Yogendra Pal Singh And Another vs Shri Subodh Kumar
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Allahabad High Court

Yogendra Pal Singh And Another vs Shri Subodh Kumar on 25 February, 2025

Author: Dinesh Pathak

Bench: Dinesh Pathak

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2025:AHC:25798
 
Reserved on 6.2.2025
 
Delivered on 25.2.2025
 

 
Court No. - 36
 
Case :- FIRST APPEAL FROM ORDER No. - 1840 of 2024
 
Appellant :- Yogendra Pal Singh And Another
 
Respondent :- Shri Subodh Kumar
 
Counsel for Appellant :- Ajay Kumar Gautam,Sr. Advocate
 
Counsel for Respondent :- Vibhu Rai
 

 
Hon'ble Dinesh Pathak,J.
 

1. Heard learned counsel for the plaintiffs-appellants as well as learned counsel for the defendant-Opposite Party and perused the record on board.

2. Instant first appeal from order has been preferred on behalf of the plaintiff-appellant assailing the order dated 12.08.2024 whereby interim injunction application (paper No. 7-C2) under Order 39 Rule 1 CPC has been rejected by learned trial court.

3. Record evinces that plaintiffs-appellants have filed a suit for permanent prohibitory injunction against the defendant-respondent claiming their right, interest and possession over the property in question on the basis of unregistered agreement to sell dated 16.03.2021 and came with the plea that out of entire consideration amount i.e. 75 crores, plaintiffs have given 1 crore 11 lakhs rupees as an earnest money. The plaintiffs have also laid emphasis on the authority letter dated 11.06.2019 whereby plaintiff/appellant No. 1 had been authorized to enter the companys' premises; and supervise/look after the property. Final prayer made by plaintiffs in the plaint is quoted hereinbelow:-

"a. That by passing a decree of permanent prohibitory injunction in favour of the plaintiffs and against the defendant, the defendants, his agents, servants, subordinates, associates and attorneys be restrained from interfering into the peaceful possession, use and enjoyment of the plaintiffs over the property in question and further the defendant be restrained from taking forcible possession after dispossessing the plaintiffs therefrom with the help of muscles men and men power in collusion with gundas, bhoomafias and mischief mongers of the society and the defendant be further restrained from transferring, alienating and disposing of the property in question to other persons and also from encumbering the property in question with the Financial Institutions, in any manner whatsoever.

b. Cost of the suit be awarded to the plaintiffs against the defendant.

c. Any other relief (s) which may deem fit and proper in the opinion of the Hon'ble Court be also granted to the plaintiffs against the defendant."

4. The defendant-respondent has denied execution of any such agreement to sell dated 16.03.2021 and came with the plea that authority letter dated 11.06.2019 has been issued only authorizing the plaintiff No. 1 to look after/supervise the property in question, thus, same cannot be considered as a delivery of possession in favour of plaintiffs  over the property in question.

5. During pendency of the suit, the plaintiffs have moved an application for interim injunction under Order 39 Rule 1 CPC (paper No. 7C) with the plea that in pursuance of the authority letter dated 11.06.2019, the plaintiffs-appellants are in the possession over the property in question. Out of total sale consideration amount i.e. 75 crores, the plaintiffs have already paid 1 crore 11 lakhs as an earnest money and they are ready to pay the remaining consideration amount. It is further averred in the application that defendant is throughout interfering in the peaceful possession of the plaintiffs. Even, not executing the registered sale deed in pursuance of the agreement to sell. Thus, in absence of interim injunction plaintiffs are in imminent danger of being evicted from the property in question. The defendant-respondent has filed objection (paper No. 22C) rebutting all the pleas as averred in the interim injunction application and contended that he has never executed any agreement to sell dated 16.03.2021 in favour of the plaintiffs and the said document is forged, fictitious and sham. The date endorsed on the rear side of the stamp paper has been manipulated. Lastly, it has been contended that unregistered document cannot be considered as an evidence. Learned trial court, vide order dated 12.08.2024, has rejected the interim injunction application basically on two grounds; firstly, possession of the plaintiffs over the property in question is suspicious/doubtful and he has failed to prove possession over there; secondly, no relief has been sought for specific performance of contract, therefore, at this stage, interim injunction cannot be granted on the basis of unregistered agreement to sell.

