Writ petitioner challenged lower court orders refusing temporary injunction in a suit to cancel a registered sale deed. Court held that the dispute over the deed is a matter of evidence for trial and no jurisdictional error exists.
The writ petition seeking setting aside of orders refusing temporary injunction has been dismissed.
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Neutral Citation No. - 2023:AHC:132385
Court No. - 1
Case :- MATTERS UNDER ARTICLE 227 No. - 3630 of 2023
Petitioner :- Barkat Ali @ Raju Respondent :- Abdul Mazeed And 4 Others Counsel for Petitioner :- Rishikesh Tripathi Counsel for Respondent :- Kamlesh Kumar Tiwari
Hon'ble Jayant Banerji,J.
Heard Sri Rishikesh Tripathi, learned counsel for the petitioner and Sri K.K. Tiwari, learned counsel appearing for respondent no.1.
This writ petition has been filed seeking setting aside of the order dated 12.12.2022, passed by the Civil Judge (Junior Division), Jhansi in Original Suit No. 175 of 2022, whereby the application for temporary injunction filed by the plaintiff-petitioner has been rejected as well as the order dated 27.2.2023, passed by the District Judge, Jhansi in Misc. Civil Appeal No. 78 of 2022 filed by the plaintiff-petitioner, whereby the appeal has been dismissed.
The contention of the learned counsel for the petitioner is that the defendants-respondents fraudulently got executed from the petitioner a sale deed dated 5.8.2002 on the pretext that that deed is for purpose of loan to the plaintiff-petitioner. It is stated that the plaintiff-petitioner is a straight forward and an innocent person, who is not well read. Believing the defendants-respondents, he attended the ofÏce of Sub-Registrar and executed the deed, which he was told, is a deed for advance of loan to the plaintiff-petitioner. It is stated by the learned counsel that by means of the aforesaid sale deed, several plots of the land of the petitioner were transferred comprising of both ZA and non-ZA plots and fraud can be well established by the fact that pursuant to the sale deed the defendantsrespondents did not get their names mutated in the land records for a period of 20 years. It is stated that when mutation were initiated in the year 2022, it was then that the plaintiff-petitioner came to know of the
alleged sale deed and, thereafter the suit was filed. It is stated that temporary injunction application was filed by the plaintiff-petitioner, but no detailed objections were filed by the defendants-respondents and despite there being no effective objection filed by the defendants-respondents, interim injunction has been refused by the courts.
Sri K.K. Tiwari, learned counsel for the defendantrespondent no.1 has opposed the aforesaid writ petition on the ground that it was well within the knowledge of the plaintiff-petitioner that the sale deed has been executed and the suit was filed only to harass and extract money from the defendantsrespondents.
A perusal of the plaint that has been enclosed as Annexure no.1 to the writ petition reveals that the relief prayed therein is for cancellation of sale deed dated 5.8.2002 as well as for injunction against the defendants-respondents injuncting them permanently from interfering in the joint possession of the plaintiff-petitioner or for undertaking any agricultural work. A perusal of the order impugned dated 12.12.2022 reveals that after considering the record and arguments of the counsel for the respective parties, no prima facie case in favour of the plaintiff-petitioner was found for grant of temporary injunction on the ground that in the Khatauni furnished by the defendants-respondents, names of defendants-respondents are recorded with other co-tenure holder and, therefore, injunction was refused.
In the other impugned order dated 27.2.2023, learned District Judge has also considered this aspect of the matter and noted that in the Khatauni paper No. 37C which was filed by the defendantsrespondents, the name of defendant-respondent no.1 Abdul Mazeed and Mohd. Ahsan Khan are recorded alongwith other co-tenure holders. Accordingly, on the basis of prima facie case as well as on the aspects of balance of convenience and irreparable injury, the appeal was dismissed.
The sale deed aforesaid dated 5.8.2002 was allegedly executed by the plaintiff-petitioner and thereafter the suit has been filed in the year 2022. The allegation regarding document having been fraudulently got executed from the plaintiff-petitioner is a matter of evidence that will have to be considered at the appropriate stage after testimonies of witnesses are recorded. The sale deed aforesaid being registered document would carry a presumption of its validity unless it is upset by the trial court in the suit. There is no error of jurisdiction in the aforesaid impugned orders.
It goes without saying that rights of the defendantrespondents on the properties that have been allegedly transferred by means of the aforesaid sale deed dated 5.8.2002 would remain subject of the outcome of the suit.
This petition is, accordingly, dismissed .
Order Date :- 5.7.2023 sfa/
(Jayant Banerji, J)
Digitally signed by :- SYED FAHEEM AHMAD High Court of Judicature at Allahabad
3 issues framed by the court
Whether the High Court erred in rejecting the writ petition challenging the lower courts' refusal of temporary injunction.
Whether there is an error of jurisdiction in the impugned orders regarding the cancellation of a registered sale deed.
Whether the interim order was justified despite the prima facie nature of the underlying suit title dispute.
Barkat Ali @ Raju
Abdul Mazeed
And 4 Others
Jayant Banerji
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
