RAM SURAT RAM, J. - (1.) HEARD Sri Mohan Srivastava, counsel for the appellant and Sri Ashish Kumar Singh for the respondents.
(2.) THIS appeal has been filed from the order of Civil Judge, (Senior Division), Hapur, Ghaziabad dated 28.1.2012, passed in Suit No. 89 of 2011, by which the application for interim injunction filed by the appellant has been rejected. The appellant filed a suit (registered as O.S. No. 89 of 2011) for permanent injunction restraining the respondents from interfering with his possession and ejecting him from the land in dispute and transferring it to any other person. It has been stated in the plaint that Narendra Kumar (defendant-1) has 6.25% share and Pawan Kumar (defendant-2) has 12.5% share in the land of which total area was 2,700 sq. yard, situated in mohalla Feezganj Road, Hapur, district Ghaziabad. On 12.6.2009, defendant-1 took Rs. 10,000/- in cash and a cheque of Rs. 50,000/- and executed an agreement in favour of the plaintiff for selling his share in the aforesaid land for sale consideration of Rs. 8,50,000/- He agreed to execute the sale deed before 11.9.2009. Defendant-2 also took Rs. 10,000/- in cash and a cheque of Rs. 50,000/- and agreed to sell his 12.5% share for Rs. 17 lakhs before 11.9.2009 and executed an agreement to sell dated 12.6.2009 in favour of the plaintiff. Defendants-1 and 2 have not executed the sale deed within the aforesaid period in compliance of the agreement dated 12.6.2009. The plaintiff therefore sent a notice dated 29.10.2009 through post office under certificate of posting. On service of the aforesaid notice, defendants-1 and 2 informed that since a dispute between the co sharers was going on, as such, it was not possible for them to execute the sale deeds. Accordingly, defendants-1 and 2 executed a receipt dated 15.11.2009 acknowledging the agreement dated 12.6.2009 and further taking of earnest money of Rs. 2,40,000/- and Rs. ,40,000/-, respectively and time for executing the sale deed was extended up to 14.10.2010 and the plaintiff was given possession over the property to be transferred. The dispute between the co-sharers of defendants-1 and 2 has been settled through family settlement dated 4.8.2010, but defendants-1 and 2 have not turned up for executing the sale deed. Therefore, the plaintiff gave a notice dated 27.9.2010 to defendants-1 and 2 for executing the sale deed. The plaintiffs came to know that Narendra Kumar (defendant-1) and his family members, executed an agreement to sell dated 4.9.2010 in favour of Ajay Goyal (defendant- 3). Pawan Kumar (defendant-2), his brother Praveen Kumar and his mother Smt Nirmala Devi, executed an agreement dated 6.9.2010 in respect of their share in the property in dispute in favour of defendant-3. On coming to know about the aforesaid agreements, the plaintiff served another notice dated 20.11.2010 for getting the aforesaid agreement canceled. In spite of service of notice, defendants-1 and 2 have not taken any step for cancellation of the agreements executed in favour of defendant-3. The plaintiff came to know that in the meantime, Narendra Kumar (defendant-1) has executed a sale deed dated 25.9.2010 in respect of his share in favour of defendant-3. The defendants are trying to dispossess the plaintiff from the property in dispute. The plaintiff is ready and willing to perform his obligations under the agreements dated 12.6.2009 and 15.11.2009 and get the sale deed executed in his favour. As such, he is entitled to protect his possession over the property in dispute. On these allegations, the suit for permanent injunction has been filed. 4. Along with the plaint, the plaintiff has also filed an application for interim injunction restraining the defendants from taking forcible possession over the property in dispute during the pendency of the suit.
(3.) THE trial court issued notices in the application for temporary injunction and summons in the suit. On service of the summons and notices, the defendants appeared and filed their written statement in the suit as well as objection and counter affidavit in the application for temporary injunction. In the joint written statement filed on behalf of the defendants, they have admitted execution of the deed dated 12.6.2009 and taking Rs. 60,000/- each as earnest money. But they have stated that defendant-1 has 1/80 share while defendant-2 has 1/24 share in the property in dispute. Since the dispute between the co sharers was going on, as such, it was not possible to execute the sale deed by them in favour of the plaintiff. Accordingly after the notice dated 29.10.2009, there was a settlement between the parties before the Panches on 10.8.2010, in which earnest money received by defendants-1 and 2 had been returned to the plaintiff. However, the plaintiff did not return the deeds dated 12.6.2009 executed by defendants-1 and 2 on the pretext that these documents were not brought by them at that time. He assured that it would be returned later on as at that time, these documents were not with the plaintiff. The defendants have stated that the alleged documents dated 15.11.2009 are forged document. Neither the amount mentioned in this document has been paid to the defendants, nor they gave possession to the plaintiff over the property of their share. Since the property was joint and their share was not partitioned, as such, it was not possible to give possession to the plaintiff over the property of their share. As the contract between the parties has already been broken before the Panches on 10.8.2010 and earnest money has been returned, as such, the plaintiff has no right to file any suit and the suit is misconceived and is liable to be dismissed. The application for interim injunction was heard by Civil Judge, (Senior Division), Hapur who by order dated 28.1.2012 held that in the alleged agreement dated 12.6.2009, no identifiable land has been mentioned. However, in the suit, the plaintiff has mentioned his possession over 1/3rd share towards west side of the land in dispute which is also not identifiable. Accordingly, prima facie, title and possession of the plaintiff is not proved. On these finding, the application for interim injunction has been rejected. Hence, the present appeal has been filed by the plaintiff.;