- (1.) THIS appeal is directed against the order dated 15.10.2011 passed by the learned District Judge, Chittorgarh, whereby, the application filed by the appellant-plaintiff-applicant under Order XXXIX, Rule 1 and 2 CPC has been rejected.
(2.) THE facts in brief are that the plaintiff filed a suit for specific performance of contract executed between the plaintiff and respondent No.1 Mangi Lal regarding agricultural land situated at village Chogawadi; wherein it was, inter alia, submitted that though half portion of the land was recorded in the name of Smt. Ganga and half portion was recorded in the name of vendor Mangi Lal and Smt. Anopi Bai; the entire land belongs to the vendor Mangi Lal only; the agreement to sale was executed on 12.06.2003 for land ad measuring 3-4 bighas @ Rs.24,000/- per bigha and a sum of Rs.35,000/- was paid on the same date. It was also claimed that the possession of the land was handed over to him and ever since he was in possession of the land in question; it is claimed in the plaint that now the vendor Mandi Lal was refusing to execute sale deed and despite notice dated 09.09.2010 he has refused to execute the sale deed and trying to interfere with his possession and, therefore, alongwith seeking specific performance of the contract dated 12.06.2003 a prayer for injunction was also made in the suit; alongwith the suit an application seeking temporary injunction during pendency of the suit was also filed. A joint reply was filed by defendant Nos.1 to 4 indicating that while respondent No.4 had half share in the land in question, defendant Nos.1 to 3 had 1/6th share each, no agreement was executed by Mangi Lal and that the land was of joint possession; the suit was barred by limitation, however, the land in question has been jointly sold to Janaki Lal defendant No.5, who is in possession. In the alternative, it was stated that the defendant No.1 Mangi Lal had right only to the extent of 1/6th share and he could have executed the sale regarding entire land in question. Further, the agreement was not bearing proper stamp duty and, as such, the same could not be read in evidence.
(3.) THE defendant No.5 also filed reply and opposed the prayer by filing copy of registered sale deed executed by defendant Nos.1 to 4. It was claimed that he was in possession of the land in question, the mutation stands in his name and he has paid consideration of Rs.4,00,000/-.;