6. Learned counsel for the appellant has laid emphasis on the authority later dated 11.06.2019 considering it to be a delivery of possession over the property in question. He has submitted that said document should be read coupled with the agreement to sell dated 16.03.2021. There is a recital on the internal page No. 8 of the agreement to sell regarding the delivery of possession over the partial area of the property in question, which has illegally been ignored by the trial court. Assailing the order impugned passed by the learned trial court, learned counsel for the appellant has denied necessity of prayer for the specific performance of contract and submitted that suit was filed only for the permanent prohibitory injunction, therefore, court concerned should stick only with the relief claimed for and the documents filed in support thereof. He has placed reliance on paragraph 7 of the replication and tried to submit that defendant-respondent is a very cunning and mischievous person who has committed foul play with the other persons as well. It is next submitted that civil litigations are going on between the defendant and other persons. Learned counsel for the appellants has also laid emphasis on the receipt dated 12.03.2021 to prove that out of total consideration money i.e. Rs. 75 crores, the plaintiffs have given 1 crore 11 lakhs to the defendant.

7. Learned counsel for the defendant-respondent has vehemently opposed the submissions as advanced by the learned counsel for the plaintiffs-appellants and contended that the authority letter dated 11.06.2019 cannot be considered as a piece of evidence to prove the delivery of possession. Agreement to sell dated 16.03.2021 is a forged document which has never been executed by the defendant. Even receipt of receiving the earnest money amounting to Rs. 1,11,00,000.00 produced by the plaintiffs is not a genuine one. Assuming arguendo that receipt of Rs. 1 crore 11 lakhs has been furnished by the defendant, he is ready to return the said amount. It is next submitted that, on the basis of the alleged receipt, the plaintiffs have no legal right over the property in question, thus, instant first appeal from order is liable to be dismissed being misconceived and devoid of merits.  

8. Having considered the rival submissions advanced by the learned counsel for the parties and perusal of record, it is manifested that instant first appeal from order is arising out of interim injunction application under Order 31 rule 1 CPC, thus, this Court cannot go beyond the contour of the injunction application which can be examined within the three parameters i.e. (i). prima facie case (ii). balance of convenience and (iii) irreparable loss. In the plaint plaintiffs have sought relief for permanent prohibitory injunction on the basis of the agreement to sell dated 16.03.2021, however, no relief has been sought for specific performance of contract which has been made basis to prove the right, interest and possession of the plaintiff over the property in question. While dealing with the prima facie case, learned trial court has returned categorical finding that no credible evidence has been filed to prove the possession of the plaintiffs over the property in question. In support of his possession plaintiffs have laid emphasis on the authority letter dated 11.06.2019, receipt dated 12.03.2021 and agreement to sell dated 16.03.2021. Having conjoint reading of the aforesaid three documents, learned counsel for the appellant has tried to establish that possession has been delivered in favour of the plaintiffs over the property in question for which earnest money amounting to Rs. 1 crore 11 lakhs has been paid. Genuineness and legality of all three documents has still to be adjudicated upon by the trial court, therefore, it would not be befitting to make any comment in this regard. It is no more res-integra that there is a glaring difference between the "prima facie case" and "prima facie title". Postulates of both the elements have different countenance. Prima facie title is always subject matter of final adjudication which can be decided more appropriately after conducting due trial. However, prima facie case relates to the interim measures during pendency of the suit to protect the property in question from being damaged, destroyed etc. Therefore, possession of the plaintiffs over the property in question to prove his prima facie case is one of the important facet to decide the interim injunction application. Alleged authority later dated 11.06.2019 neither discloses the delivery of the possession in favour of the plaintiffs nor confers his right, title and interest over there. For ready reference contents of authority later dated 11.06.2019 is quoted hereinbelow:-

"AUTHORITY LETTER

Sri. Yogendra Pal Singh s/o Sri. Raj Pal Singh resident of F-1,Vikram Colony, Ramghat Road, Aligarh is hereby authorized to supervise and look after the property at G.T.Road, Aligarh of our company M/S Tiger Products Pvt. Ltd., by entering inside the company premises for the purpose of security and protection of the company's assets in all respects, and report to the under signed from time to time.

For,

Tiger Products Pvt.Ltd.

(SUBODH KUMAR SAIGAL).

Managing Director"

9. The contents of authority letter, as mentioned above, discloses that Mr. Yogendra Pal Singh, plaintiff-appellant No. 1 has been authorised to supervise and look after the property in question and can enter inside the premises for the purposes of security and protection of company assets. There is no unequivocal recital with regard to the delivery of possession in his favour. So far as the agreement to sell is concerned, which is under cloud, there is no unequivocal recital as well that possession of the property in question has been delivered. On page No. 8 of the alleged agreement to sell, it has been recited that possession of one part of the subject matter of the agreement to sell has been delivered to the vendees. However, what is the aforesaid partial area as mentioned in the agreement to sell is not clarified which appears to be suspicious and unconvincing. The phrase employed in the agreement to sale i.e. "one part" cannot be interpreted intending to consider the possession of the plaintiffs over the entire area of the subject matter of the suit. Apart from that receipt dated 12.03.2021 of receiving an amount to the tune of Rs. 1 crore and Rs. 11 lakhs as an earnest money cannot be considered, at this juncture, prima facie, to be a piece of evidence to prove the possession of the plaintiffs over the property in question. Thus, all three documents which have been relied upon by the learned counsel for the appellants are not sufficient to prove the possession of the plaintiffs over the property in question.

10. Maintainability of the suit for want of proper relief of the specific performance of contract is also a matter of concern, as submitted by the learned counsel for the defendant/respondent, as per the ratio decided by Hon'ble Supreme Court in the matter of Kayalulla Parambath Moidu Haji Vs. Namboodiyil Vinodan reported in 2021(227) AIC 166. At this juncture, it would not be befitting to examine the intricated question of title and possession of parties over the property in question as well as validity and genuineness of all three documents, as mentioned above, which can more appropriately be adjudicated upon by the learned trial court after appraisal of evidence.

11. Moreover, I am sceptical of the submissions advanced by the learned counsel for the appellants that interim injunction ought to have been granted in favour of the plaintiffs during the pendency of the suit. Paragraph No. 43 of the judgment passed in Ramakant Ambalal Choksi Vs. Harish Ambalal Choksi & Others reported in 2024 LawSuit(SC) 1082, decided on November 22, 2024, relied upon by learned counsel for the appellants does not much helpful to him. In the cited case, interim injunction granted by the learned trial court not to alienate the property in question was reversed by the First Appellate Court (High Court) allowing the alienation of property. Hon'ble Supreme Court has quashed the order passed by the High Court with an observation that High Court has overstepped appellate jurisdiction under Order 43 CPC without establishing trial court's order as arbitrary or perverse. Paragraph 43 of the aforesaid judgment which has been relied upon by the learned counsel for the appellant is quoted hereinbelow:

"[43] It is also pertinent to observe that immediately after the High Court set aside the order of the trial court granting interim injunction, the defendant no. 3 entered into a transaction which created a third party right on the suit property. A perusal of the impugned order indicates that although a specific request was made by the plaintiffs before the High Court to stay the operation of the impugned order to enable them to file an appeal before this Court, yet the request was not accepted. It is beyond our comprehension as to why such urgency was exhibited by the High Court in vacating the status quo on the suit property, more so when the suit was still pending before the trial court and the rights of the parties were yet to be crystallized. The sequence in which events have transpired in the present case best illustrates how the exercise of appellate jurisdiction by the High Court in a casual manner can have a cascading effect, which only prolongs litigation and counter-serves the interest of justice."

12. Aforesaid cited case, wherein the trial court took the view that the plaintiff were able to establish prima facie case that they have a right, title and interest in the suit property, is quite distinguishable in the given circumstances of the present matter. Learned trial court has rightly refused the interim injunction after examining the possession of the parties over the property in question relating to the prima facie case, balance of convenience and irreparable loss. Mere agreement to sale, receipt of payment and authority letter has been relied upon to prove the possession of the plaintiffs over the property in question, that too, for the injunction, to wit, permanent injunction as well as temporary injunction, without any prayer for specific performance of contract. As observed above, this Court has not examined the matter for the purposes of permanent injunction, which is a subject matter of trial. At this juncture, aforesaid three documents, prima facie, have not been found sufficient/credible to prove the possession of the plaintiffs over the property in question and issue interim injunction against the defendant/respondent, who is owner of the suit property.

13. The case of R. Hemalatha vs. Kashthuri, Civil Appeal No. 2535 of 2023 @ SLP (C) No. 1488 of 2022, decided on April 10th, 2023, 2023 SAR Online (SC) 370, relied upon by learned Senior Counsel for the appellant in support of his submission that unregistered agreement to sell is admissible in evidence is not helpful for him, inasmuch as cited case is arising out of Tamil Nadu Amendment Act, 2012 and same is not applicable for the provisions prevailing in State U.P. In view of the ratio decided the Division Bench of this Court in the matter of Smt. Prabha Awasthi vs Nisha Richharia & Another, 2012 (8) A.D.J. 557, in light of U.P. amendment w.e.f. 01.04.1977, registration of document, which requires registration, is must.

14. In this conspectus, as above, I do not find any justifiable ground to entertain the instant first appeal from order and interfere in the rejection order of interim injunction application passed by trial court. There is no illegality, perversity, infirmity and ambiguity in the order under challenge so as to warrant the indulgence of this Court under Order 43, Rule 1 (r) of CPC, in appellate jurisdiction.

15. Resultantly, instant appeal, being misconceived and devoid of merits, is dismissed with no order as to the costs.

Order Date :- 25.2.2025

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