HASHIM ABU NABEEL Vs. P.A.HAMZA

JUDGEMENT

(1.) This appeal arises from the order passed by the Court of Subordinate Judge of Kozhikode on 29.6.2017 in I.A.No.4243 of 2016 in O.S.No.167 of 2010. By the said order, the court below dismissed the application filed by the appellant under Order XXXIX Rule 1 of the Code of Civil Procedure for an order of temporary injunction restraining the respondents, their men, workers or agents or any person claiming under them from altering the present condition of the plaint schedule property or from making new boundaries or from constructing building or from assigning any portion thereof to third parties or from encumbering it or from inducting third parties into the property pending disposal of the suit. The brief facts of the case are as follows :-

(2.) The appellant as plaintiff instituted O.S.No.167 of 2010 on 24.2.2010 praying for following reliefs :-

(3.) The aforesaid reliefs were sought on the averment that the plaintiff had paid over to the first defendant an aggregate sum of Rs.1,96,00,000/- for the purpose of purchasing the land lying by the side of the Mini by-pass at Kozhikode, but, contrary to the understanding between the parties, the first defendant utilised the funds to purchase 2.02 acres of land under nine different sale deeds, seven executed in the year 2005, one in the year 2008 and one in the year 2009, in the name of the second defendant, a private limited company, of which, the first defendant, his wife and the third defendant are the share holders. The appellant has, in the plaint, prayed for a declaration as he is the absolute owner of the properties thus purchased as per the aforesaid nine sale deeds. He has in the alternative, prayed for a decree allowing to recover the sum of Rs.10,11,60,500/- being the market value of the plaint schedule property as on the date of institution of the suit together with interest at the rate of 12% per annum from the defendants personally and their assets and charged on the plaint schedule property. He has also prayed that he may be granted a decree allowing him to realise the sum of Rs.9,96,00,000/- comprised of the sum of Rs.1,96,00,000/- paid by him for purchasing the plaint schedule property, the sum of Rs.2,00,00,000/- as damages for breach of trust and the sum of Rs.6,00,00,000/- by way of compensation. He has also prayed for a decree directing the first defendant to account for the sum of Rs.1,96,00,000/- stated to have been paid by him to the first defendant. Though along with a plaint, the appellant had filed I.A.No.897 of 2010 for an interim order of injunction restraining the defendants, their men and agents from selling or creating any documents in respect of the plaint schedule property or from encumbering the plaint schedule property or from committing acts of waste therein pending trial of the suit, an order of injunction as prayed for was not granted. It is not in dispute that the said application is even today pending.