HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 135 of 2008 (M/S) Smt. Kanak Dwivedi and another. ………..Petitioners Versus Sudesh Kumar. …….Respondent Shri Rattan Lal, Advocate for the petitioners, Shri Sharad Sharma, Senior Advocate assisted by Shri Kartikey Hari Gupta, Advocate for respondent. Dated: May 11, 2010 Hon’ble V.K. Bist, J. Present writ petition has been filed by the petitioners challenging the order dated 07.01.2005 passed by the Civil Judge (Jr. Div.), Haridwar in Original Suit No. 276 of 2002 ‘Sudesh Kumar vs. Smt. Kanak Devi and another’ and the order dated 01.10.2007 passed by the learned Addl. District Judge/IV Addl. F.T.C., Haridwar in Misc. Civil Appeal no. 10/2005. 2. Brief facts of the case, arising out of the record are that plaintiff/respondent-Sudesh Kumar instituted a suit for cancellation of sale deed dated 01.03.2001 executed by respondent in favour of defendant/petitioners-Smt. Kanak Dwivedi and her son Aashish Dwivedi, alleging non-receipt of full consideration. The said suit was numbered as Original Suit No. 276 of 2002 ‘Sudesh Kumar vs. Smt. Kanak Devi and another’ in the Court of Civil Judge (Jr. Div.), Haridwar. Alongwith the suit, the plaintiff moved an interim injunction application (paper no. 7C-2) restraining the defendants from interfering in the land of his share in Khasra No. 1121 Rakba 3.873 hectares situated in village Jwalapur, Pargana-Jwalapur, Tehsil and District Haridwar. The plaintiff had come up 2 with the case that out of his 1/3rd share he sold 0.861 hectares of land to the defendants for a sum of Rs. 4,25,000/- and at the time of sale deed, the defendants have paid a sum of Rs. 25,000/- in cash and a cheque of Rs. 4,00,000/- was handed over to the plaintiff, but the cheque was dishonoured by the bank. The plaintiff has prayed that the sale deed dated 01.03.2001, which was executed in favour of the defendants alleging payment of inadequacy of consideration, may be cancelled. After the institution of the said suit notices were sent to the defendant/petitioners. The defendants filed their objection (paper no. 36c-c) with the assertion that out of the sale consideration of Rs. 4,25,000/-, a sum of Rs. 25,000/- was paid in cash and the balance sum of Rs. 4 lac was paid by cheque, but this cheque was not presented before the bank in time and on presentation the same on 22.06.2001 it was returned for insufficient funds. Thereafter, the defendant/petitioners had drawn another cheque for a sum of Rs. 2 lac and for the rest amount of sale consideration, a sum of Rs. 2 lac was also paid in cash to the plaintiff on 18.10.2001. On 28.02.2002 the plaintiff executed another sale deed in favour of the defendants. It has been further stated that had there been a dishonest dealing by the petitioners with the respondent, he would have never executed the next sale deed for the remaining land. The plaintiff/respondent did not file any suit for recovery of dues and he did not resort to prosecution under Negotiable Instrument Act, alleging dishonour of any cheque in the year 2001, instead filed the said suit for cancellation of sale deed in the year 2002 i.e. after a lapse of 1½ years. It has been further stated that the defendant/petitioners are the actual owners in possession and no injunction or an order of status-quo can be passed 3 against the true owners. Having heard the learned counsel for the parties and after perusing the record the Trial Court vide order dated 07.01.2005, while disposing of the interim injunction application (paper no. 7C-2), directed the parties to maintain status-quo. Being aggrieved with the order of Trial Court the defendant/petitioners preferred the Misc. Civil Appeal before the District Judge, Haridwar which was received by transfer to the Court of Addl. District Judge/IV F.T.C., Haridwar, who after hearing the learned counsel for both the parties dismissed the appeal and affirmed the order dated 07.01.2005 passed by the Trial Court. Hence this petition. 3. On the other hand, the plaintiff/respondent filed a counter affidavit in which it has been stated that only a sum of Rs. 25,000/- was paid to the respondent besides it, a post dated cheque (i.e. 06.06.2001) was given by the petitioners at the time of execution/registration of sale deed dated 01.03.2001, thus it was not possible to present a post dated cheque in the bank prior to the date mentioned in the cheque. So far as the payment of Rs. 2 lacs from Indian Overseas Bank is concerned, this payment was never made to the respondent. The sale deed dated 28.02.2002 was executed because there was an agreement to sell the other part of the land. However, even in respect of sale deed dated 28.02.2002 the full consideration has not been paid, hence subsequently, the suit for cancellation of second sale deed was also filed, which is pending disposal. Lastly, it has been stated in the counter affidavit that there is categorical finding of both the Courts below and both the Courts below have rightly issued order for maintaining the status-quo. 4 4. I have heard Shri Rattan Lal, the learned counsel for the petitioners and Shri Sharad Sharma, Senior Advocate for the respondent and carefully perused the judgment and orders passed by the Courts below. 