1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT (1)S.B.Civil Misc. Appeal No.1411/2005 Gomti Devi and another vs. Ashok Bhandari and another. (2)S.B.Civil Misc. Appeal No.1397/2005 Murlidhar Nagar vs. Vijaymal Jain and another. Date of Judgment : 16.5.2006 HON'BLE MR. PRAKASH TATIA, J. Mr. SD Purohit, for the appellants. Mr. SC Maloo, for the respondent. - - - - - REPORTABLE Heard learned counsel for the parties. These two appeals are by two different appellants but the facts of the two cases are so intermingled that they are required to be decided by common judgment. 2 Both the appellants are aggrieved against the order of the trial court passed in two misc. applications filed under Order 39 Rules 1 and 2 CPC dated 19.9.2005 in two separate suits. The trial court allowed the injunction applications filed by the plaintiffs/respondents and restrained the appellants/defendants – purchasers of the plot in dispute by registered sale deed, from alienating the property and from parting with possession of the plot in dispute and further restrained them from raising any construction over the plot in dispute. It will be worthwhile to mention the relationship of the persons who are involved in the land dealing. One Bhoor Chand – defendant in civil original suit no.36/2005 and another Sampat Raj – defendant in civil original suit no.37/2005 are the owners of two different plots described in the respective plaints. Bhoor Chand is brother-in-law of Sampat Raj. According to the plaintiffs, by oral agreement, defendants Bhoor Chand and Sampat Raj agreed to sell their plots for a consideration of Rs.5,60,000/- for each plot. Bhoor Chand agreed to sell the plot to Ashok Bhandari whereas Sampat Raj agreed to sell the plot to Vijaymal Jain. At the time of oral agreement, both sellers were paid Rs.60,000/- each for their respective plot and thereafter, both Bhoor Chand and Sampat Raj executed agreements for sale of the respective plots on 10.3.2003 and at that time, both the sellers received Rs.2,40,000/- each thereby both the sellers received Rs.3 lakhs each in total by 10.3.2003 against the total sale consideration of Rs.5,60,000/-. In 3 the agreements executed by both the sellers in favour of the two plaintiffs, one Hasti Mal Chhajerh is the attesting witness. This Hasti Mal Chhajerh is brother-in-law of Seller Sampat Raj. Therefore, these three persons – 2 sellers and 1 attesting witness are closely related to each other. Both Bhoor Chand and Sampat Raj are the attesting witness in the agreement to sell executed by each another. In the agreement dated 10.3.2003 alleged to have been executed by Sampat Raj, one Surendra Jain also put his signatures as attesting witness in addition to Hasti Mal Chhajerh. In the agreements, it has also been provided that since the land in question is a small piece of agriculture land and was property of Jodhpur Model Cooperative Housing Society Ltd., Jodhpur, therefore, the sellers shall deposit Rs.100/- per square meter with UIT, Jodhpur and in case, any more amount will be demanded on this account by the UIT for the plots in question, then the plaintiffs shall deposit the said excess amount in UIT, Jodhpur. It is also provided in the agreements that before execution of the sale deed, the sellers shall obtain the patta for the plots in dispute from the UIT, Jodhpur and shall get it registered and thereafter, they will give a notice to the purchasers informing them that they have performed their part of contract and thereafter, the purchasers shall pay the balance amount to the sellers and shall execute proper sale deed in their favour. According to both the plaintiffs, they requested their sellers several times for execution of the sale deed after 4 completion of all the formalities in terms of the agreements dated 10.3.2003 of getting the proper deed from UIT, Jodhpur. According to the plaintiffs, the vendors always assured that they will complete the formalities but since there was stay against the grant of any patta or lease by the UIT by regularisation or otherwise, therefore, the vendors could not obtain the patta/lease deed from UIT and, therefore, sale deeds were not executed in favour of the plaintiffs. The plaintiffs believed and did not insist more. On 26.8.2005, the plaintiffs found that some construction activities have been started by some persons on the plots in question and on enquiries, they found that the appellants are proposing to raise construction over the plots. Plaintiff Ashok Kumar was informed by Ganesh Ram, husband of present appellant Smt. Gomti, that the plot has been purchased by his wife from Bhoorchand and appellant Murlidhar Nagar informed plaintiff Vijaymal Jain that he has also purchased the plot from Sampat Raj. The prospective purchasers/plaintiffs immediately contacted the sellers through Hastimal Chhajerh, attesting witness and close relative of both the sellers, as the sellers were residing at Barmer. The sellers gave vague replies and they told that when they will come to Jodhpur, they will explain all the facts. The plaintiffs apprehending illegal construction on their purchased plots filed the suit for specific performance of contract with a plea that in case any documents have been got executed by the appellants, then 5 those documents are null and void, against the interest of the plaintiffs. It is also submitted by the plaintiffs that they were ready and willing to perform their part of the contract. In addition to the above, the plaintiffs further took a plea that the sellers collusively did some act but said acts of sellers cannot affect the rights of the plaintiffs by virtue of oral agreement dated 1.3.2003 and written agreement dated 10.3.2003. In the suit for specific performance of contract, the plaintiffs also prayed relief of permanent injunction that the defendants, which include the original owners of the plots and subsequent purchasers, be restrained from alienating the