Sh. Dharam Pal vs Sh. Sant Ram and Others

Sanjay Karol, J.—Plaintiff Sh. Dharam Pal has filed the present suit on 30.8.2008 against Sh. Sant Ram, Sh. Jia Lal, Sh. Keshav Ram, Defendants No. 1, 2 and 3 respectively (hereinafter referred to as the owners); M/s Skymark Homes Private Ltd., Defendant No. 4 (hereinafter referred to as the first purchaser); and Sh. Mohinder Sharma and Sh. Rajesh Sharma, Defendants No. 5 and 6 respectively.

The suit is for specific performance of agreement of sale dated 14.2.2008, with respect to land comprised in khata khatauni No. 24/27, khasra No. 252, 253 and 254, measuring 160.9 bighas, situated at Mauja Up-Mohal Tipra, Pargana Bhaget, Tehsil Kasauli, District Solan, H.P. (hereinafter referred to as the suit land).

In the suit the Plaintiff has prayed for the following reliefs:

It is, therefore, prayed that a decree for specific performance of agreement of sale dated 14.2.2008 be passed in favour of the Plaintiff and gainst the Defendants directing the Defendants to execute or get or cause the sale deed executed in fvour of the Plaintiff with respect to land measuring 160.9 Bighas, comprised in Khata/Khatauni No. 24/27, Khasra No. 252, 253 and 254, situated at Up Mohal Tipra, Tehsil Kasauli, District Solan, HP and also put the Plaintiff in possession of the said land and a decree for permanent perpetual injunction be also passed in favour of the Plaintiff and against the Defendants restraining them from in any manner alienating, transferring or encumbering the suit property or changing the nature thereof or such other decree or injunction or relief as this Hon''ble Court deems fit be also passed in favour of the Plaintiff and against the Defendants with costs of the suit.

Alongwith the plaint, Plaintiff has also filed an application under Order 39 Rules 1 and 2 CPC (OMP No. 427 of 2008) praying for an interim relief, restraining the Defendants from transferring/alienating/ encumbering/changing the nature of the suit property.

No order of interim relief has been passed till date.

It is the Plaintiff''s pleaded case that the owners were actually owning and possessing 192.2 Bighas of land in Mohal Tipra, Tehsil Kasauli, District Solan, HP. The same was agreed to be sold to him and against a valid receipt a sum of Rs. 10 lacs was paid to them on 20.2.2007. Formal written agreement was reduced into writing on 14.2.2008 when another sum of Rs. 10 lacs was paid to the owners. In terms of the said agreement sale consideration was fixed at Rs. 1,82,00,000/- (One crore and eighty two lacs only) and the sale deed was to be executed before 20.2.2009. In partial performance of the same, on 18.2.2008 the owners executed a registered sale deed with respect to 31.13 bighas of land for a total consideration of Rs. 30 lacs. Out of the total amount of earnest money of Rs. 20 lacs paid by the Plaintiff to the owners, Rs. 9 lacs was adjusted towards the consideration for the said sale and the balance amount of Rs. 11 lacs was agreed to be adjusted towards sale consideration of the remaining land measuring 160.9 bighas. The first purchaser filed Civil Suit No. 13 of 2008 before this Court, challenging the said sale deed and also praying for a decree for specific performance of agreement dated 22.4.2007 executed by the owners with respect to the entire land (including the suit land). In the said suit the owners categorically denied having entered into any such alleged agreement with the first purchaser. Before the Plaintiff who was a party to the suit could file his written statement, in order to frustrate his rights flowing from a pre-existing agreement, the owners and the first purchaser in connivance with each other, on 20.8.2008 got his name deleted from the array of parties and suffered a collusive decree. This was done with a design to over come the provisions of the Himachal Pradesh Tenancy and Land Reforms Act, 1972. As a part of the same "conspiracy" and "collusion", out of the suit land 125.06 bighas of land was transferred by the owners in favour of Defendants No. 5 and 6 by executing two sale deeds. With respect to 40.18 bighas of land, sale deed dated 26.8.2008 was executed in favour of Defendant No. 6 Sh. Rajesh Sharma for a total consideration of Rs. 26,55,000/- and another sale deed of the same date was executed in favour of Defendant No. 5, Sh. Mohinder Sharma whereby 84.08 bighas of land was transferred for a total consideration of Rs. 54,79,000/-. The said sale deeds were registered inspite of Plaintiff''s notice dated 26.8.2008 served upon the Sub Registrar Kasauli. Inspite of service of notice, due to "their clout and influence the Defendants got the sale deeds registered after office hours". Since the Plaintiff had a legal, valid and a binding pre-existing agreement to sell, of which the Defendants had prior knowledge, therefore, subsequent sales in favour of Defendants No. 5 and 6 are illegal, inoperative. Plaintiff is ready and willing to perform his obligation under the agreement. The cause of action accrued in his favour on 20.2.2007 when an advance of Rs. 10 lacs was paid to the owners; on 14.2.2008 when the agreement to sell was executed by the owners; on 18.2.2008 when in partial performance of the same sale deed was executed in his favour; on 20.8.2008 when the owners and the first purchaser suffered a collusive decree and finally on 26.8.2008 when inspite of Plaintiff''s notice sale deeds were executed by the owners in favour of Defendants No. 5 and 6.

Alongwith the plaint, Plaintiff has filed the following documents:

Original of the agreement to sell dated 14.2.2008.

Certified copy of sale deed dated 18.2.2008 pertaining to land measuring 31.13 bighas with enclosures.

