Arun Bhansali, J. - (1.) THIS appeal under Order XLIII, Rule 1(r) CPC is directed against the order dated 20.11.2013 passed by the Additional District Judge No. 3, Jodhpur Metropolitan, whereby the application filed by the appellants under Order XXXIX, Rule 1 and 2 CPC has been rejected.
(2.) THE facts in brief may be noticed thus: the appellants, wife and son of Late Shri Mahesh Chandra Joshi ('M.C. Joshi') filed a suit for cancellation/declaration as voidable the sale deed dated 19.10.2006 with the averments that a plot of land ad measuring 55' x 80' situated at 'C' Sector, Shastri Nagar, Jodhpur was allotted by the Urban Improvement Trust, Jodhpur ('UIT') on 10.8.1967 to M.C. Joshi; permission to raise construction was granted on 12.2.1968; whereafter construction was raised and lease deed was issued for residential purpose in M.C. Joshi's favour on 22.1.1992, which was registered on 31.3.1992; after death of M.C. Joshi, the plaintiffs are residing in the said property and are in possession as owners; said M.C. Joshi obtained a Lease Exemption Certificate dated 3.9.2004 from the UIT. It was then claimed that the defendants expressed the desire to purchase the suit property and therefore, an agreement to sale dated 25.8.2006 was executed between M.C. Joshi and the defendants for a consideration of Rs. 1.15 Crore and at the time of execution of the agreement Rs. 11 Lakh by way of three cheques dated 25.8.2006 and 28.8.2006 were delivered and the rest of the consideration of Rs. 1.04 Crore was to be paid on M.C. Joshi purchasing some property; it was agreed that the physical, actual and legal possession will be handed -over on execution of the registered sale deed and on payment of the entire consideration, it was claimed in the plaint that as per the agreement possession of a hall ad measuring 30' x 30' was delivered to the defendants and they were required to pay rent @ Rs. 25,000/ - per month to M.C. Joshi, which was being paid during his life time and after his death, the defendants continued to pay the same which was last paid on 1.5.2012, which is clear from the copy of the statement of account of plaintiff No. 1; a sale deed dated 19.10.2006 was executed by M.C. Joshi, which was registered with Sub -Registrar (I), Jodhpur. The payment was made to M.C. Joshi by cheques and a reference was made to three cheques which were handed -over at the time of agreement to sale as well; it was alleged that the defendants for the purpose of saving income -tax and stamp duty indicated the consideration in the sale deed at Rs. 65,25,000/ - when in fact, the property was to be sold for entire consideration of Rs. 1.15 Crore and the sale deed was executed in terms of the agreement only; the relations between M.C. Joshi and defendants were quite close and therefore, the sale deed was executed and the balance consideration was paid by 16 post -dated cheques and from the said cheques also, the payment of all the cheques was not received; it was claimed that on account of the close relationship, the sale deed was executed and M.C. Joshi was having faith that the entire consideration would be paid and that assurance was given by the defendants that possession would only be obtained after payment of entire consideration; the said M.C. Joshi died on 30.8.2008 and till his death he was residing in the suit premises and the defendants are also residing there. During the life time of M.C. Joshi, he requested for payment of balance consideration, however, he was told that as the possession with him, as and when the defendants would require possession, they would make payment of the balance consideration. When M.C. Joshi was critically ill, he directed the defendants for payment of balance consideration to the plaintiffs, which was agreed to by them; after death of M.C. Joshi, when balance consideration was asked for, based on the close relationship, it was assured whenever possession would be sought, payment would be made; it was claimed that the plaintiffs are with the possession of the suit property and a part of the suit property has been let -out. It was alleged that out of the cheques which were handed -over at the time of execution of the sale deed only payment of cheques amounting to Rs. 54 Lakh was received and therefore, a sum of Rs. 76 Lakh (the basis for claim of Rs. 76 Lakh is not clear) was still outstanding; the rent which was being paid by the defendants has also been stopped after last payment on 10.5.2012; it was stated that despite repeated request, the amount of balance consideration was not being paid and therefore, a notice dated 12.9.2013 by the counsel was issued, which was returned back undelivered. It was claimed in the plaint that as the defendants have failed to make payment of balance consideration of Rs. 76 Lakh, the sale deed dated 19.10.2006 needs to be cancelled. Ultimately, it was prayed that the sale deed be cancelled/be declared voidable and in the alternative, the defendants be directed to make payment of balance consideration of Rs. 76 Lakh alongwith interest @ 18% p.a.
(3.) ALONGWITH the suit, an application seeking temporary injunction was filed by the appellants reiterating the averments made in the plaint and praying that during the pendency of the suit, the defendants be restrained by way of temporary injunction from dispossessing the plaintiffs from the suit property and they may further be restrained from transferring or dealing with the suit property. A written statement was filed by the defendants, inter -alia, denying that the plaintiffs were in possession of the suit property as owners; the execution of agreement to sale was denied; it was claimed that the sale deed was executed on 19.10.2006 and was registered with the Sub -Registrar (I), Jodhpur and as M.C. Joshi died in the year 2008 and if the entire consideration was not paid, then why no action was taken by M.C. Joshi; it was claimed that the story of agreement to sale was baseless and is a part of well thought of conspiracy to harass the defendants. The payment of so -called rent @ Rs. 20,000/ -/25,000/ - for the part of the suit property, which was claimed by the plaintiffs to be in possession of the defendants was also denied; it was claimed that the consideration was decided at Rs. 65,25,000/ - and the same was paid at the relevant time. The allegations about non -payment of any part of the consideration were denied; it was claimed that the possession of the entire suit property was handed -over to the defendants at the time of execution of the sale deed and a part thereof was let -out by the defendants to Attractive Exim Private Limited through its Manager, Mahaveer Jain on 21.10.2006, who has sub -let a part thereof to the plaintiffs for which the defendants are free to take action according to law. The receipt of notice was denied. Ultimately, it was prayed that the suit filed by the plaintiffs be dismissed.;