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A-43
% 12.7.2011
Present: Dr. N.K. Khetarpal, for the petitioner.
+ CM (M) No.764/2011
*
The order impugned before this Court is the order dated
29.5.2009. Vide this order the plaintiffs application under Order
XXXIX Rule 1 and 2 had been allowed; an injunction order had been passed in favour of the plaintiff restraining the defendants from interfering and dispossessing the plaintiff from the suit property.
The present suit has been filed by the plaintiff seeking permanent injunction against the defendants. His contention is that his mother Smt.Basanti Devi had entered into agreement to sell with respondent No.l on 26.1.1987; the consideration for the purchase of the disputed plot was a sum of Rs.40,000/-; defendant
No.l has executed documents in favour of the mother of the plaintiff which included a General Power of Attorney, affidavit. Will and receipt; peaceful and vacant possession of the property had also been granted to Smt. Basanti Devi on the said date.
The contention of defendant No.4/applicant before this Court is that the original owner/defendant No.l had in fact sold this property to his brother-in-law (defendant No.2) vide a sale deed dated 16.4.2007; vide subsequent sale deed dated 5.6.2008
2011:DHC:7788 defendant No.2 had sold this suit land to defendant No.4/apphcant and the sale deed dated 5.6.2008 has evidenced the possession of the apphcant. The order holding that a prima facie case is made out in favour of the plaintiff for grant of permanent injunction is thus a illegality. Attention has also been drawn to the General
Power of Attorney purported to have been executed in favour of the plaintiff on 5.11.2001; the contention is that this document has also not been considered by the trial court while awarding the injunction in favour of the plaintiff.
Record shows that in the written statement filed by defendant No.l he had categorically denied the alleged fact averred by the plaintiff that the defendant No.l had executed documents in favour of Smt. Basanti Devi (the mother of the plaintiff); it was only when the pleadings of the earlier suit i.e.
203/2008 had been brought on record that it had come to light that in that written statement defendant No.l had on 26.1.1987 executed papers including General Power of Attorney, affidavit, will in favour of Basanti Devi; the said written statement had also endorsed the factum that the vacant possession of the land had been handed over to Smt. Basanti Devi. In the present written statement as already noted supra the defendant denied that he had executed any kind of document in favour of Basanti Devi. All this had rightly weighed in the mind of the trial court while holding that a prima facie case was made out in favour of the plaintiff; respective documentary evidence of the parties had also been considered. It was only a prima facie finding that had been returned in favour ofthe plaintiff. The parties are yet to go to trial.
There is no patent illegality in the impugned order which in any manner warrants any interference. Dismissed.
INDERMEET KAUR, J.
JULY 12, 2011 mm
A-43
% 12.7.2011
Present: Dr. N.K. Khetarpal, for the petitioner.
+ CM (M) No.764/2011
*
The order impugned before this Court is the order dated
29.5.2009. Vide this order the plaintiffs application under Order
XXXIX Rule 1 and 2 had been allowed; an injunction order had been passed in favour of the plaintiff restraining the defendants from interfering and dispossessing the plaintiff from the suit property.
The present suit has been filed by the plaintiff seeking permanent injunction against the defendants. His contention is that his mother Smt.Basanti Devi had entered into agreement to sell with respondent No.l on 26.1.1987; the consideration for the purchase of the disputed plot was a sum of Rs.40,000/-; defendant
No.l has executed documents in favour of the mother of the plaintiff which included a General Power of Attorney, affidavit. Will and receipt; peaceful and vacant possession of the property had also been granted to Smt. Basanti Devi on the said date.
The contention of defendant No.4/applicant before this Court is that the original owner/defendant No.l had in fact sold this property to his brother-in-law (defendant No.2) vide a sale deed dated 16.4.2007; vide subsequent sale deed dated 5.6.2008
2011:DHC:7788 defendant No.2 had sold this suit land to defendant No.4/apphcant and the sale deed dated 5.6.2008 has evidenced the possession of the apphcant. The order holding that a prima facie case is made out in favour of the plaintiff for grant of permanent injunction is thus a illegality. Attention has also been drawn to the General
Power of Attorney purported to have been executed in favour of the plaintiff on 5.11.2001; the contention is that this document has also not been considered by the trial court while awarding the injunction in favour of the plaintiff.
Record shows that in the written statement filed by defendant No.l he had categorically denied the alleged fact averred by the plaintiff that the defendant No.l had executed documents in favour of Smt. Basanti Devi (the mother of the plaintiff); it was only when the pleadings of the earlier suit i.e.
203/2008 had been brought on record that it had come to light that in that written statement defendant No.l had on 26.1.1987 executed papers including General Power of Attorney, affidavit, will in favour of Basanti Devi; the said written statement had also endorsed the factum that the vacant possession of the land had been handed over to Smt. Basanti Devi. In the present written statement as already noted supra the defendant denied that he had executed any kind of document in favour of Basanti Devi. All this had rightly weighed in the mind of the trial court while holding that a prima facie case was made out in favour of the plaintiff; respective documentary evidence of the parties had also been considered. It was only a prima facie finding that had been returned in favour ofthe plaintiff. The parties are yet to go to trial.
There is no patent illegality in the impugned order which in any manner warrants any interference. Dismissed.
INDERMEET KAUR, J.
JULY 12, 2011 mm
JUDGMENT