Certified copy of the record of the pleadings, applications and the orders/decree passed in Civil Suit No. 13 of 2008 filed before this Court.

Copy of notice addressed to the Registrar/Sub Registrar alongwith postal receipts and fax transmission report.

Certified copy of sale deed dated 26.8.2008 executed in favour of Defendants No. 5 and 6.

Notice in the suit and the application was issued to the Defendants who entered appearance.

Owners filed an application (OMP No. 478 of 2008) under Order 7 Rule 14, Order 11 Rule 15 read with Section 151 of the CPC and also served notice calling upon the Plaintiff to produce the original of the receipt against which payment of Rs. 10 lacs was allegedly made by him on 20.2.2007. Plaintiff responded by stating that with the owners acknowledging receipt of payment of Rs. 10 lacs in the agreement dated 14.2.2008 itself, the original receipt was handed over to the owners but a copy thereof was retained which was placed on record.

In the written statement the owners denied having entered into any oral or written agreement with the Plaintiff. Receipt of payment of Rs. 10 lacs, execution of receipt on 20.2.2007 or agreement dated 14.2.2008 is emphatically denied. It is pleaded that in February, 2008, Plaintiff approached them to sell their land. He was apprised of the agreement to sell dated 22.4.2007 executed in favour of the first purchaser whereby their entire land of 192 Bighas 2 Biswas was agreed to be sold for a total consideration of Rs. One crore and twenty five lacs for which part consideration of rupees twenty lacs had been received by them. The first purchaser was to obtain requisite statutory permissions from the State Government under the provisions of Section 118 of the H.P. Tenancy and Land Reforms Act for the purpose of execution of the sale deed. Hence they expressed their inability to sell the land to the Plaintiff. On the pretext that obtaining permissions would take time Plaintiff being an agriculturist offered to immediately get the sale deed executed and that too on higher rates. Eventually Plaintiff succeeded in persuading the owners to sell some land with an assurance that he would try to settle the matter with the first purchaser for agreeing to sell the remaining land to him. On such representations, they agreed to sell 31 bighas 13 biswas of land for a total consideration of Rs. 30 lacs and a sum of Rs. 10 lacs by way of three bank drafts was received on 14.2.2008. At the time of registration of the sale deed it was realized that instead of Rs. 30 lacs the total value of the bank drafts prepared by the Plaintiff was amounting to Rs. 31 lacs. Since the bank drafts were got prepared at Chandigarh, due to paucity of time it was not possible for the Plaintiff to have the same corrected, therefore he represented that upon persuading the first purchaser to sell the entire land to him, a sum of Rs. 1 lac could be adjusted at the time of execution of subsequent sale deeds. Since Plaintiff had undertaken to get the sale deed executed and registered, in the month of February, 2008 he got certain papers signed from the owners to get all codal formalities completed. The papers were signed by them in good faith and neither the contents were disclosed nor were they made to understand consequences thereof. It was only with the filing of the instant suit they realized that they have been duped by the Plaintiff. The agreement dated 14.2.2008 is a forged, fabricated and manipulated document and is a result of misuse of papers signed by them in good faith. The agreement for sale is "highly suspicious and dubious in character". It is a "result of active forgery, manipulation and fraud therefore, the Plaintiff is guilty of making false assertions, in order to obtain the relief of specific performance in the present suit". Plaintiff has deliberately set up the alleged agreement dated 22.4.2007 with the sole object "to get rid of the decree passed in Civil Suit No. 13 of 2008". In the earlier suit, they denied having entered into agreement to sell dated 22.4.2007 with the 1st purchaser on the Plaintiff''s asking as he had wanted to exert pressure to facilitate settlement.

The first purchaser, by filing a separate written statement has opposed the suit inter alia on the ground that the owners had executed agreement to sell dated 22.4.2007 with respect to 192 bighas and 2 biswas of land (including the suit land) in its favour. Sale consideration was fixed at Rs. 1 crore 25 lacs and a sum of Rs. 20 lacs was paid as advance. Plaintiff successfully allured the owners to wriggle out of the same and got sale deed dated 18.2.2008 for 31 bighas 13 biswas of land executed in his favour. As such civil suit No. 13 of 2008 was filed and during its pendency a settlement was arrived at whereby out of the entire land, 125.6 bighas of land was agreed to be sold/transferred to them/their nominees for a total consideration of Rs. 1 crore and 25 lacs. The owners were to refund the advance payment of Rs. 20 lacs if the sale deed was not to be registered in their favour. As part of the said settlement, the first purchaser agreed to abandon its claim qua 31 bighas and 13 biswas of land sold to the Plaintiff. As such, applications for abandoning the claim, deleting Plaintiff from the array of the parties and recording the terms of the compromise was filed in the said suit. On 20.8.2008, the Court allowed the application by deleting the Plaintiff''s name from the array of the parties and after recording statements of the parties on oath, accepted the terms of the settlement and passed a decree. The terms of the settlement were made part of the decree. Pursuant thereto, the owners executed two separate sale deeds, transferring land measuring 125.6 bighas in favour of Defendants No. 5 and 6. Issuance of notice dated 26.8.2008 by the Plaintiff to them has been specifically denied.

In a joint written statement, Defendants No. 5 and 6 have pleaded that the suit, based on a concocted cause of action has been malafidely filed with an oblique purpose of harassing the Defendants. It is speculative in nature. They had intended to purchase land and as such approached the first purchaser who apprised them of their agreement to sell and decree passed by this Court. After due care and caution as is required of a prudent man and by making inquiries and ascertaining title of the owners in the revenue record, on the asking of the first purchaser they purchased part of the suit land in terms of sale deeds dated 26.8.2008. As such, they are bonafide purchasers for a valuable consideration, without any notice of the Plaintiff''s alleged agreement, which in any event is fabricated and a manipulated document.

