Allowed

Sunil Kumar Garg v. Devendra Kumar Singhal and 5 Others

Allahabad HC14 Feb 2019FAPL/36/2018

Case brief

AI extract

What is this about?

The Single Judge set aside two judgments of the Additional Civil Judge, Hapur, granting permanent injunctions. The appeals were allowed, and the matters were remanded to the lower court to be decided in light of Section 54 of the Transfer of Property Act as amended by U.P. Act 57 of 1976, noting the registry requirement for sale agreements.

What did the court decide?

Impugned judgments dated 11.10.2017 in O.S. Nos. 691 of 2011 and 679 of 2012 are set aside. Suits restored and remanded to the court below to be decided specifically dealing with Section 54 of the Tra

Sunil Kumar Garg Vs Devendra Kumar Singhal and 5 Others — Specific Performance | Allahabad HC (2019)

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Court No. - 59

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Case :- FIRST APPEAL No. - 36 of 2018

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Appellant :- Sunil Kumar Garg Respondent :- Devendra Kumar Singhal And 5 Others Counsel for Appellant :- Raj Kumar Kesari,Sanjeev Kumar Tyagi,Swapnil Kumar,Vinayak Mithal Counsel for Respondent :- Amresh Kumar Tiwari

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AND

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Case :- FIRST APPEAL No. - 37 of 2018

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Appellant :- Sunil Kumar Garg Respondent :- Devendra Kumar Singhal And Another Counsel for Appellant :- Raj Kumar Kesari,Sanjeev Kumar Tyagi,Swapnil Kumar,Vinayak Mithal

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Hon'ble Surya Prakash Kesarwani,J.

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Heard Sri Swapnil Kumar alongwith Sri Vinayak Mithal, learned counsel for the defendant no.1/appellant.

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On 10.1.2018, this appeal was admitted by the Division Bench. Notices were directed to be issued to the respondents by registered post AD. By order dated 13.12.2018, service of notices upon the respondent nos.1 to 4 was held to be sufficient in view of the office report dated 1.10.2018/8.10.2018. Thus, the service of notices upon the plaintiffs-respondents first set (respondent nos.1 and 2) was held to be sufficient, who are contesting respondents. The defendant-appellant has stated that plaintiffs-respondents second set (respondent nos.3 to 6) are proforma respondents. As per the office report dated 4.1.2019, paper book has been filed by the appellant but the respondents have not filed paper book.

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On 16.1.2019, Sri Swapnil Kumar was present on behalf of the defendant no.1-appellant but none appeared on behalf of the respondents even in the revised call. So as to afford one more opportunity, dasti notices were directed to be issued to the plaintiffrespondents first set by order dated 23.1.2019. An affidavit of service dated 31.1.2019 was filed by the defendant-appellant. Sri Amresh

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Kumar Tiwari, Advocate has put in appearance on behalf of the defendant-respondents second set and his name is also shown in the cause list but he has not appeared even in the revised call. Service of notices upon the respondents-plaintiffs was again held to be sufficient. This appeal was directed to be listed peremptorily on 14.2.2019.

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Today, Sri Swapnil Kumar, learned counsel for the defendantappellant is present but none appeared either on behalf of the plaintiffrespondents first set or on behalf of the defendant-respondents second set. Sri Amresh Kumar Tiwari, Advocate has not appeared on behalf of the defendant-respondents second set despite being informed by learned counsel for the defendant-appellant about the order dated 7.2.2019. In these circumstances, the appeal is being finally heard.

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Sri Swapnil Kumar, learned counsel for the defendant no.1/appellant submits that undisputedly, the defendant-appellant is the owner of the disputed property. Even as per own allegation of the plaintiff-respondents first set, they are merely a tenant. No evidence was filed by the plaintiff-respondents first set before the trial court that any registered agreement to sell in terms of the Provisions of Section 54 of the Transfer of Property Act was ever executed by the defendant in favour of the plaintiff-respondents first set. Therefore, there was no ground to grant injunction by the impugned order dated 11.10.2017 in O.S. No.691 of 2011 (Devendra Kumar Singhal and Sanjay Garg Vs. Sunil Kumar Garg and others). He, therefore, submits that the impugned judgment deserves to be set aside.

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I have carefully considered the submissions of the learned counsel for the defendant no.1-appellant and perused the paper book.

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Briefly stated facts of the present case are that undisputedly, the suit property is a two storied building with plinth area measuring about 450 square yard in Muhalla Garh, Delhi Road, Chhajju Pura, Hapur.

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The land of the aforesaid property was taken on lease in the year 1936 by one Sri Khachedu Mal, father-in-law of the defendant no.2, Smt. Veer Bala wife of late Sri Kanti Prasad. The aforesaid Khachedu Mal got constructed a two story building. On the ground floor shops were constructed. The upper floor was used as residence. On the basis of Will dated 29.9.1955, the suit property was succeeded by his son Kanti Prasad as lease holder after the death of Khachedu Mal in the year 1957. Zamindar of the land was one Smt. Shanti Devi.

