-1- S.B. Civil Miscellaneous Appeal No.5120 of 2009 Chitar Mal Yadav son of late Shri Harpal Yadav & Others VERSUS Smt. Deepti Singh wife of late Thakur Shri Ranvir Singh & Ors. IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN, JAIPUR BENCH, JAIPUR J U D G M E N T S.B. Civil Miscellaneous Appeal No.5120 of 2009 Chitar Mal Yadav son of late Shri Harpal Yadav & Others VERSUS Smt. Deepti Singh wife of late Thakur Shri Ranvir Singh & Ors. Date of Judgment :::: February 18, 2010. Hon'ble Mr. Justice Dalip Singh Mr. V.V. Harit, Counsel for the Plaintiff-appellants Ms. Swati Bhati, Counsel for Defendant-respondents No.1 & 2 Mr. S.N. Kumawat,Counsel for Defendant-respondents No.3& 4 *** By the Court : Heard learned counsel for the parties and perused the impugned order. This is an appeal, under Order 43 Rule 1 of the Code of Civil Procedure, 1908 preferred by the plaintiffs against the order dated 15.10.2009 by which the application submitted by the plaintiffs for the grant of temporary injunction has been rejected. Facts, in brief, are that the plaintiffs entered into a contract (agreement for sale) with the defendant Nos.1 and 2 for sale of an agricultural land of 24-bigha @ Rs.1,65,000/- per -2- S.B. Civil Miscellaneous Appeal No.5120 of 2009 Chitar Mal Yadav son of late Shri Harpal Yadav & Others VERSUS Smt. Deepti Singh wife of late Thakur Shri Ranvir Singh & Ors. bigha. In pursuance of the said agreement for sale the plaintiff- appellant, herein has paid in all an amount of Rs.10,20,000/- to the vendors - defendant Nos.1 and 2 as advance. This fact is not in dispute. One of the term of the agreement entered into between the plaintiffs and the vendors - defendant Nos.1 and 2, as mentioned in Para No.4 reads as follows : ''यह Ǒक ूथम प¢ ǒवबेतागण कȧ उƠ जमीन के बाबत सोहन लाल पुऽ चुÛनी लाल जाित ॄाहमण, िनवासी- जयपुर ने दो Ǒकता मुकदमा ǔजसमɅ से एक रेवेÛयू बोड[, अजमेर( राज.) मɅ तथा एक मुकदमा उप ǔजलाधीश, जयपुर ǔजला , जयपुर कȧ कोट[ मɅ दायर कर रखा है। तथा उसने ूथम प¢ ǒवबेतागण के अिधकार को चुनौती दे रखी है ǔजसको िनपटाने एवं समाƯ करवाने कȧ समःत ǔजàमेदारȣ ूथम प¢ ǒवबेतागण कȧ होगी। यǑद ूथम प¢ ǒवबेतागण के अिधकारɉ को उƠ मुकदमɉ के तहत समाƯ Ǒकया जाता है अथवा ूथम प¢ ǒवबेतागण का उƠ जमीन के बाबत कोई अिधकार नहȣं रहता है तो ऐसी ǔःथित मɅ यह इकरार नामा ǑƮतीय प¢ बेतागण Ʈारा िनरःत करवा Ǒदया जावेगा तथा ूथम प¢ ǒवबेतागण इस इकरारनामा के तहत ली गयी समःत अिमम रािश ǑƮतीय प¢ बेतागण को त×काल वाǒपस कर दɅगे अÛयथा ǑƮतीय प¢ बेतागण को उƠ रकम जǐरये Ûयायालय वसूल करने का अिधकार होगा।'' It is the case of the plaintiffs that thereafter the defendant Nos.1 and 2 collusively got the decree for declaration in favour of Laxminarayan, the respondent No.4 from the learned Revenue Court in the pending suit referred to -3- S.B. Civil Miscellaneous Appeal No.5120 of 2009 Chitar Mal Yadav son of late Shri Harpal Yadav & Others VERSUS Smt. Deepti Singh wife of late Thakur Shri Ranvir Singh & Ors. in Para No.4 of the agreement and the land was declared to be in the Khatedari of Laxminarayan, the respondent No.4 and the rights of the vendors - defendant Nos.1 and 2 were not found proved. The case of the plaintiffs is that the decree obtained from the learned Revenue Court is collusive and, therefore, the present suit was filed for declaration to the effect that the decree obtained in the learned Revenue Court is collusive and be declared null and void as well as the fact that the decree for specific performance against the defendant Nos.1 and 2 be passed. In the suit, an application for temporary injunction was filed with the prayer that the respondent Nos.3 and 4 be restrained from dispossessing the plaintiffs in execution of the decree obtained from the learned Revenue Court, which is alleged to a collusive decree as per the plaintiffs. The learned counsel appearing for the respondent Nos.1 and 2 submitted that in terms of Para No.4 of the agreement entered into between the defendant-respondents No.1 and 2 and the plaintiffs since the rights of the vendors- defendant Nos.1 and 2 were not found in their favour in the pending litigation before the learned Revenue Court, a reference to which litigation has been made in Para No.4 of the agreement, the rights of the plaintiffs are as contained in Para -4- S.B. Civil Miscellaneous Appeal No.5120 of 2009 Chitar Mal Yadav son of late Shri Harpal Yadav & Others VERSUS Smt. Deepti Singh wife of late Thakur Shri Ranvir Singh & Ors. No.4 of the agreement which is that in case the vendor does not succeed in the said litigation the plaintiffs would be entitled to refund of the entire amount paid by way of an advance i.e. an amount of Rs.10,20,000/-, which has admittedly been received by the defendant Nos.1 and 2 from the plaintiffs. The submission of the learned counsel for the defendant Nos.1 and 2, therefore, is that at best the