Alongwith the written statement none of the Defendants have filed any documents.

Heard M/s Ajay Kumar and Bimal Gupta, learned Counsel for the Plaintiff. Mr. Bhupender Gupta, learned Senior Counsel for the owners, Mr. Naresh Sood, learned Counsel for the first purchaser and Mr. Sanjeev Kuthiala, learned Counsel for Defendants No. 5 and 6. They have based their submissions on their respective pleadings. In support of their contentions they have relied upon the following decisions.

Mr. Ajay Kumar has relied upon the decisions reported in Sanjay Tandon Vs. Sarabjit Singh, ; Dalpat Kumar and Another Vs. Prahlad Singh and Others, ; Mathai Thommen v. Thomas Mathew and Ors. AIR 1952 Travancore-Cochin 199; Bai Dosabai Vs. Mathurdas Govinddas and Others, ; Murlidhar Bapuji Valve Vs. Yallappa Lalu Chaugule since deceased by his heirs and representatives Sundrabai Lalu Chaugule and others, ; Munna Lal v. Krishna Kumari and Anr. AIR 1983 All 5 ; Basruddin Khan and Another Vs. Gurudarshan Das and Others, , Dinesh Chandra Guha Vs. Satchidananda Mukherji and Others, Jagan Nath Vs. Jagdish Rai and Others, ; R. K. Mohammed Ubaidullah and Others Vs. Hajee C. Abdul Wahab (D) By Lrs. and Others, ; Satya Mandalini and Another Vs. Sahadur Mondal and Others, Mr. Naresh Sood has relied upon the decision reported in Rakesh Mohan v. Brig. Kapil Mohan and Ors. 2000 (3) Shim. L.C. 331. Mr. Bhupender Gupta, learned senior Counsel has relied upon the decision reported in Mandali Ranganna and Others etc. Vs. T. Ramachandra and Others, and Mr. Sanjeev Kuthiala, learned Counsel has relied upon the decision report in Lourdu Mari David and others Vs. Louis Chinnaya Arogiaswamy and others,

The principles for grant of interim injunction now stands settled in law. The relief of injunction is a discretionary remedy and the Plaintiff has to establish that it has got a strong prima facie case of infraction of legal rights and such infraction causes irreparable loss and injury to the Plaintiff and that the injury is of such a nature that it cannot be compensated by way of damages.

A constitution Bench of the Apex Court in State of Karnataka Vs. State of Andhra Pradesh and Others, has held that even if all the three ingredients are established, the Court may still not grant an order of injunction in favour of the asking party.

In Transmission Corporation of A.P. Ltd. and Others Vs. Lanco Kondapalli Power Pvt. Ltd., , it has been held that the interim direction ordinarily would precede finding of a prima facie case. When existence of a prima facie case is established, the court shall consider the other relevant factors, namely, balance of convenience and irreparable injuries.

The Apex Court in Dorab Cawasji Warden Vs. Coomi Sorab Warden and others, has held that since relief of interim injunction is an equitable relief, the Court shall consider whether the comparative mischief of inconvenience which is likely to ensue from withholding the injunction will be greater than that which is likely to arise from granting it, which means that the balance of convenience is in favour of the Plaintiff seeking the relief.

In Dalpat Kumar (supra), while dealing with the Plaintiff''s application for interim injunction filed in a suit for Specific Performance, the Apex Court has held that "It is settled law that the grant of injunction is a discretionary relief. The exercise thereof is subject to the court satisfying that (1) there is a serious disputed question to be tried in the suit and that an act, on the facts before the court, there is probability of his being entitled to the relief asked for by the Plaintiff/Defendant; (2) the court''s interference is necessary to protect the party from the species of injury. In other words, irreparable injury or damage would ensue before the legal right would be established a trial; and (3) that the comparative hardship or mischief or inconvenience which is likely to occur from withholding the injunction will be greater than that would be likely to arise from granting it.

Therefore, the burden is on the Plaintiff by evidence aliunde by affidavit or otherwise that there is "a prima facie case" in his favour which needs adjudication at the trial. The existence of the prima facie right and infraction of the enjoyment of his property or the right is a condition for the grant of temporary injunction. Prima facie case is not to be confused with prima facie title which has to be established, on evidence at the trial. Only prima facie case is a substantial question raised, bona fide, which needs investigation and a decision on merits. Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that non-interference by the Court would result in "irreparable injury" to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely one that cannot be adequately compensated by way of damages. The third condition also is that "the balance of convenience" must be in favour of granting injunction. The Court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused and compare it with that it is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the Court considers that pending the suit, the subject-matter should be maintained in status quo, an injunction would be issued. Thus the Court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit.

(Emphasis supplied)

The principles for grant of an interlocutory injunction, during the pendency of legal proceedings is a matter requiring the exercise of discretion of the court and the tests which are applied for exercising such discretion have been further reiterated by the Apex Court in M/s. Gujarat Bottling Co. Ltd. and others Vs. Coca Cola Company and others, wherein it is held that "the decision whether or not to grant an interlocutory injunction has to be taken at a time when the existence of the legal right assailed by the Plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. Relief by way of interlocutory injunction is granted to mitigate the risk of injustice to the Plaintiff during the period before that uncertainty could be resolved. The object of the interlocutory injunction is to protect the Plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection has, however, to be weighed against the corresponding need to the Defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The Court must weigh one need against another and determine where the "balance of convenience" lies.

