BHAUROO SINGH Vs. DULARI

JUDGEMENT

(1.) THIS appeal is directed against the judgment, of the learned Addl. District Judge, Karauli dated 16. 8. 1989 whereby the learned Addl. District Judge has accepted the application of the plaintiff-respondents and has restrained the defendant- appellant from interfering with the possession of the plaintiff till the disposal of the suit filed by the plaintiff for specific performance of the contract for sale. The trial court has held that all the three necessary ingredients for grant of temporary injunction i. e. prima facie case, balance of convenience and irreparable injury exists in favour of the plaintiffs and against the respondents and, therefore, injunction order was passed as aforesaid and hence, this appeal by the defendant.

(2.) MR. R. S. Rathore, the learned counsel for the appellant has submitted that in this case, Shri Sampu who happens to be owner of the property which is the subject matter of the dispute has sold it to the petitioner-defendant by a registered sale-deed dated 26. 4. 1989 and he has been put in possession of that land. The mutation has been recorded in his favour on 30. 6. 1989 as regards 1/2 share of Khasra Nos. 6949 and 6950 and l/4th share of Khasra No. 6953. His contention is that the sale which was executed in favour of the plaintiff-respondents has not been registered because it has not been properly stamped and, therefore, such a document is inadmissible in evidence. In these circumstances, the plaintiff-respondents have no right to get any injunction in their favour. It has also been claimed that in the Khasra-Girdhawari of Smvt. Years 2044-47, the name of Sampu has been shown as the owner of the property and he has purchased this property from Sampu. When this document, alleged to be a contract for sale has been executed, Sampu filed a F. I. R. in the year 1986 against Jatansingh, husband and father respectively of Smt. Dulari and Rajendra Singh that he got those signatures from him by coercion and that complaint is still under investigation. It has also been claimed by him that the report of the Commissioner which has been taken into consideration by the learned lower court, he has submitted that he has raised objections against the report and those objections have not been decided by the learned lower court, and, therefore, the impugned order stands vitiated. In this respect, my attention has been drawn to a decision of this Court in Jagannath vs. Smt. Kamla Bai (1), wherein it has been held that the parties can raise objections and further lead evidence as regards the objections raised by it to the report of the Commissioner and the Court can take into consideration such evidence and decide objections, and if it is not done, the impugned order of the learned District Judge stands vitiated.

(3.) I have considered the rival submissions made at the bar. Mr. Rathore has submitted that although, the Girdawari entries have been taken into consideration but this fact has been overlooked that half of the fields belongs to Shanker and therefore, if there are any Girdhawari entries as regards his possession then it does not mean that Shanker has been put out of the possession. He has submitted that although electricity bills have bene produced but it cannot be said that they relate to the electricity meter which is installed on this well, which is the subject matter of the disputed property. He has submitted that his objections as regards Commissioner's report has not been decided and still the Commissioner's report has been taken into consideration.