plaintiffs can only seek refund of the aforesaid amount since the contract stands frustrated on account of the fact that the vendor does not have any valid title to convey to the plaintiffs and the agreement between the parties as it stands confers the right on the plaintiffs for refund of the amount. Though, it is also denied that the decree of the Revenue Court in favour of the respondent No.4 is collusive. I have considered the aforesaid submissions and I find that till such time as the decree passed by the learned Revenue Court stands the plaintiff is not in a position to get the specific performance of the agreement in his favour and, therefore, no rights beyond what have been incorporated in Para No.4 of the agreement would enure for the benefit of the plaintiffs. Having said so at the same time the equities must also be balanced and the defendant Nos.1 and 2, who as per -5- S.B. Civil Miscellaneous Appeal No.5120 of 2009 Chitar Mal Yadav son of late Shri Harpal Yadav & Others VERSUS Smt. Deepti Singh wife of late Thakur Shri Ranvir Singh & Ors. the terms of the contract have received the advance amount of Rs.10,20,000/- from the plaintiffs way back in the year 1998 are bound to refund the aforesaid amount to the plaintiffs as per the Para No.4 of the agreement. Learned counsel for the plaintiffs contended that the plaintiff is not willing to accept the aforesaid amount, but insisted that the plaintiff has a right to get the specific performance of the agreement in his favour and protection of his possession. I am of the view that in the facts and circumstances, which have been taken note of above the plaintiffs cannot at present seek enforcement of the right for specific performance of the agreement against the defendant Nos.1 and 2, who do not have any Khatedari rights in the land in dispute as per the decree in favour of the respondent No.4, who is entitled to get the same executed. But the equities must be balanced. It is, therefore, directed that the defendant Nos.1 and 2, who have received an advance amount from the plaintiffs shall deposit the amount of Rs.10,20,000/- with interest @ 6% per annum from the date of the receipt of the aforesaid amount. As during the aforesaid period i.e. from when the amount was received by the defendant Nos.1 and 2 the land in question has been in possession of the plaintiffs and they have been enjoying the usrfruct of the same by cultivating -6- S.B. Civil Miscellaneous Appeal No.5120 of 2009 Chitar Mal Yadav son of late Shri Harpal Yadav & Others VERSUS Smt. Deepti Singh wife of late Thakur Shri Ranvir Singh & Ors. it or otherwise as the rate of interest @ 6% per annum seems adequate, prima-facie subject to decision in the suit. Learned counsel for the defendant Nos.1 and 2 submits that within a period of one week i.e. on or before 26.02.2010 the amount of Rs.10,20,000/- with interest @ 6% per annum from the date of receipt of the amount shall be deposited with the learned trial Court after the learned trial Court verifies the extent of the calculated amount sought to be deposited by the defendant Nos.1 and 2. It is, therefore, directed that for the aforesaid period the plaintiffs shall not be dispossessed in pursuance of the execution of the decree. In case, however, the defendant Nos.1 and 2 fail to deposit the amount as aforesaid within the aforesaid period the decree passed by the learned Revenue Court shall not be executed against the plaintiffs. In case, the plaintiffs wish to reconsider their stand and wish to withdraw the amount from the learned trial Court the plaintiffs may move an application before the learned trial Court for withdrawal of the same and the learned trial Court would be free to pass necessary orders for disbursement of the aforesaid amount to the plaintiffs after taking solvent security for the restitution of the amount after notice to the defendants. If no such prayer is made by the plaintiffs the trial Court shall deposit the said amount to be kept in Fixed Deposit with the -7- S.B. Civil Miscellaneous Appeal No.5120 of 2009 Chitar Mal Yadav son of late Shri Harpal Yadav & Others VERSUS Smt. Deepti Singh wife of late Thakur Shri Ranvir Singh & Ors. State Bank of Bikaner & Jaipur, Collectorate Branch, Jaipur for a period of 36-months subject to renewal at the discretion of the trial Court. The aforesaid directions are subject to the final out come of the suit. The award of interest and the right to recover the interest shall also be subject to the decision of the suit. The learned trial Court shall decide the suit and the issues, which arise therein on the basis of evidence and material placed before it by the parties at trial. Subject to the above, this miscellaneous appeal and the stay application stand disposed of. (Dalip Singh), J. Ashok/