Under Order 39 of the Code of Civil Procedure, jurisdiction of the Court to interfere with an order of interlocutory or temporary injunction is purely equitable and, therefore, the Court, on being approached, will, apart from other considerations, also look to the conduct of the party invoking the jurisdiction of the Court, and may refuse to interfere unless his conduct was free from blame. Since the relief is wholly equitable in nature, the party invoking the jurisdiction of the Court has to show that he himself was not at fault and that he himself was not responsible for bringing about the state of things complained of and that he was not unfair or inequitable in his dealings with the party against whom he was seeking relief. His conduct should be fair and honest. These considerations will arise not only in respect of the person who seeks an order of injunction under Order 39 Rule 1 or Rule 2 of the Code of Civil Procedure, but also in respect of the party approaching the Court for vacating the ad interim or temporary injunction order already granted in the pending suit or proceedings.

(Emphasis supplied)

In M. Gurudas and Others Vs. Rasaranjan and Others, the Apex Court was dealing with a case where a claim was set up by the legal heirs of one Nirmala, who was alleged to have been adopted by Obalappa and thus inherited the properties Obalappa. Legal heirs had filed a suit praying for a decree for partition of their share in the property based on the deed of adoption. In the interlocutory application, the High Court passed an interim order directing that no alienation of the suit property would take place, save and except the share of the builders to the construction agreement. The Apex Court set aside the order passed by the High Court and reiterated the principles for grant of injunction. The Court held that finding of prima face case would be a finding of fact, but, however, while arriving at such a finding of fact the Court not only must arrive at a conclusion that a case for trial is made out but also factors requisite for grant of injunction exist. The contention of the Plaintiffs must be bonafide and the question sought to be tried must be a serious question and not merely a mere triable issue. As to what would constitute a triable issue, it reiterated the view taken in Series 5 Software v. Clarke (1996) 1 All ER 853 (Ch D) wherein it is held that "Your Lordships should in my view take this opportunity of declaring that there is no such rule. The use of such expression as ''a probability'', ''a prima facie case'', or ''a strong prima facie case'' in the context of the exercise of a discretionary power to grant an interlocutory injunction leads to confusion as to the object sought to be achieved by this form of temporary relief. The court no doubt must be satisfied that the claim is not frivolous or vexatious; in other words, that there is a serious question to be tried."

The aforesaid principles stand reiterated in Mandali Ranganna and Ors. (supra).

The Apex Court in Mahadeo Savlaram Shelke and Others Vs. Puna Municipal Corporation and Another, has affirmed the principles that "an application for temporary injunction is in the nature of a quia timet action. Plaintiff must, therefore, prove that there is an imminent danger of a substantial kind or that the apprehended injury, if it does come, will be irreparable. The word ''imminent'' is used in the sense that the circumstances are such that the remedy sought is not premature. The degree of probability of future injury is not an absolute standard: What is aimed at is justice between the parties, having regard to all the relevant circumstances."

This Court in Rakesh Mohan (supra), has held that only if there is a real danger to the property being wasted, damaged or alienated, the Court can interfere. The party claiming temporary injunction must plead and prove actual or reasonably apprehended danger of such waste or damage or alienation. The question as to what constitutes sufficient danger of waste or danger depends upon the facts and circumstances of each case. In order to show that the property is in danger or of being alienated, some overt act towards alienation of the property, such as negotiations/ offers for sale should be alleged and proved.

Plaintiff''s prayer for interim injunction essentially falls under Sub-rule (a) of Rule 1 of Order 39 Code of Civil Procedure. It is not the Plaintiff''s case that he is in possession of the suit property. Hence, by way of an affidavit or otherwise Plaintiff has to prove that the property in dispute is in danger of being wasted, damaged, alienated by any party to the suit or is wrongfully sold in execution of a decree. In the instant case the Plaintiff has not challenged the decree passed by this Court. It is also not his case that the property is in danger of being wasted or damaged. With regard to the alienation of the suit property it has also not been pleaded that the owners are intending to transfer the remaining suit land to third party. There is also no allegation of further transfer of land by Defendants No. 5 and 6 to some one else. 125.6 bighas of land stood sold to them is pursuant to and in terms of the decree dated 20.8.2008.

The instant suit has been filed with respect to alleged agreement to sell dated 14.2.2008, whereby 192.2 bighas of land (including the suit land) has been agreed to be sold to the Plaintiff for a sum of Rs. 1,82,00,000/-. The said agreement is a three page document and certain blanks on page one and page three have been filled in by hand. Only the last page of the said document contains signatures and that too of only the Plaintiff, allegedly of Defendant No. 2 Sh. Jia Lal and Defendant No. 3 Sh. Keshav Ram. It does not bear the signatures of Sh. Sant Ram, Defendant No. 1. However, on the reverse of page one, there is an undated receipt acknowledging payment of Rs. 10 lacs by way of three different drafts prepared in the names of Defendants No. 1, 2 and 3. The said receipt allegedly bears the signatures of all the owners. When and by whom the blanks were filled in has not been disclosed in the plaint. The agreement mentions that the bargain has been finalized with the efforts of Sh. A.K. Kakkar who is to be paid commission of 1% on the total sale price. It is not the pleaded case of the Plaintiff that the transaction was entered into through a property broker. Page 2 of the document, which does not bear signatures of any person, contains a recital and clauses to the following effect:

And whereas the sellers had entered into an oral agreement with the purchaser to sell the aforesaid land measuring 192 B 2 B comprised in Khasra Nos. 252, 253 & 254 situated in the revenue estate of Village Tipra for a total sale consideration of Rs. 1,82,00,000/- (Rupees One Crore Eighty Two Lacs only) and had received a sum of Rs. 10,00,000/- (Rupees Ten Lacs only) as earnest money vie receipt dated 20.02.2007, the receipt of which in cash is again acknowledged through this deed of agreement to sell and

Whereas in pursuance of the oral agreement now this agreement further witnesseth as follows:

That the sellers out of the total sale consideration have today received another sum of Rs. 10,00,000/- (Rupees Ten Lacs only) through three Demand Drafts bearing No. 580300, 580301 & 580302, drawn on Centurion Bank of Punjab, Sector 9, Chandigarh to the sellers.

That the sellers have now agreed to execute sale deed in respect of part of the land measuring 31.13 Biswa out of the land mentioned above on or before 20.02.2008 in favour of the purchaser for a consideration of Rs. 30,00,000/- (Rupees Thirty Lacs only) and they further undertake to execute the sale deed in respect of the remaining land measuring 161 B 2 B on or before 20.02.2009.

That out of Rs. 20,00,000/- (Rupees Twenty Lacs only) received as Earnest money a sum of Rs. 9,00,000/-(Rupees Nine Lacs only) shall be adjustable in the sale price of 31 B 13 B, whereas the remaining sum of Rs. 11,00,000/-(Rupees Eleven lacs only) shall be adjustable towards the sale price of remaining land measuring 161 B 2 B, the sale deed in respect of which shall be executed by the sellers on or before 20.02.09, on payment of balance sale consideration in favour of the purchase or his nominee.

That the possession of the remaining land shall be delivered by the sellers to the purchaser at the time of execution and registration of sale deed qua remaining land which the sellers hereby undertake to execute on or before 20.02.2009, in favour of the purchaser or his nominee.

That the purchase has right to get the sale deed executed in his own name or in the name of his nominee or any other person or persons whomsoever he may like and the sellers shall have no objection for the same at any later stage.

Emphasis supplied

It is a matter of record that except for the above recital of an oral agreement entered into prior to 14.2.2008, there is nothing on record to corroborate or substantiate the same. Even sale deed dated 18.2.2008 executed in favour of the Plaintiff by the owners does not record the factum of any oral or written agreement dated 14.2.2008. The first purchaser filed civil suit No. 13 of 2008 on 4.3.2008. Inspite of opportunity afforded, Plaintiff did not file written statement and by moving OMP No. 198 of 2008 under Order 8 Rule 1 CPC sought extension of time to file the same. In the said application he did not plead or even remotely suggest having entered into any oral or written agreement with the owner with respect to the land (including the suit land). Even when the Court allowed OMP No. 388 of 2008 in Civil Suit No. 13 of 2008 on 20.8.2008 and directed deletion of Plaintiff''s name from the array of parties it was not orally conveyed to the Court that he had any prior oral or written agreement executed by the owners in his favour. The objection to the application was not on this ground.

It was only on 26.8.2008, when the Plaintiff caused service of notice upon the Deputy Commissioner and the Sub Registrar Kasauli, that for the first time Plaintiff set up the instant agreement dated 14.2.2008. Even in this notice prior oral agreement does not find mention.

In this background and for the aforesaid reasons, prima facie I am of the view that agreement dated 14.2.2008 cannot be said to have been executed by the owners agreeing to sell their entire land for a consideration of Rupees One Crore and Eighty-two lacs.

Assuming, though hypothetically, that the owners had executed agreement dated 14.2.2008, still it cannot be said that Plaintiff has been able to prima facie show, much less prove, that even prior to the execution of the written agreement dated 22.4.2007 between the first purchase and the owners, the owners had entered into an oral agreement to sell their land to him. Importantly in para (1) of the plaint there is a categorical assertion that Rs. 10 lacs was paid to Defendants No. 1 to 3 on 20.2.2007 "against a receipt". The plaint is conspicuously silent with regard to the original receipt being handed over to the owners at the time of the execution of the agreement dated 14.2.2008. It was only when the Plaintiff was put to notice, this fact was brought on record and a photo copy thereof placed on record. The receipt does not inspire confidence for the reason that (a) blanks have been filled in by hands (b) it is a cash transaction (c) it does not mention the total sale consideration. No other proof of source or payment of the amount has been placed on record. Plaintiff has also prima facie not shown that he is a man of means and always had the financial capacity or the resources to pay the sale consideration. Plaintiff has also not explained the material terms of the oral agreement. The period within which the sale was to be completed and for what consideration has also not been stated. The oral agreement can be void for uncertainty. Further between 20.2.2007, the alleged date of receipt of Rs. 10 lacs and 14.2.2008 the alleged date of agreement to sell, what transpired has also not been stated by the Plaintiff. It is not the case of the parties that the Plaintiff and the owners were having business dealings or were known to each other since long. The owners are also not in the business of property dealing/Real Estate Development. Apparently they are agriculturists. Undisputedly for inter se transaction of sale between the Plaintiff and the owners no statutory permissions were required to be obtained by them. What was the cause of delay in getting the sale deeds executed has not been explained. In ordinary course, the agreement and the receipt would have been shown at the first instance which was not done so by the Plaintiff till the issuance of the notice. The agreement dated 14.2.2008 and the receipt for a sum of Rs. 10 lacs reflecting transactions of Rs. 10 lacs in cash is definitely under cloud.

Receipt of a sum of Rs. 10 lacs on 14.2.2008 from the Plaintiff has been sufficiently explained by the owners. It is the Defendants assertion that receipt dated 22.7.2007 has been manufactured by a process of photocopying and it was only when the Defendants were asked to file the original of the same, having been caught on a wrong foot photocopy was placed on record by giving false and concocted explanation. The receipt does not find mention even in the list of documents or list of reliance of the documents filed along with the plaint. To this extent the contention is correct.

That apart, in terms of judgment and decree dated 20.8.2008 this Court accepted the compromise entered into between the owners and the first purchaser, acknowledging the agreement to sell dated 22.4.2007 with respect to the entire land (including the suit land). This written agreement is obviously prior to 14.2.2008, the date on which the alleged receipt acknowledging the oral agreement took place between the Plaintiff and the owners.

For the purposes of proper appreciation, the order on the basis of which decree dated 20.8.2008 passed by this Court in Civil Suit No. 13 of 2008 are reproduced as under:

20.8.2008 Present: Mr. Naresh Sood, counsel for the Plaintiff.

Mr. G.D. Verma, Sr. Advocate, with Mr. B.C. Verma, counsel for Defendants No. 1 to 3.

Mr. Bimal Gupta, counsel for Defendant No. 4.

Parties are also present.

OMP Nos. 384 and 385 of 2008

Allowed.

OMP 51 of 2008

Infructuous, in view of the orders passed in the main suit.

OMP 388 of 2008

This application has been moved by the Plaintiff under Order 23 Rule 1 read with Order 1 Rule 10(2) and Section 151 of the CPC with a payer that the Plaintiff does not wish to pursue his claim against Defendant No. 4 in so far as it relates to a part of the suit land measuring 31 bighas and 13 biswas, denoted as khasra No. 254/1 out of khasra No. 254 as per sale deed dated 18.2.2008 registered as such on 18.2.2008 in the office of Sub Registrar, Tehsil Kasauli, District Solan. Learned Counsel for Defendant No. 4 submits that the application cannot be allowed. This is indeed a strange request. Plaintiff being the dominus litis, it is for him to choose as to whether to prosecute his entire claim or to abandon it. The submission of the learned Counsel is rejected. Registry is directed to delete the name of Defendant No. 4 from the array of Defendants. The Plaintiff having given up his claim qua Defendant No. 4 and having not pressed any claim against him, Defendant No. 4 cannot have any claim/objection to the deletion of his name from the array of Defendants. The application is allowed as prayed for.

OMP 387 of 2008

This application has been moved under Order 23 Rule 3 of the CPC by the Plaintiff and Defendants 1 to 3 jointly with the prayer that they have compromised the subject matter of the suit in the terms and conditions as contained in this application. The parties to this suit, that is, the Plaintiff and Defendants 1 to 3 have agreed that:

(a) the Plaintiff and Defendants 1 to 3 have mutually agreed and settled and the Plaintiff has abandoned its claim qua part of suit land measuring 31 Bighas 13 Biswas detailed above which has been sold by Defendants 1 to 3 in favour of Sh. Dharam Pal original Defendant No. 4 in the suit. It has further been agreed and settled that out of the remaining balance suit land measuring 160 Bighas 9 Biswas out of total suit land measuring 192 Bighas 2 Biswas comprised in Khewat Khatauni No. 24/27, khasra No. 252, 253 and 254 at Mauza Up Mahal Tipra, Pargna Bhaget, Tehsil Kasauli, District Solan, H.P. the Defendants 1 to 3 will transfer land measuring 125 Bighas 6 Biswas as comprised in khasra No. 252/2 (measuring 84 Bighas 8 Biswas), 254/2 measuring 35 Bighas 2 Biswas) and Khasra No. 253, measuring 5 Bighas 16 Biswas, total 125 Bighas and 6 Biswas as detailed and shown in tatima and jamabandi as attached Annexure A collectively to the settlement has been agreed to be transferred free of all encumbrances or claims or demands of any kind from any quarter to the Plaintiff company or in the alternative solely at the discretion of the Plaintiff in the name of its nominee or nominees or any other person or persons whom the Plaintiff chooses or directs as the case may be for a total sale consideration of Rs. 81,34,000/- (Rupees eighty one lacs, thirty four thousand only). The Defendants 1 to 3 acknowledge to have already received a sum of Rs. Twenty lacs from the Plaintiff as detailed in the plaint at the time of executing agreement dated 22.4.2007 for the entire land of 192.2 Bighas. Since Defendants 1 to 3 at present are not in a position to immediately return this amount of Rs. Twenty lacs to the Plaintiff as such in case the ultimate sale deed in terms of this compromise is opted to be executed in the name of any other persons, other than the Plaintiff, then this amount of Rs. Twenty lacs is agreed to be repaid to the Plaintiff by Defendants 1 to 3. The necessary expenses for the stamp papers, registration charges etc. shall be borne by the Plaintiff or their nominee/nominees or any other person or persons whom the Plaintiff chooses or directs as the case may be. Remaining land measuring 35.3 Bighas shall be owned and possessed by Defendants 1 and 2.

(b) That the sale deed shall be executed by Defendants 1 to 3 and got registered in favour of the Plaintiff or its Nominee/Nominees or any other person or persons whom the Plaintiff chooses or directs as the case may be, immediately on the asking of the Plaintiff or its nominee/nominees or any other person or persons whom the Plaintiff chooses or directs within a day as and when such demand is made.

(c) That on the successful implementation of this settlement and compromise and on execution, registration of the required sale deed of the balance land measuring 125 Bighas as detailed before, the Defendants 1 to 3 shall be deemed to have been released of their respective mutual obligations arising in favour of the Plaintiffs out of earlier agreement to sell dated 22.4.2007. All averments made contrary to this settlement in the written statement by the Defendants are withdrawn by Defendants 1 to 3.

(d) That in view of aforesaid terms and conditions the Defendants 1 to 3 have agreed to suffer a decree of specific performance which may be passed by this Hon''ble Court.

(e) That parties to this settlement/compromise i.e. Defendants 1 to 3 and Plaintiff hereby in clear terms admit and undertake to remain bound by the terms of this settlement/compromise. In case any of the parties neglect, delays or refuses to give effect to the terms of this compromise, the defaulting party/parties, in addition to other legal remedies including execution of the decree which can be enforced against it either by the Plaintiff or its nominee or nominees or any other person or persons whom the Plaintiff chooses or them shall also be liable for contempt of Court as the parties hereto have understood and agreed to the terms and conditions as detailed in this settlement out of their free will and voluntary volition without any allurement or pressure of any kind and have also clearly understood that violation or neglect to give effect to the terms of this compromise/settlement can also hold the defaulting party liable for contempt of Court and can even be jailed for such violation or neglect.

(f) That in view of this settlement/compromise and with a view to put an end to all pending claims, disputes and also with a view to maintain harmonious relations, the parties hereto admit, acknowledge and declare that all the pending criminal complaints, FIRs etc. interse parties relating to the suit land, whether under investigation or before any Court or authority shall be deemed to have been settled, compromised and withdrawn and no further action of any kind shall be pressed or asked for by any of the parties against each other at any forum.

This application along with its annexures is taken on record and marked as Ex. C-1. The parties are present in Court today. Their statements have been recorded separately and they have accepted the terms and conditions of this compromise. The application is duly supported by the affidavit of Shri Mohinder Pal who has instituted the suit on behalf of the Plaintiff and the three Defendants. Statements of the parties have been separately recorded. Let a decree be passed in terms of Ext.C-1 and its annexures, which shall form part of the decree.

CS 13 of 2008

This suit is decreed in terms of the compromise as contained in Ex. C-1 along with annexures which shall form part of the decree. A decree sheet be drawn up accordingly. The Court fee be refunded to the Plaintiff in accordance with law. All pending applications shall stand disposed of and interim orders vacated.

Copy dasti.

August 20, 2008(PC) Sd/- Dev Darshan Sud, J.

Pursuant thereto, owners executed sale deeds in favour of Defendants No. 5 and 6. Importantly the agreed sale consideration of Rs. 81,34,000/- stands paid to the owners.

In the absence of challenge to the decree it would not be open for this Court to sit in appeal and adjudicate the question of the decree being collusive in nature. The decree stands implemented in letter and spirit. It was open for the Plaintiff to have assailed the orders dated 20.8.2008 passed by this Court by way of an appeal, keeping in view the ratio of law laid down by the Full Bench of Andhra Pradesh High Court in Dimmiti Pullayya and Ors. v. Abdebolu Nagabhushanam and Ors. AIR 1962 Andhra Pradesh 140.

Record reveals that the first purchaser filed Civil Suit No. 13 of 2008 inter alia pleading that in terms of an agreement to sell dated 22.4.2007, 192.2 Bighas of land was agreed to be sold for a sum of Rupees one crore and twenty five lacs out of which Rs. 20 lacs stood paid to the owners who had assured full cooperation for taking effective steps and completing the codal formalities of obtaining permissions under the provisions of the H.P. Tenancy and Land Reforms Act. However, for one reason or the other the issue was dilly-dallied and eventually higher price was demanded by them. In the written statement the owners pleaded not having executed agreement in favour of the first purchaser but admitted having signed certain documents at the behest of one Sh. Ghanshyam Garg who had approached them for purchasing their land. The documents were signed for obtaining permissions for construction of a link road from Kasauli to Parmanoo. Importantly the owners did not deny having received Rs. 20 lacs from Sh. Ghanshyam who had negotiated for the purchase of the land belonging to the owners. Importantly it was not the owners'' case that they had entered into any agreement for sale (oral or written) with the Plaintiff. In any event, the owners withdrew all pleadings which were contrary to the terms of settlement. Therefore it cannot be said that the Defendants have taken a contradictory or a vacillating stand. Admittedly no appeal assailing the decree has been filed by the Plaintiff.

It cannot be said that any of the Defendants were aware of the prior agreement to sell set up by the Plaintiff in the instant proceedings.

It is true that the evidence need not be pleaded by the Plaintiff (Order 6 Rule 2 Code of Civil Procedure) but however the pleadings have to be sufficiently clear containing specific particulars with regard to the allegation of fraud and collusion. Except for vague averments made in the plaint that the owners and the first purchaser hatched a conspiracy and in collusion with each other suffered a decree or that by exercising their clout and influence they got the sale deeds registered, there is nothing on record to even prima facie substantiate the same. The averments are absolutely vague and unspecific. Legal notice dated 26.8.2008 was sent by fax at 15.17 p.m. and by hand was received in the office of the Sub Registrar at 7.17 p.m. There is nothing on record to prima facie show that the sale deed was executed after receipt of the same.

Record reveals that in Civil Suit No. 13 of 2008, on 12.3.2008 the Court had passed an interim order directing the owners and the Plaintiff to maintain status quo and not to encumber/alienate/sell and change the nature of the land. The said order was in operation till the passing of the decree. Even with the disposal of the suit on 20.8.2008 Plaintiff did not call upon to sellers to execute the sale deeds.

It also cannot be said that the execution of the sale deed dated 18.2.2008 fortifies the existence of earlier oral agreement. It appears to be an independent transaction. As has been noticed earlier, the sale deeds executed between Plaintiff and the owners does not even mention about the alleged written agreement what to talk of the oral agreement.

Importantly, total sale consideration of Rs. 81,34,000/- stood paid to the owners in terms of the decree and there is no variation of rates. The rates at which the land was agreed to be sold in favour of the 1st purchaser, pursuant to agreement dated 14.2.2008 matches with the rates at which sale deed dated 18.2.2008 stands executed by the owners in favour of Defendants No. 5 & 6.

To the extent of 125.6 bighas of land, in view of the subsequent sale deed dated 25.8.2008 Defendants No. 1 to 4 are no longer owners of the property and the title has lawfully vested in Defendants No. 5 & 6.

Plaintiff has not been able to make out a case of alienation of property to third party. In fact no case much less strong prima facie case is made out by the Plaintiff. At this stage it cannot be said that Plaintiff''s rights, in law are being infringed by any of the Defendants. Prima facie it cannot be said that Plaintiff has set up a case of strong triable issue and there is a possibility of his being entitled to the relief prayed for.

Balance of convenience also does not lie in favour of the Plaintiff. The Defendants have made large investments and their right to enjoy the property cannot be bridled at this stage more so in the absence of any existing right of the Plaintiff in the suit land. What mischief would be caused to him has also not been pleaded.

The Plaintiff has also not been able to show as to what irreparable loss or injury would be caused to him warranting interference of this Court. No case for exercise of any discretionary relief has been made out. Ultimately the Plaintiff can easily be compensated with in terms of money. No case of imminent threat or danger to the property has been made out.

Whether the suit is speculative in nature and has been malafidely filed with the object/motive of pressurizing the Defendants to compromise with the Plaintiff has to be seen later.

At the time of final adjudication of the suit, effect of Section 52 of the Transfer of Property Act and Section 19 of the Specific Relief Act shall be considered.

In Hanumanthappa Vs. Muninarayanappa, in almost similar circumstances where pursuant to a compromise decree the party had purchased the property in which their rights had crystallized and were put in possession in a subsequent litigation Plaintiff''s prayer for grant of interim injunction, was turned down by the Apex Court by holding that no order of injunction could be passed against a person whose possession in a property was lawful as owner. In the instant case, the purchasers have been put in possession of the suit property pursuant to sale deeds executed in terms of the decree.

In Anand Prasad Agarwalla Vs. Tarkeshwar Prasad and Others, the Apex Court also dealing with the case where pursuant to a decree passed in favour of Bihar State Finance Corporation, in an open auction the Respondents had purchased the property for a valuable consideration for which a sale certificate had also been issued. In a subsequent suit the same was challenged by the Appellant. The Apex Court upheld the order passed by the High Court rejecting the Plaintiff''s prayer for relief of interim injunction on the ground that prima facie case set up by the Plaintiffs had to be investigated and unless and until the sale certificates were set-aside they could not be held to be a nullity.

In Seema Arshad Zaheer and Others Vs. Municipal Corpn. of Greater Mumbai and Others, the Apex Court has held that "exercise of discretion by granting a temporary injunction when there is ''no material'', or refusing to grant a temporary injunction by ignoring the relevant documents produced, are instances of action which are termed as arbitrary, capricious or perverse. The expression "no material" as used herein refers not only to cases where there is total dearth of material, but also to cases where there is no relevant material or where the material, taken as a whole, is not reasonably capable of supporting the exercise of discretion".

The decision is squarely applicable to the facts of the present case as there is no material to support the Plaintiff''s case.

Other decisions cited by the learned Counsel for the parties.

A.C. Arulappan Vs. Smt. Ahalya Naik, , Nirmala Anand Vs. Advent Corporation Pvt. Ltd. and Others, , Manjunath Anandappa Urf. Shivappa Hanasi Vs. Tammanasa and Others, , Silvey and Others Vs. Arun Varghese and Another, , Jagan Nath (supra), and K. Narendra Vs. Riviera Apartments (P) Ltd., , do not deal with the case of interim relief. The Court has reiterated the principles that no relief u/s 20 of the Specific Relief Act can be granted against a person who is a bonafide purchaser for a valuable consideration without notice and conduct of party is a relevant factor in exercising discretionary relief.

Sanjay Tandon (supra) is not relevant to the facts of the instant case as there is no admission of agreement having been entered into between the parties.

Mathai Thommen (supra), Satya Mandalini and Anr. (supra), Bai Dosabai (supra), Munna Lal (supra) and R.K. Mohammed Ubaidullah and Ors. (supra) deal with the scope of Section 19 of the Trust Act and Section 27(b) of the Specific Relief Act. In view of the specific provisions contained in Section 19 of the Specific Relief Act, the decisions are not relevant. The Plaintiff need not specifically challenge the subsequent sale deeds.

Basruddin Khan and Anr. (supra), Dinesh Chandra Guha (supra) and Murlidhar Bapuji Valve (supra), only lay down the principles that the burden to prove that the Defendant is a bonafide purchaser is on the Defendant. In the instant case, as has been noticed earlier, prima facie it cannot be said that the Defendants had prior notice of the Plaintiff''s agreement.

In my considered view, no case warranting interference by this Court is made out by the Plaintiff.

OMP No. 427 of 2008 is dismissed.

In view of the stand taken by the Plaintiff no further orders in OMP No. 478 of 2008 are required to be passed.

Observations made hereinabove are only for the purpose of deciding the applications and the suit will be decided on its own merits inhibited by any of the observations made hereinabove.