favour of the appellant.

I have considered the rival submissions made at the Bar.

A bare look at the averments made by plaintiff would indicate that he was well aware in the first instance that the respondent No. 1 Mangi Lal was not owner of the entire land in question and he has merely assumed that he was owner of the entire land in question. The averment in this regard made in the application is very clear and categorical that ''though half share is recorded in the name of defendant No. 4 Smt. Ganga and half share is recorded in the name of Mangi Lal and Smt. Anopi Bai, however, the entire land belongs to Mangi Lal''; the agreement itself is wholly uncertain, inasmuch as, it indicates 3-4 bighas of land to be sold to the plaintiff; whether it is 3 bighas or 4 bighas is still to be assumed and the agreement also does not contain any boundaries; and the agreement also does not indicate as to whether the possession of the land in question was handed over to the plaintiff or not.

In view of above facts, the alleged agreement is wholly uncertain; the same has been entered into by the plaintiff knowing fully well that the vendor is not the owner of the entire land in question. Further, the agreement was executed in the year 2003 and averments have been made to indicate that the plaintiff was prepared to make payment of the rest of the remaining consideration within a period of two months, also give strength to the arguments of counsel for the respondent regarding limitation.

So far as consideration of order passed u/s 145 Cr.P.C. is concerned, the learned trial court after thoroughly considering the said order and weighing the other available material on record has recorded the finding that the plaintiff has prima facie failed to prove his possession. The said finding does not require any interference.

In that view of the matter, there is no substance in the appeal and the same is, therefore, dismissed. However, any observation made hereinbefore shall not affect the final outcome of the suit. The stay application also stands dismissed.