plots in question and be restrained from raising any construction over the plots. The plaintiffs placed on record the original agreements to sale in their suits along with copy of sketch map of the area. The defendants were served with notice of the injunction application, upon which the defendants – original owners of the plots and appellants - purchasers of the plots filed their replies to the injunction application. The sellers supported the case of subsequent purchasers and denied the agreements to sale set up by the plaintiffs. In both the cases, attesting witness Hastimal Chhajerh submitted his affidavit in support of the plaintiffs and admitted his signatures on the agreements and also submitted that Bhoor Chand and Sampat Raj entered into agreement to sale in favour of both the plaintiffs on 1.3.2003 and thereafter written agreement were also 6 executed by the vendors in favour of both the plaintiffs. The appellants/defendants submitted reply to the injunction applications and stated that they purchased the suit property from Bhoor Chand and Sampat Raj respectively by registered sale deeds dated 17.1.2004 and they are in occupation of the plots in dispute. They have right to raise construction being owners of the plots. The appellants submitted that the agreements dated 10.3.2003 are fabricated documents and the signatures of sellers have been forged on the agreements which is apparently clear from the comparison of the signatures which are on the agreements dated 10.3.2003 with the registered sale deeds dated 17.1.2004 executed in favour of the appellants by the sellers. It is also submitted that the persons involved for and on behalf of the sellers including the attesting witnesses are closely related to each other is admitted fact whereas the purchasers have no relations with them and are even not belonging to the caste of the persons who are involved in these transactions. According to learned counsel for the appellants, the oral agreements set up by the plaintiffs are of 1.3.2003 and written agreements are dated 10.3.2003. All surrounding circumstances would also show that the agreements have been executed with intention to defraud the appellants- purchasers by the persons closely related to each other. The purchasers had no notice of the agreement to sell and the sellers have admitted execution of the sale deeds in favour of the appellants. Conduct of Hastimal Chhajerh 7 shows that he may be man behind the conspiracy to deprive the appellants from the plots. It is also submitted that the plaintiffs in both the cases did not do any effort for getting the sale deeds from vendors in two and a half years, which is apparent from the facts pleaded in the plaints itself. It was provided in the agreements that the sale deed should have been registered within one month (obviously from the time of obtaining proper deed from the UIT) but the suit has been filed after more than 2½ years, that too only because appellants started construction over the plots and not because, that even after 2½ years, the plaintiffs wanted that they should get the possession of the plots and the sale deeds be executed by the vendors. Learned counsel for the vendors further submitted that even the trial court held that the appellants are bonafide purchasers of the plots in dispute. The trial court despite of said finding granted injunction order against the appellants, the bonafide purchasers. It is also submitted that the plaintiffs have not pleaded and placed on record any fact or evidence to show that the appellants could have knowledge of alleged agreements of the plaintiffs. It is also submitted that there was specific argument of the appellants that the Court should compare the signatures of the two deeds but the trial court though held that by agreement to sale, no right, title or interest is created in the property (in favour of the plaintiffs- respondents) but it is only a principle of law. According to learned counsel for the appellants, can it be said that said principle of law not meant for application ? 8 According to learned counsel for the appellants, the finding on issue of comparative hardship and balance of convenience is perverse. The trial court held that since the appellants are bonafide purchasers, and if they will succeed, they will able to get the price which they paid to the seller and they can also claim interest over it, therefore, the trial court was under an impression that in the matter of dispute about immovable property, the sale consideration and interest can be sufficient compensation to the rightful bonafide purchasers. While doing so, the rial court did not consider how the same relief cannot be adequate for the persons who are coming with mere agreement to sale, therefore, the trial court put two persons at different levels while assessing the comparative hardship and balance of convenience and measured the two persons with different yardsticks. Contesting it seriously, learned counsel for the respondents/plaintiffs in both the appeals vehemently submitted that the order of the trial court is just and proper and has been passed after considering the facts of the case. It is submitted that the sellers agreed to sell the plots in favour of two plaintiffs for a consideration of Rs.5,60,000/- each in the year 2003 whereas sold the plots for consideration of only Rs.1,44,000/- for each plot in the year 2004. The sale consideration shown by the appellants in the sale deeds and shown by the sellers clearly demonstrate that the sale transactions dated 17.1.2004 in favour of the appellants are only paper 9 transactions. It is also submitted that as against the total cost of Rs.1,44,000/- for one plot, the seller has already received Rs.3,00,000/- from the plaintiffs for each plot. It is also submitted that the sellers were knowing it well that they already entered into the agreements for sale of the plots and executed the agreements on 