5. The main argument of the learned counsel for the petitioners is that the learned Trial Court while disposing of the application (paper no. 7c-2) passed an order of status-quo without considering the vital aspect as to whether the plaintiff was in possession of the disputed land or not. He argued that in the absence of possession, no injunction order could be passed under the guiding principles of the Code of Civil Procedure. He argued that the Trial Court also ignored the fact that the land was not merely sold but it has also vested in the defendant/ petitioners in revenue records. On the other hand, the learned Senior Advocate for the respondent argued that the writ petition is totally misconceived and is liable to be dismissed. He argued that the petitioners sold the part of land falling in Khasra No. 1121 to various persons and subsequently as and when this fact came to the knowledge of purchasers that the land in question is under dispute, they lodged F.I.R.(s) against the petitioners. He further argued that at the time of execution/registration of sale deed dated 01.03.2001, only a sum of Rs. 25,000/- was paid by the petitioners and for the rest sum of sale consideration, they handed over a post dated cheque No. 330384 to the respondent, bearing dated 06.06.2001 thereon, which upon presentation to the bank concerned bounced due to insufficiency of the funds. He argued that so far as the payment of Rs. 2 lacs from Indian Overseas Bank is concerned, this payment was never made to the respondent. The sale deed dated 28.02.2002 was 5 executed because there was an agreement to sell the other part of the land. However, even in respect of sale deed dated 28.02.2002 the full consideration has not been paid. Learned Senior Advocate further submitted that in the intervening period i.e. after passing status-quo order and in the process of Misc. Civil Appeal, the petitioners have executed two sale deeds i.e. on 5th October, 2005 and 8th May, 2006 (photocopy annexed as annexure no. CA- 2), which itself exhibits the conduct of the petitioners as contemptuous and they themselves have violated the order of status-quo. Learned Senior Advocate has relied on the judgment rendered by the Supreme Court in ‘Maharwal Khewaji Trust (Regd.) vs. Baldew Dass’ reported in (2004) 8 Supreme Court Cases-488. He submitted that the original suit pertains to the cancellation of the sale deed and in such a situation, both the Courts below have rightly issued order for maintaining status-quo in regard to the property in dispute. 6. The learned Trial Court while disposing of the interim injunction application has observed that the cheque amounting to Rs. 4 lac was dishonoured and the defendant/petitioners could not produce any evidence so far the payment of rest of the amount of sale consideration. The Trial Court has further observed that both the parties have claimed their possession over the land in dispute and they have to prove their version by producing evidence, therefore, till the disposal of the suit it would be in the interest of justice to direct the parties to maintain status-quo. In the appeal also the Appellate Court has held that the Trial Court has rightly passed the order of status-quo. I have gone through the orders 6 impugned. Perusal of the record reveal that at the time of execution/registration of sale deed dated 01.03.2001, only a sum of Rs. 25,000/- was paid by the petitioners to the respondent and for rest of sale consideration, they handed over a post dated cheque to the respondent. The paper nos. 13c-1 to 13c-2 produced before Trial Court are ostensive that the post dated cheque of Rs. 4 lac issued by the plaintiffs was dishonoured by the bank concerned. In the intervening period i.e. after passing status-quo order and in the process of Misc. Civil Appeal, the petitioners have executed two sale deeds i.e. on 5th October, 2005 and 8th May, 2006, which also shows the conduct of the petitioners that they have violated the Trial Court’s order. The trial Court has rightly held that the defendant/ petitioners could not produce any evidence so far the payment of rest amount of sale consideration. The Trial Court has also rightly observed that both the parties have claimed their possession over the land in dispute and they have to prove their version by producing evidence. I am of the view that the Original Suit No. 276/2002 has yet not concluded. The petitioners have sufficient opportunity to prove their version by leading oral and documentary evidence and by cross-examining the witnesses. Trial Court will decide the case finally on its merits. The judgment and orders passed by the Courts below do not suffer from any manifest error of law, in which interference of this Court is warranted. I do not find any illegality, infirmity or perversity in the orders impugned. The writ petition is devoid of merits and is liable to be dismissed. 7 7. Accordingly, the writ petition is dismissed. Interim order dated 11.01.2008 passed by this Court stands vacated. No order as to costs. (V.K. Bist, J.) 11.05.2010 NCM: