TATIA, J. - (1.) HEARD learned counsel for the parties.
(2.) THIS appeal is against the order of the trial court dated 28. 3. 2006 passed on an application filed by the plaintiff/appellant under Order 39 Rules 1 and 2 CPC. The trial court dismissed the injunction application filed by the appellant in a case where the appellant filed the suit for specific performance of oral agreement dated 26. 6. 2005. Brief facts of the case are that according to the appellant, the respondent no. 1 is a trust and the respondents no. 2 to 6 are its trustees. The respondent no. 1's agriculture land is having khasra nos. 21 to 23, 29 to 31, 37 to 39, 43 and 44. The appellant for the purpose of marble mining operations in the said land sought consent letter of the respondent no. 1 trust. The respondent no. 1 agreed on 26. 6. 2005 to give the consent letter for a consideration of total Rs. 70 lakhs. According to the appellant, he paid Rs. 10 lakhs in cash on 26. 6. 2005 to the respondent no. 2 in the presence of other trustees. It was decided that the appellant will pay Rs. 50 lakhs by 15. 9. 2005 by demand draft and remaining Rs. 10 lakhs will be paid by the appellant at the time of submitting the consent letter of the respondent trust before the mining department. As per the agreed condition, the consent letter of the respondent trust shall remain in force for 20 years from the date of grant of lease by the mining department for marble mining. It is stated that the respondent trust through its trustees agreed that they will not breach the contract on any condition nor the respondents will put any obstruction in the execution of the work. There was negative covenant also that the respondents will not give the consent letter to any other party. For not obtaining the written agreement, the explanation of the appellant is that the respondent no. 2 is the Chief trustee of the respondent trust and is head of the Pusti Margiya Sampradaya where he is treated as God and no one can question the integrity of the respondent no. 2, therefore, the written contract was not obtained because of faith and position of respondent no. 2. The appellant in furtherance to the said agreement dated 26. 6. 2005 obtained the demand draft of Rs. 50 lakhs in the name of the respondent trust. Copy of the draft was sent by fax on 13. 9. 2005 to the respondent no. 6, one of the trustee, which according to the appellant is in furtherance to the directions given by the trustees. Subsequently, after 13. 9. 2005, the appellant came to know that the respondent no. 2 - Chief trustee is staying at Kankroli town in Rajasthan itself. Therefore, the appellant went to Kankroli so that the demand draft of Rs. 50 lakhs may be handed over to the respondent no. 2. The respondent no. 2 told the appellant that the respondent no. 2 will be staying at Kankroli for two more days, therefore, he will take the draft afterwards but when the appellant went to the respondent no. 2 on 16. 9. 2005, he found that the respondent no. 2 already left Kankroli town. This attitude of the respondent no. 2 created doubt in the mind of the appellant. The appellant also heard from others that the respondents are making efforts to give consent letter to other persons. The appellant thereafter found that the respondents are doing this because of the reason that the respondent no. 11 is Minister in the Government of Rajasthan and he is putting pressure upon the respondent no. 2 for giving consent letter. The appellant because of his urgent work went to Jaipur on 18. 9. 2005 and from there, he contacted trustees - Navneet, Sharad Bhai, Govind Bhai as well as the chief trustee - Shri Brijesh Kumar Goswami on telephone. The appellant informed them that in the market persons are saying that the respondent no. 1 is about to give consent letter to the other person. The respondent no. 2 gave evasive reply to the appellant and asked him to come to Baroda on 20. 9. 2005. The appellant also talked with the other trustees on telephone and he recorded the conversation on tape. On 19. 9. 2005, the appellant started for Baroda but when he reached Ahmedabad, he got information on telephone that the respondent no. 2 has already given consent letters to the respondents no. 7 to 10 and got it registered also. The appellant returned back from Ahmedabad and collected all information and obtained copy of consent letter from the office of Sub-Registrar. According to the appellant, the respondents no. 7 to 10 themselves told people of Town Kankroli that despite having knowledge of prior agreement with the appellant, they put pressure upon the respondent no. 2 to give the consent letter in their favour. Not only this, but for a contract having consideration of Rs. 70 lakhs, the respondents no. 7 to 10 could obtain the consent letter for a consideration of Rs. 3,85,000/- only. Not only this, the respondents no. 7 to 10 did not pay that amount of Rs. 3,85,000/- in one time but they are to give Rs. 35,000/- per hectare per year. According to the appellant, the said consent letter is against the interest of the trust also and in violation to the public policy. The appellant/plaintiff in his suit submitted application for grant of temporary injunction and sought relief that the respondents no. 7 to 10 may be restrained from operating the mine. The plaintiff also sought the relief against the respondents no. 12 to 14 - State of Rajasthan ; Director, Mining Department, Government of Rajasthan, Udaipur and Mining Engineer, Rajsamand that they should not issue permission in favour of the respondents no. 7 to 10 nor they should accept royalty from them. The plaintiff submitted his affidavit in support of the injunction application. The respondents no. 1 to 5 - Trust and its trustees submitted reply through their power of attorney, respondent no. 5 - Nagin Bhai Parakh. In the reply filed by the trust and trustees, it was contended that their are two more trustees namely, Parag Kumar Goswami and Shishir Kumar but they have not been impleaded as party in the suit, therefore, the suit is not maintainable. It was also submitted that respondent no. 6 - Govind Bhai Shah is not trustee and he has been wrongly impleaded in the suit. So far as agreement dated 26. 9. 2005 is concerned, that was denied by the trust and trustees. The respondents no. 1 to 5 also denied receipt of payment of Rs. 10 lakhs or receipt of fax copy of the demand draft of Rs. 50 lakhs. It is also submitted that even if copy of draft was sent by the plaintiff to Govind Bhai that is irrelevant because of the fact that Govind Bhai is not trustee. It was further stated that they had no knowledge about the fact whether the plaintiff talked with Navneet Bhai, Govind Bhai or respondents no. 2 to 5 on phone from Jaipur on 18. 9. 2005. It is also submitted that the Trust already gave consent letter in favour of respondents no. 7 to 10 and, therefore, injunction application may be dismissed. In support of the reply on behalf of the respondents no. 1 to 5, said power of attorney - Nagin Bhai submitted his affidavit. The respondents no. 12 to 14 - State and its functionaries filed reply to the injunction application and took a plea that against the issuance of mining patta, some persons have filed writ petition before the High Court, therefore, the present suit is not maintainable. It is also submitted that the plaintiff could have preferred an appeal under Rule 43 of the Minor Mineral Concession Rules and, therefore, in view of the alternate effective remedy, the Court may not grant injunction in favour of the appellant. It was also stated that the notice under Section 80 CPC was not given to the respondent State and State functionaries, therefore, the suit is not maintainable. It was also submitted that as per Clause 12 of the Marble Policy, the mining patta was issued by the department in favour of the respondent transferor.
(3.) THE respondents no. 7 to 10 denied all the allegations made in the plaint by the plaintiff. THEy denied the agreement between the plaintiff and the respondents no. 1 to 6. For tape conservation, it is submitted that the tape cannot be admitted in evidence. THEy justified their contract and the consent letter dated 15. 9. 2005 which was registered in their favour on 16. 9. 2005. THEy pleaded that they are bonafide transferee for valuable consideration without notice of any prior agreement and, therefore also, the appellant is not entitled to any relief. It is also submitted that in addition to consideration of Rs. 35,000/- per hectare for surface rent, the respondents no. 7 to 10 agreed to give Rs. 60 lakhs by cheque which is not refundable amount and income out of interest from said Rs. 60 lakhs will be Rs. 7,20,000/- per year and thereby, the respondent no. 1 trust will get Rs. 11,05,000/- per year. The trial court dismissed the injunction application filed by the plaintiff/appellant, after observing that this is a case of oral contract and there is no evidence evidencing the contract between the plaintiff and the respondent no. 1 trust through its trustees except the tape recorded conversation. The trial court held that the tape recorded conversation is a weak piece of evidence. However, the trial court observed that it may be believed that there may be good relations of the plaintiff with the respondent no. 2 - Chief trustee of the respondent no. 1 trust but the plaintiff failed to disclose from where he paid Rs. 10 lakhs and for that he should have submitted statement of his bank account so that it could have been ascertained that the plaintiff paid Rs. 10 lakhs to the respondent no. 2 on 26. 6. 2005. It is also observed by the court below that the plaintiff did not produced his books of accounts also. In substance, the trial court found that there is no prima-facie evidence of agreement between the appellant and the respondents no. 1 to 6 for giving consent letter by the respondent no. 1 trust through its trustees to the appellant. The trial court also held that the plaintiff failed to prove (prima-facie) that the respondents no. 7 to 10 had knowledge of the plaintiff's alleged agreement. The trial court further held that in view of provisions of Transfer of Property Act, by virtue of agreement for sale (in this case for obtaining consent letter for mining operation), no right is created in favour of the appellant in the property involved in the transaction. However, because of the agreement, obligation can be created upon the transferor in favour of the transferee but till that obligation is discharged by the vendor, the appellant cannot get any interest in the property. The trial court rejected the appellant's objection about respondents no. 7 to 10 not paying proper stamp duty for the consent letter obtained and objection that the transaction between the respondent no. 1 and respondents no. 7 to 10 is against the public policy and, therefore, the contract is null and void and no right of respondents no. 7 to 10 is created by virtue of said void transaction. The trial court, therefore, found that the appellant failed to establish prima facie case. While deciding the question of balance of convenience and irreparable injury, the trial court held that prima-facie the respondents no. 7 to 10 are bonafide purchasers without notice of any prior agreement and obtained the possession, therefore, the decree cannot be granted to restrain the respondents no. 7 to 10 from operating the mine. Being aggrieved against the order of the trial court dated 28. 3. 2006, this appeal is preferred by the appellant/plaintiff. ;