Devi Prasad Singh, J. - (1.) PRESENT writ petition has been filed against the impugned order dated 22nd of January, 2005 passed by the IVth Additional District Judge, Lucknow thereby allowing the appeal filed under Order 43, Rule 1 of the Code of Civil Procedure. The temporary injunction granted by the Trial Court in the suit for permanent injunction has been vacated by the learned Appellate Court. Feeling aggrieved, plaintiff -petitioner has filed the present writ petition. The petitioner is a Housing Society constituted under U.P. Co -operative Societies Act, 1965. Plaintiff -petitioner used to purchase land and proceed to resale the same by way of plotting to needy persons for the constructions of houses. According to the petitioner's Counsel, petitioner had entered into a registered agreement of sale for plot No. 247 measuring 2 bigha 12 biswa 12 biswansi, situated at village Mallpur, Pargana, tahsil and District, Lucknow. Admittedly, the land in question was recorded in the name of one Nattha son of Tulai. Petitioner had entered into the agreement dated 4th of February, 1986 with recorded tenure holder Sri Nattha. Copy of the registered agreement to sale has been field as Annexure No. 4 to the writ petition. A perusal of the registered agreement shows that Nattha had agreed to sell the entire area of 2 bigha, 12 biswa and 12 biswansi of plot No. 247 to the petitioner @ Rs. 18,000/ - per bigha i.e. against the total cost of Rs. 2,10,400/ -. Para 6 of the agreement provides that the possession of the land in question shall to be not delivered to the plaintiff -petitioner. But the petitioner was permitted to level the land and also permitted to proceed with the plotting of the land with intention to sale the same to the prospective purchasers. The agreement further shows that "Time is not the essence of contract". The agreement does not contain any provision or clause which may confine its execution within a particular period.
(2.) IN pursuance to the aforementioned agreement, a registered sale deed dated 16th of February, 1987 was executed by Sri Nattha. The copy of the registered sale deed dated 16th of February, 1987 has been filed as Annexure No. 5 to the writ petition. A perusal of the aforesaid sale deed shows that it was executed only for 1 bigha of land out of 2 bigha, 12 biswa and 12 biswansi. A perusal of sale deed further shows that the area of 1 bigha of land has not been specified with boundaries. Admittedly, in pursuance to the aforementioned sale deed, petitioner's name was mutated in the revenue record. Initially, the mutation was done for the entire land. But later on when a revision was filed by the defendants, order of mutation was stayed by the Board of Revenue. The copy of the order passed by the Board of Revenue has been filed as Annexure No. SCA (1) to the short counter -affidavit. It appears that after the execution of the sale deed only to the tune of 1 bigha of land, Nattha expired and after his death, the names of his sons namely Maiku Lal and Gomti Prasad were entered into the revenue records. In para 12 of the writ petition, it has been pleaded that Maiku Lal and Gomti Prasad, sons of late Nattha had executed on unregistered sale deed dated 17th of August, 1992 in favour of one Adarsh Co -operative Housing Society Ltd. Copy of the unregistered sale deed dated 17th of August, 1992 has been filed as Annexure No. 8 to the writ petition. The said Adarsh Co -operative Housing Society on its own transferred the area of 1 bigha and 10 biswas of land of khasra of plot No. 247 in favour of opposite party No. 2 through the registered sale deed dated 5th of April. 1999. The copy of the sale deed executed by Adarsh Co -operative Housing Society Ltd. in favour of M/s. Shahmeena Sahkari Avas Samiti Ltd. (Opposite Party No. 2) has been filed as Annexure No. 9 to the writ petition.
(3.) UNDER the above facts and circumstances when the opposite party No. 2 or its associates had allegedly tried to encroach over the land in question, petitioner has filed a suit for permanent injunction against the respondent No. 2. Petitioner had also filed an application for temporary injunction under Order 39, Rules 1 and 2 of the Code of Civil Procedure. The Trial Court, had granted temporary injunction vide order dated 31st of May, 2001, copy of which has been filed as Annexure No. 10 to the writ petition. By the said order, Trial Court had directed the parties to maintain status -quo and further directed the defendants to file written statement. Feeling aggrieved with the order passed by the Trial Court, an appeal was filed by the defendant which was allowed by the impugned order. While assailing the impugned order, it was submitted by the petitioner's Counsel that in view of the registered agreement to sale dated 4th of February, 1986, Sri Maiku Lal and Sri Gomti Prasad, sons of Sri Nattha were not entitled to transfer the land in question in favour of Adarsh Co -operative Housing Society Ltd. It has been further submitted by the petitioner's Counsel that otherwise also since Maiku Lal and Gomti Prasad had transferred the land by unregistered sale deed in favour of Adarsh Co -operative Housing Society Ltd. in view of the provisions contained in Registration Act, neither the Adarsh Co -operative Housing Society Ltd. nor the defendant -respondent No. 2 i.e. M/s. Shaheena Sahkari Avas Samiti Ltd. have got any right or title over the land in question. The unregistered sale deed is a mere piece of a waste paper and it does not extend any right to the purchaser. The further submission of petitioner's Counsel is that since in pursuance to the registered agreement, only 1 bigha of land was transferred by late Sri Nattha, his legal heirs i.e. Sri Maiku Lal and Sri Gomti Prasad are liable to transfer the remaining land in favour of the petitioner. That is why, a suit for permanent injunction was filed to restrain private respondent from encroaching over land in question. Accordingly, the submission is that opposite party No. 2 has got no right to claim for the possession over the land in suit or raise any construction thereon either on its own motion or through its associates or proposed purchasers.;