M.N. Mithal, J. - (1.) This is defendant's appeal arising from civil suit No. 713 of 1989 filed by respondent no. 1 for permanent injunction to restrain the defendant appellant from interfering in plaintiff's possession over the land in dispute and from obstructing the plaintiff in raising construction over the same.
(2.) In order to appreciate the controversy raised in this appeal .it will be necessary to have some background of facts. Admittedly, the two brothers Hetram & Kallu sons of Shibba were owners of plot No. 278 having an area of 3.73 acres in village Bagarpur in district Moradabad. Undisputedly Kallu sold his one half share in the land in favour of the appellant on 16.7.1989 in pursuance of an earlier agreement of sale in their favour. This sale deed was executed for a consideration of Rs. I,25,000/-. The remaining half share belonging to Kallu was also transferred and three sale deeds were executed by him. By the first sale deed executed on 20th July, 1989, Hetram had sold one half of his half share in favour of Anita Agarwal for Rs. 15,000/-. This sale deed is subject of attack in suit no. 689 of 1989 filed by Hetram questioning the validity of this sale deed. The ground of attack is his agreement with Smt. Anita Agarwal and her husband was to transfer his half share at the rate of Rs. 15,000/- per bigha but on the request of Anita Agarwal's husband he agreed to execute the two sale deeds; one in favour of Anita Agarwal and the other in favour of M/S Alkrad Chemical Indian Pvt. Ltd. The two sale deeds were to be executed in respect of one fourth share each. The allegation of Hetram was that the sale deed was executed by him on the assurance that the sale consideration would be at the rate of Rs. 15,000/- per Bigha but since the sale deed was not read over to him he signed it on the aforesaid representation. However, when the two sale deeds were put up for registration and only Rs. 15,000/- was offered as sale consideration on the assurance that the remaining amount will be paid outside the sub-Registrar's office he did not execute it and returned home. It was only at a later date that he came to know that one sale deed had been registered by the Sub-Registrar in collusion with Anita's Agarwal husband. In this suit Hetram sought injunction against Anita Agarwal but the same had been refused on opposition by her. That order has not been challenged in the appeal. Another suit No. 713 of 1989 was filed by M/s Alkrad Chemicals Indian Pvt. Ltd. against Kallu & three others i.e. Hetram, Abdul Jabbar & his son Fajal Jabbar. As mentioned earlier, this suit is for permanent injunction. The 3rd Suit No. 876 of 1989 was also filed by M/s Alkrad Chemicals Indian Pvt. Ltd. for mandatory injunction directing Hetram to get the sale deed executed in favour of the plaintiff registered. All the three suits were consolidated by the trial court by an order dated 11.1.1990. The plaintiff of suit no. 876 of 1989 also moved an application for temporary injunction restraining Abdul Jabbar from getting the sale deed registered but it was rejected as in-fructuous as the sale deed in favour of Abdul Jabbar had already been registered on 28.7.1989. Against this order also no appeal has been filed.
(3.) The main dispute between the parties in the trial court was in respect of the land sold by Hetram in favour of Abdul Jabbar on 28.7.1989. The case of the plaintiff was that Hetram & Kallu had mutually partitioned their land in such a manner that the middle portion fell to the share of Kallu and the eastern & western portions fell in the lot of Hetram. In the western portion there was one tube-well and a tree while north eastern portion was adjacent to the boundary of the land belonging to Fajal Jabbar. Since the north eastern portion was also coveted by Abdul Jabbar & Fajal Jabbar they did not like the ideas of its being sold to the plaintiff and, therefore, they instigated Kallu & Hetram and collusively obtained sale deed on 26th July, 1989 in respect thereof although the same had already been sold to Smt. Anita Agarwal. The sale deed which Hetram had executed in favour of the plaintiff was in respect of the western portion for a consideration of Rs. 15,000/-, besides Rs. 6,000/-, as the price of tube-well & tree standing thereon. This sale deed, however, could not be registered as Hetram refused to get it registered at the instigation of the appellant.;