10.3.2003, therefore, it appears that the sellers have executed the sale deed by changing their signatures. According to learned counsel for the plaintiffs/respondents, at this stage, it cannot be said that the signatures on the agreements dated 10.3.2003 of the plaintiffs are not of the sellers. It is also submitted that even if there may not be more reasons in the impugned orders passed by the trial court allowing the injunction applications of the plaintiffs, still there is no reason for interference of this Court in such a matter of grant of injunction where the relief has been granted to maintain status quo, may it be by restraining the appellants from raising construction over the plots in dispute. It is also submitted that there are catena of judgments including of Hon'ble Apex Court as well as of this Court wherein it has been laid down as a rule of law that no one should be permitted to alter the suit property during pendency of the suit. It is also submitted that even when conditional order was passed permitting alienation by executing sale deed incorporating the fact of pendency of litigation and permitting construction over the property by obtaining written undertaking that in case, the person will loose in litigation, he will remove the structure at his 10 own cost, has been reversed by the Hon'ble Supreme Court in the case of Maharawal Khewaji Trust (Regd.) Faridkot vs. Baldev Dass reported in AIR 2005 SC 104. It is also submitted that similar view was taken by this Court also in the cases of (1) Bhagwati Prasad vs. Shakur reported in 2001(4) WLC 331 and (2) Peer Gulam Naseer vs. Peer Gulam Jelanee reported in 1988 (2) RLR 871 and by Mumbai High Court in the case of Suresh Sopab Kadam & Ors. vs. Jagannath Genu Kadam and ors reported in 1993(1) CCC 53. According to learned counsel for the plaintiffs, a serious debatable question has arisen in the suit, therefore, by allowing the appellants to raise construction will seriously prejudice the plaintiffs' interest. According to learned counsel for the plaintiffs, since the plots could not have been sold without completing the formality of payment of certain costs for plot to UIT, Jodhpur and there was stay against the issuance of the patta or lease deed by the UIT, therefore, the time did not come for seeking enforcement of the contract. It is also submitted that the limitation for filing the suit for specific performance of contract is three years from the date of refusal by the vendor. In this case, it was obligation upon the sellers to obtain proper deed and serve a notice upon the plaintiffs/purchasers. The sellers did not do so, therefore, it cannot be said that the plaintiffs did not comply any part of the obligation under the agreement. I have considered the submissions of learned counsel 11 for the parties and perused the record. So far as the orders of the trial court passed in two applications filed under Order 39 Rules 1 and 2 CPC are concerned, it was difficult even for the learned counsel for the plaintiffs/respondents to justify because of the reason that the orders do not mention all the facts of the case and arguments submitted for both the parties and, therefore, learned counsel for the respondents argued on facts and submitted grounds which are not mentioned in the impugned order. Learned counsel for the plaintiffs tried to support the orders with the help of entire material on the record which according to learned counsel for the plaintiffs indicate that the conclusion in the orders dated 19.9.2005 is correct one. Granting of injunction is a serious matter and refusing of injunction is equally serious. If the court will not properly appreciate the facts of the case at the time of granting injunction, a havoc may be created and it may result into increasing unnecessary litigations because of the reason that after obtaining injunction from the Court, it is very easy to prolong the litigation for indefinite period. If we ignore this fact, then we cannot impart justice to the people. Therefore, it was and it is the duty of the trial court to give sufficient time while deciding injunction applications in seriously disputed matter affecting the right, title and interest in immovable properties. The orders may be brief, but must be self contained so that the parties may know that whether they 12 should feel satisfied with the order of the trial court and may not prefer appeal and should proceed with the trial of the suit for ultimate relief. From the order only, parties may decide that whether they should challenge it. And if orders are not in conformity with legal requirement, and are not passed as speaking order, not only the parties but the learned advocates will also advise to prefer appeal against the order and the appellate court may not have option but to entertain appeal because of poor orders as appellate court would not have sufficient material from order itself for restraining it from entertaining appeals against discretionary orders of the trial courts. If the facts and arguments are mentioned and consideration is apparent from the orders, the appellate court may not even entertain appeals in such matter of discretionary relief which are meant for protecting the property or rights of the parties during pendency of the suit. The trial court in its order more than once held that the appellants are bonafide purchasers. If it is so and the appellants are in possession of the suit property, mere agreement to sale may give rise to seek for specific performance of contract against the sellers but how it can affect the interest of bonafide purchasers, has not been considered by the trial court. The finding of the trial court that the appellants are bonafide purchasers is also a finding only prima-facie but for grant of injunction, only prima-facie findings are relevant. The trial court mentioned that by payment of sale price along with interest to the bonafide purchasers, the rights of bonafide 13 purchasers will stand fully satisfied. Said plea in itself is contrary to law even for seeking specific performance of contract because the law itself provides that in a transaction of immovable property, money shall not be adequate compensation. Assuming for the sake of arguments that the trial court's view was correct that the bonafide purchaser's rights can be protected by payment of amount which he paid to seller along with interest, then why the same principle has not been applied by the Court while considering the rights of the plaintiffs on the basis of mere agreement to sale. The trial court also did not consider where the balance lies. Raising of construction or altering the immovable property during pendency of litigation normally cannot be permitted, is the law settled but exceptions are there. When it is seriously contended by the vendees that even during pending litigation, they be permitted to raise construction over the plots in dispute, then the vendees can so submit only in exceptional case. Whether vendees have made out any such exceptional case or not, is also the point which should have been decided by the court below. Exceptions are there because of various reasons and cumulative effect of all facts and circumstances are required to be seen from the facts of each case for the purpose of granting relief. Therefore, it will be appropriate to recapitulate the facts of the case again for finding out whether the trial court rightly decided the issue of prima-facie case in favour of the plaintiffs because of the simple reason that the trial court's orders 14 are of no help to this Court for finding out what facts or reasons prevailed over the court below for granting relief to the plaintiffs and for restraining the defendants, apart from the fact that the reasonings, whatever, given by the court below are legally wrong or are self contradictory. Before that, it will be appropriate to reiterate that all observations made even by High Court in a proceeding arising under Order 39 Rules 1 and 2 CPC are only prima- facie findings and not binding upon even the subordinate courts and this has been reiterated despite the fact that it is settled position of law but because of the reason that some times, some observations still may be construed against one party and in favour of another party. The plaintiffs' case is that they entered into agreement for purchase of the plots in question on 1.3.2003 for a consideration of Rs.5,60,000/- and paid Rs.60,000/- on 1.3.2003 and thereafter paid Rs.2,40,000/- on 10.3.2003 and there was a condition in the agreement to sale that the sellers shall obtain proper deed from the UIT before serving notice upon the plaintiffs. Thereafter only, the plaintiffs could have asked for execution of the sale deed in their favour. The facts on the face of it may be attractive and stay by the local body itself against the grant of patta or deed may be persuasive but we cannot ignore this fact that the plaintiffs have not disclosed when prohibition was put by UIT. Whether at the time when the plaintiffs entered into agreement to purchase, said prohibition was there or not ? When this stay was vacated 15 by the UIT ? The plaintiffs, contrary to their own pleading that they could not have asked for registration of the document in view of the bar put by the UIT, Jodhpur or State Government, alleged that they requested the sellers to execute the sale deed even during this period (without disclosing how and when). The plaintiffs' plea is self contradictory. If there was a bar and the plaintiffs were knowing it, then there was no occasion to ask for registration of the document. The plaintiffs also did not disclose when they asked the sellers to execute the sale deed after 10.3.2003 because that fact would have thrown good light on the question that on what time, the sellers avoided execution of the sale deed in favour of the plaintiffs, if there was any agreement. Be it as it may be vendors sold their plots on 20.1.2004 by registered sale deed to the appellants and if there was any ban against issuance of lease deed and patta by the UIT, Jodhpur than that ban must have been lifted before 20.1.2004, than suit for specific performance has been filed after more than 1 year 7 months from said date. The suits are not filed by the plaintiffs because the bar was lifted by the UIT or the State Government against the issuance of patta or lease deed but the suit has been filed because the appellants started construction activities over the plot in dispute. If the purchasers would not have started construction, the plaintiffs may not have filed the suit for specific performance of contract despite the fact that at the time of filing of the suit, more than 2½ years have already passed. The contention of 16 learned counsel for the plaintiffs that the limitation for filing the suit for specific performance of contract is three years from the date of refusal by the vendor, cannot help the plaintiffs because of the reason that the suit for specific performance of contract is a suit of special nature where it is not necessary for court to grant relief of specific performance of the contract even if the plaintiff has proved his agreement for purchase of the property. The relief is discretionary. The discretion can be exercised by the court only when the court has jurisdiction to grant or refuse the relief. If the court looses its jurisdiction to grant the relief, there is no question of discretion of the court. The court is bound to deny the relief. Therefore, in a suit for specific performance of contract, if the suit is barred by time, it is liable to be dismissed but when it is within limitation, then and then only, the Court can consider whether to grant relief to the plaintiffs for specific performance of contract or not. This position is required to be considered by the trial court at the time of deciding the suit but to