HIGH COURT OF UTTARAKHAND AT NAINITAL A.O. No. 33/2010 Baldev Singh. …Appellant. Versus Shridhar Sharma and another. …Respondents. Shri Arvind Vashishtha, Advocate for the appellant, Shri Siddhartha Sah & Shri D.C.S. Rawat, Advocates for the respondents. Dated: March 31, 2010 Hon’ble V.K. Bist, J. An affidavit on behalf of the appellant is filed before the Court today. Same is taken on record. 2. This appeal has been filed against the order dated 08.01.2010 passed by the learned Civil Judge, (Sr. Div.), Dehradun in Original Suit No. 596 of 2009 ‘Sri Baldev Singh vs. Sri Shridhar Sharma and another, whereby the application (paper no. 6c-2) moved by the plaintiff/ appellant seeking temporary injunction was rejected. 3. Brief facts giving rise to the present case are that the plaintiff/appellant is the owner of the disputed land of 10 plots measuring 0.5895 hectares situated in village Mothorowala, District Dehradun. It has been averred that on 14.10.2009 the appellant and the respondents entered into an agreement to sale (without possession) of the said 10 plots and the respondents had paid Rs. ten lacs in cash and Rs. two lacs through cheque dated 14.10.2009 towards consideration of sale. When the cheque was presented to the bank for payment the same was dishonoured on 16.10.2009. It is averred that despite 2 requests, the respondents did not pay the balance advance and tried to take possession of the land illegally and forcibly without paying the balance of sale consideration. On 02.10.2009 the respondents came alongwith their labourers with a J.C.B. (Buldozer) and tried to take possession of the land forcibly. With these averments, the appellant instituted a Civil Suit no. 596 of 2009 before the learned Civil Judge (Sr. Div.), Dehradun against the respondents for permanent injunction. Alongwith the plaint, the appellant also moved an application (6c-2) for grant of interim injunction. On the other hand, the respondents filed their objection as well as written statement before the Court below in which ownership of the disputed land and execution of an agreement to sale of the land in between the parties was admitted. The respondents have averred in the written statement that in the agreement to sale it was agreed between the parties that the respondents will pay Rs. 12,00,000/- as advance and they will have the right to level the land in dispute and balance amount was to be paid at the time of execution of sale deed. The respondents, in accordance to the agreement, paid Rs. 10,00,000/- in cash and for the rest amount; an account payee cheque of Rs. 2,00,000/- was given to the appellant. It is further averred in the written statement that respondent deleted the endorsement made on the cheque making the same account payee. But the cheque was not cleared by the Bank due to cutting/deletion on the cheque, though there was sufficient fund in the bank account of the respondents. It has been further stated that the cheque was not dishonoured due to insufficient fund. The appellant never informed the respondents about bouncing of the cheque. It is further asserted that there is no such 3 agreement between the parties for paying Rs. 17,50,000/- as advance and the agreement was only in respect of Rs. 12,00,000/- out of which substantial amount of Rs. ten lac has been received by the appellant and respondents are ready to pay the balance amount of Rs. 2,00,000/- in cash. It has been further averred that the respondents are merely levelling the land in order to give it proper shape. As per clause-8 of the agreement right of levelling the land was granted by the appellant and the appellant cannot fall back on his consent. It has also been contended that after levelling the land, the rate of the land in question appreciated and due to this reason, the appellant filed the said suit on false and frivolous grounds. It has been further asserted that the respondents have already spent a huge amount in levelling the land and now the appellant intends to sell the disputed land to other persons. There is no question of possession and only in pursuant of the clause no.8 of the agreement the respondents have only levelled the disputed land. It is further stated that the Court below has rightly dismissed the application paper no. 6c-2 for temporary injunction. 4. The Trial Court passed the impugned order on 08.01.2010 with the observation that as per the agreement, the respondents had the right to level the land in dispute, this fact was not categorically rebutted by the plaintiff in his cross-objection. Further in clause-8 of the agreement it has been clearly indicated that the first party will not interfere the second party, in case, levelling of the land in dispute is done by second party. The respondents have done the levelling work in fulfilling the conditions stipulated in the agreement, thus they have not violated any conditions stipulated in the agreement. The 4 appellant-plaintiff did not establish prima-facie case and did not prove that the respondents levelled the land in illegal manner. The appellant neither have balance of convenience in his favour nor he shall suffer irreparable loss. The Court below, with these observations rejected the temporary injunction application (paper no. 6c-2). 5. I have heard Sri Arvind Vashishtha, the learned counsel for the appellant and Sri Siddhartha Sah, Advocate and Sri D.C.S. Rawat, the learned counsel for the respondents and perused the entire material available on record. 