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The plaintiff-respondents first set filed O.S. No.691 of 2011 for permanent injunction against the defendants. As per plaint allegations, in the year 1970, Sri Kanti Prasad, husband of the defendant no.2 Veer Bala inducted the plaintiff as tenant of a godown at a monthly rent of Rs.100/- and subsequently, the remaining ground floor portion shown by yellow colour in the map annexed with the plaint, was also let out in the year 1995. Tenancy of some other places was also claimed. It was alleged in the plaint that between the year 1996 to 1997-98, the defendant nos.2 and 3 (wife and son of late Sri Kanti Prasad) took Rs.5,00,000/- and Rs.3,00,000/- as advance from them. In the year 2000, a sum of Rs.2,00,000/- was paid. In paragraph 9 of the plaint, it was alleged that an unregistered agreement was entered between them and the defendant nos.2 and 3 have purchased all the suit property. It has also been alleged that a total amount of Rs.25,60,000/was paid by the plaintiffs to the defendant nos.2 and 3. Neither any registered agreement to sale was entered nor the disputed property was sold by the defendant nos.2 and 3 to the plaintiff-respondents first set.

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In paragraphs 16 and 17 of the plaint, it was stated that a registered sale deed dated 12.1.2011 was executed by the defendant nos.2 and 3 (Smt. Veer Bala and Yogesh Kumar) in favour of the defendant no.1-appellant. The defendant nos.4 and 5 (Smt. Nishi

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Singhal and Upasana Gupta both daughters of late Kanti Prasad) also executed a sale deed of the remaining portion of the suit property on 6.7.2011 in favour of the defendant no.1-appellant. On these allegations, the plaintiff-respondents first set filed the aforesaid suit on the strength of the some unregistered agreement to sell. Neither any suit for cancellation of the sale deed nor suit for specific performance was filed by the plaintiff-respondents first set.

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Thus, the defendant-appellant claimed that he is the owner of the disputed property by way of a registered sale deed. Issue no.(I) was framed to the effect “as to whether the plaintiff-respondents first set are the owner and in possession of the disputed property?” This issue was answered by the Court of Additional Civil Judge (S.D.), Hapur by the impugned judgment dated 11.10.2017 observing that an agreement to sell dated 19.6.2001 was entered by the defendant nos.2 and 3 with the plaintiff-respondents first set and yet the defendant nos.2 and 3 executed a sale deed in favour of the defendant no.1-appellant. Consequently, he decreed the aforesaid suit for permanent injunction. The court below has not considered at all the effect of the Provisions of Section 54 of the Transfer of Property Act as amended by U.P. Act 57 of 1976.

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O.S. No.1679 of 2012 (Sunil Kumar Garg Vs. Devendra Singhal and another) was filed by purchaser Sunil Kumar Garg for permanent injunction which was dismissed by the impugned judgment dated 11.10.2017 passed by Additional Civil Judge (S.D.), Hapur against which, the aforesaid Sunil Kumar Garg has filed First Appeal No.37 of 2018 which has also been heard alongwith First Appeal No.36 of 2018.

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The facts as briefly noted above and perusal of the impugned judgments passed in O.S. No.691 of 2011 (Devendra Kumar Singhal Vs. Sunil Kumar Garg and another) and O.S. No.679 of 2012 (Sunil Kumar Garg Vs. Devendra Kumar Singhal and another) would show

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that the court below has completely failed to consider the effect of Section 54 of the Transfer of Property Act as amended by U.P. Act 57 of 1976.

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In these circumstances, both the judgments cannot be sustained and are, therefore, set aside. Both the suits I.e. O.S. No.691 of 2011 and O.S. No.679 of 2012 are restored to its original number. Matter is remitted back to the court below to decide the aforesaid two suits in accordance with law expeditiously, preferably within six months from the date of production of a certified copy of this order, without granting any unnecessary adjournment to either of the parties. While deciding the aforesaid two suits, the court below shall specifically, amongst other things; shall also specifically deal with the effect of the Provisions of Section 54 of the Transfer of Property Act on the facts of the present case.

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In result, both the appeals are allowed to the extent indicated above and the matter is remanded. The judgment and decree dated 11.10.2017 in O.S. No.691 of 2012 passed by the Additional Civil Judge (S.D.), Hapur and judgment dated 11.10.2017 in O.S. No.679 of 2012 passed by the Additional Civil Judge (S.D.), Hapur, are set aside.

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The records of the lower court shall be returned within two weeks.

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Order Date :- 14.2.2019 Vivek Kr.

Sunil Kumar Garg v. Devendra Kumar Singhal and 5 Others

Case brief

What is this about?

What did the court decide?

Sunil Kumar Garg v. Devendra Kumar Singhal and 5 Others

Case brief

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What did the court decide?

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