C^LT^- IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR CC.G.) ^^NB'- MISCELLANEOUS APPEAL N0. ^-^ OF 2009 APPELLANTS Defendants ^ ^9^ - -^y ^" (y\.^^ ^ ^ '^ M M.^ RESPONDENTS : Plaintiffs 1. Smt. Kuntlabai, aged about 45 , years, wife of late Devichand Sahu, ^$^u^^r<~~ 2. ChaboGh-war Sahu, aged about 22 years, son of late Devichand Sahu, 3. Ajay Kumar Sahu, aged about 20 years, son o.f Devichand Sahu, 4. Ku. Mamta Sahu, aged about 16 years, Minor through his guardian natural mother Smt. Kuntlabai, wife of late Devichand Sahu. All R/o Village Parsada, Post Office B Jamgaon, Tahsol Balod, District Durg (C.G.) Dhruvkumar Sahu, aged about 40 years, son of Girdharilal Sahu, ~2. Govindram Sahu, aged about 35 years, son of Girdharilal Sahu, Both are R/o Village Parsada, Post Office B Jamgaon, Tahsil Balod, . District Durg (C.G.) 3. State of Chhattisgarh, Through: the Collector, Durg (C.G.) VERSUS t1- MISCELLANEOUS APPEAL UNDER QRDER 4-^ RULE l(r} OFTHE CODE OF CIVIL PROCEDURE HIGH COURT OF CHHATTISGARH AT BIIASPUR MISC. APPEAL No. 79 OF 2009 APPBLLNTS RESPQNDBNTS Smt. Kuntlabai and others Versus Dhruvkumar Sahu and ofhers ORDER Postfor^^ -1-2010 Sd/- N. K. Agarwal Judge c^ 1 HIGH COURT OF CHEATTISGARH AT BILASPUR MISC. APPEAL No. 79 QF 2QQ9 APPELLNTS HESP02TOENTS Smt. Kuntlabai and others Versus Dhruvkumar Sahu and ofhers SINGLE BBNCH;- Hon. Sliri N.K. Agarwal, J PRESENT :- Shri P.P. Sahu, Advocate, for appellants. Shri B.P. Sharma, Advocate, for fhe respondents No. 1 and 2. Shri Satish Gupta, Govt. Adv. for the respondent No. 3. O R D ER {^\ -1-2010) 1. This is an appeal under Order 43 Rule 1 (r) of C.P.C. by the defendant against the order by which fhe plaintiffs' application under Order 39 Rule 1 and 2 for temporary injunction for restraiiiing the appellants/defendants from interfering with their possession over the suit property was allowed. 2. Facts ofthe case, in brief, are that fhe respondents No. 1 and 2/plaintiffs filed a suit for specific perfbrmance of contract aad permanent injunction inter alia on the ground that fhe plaintiff and lete Devl Chandra i.e. husband of appellant No. 1 and father of appellants No.2 to 4 entered into agreement to seU wifh regard to suit property i.e. a piece of Khasra No. 158/1 areaO.90 hectare (2.24 acre) on 12-4-07, accordingto which, in the year 2001-02 the plaiatiffs have paid entire sale consideration aiid obtained its possession and sale deed has to be executed after redemption of mortgage of the said land from the State Bank of India (Agricultural Branch), Balod where the same is mortgaged. According to them, the said agreement was also signed by fhe defendant No. 1 and 4, After the deafh of said Devi Chandra, when the said land was released by the Bank, fhe plaintiffs approached the defendants to execute the sale deed in their favour of the said laiid. Since the sale deed was not executed, fhe ^^'"f®^ r^ ^ plaintiffs sent notice fhrough their advoc^te. In its reply, fhe defendants denied execution of agreement of sale and also denied to execute sale deed, therefore, fh.e plaintiffs instituted the tnstant suit claiming relief of specific performance of contract and also of permanent injunction restraining the defendaiits from interiering with their possession over the suit property if they deny fhe execution of the sale deed. They have also preferred an appUcation for grant of temporary injunction to restram fhe defendant from interfering in their possession over the suit property as well as restraming fhem to alienate fhe suit property pending decision of suit. After service of notice, fhe defendants llled thetr reply, denied fhe execution of agreement to sell, denied their signature over the document and of late Devi Chandra, denied receipt of aay consideration and handing over of possession of suit property, also filed their reply to the application for temporary injunction. 3. Leamed trial Court recorded a llnding that the agreement to seU has been denied by the defendaiit, therefore, it is a matter ofevidence whefher or not, the said agreement to seU has been executed by the Devi Chandra but the platntiffs are ui possession of fhe suit land is prima facie proved by the alfidavit of plaintiff Dhruv Kumar Sahu, contents of which have been spectflcaUy not controverted by fhe defendants in the afildavit of Smt. Kuntalbai fUed by them in support of theu- reply to the application for temporary tnjunction; the plaintiffs are entitied to protect fheir possession under Section 53 of the Transfer of Property Act (brielty, e Act?); the defendants are bound to execute the sale deed m favour of ttie plaintiffs ia accordance with the agreement to sell executed by late Devi Chandra; earMer late Devi Chandra entered into agreement to sell wifh the plauitiffs and since the land was mortgaged with the State Bank oflndia, Balod, tlierefore, sale deed could not be executed at that tune, now since the land is released from mortgage; Devi Chandra has already died and fhe defendants do not want to execute the ,.-^.^?,,-, /^ '\ I y i ^ '%^^ ^' sale deed, therefore, fhe plainttffs are forced to file fhe tnstant suit; thus the plaintiJBs have succeeded in proviag prtma facie case in their favour; fhe plaintifis are in possession of the suit land and fhey are entitled to protect the same under Section 53 of the Act, therefore, balance of convenience also lies in thetr favour and if the defendants will not be restrained from interfering with plaintiffs' possession over the suit property then, the plaintiffs are likely to sustain trreparable injury; and granted temporary injunction in plaintiJffs' favour. 4. Shri P.P- Sahu, leamed counsel for fhe appellants would submit that fhe defendants have specifically denied execution of agreement to sell (Ex. A-2); denied signature of late Devi Chandra and signatures of appellants No. 1 and 2 upon fhe said agreement; denied receipt of sale consideration and handing over possession of the suit property to the plaintiffs; have clearly eontroverted handing over possession of suit property to plaintiffs in the affidavit of Smt. Kuntlabai in which it has been stated on oath that ^plaintiffs? suit is bogus; fhe defendants are in possession of the suit property and not the plainttffs". A bare perusal of the agreement to sell would reveal several suspicious circimistances. In fhe said agreexnent to sell, transaction has been shown of fhe year 2001-02 after paying full consideration but the same was said to be executed in the year 2007. Leamed tdal Court also recorded a pruna facie finding fhat whether or not, fhe agreement to sell is executed is a matter of evidence and, fherefore, leamed trial Court has erred in holding prima facie case aad balance of convenience in favour of the plaintiirs and erred in granting temporary injunction whereas fhe defendants are in possession of the suit property, the land stands recorded in fheir names in the revenue record. Shri Sahu further submitted fhat before granti.ng tempoi-aiy injunction, it is sine qua non for the trial Court to record a llnding based on the material on record with regard to prima facie case, balance of convenience and ^ irreparable injury which has not been done by the trial Court, fherefore, fhe order impugned deserves to be set aside. 5. Per contra, Shri B.P. Sharma, leamed counsel appearlng for the respondents No. 1 and 2 would submit that the plaintiffs . have obtained possession over the suit property on the basis of agreement to seU, fhe sald agreement to sell has been executed or not certainly would be decided after recording evidcnce in this behatf but as fhe said agreement contains recital with regard to receipt of consideration and handing over of possession of fhe suit property, therefore, leax'ned tMal Court has rightiy granted temporary injunction in favoiir of the platntiffs after recorduig its satisfaction about prima facie case, balance of convenience and trreparable injury. Purpose of grant of temporary injunction is to maintain status quo during pendency of suit and only after recording a prima facie finding, leamed tdal Court granted injunction in their favour which does not call for any interference. 6. I have heard leamed counsel for the parties and perused the order iiiipugned and the material placed on record. 7. Unfortunately, the only document in favour of tfae plaintiffs is agreement to sell based on which they are claiming possession over the suit property which has been categorically denied by fhe defendants, also signature over it not only of deceased Devi Chandra but also of appeHants No. 1 and 2. A careful reading of the agreement to sell would reveal fhat the saAe consideration was received and possession was handed over to the plaintiffs in fhe year 2001-02, the suit land was under mortga.'ge with the State Bank of India with the consent of purchaser i.e. plaintiffs and, fherefore, after redemption of mortgage, sale deed was to be executed by said Devi Chandra. It is not clear in the said agreement to sell as to when fhe said land was mortgaged wifh fhe State Bank of India with the consent of '^liiS:Jfc-. 'ii •'^^ <:• '^] ^ iNNNaiN^ purchaser. The use of word 'purchaser' in the said agreement would reveal fhat the said land has been mortgaged at least aft.er execution of agi'eement to sell. Once said Devi Chaiidra entered into agreement to se3I with fhe plaintiffs aiid also received full consideration, then where was the occasion to mortgage fhe said laad with fhe consent of the purchaser. Once vender decides to sell tiie land and obtains full consideration, then nothmg remains to delay execution of sale deed and, therefore, at that stage how a vender can mortgage the land with the barik after handing over its possession to the purchaser. In mortgage, legal possession rematns with the bank. More over, it has not been stated by the plaintiflT how and in what manner, fhey ai'e in possession of fhe siiit land. Prom a bare perusal of the aBidavit filed by Smt. Kuntala Bai, it cannot be said fhat the defendants have not spectfically denied the possession over the suit land. In view of above facts situation, ui the considered opinion of this Court, it is unsafe to hold pruna facie case and balance of convenience in plaintiffs' favour and the finding recorded by leamed trial Coiut is in fact based on no evidence inasmuch as at this stage, wifhout recording evidence looking to the nature of contents of the agreement to seU (Ex. A-2), it is very unsafe to hold prima facie case in favour of the plamtiffs. It is trite law that in order to obtain temporary injunction, the plaintiffs are required to establish prima facie case, balaace of convenience ia theu- favour and are also required to estabMsh resultant in'eparable injury. Therefore, in the considered opinion of this Coiirt, the plaintiffs utterly fafled to estabMsh the above referred three ingredients for graat of temporary injunction and learned Court below has erred in holding plaintiffs' prima facie possession over fhe suit property and granting temporaiy injunction in their favour. However, lookuig to the facts and circumstances of the case, to avoid multiplicity of proceedings and to balaace equities, it is necessary to restraia the appellants from alienatiag or creatmg aiiy third party right over the suit propertvr till the decision of fhe si.ut. 8. In fhe result, fhe order passed by the trial Court is set aside and instead the appellants are restrained from alienatmg or creating fhird party right over the suit property duriag pendency of the suit. It is expected fhat the trial Court shall decide the suit expeditiously. 9. The appeal is according disposed of. Sd/- N. K. Agarwal Judge