6. Learned counsel for the appellant argued that the appellant is in actual physical possession of the plots in dispute, because the entries in Khatauni show Bhumidhari rights of the appellant. Emphasizing on clause-8 of the agreement, he argued that the possession of the land in dispute is to be delivered to the second party at the time of execution of sale deed. The respondents are not the owner of the land in dispute. He submitted that as per clause-8 of the agreement, if the land in dispute is given to the respondents for levelling the same, the respondents cannot be said to be the owner of the land as they are simply a licency. In this regard he invited attention of the Court to Section 52 and 61 of the Indian Easement Act, 1882. Section 52 of this Act provides that where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a licence. 5 Section 61 of this Act stands for revocation express or implied. He submitted that as per clause-8 of the agreement, a partial possession was given to the respondents, but respondents are digging whole of the property. He further submitted that agreement relied on by respondents cannot be read in evidence for any purpose. In this regard he invited attention to Section-49 of the Registration Act, 1908 wherein it has been stipulated that no document required by Section 17 [or by any provision of the Transfer of Property Act, 1882 (4 of 1882)] [or of any other law for the time being in force] to be registered shall (a) affect any immovable property comprised therein or (b) confer any power or create any right or relationship, or (c) be received as evidence of any transaction affecting such property or conferring such power [or creating such right or relationship], unless it has been registered. In support of his arguments, the learned counsel for the appellant placed reliance on the judgment of Hon’ble the Apex Court reported in AIR 1968 Supreme Court 175 ‘B.M. Lal (dead) by his legal representatives and another vs. M/s. Dunlop Rubber Co. (India) Ltd. and another’. He also referred Section 35 of the Indian Stamp Act, 1899, which provides that no instrument chargeable with duty shall be admitted in evidence for any purpose by any person, having by law, or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped. 7. Learned counsel for the petitioner drew my attention towards clause-5 of the agreement, which provides that possession of the land will be given to the 6 respondents at the time of execution of sale deed. He argued that the learned Civil Judge totally ignored this fact and rejected the interim injunction application. 8. On the other hand, Sri Siddhartha Sah and Sri D.C.S. Rawat, the learned counsel for the respondents relied clause-8 of the agreement which gives permission to the respondents for levelling of the land. Learned counsel for the respondents further submitted that respondents are not disputing ownership of the appellant. Giving honour to the agreement to sale, they are all set to pay the balance sum of Rs. 2 lac. to the appellant in respect of the sale consideration. They argued that the Court below has rightly dismissed the application of the appellant in exercise of the powers conferred upon the Court of equity as the respondents have come with the case that as per the agreement executed between the parties, the respondents are in possession of the land in dispute and they have been given right to level the land in dispute. Learned counsel for the respondents have further argued that the unregistered agreement is merely collateral document. 9. Having heard the learned counsel for the parties and after carefully examining the relevant provisions of the Act described above, I am of the view that sale deed has yet not been executed and till the execution of sale deed, the respondents cannot be said to be the owner of the land in dispute, they can only be said a licency, which does not authorize them to act and exercise their rights as the powers of a true owner. The Court below has erred in law in rejecting the application (paper no. 6c-2) moved by 7 the appellant for grant of temporary injunction and interference of this Court is required. 10. In view of the aforesaid discussions, the appeal is allowed. The impugned order dated 08.01.2010 passed by the learned Civil Judge (Sr. Div.), Dehradun is quashed. The application (paper no. 6c-2) moved by the plaintiff/ appellant for grant of temporary injunction is hereby allowed. The respondents, their labourers, servants or any other person are restrained from interfering in the possession of the plaintiff-appellant of the land in suit, till the disposal of the suit. Learned Trial Court is directed to decide the suit expeditiously without being influenced by this order. 11. Learned counsel for the respondents submitted that observation may be made in the body of the judgment that order passed by this Court may not curtail their rights in filing suit for specific performance. This apprehension of the respondents is misconceived, as it is always open for them to institute a suit for specific performance, which will be decided on its own merits and in accordance with law. 12. Considering the facts and circumstances of the case, the parties shall bear their own costs. 13. Civil Misc. Stay Application (CLMA No. 618/2010) stands disposed of accordingly. (V.K. Bist, J.) 31.03.2010 NCM: