SURJEET KAUR Vs. INTERNATIONAL ISHAVASYAM
HIGH COURT OF UTTARAKHAND
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(1.) INSTANT appeal has been directed against the judgment and order dated 19.07.2011 passed by Civil Judge (Sr. Div.), Rishikesh in Original Suit No. 10 of 2010 'Smt. Surjeet Kaur vs. International Ishavasyam Mission' whereby interim injunction application no. 6c-2, moved by the plaintiff/appellants, has been dismissed.
(2.) BRIEFLY stated that the plaintiff/appellants instituted the said suit against the defendants/respondents before the Court of Civil Judge (Sr. Div.), Rishikesh seeking cancellation of two sale deeds dated 06.05.2009 and 19.06.2009 on the grounds that the defendants obtained these sale deeds from late Gurdev Singh Sanga, predecessor of the plaintiff/ appellants under misrepresentation, collusion and by playing fraud, without the consent of late Gurdev Singh Sanga and without paying sale consideration to late Gurdev Singh Sanga. Alongwith the plaint, the plaintiff/appellants moved an interim injunction application paper no. 6c-2. At the time of filing said suit, an ex-parte interim injunction was granted by the Court below restraining the defendant/respondents not to create any third party interest in the property in suit. On being contested by the defendant/respondents, by virtue of the impugned order dated 19.07.2011, the Court below rejected the interim injunction application.
I have heard Mr. Neeraj Garg, Advocate for the appellants and Mr. S.K. Jain, Senior Advocate for the respondents and perused the record.
Learned counsel for the appellants contended that the trial Court while deciding the interim injunction application has not taken into consideration that the defendant/ respondent no.2 got the sale deeds executed on 06.05.2009 and 19.06.2009 without the knowledge of the appellants, while on said dates late Gurdev Singh Sanga was suffering with mental and physical disability and was unfit for entering into any contract. Moreover, the defendant/respondents obtained the impugned sale deeds without paying the sale consideration thereof to late Gurdev Singh Sanga. The trial Court did not consider that at the time of said sale transaction the market value of the property in question was worth more than Rs. 5.00 crores, however the defendants obtained the impugned sale deeds for a very insufficient, inordinate meager sale consideration. He contended that the defendants have been residing out of State of Uttarakhand, however they did not take permission for selling and purchasing of the property in the State of Uttarakhand. He contended that the trial Court should have taken into consideration that the defendants obtained the sale deeds without the consent of Gurdev Singh Sanga and the consent mentioned in the sale deeds and statements of late Gurdev Singh Sanga of execution of impugned sale deeds before the Sub-Registrar, Rishikesh are collusive and in collusion with the Sub-Registrar, as Gurdev Singh Sanga was mentally and physically disable to admit the execution of said sale deeds. He further contended that late Gurdev Singh Sanga, due to mental and physical disability of lunatic and unsoundness of mind, was not in a position to deliver the possession of the disputed property. He submitted that the plaintiff/appellants are lawfully in possession of the property in dispute and not the defendants, but this factual aspect of the matter was ignored by the trial Court while passing the order impugned.
(3.) ON the other hand learned Senior Advocate appearing for the respondents has contended that in the order impugned, the trial Court has clearly mentioned that neither the appellants are the owner nor in possession of the property in dispute. He submitted that the trial Court has rightly rejected the interim injunction of the plaintiff/ appellants, which does not warrant any interference, because the appellants have no cause of action, balance of convenience or irreparable loss. He further submitted that the respondents are the true owner of the property in dispute and no prohibitory injunction can be granted against the true vendor.
Learned counsel for the appellants relied on the judgment of Allahabad High Court, reported in 1999 (17) LCD-503, judgment of Hon'ble the Apex Court, reported in 2011 (5) SCALE-1 and judgment of Punjab & Haryana High Court, reported in 1999 (2) Civil Court Cases-404, but the ratio of law cited by the learned counsel for the appellant is not helpful to them in any manner. Learned counsel for the appellants submitted that Hon'ble Supreme Court in the judgment reported in 2011 (5) SCALE-1, has held that the title does not pass to the purchaser, unless sale consideration is paid and in the present case, since sale consideration was of a very meager amount, therefore, it should be assumed that sale consideration was not full. I have considered the submission of learned counsel for the appellants. The judgment cited by the learned counsel will not help him as in that judgment, the Hon'ble Supreme Court has held that where sale consideration was not fully paid, the vendor was justified in canceling the sale on the ground that the sale consideration was not paid. But in the case in hand, consideration was already paid.;
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