Plea taken by appellants regarding possession not established.

This civil miscellaneous appeal arises out of order dated 22.04.2013 in I.A.No.43 of 2013 in O.S.No.24 of 2012 on the file of the learned Senior Civil Judge, Nirmal.

I have heard Sri Damodar Rao, learned counsel for the appellants, and Sri K.Raghuveer Reddy, learned counsel for the respondent.

The respondent filed O.S.No.24 of 2012 for specific performance of agreement of sale. He has also filed I.A.No.43 of 2013 under Order XXXIX Rule 1 r/w Section 151 C.P.C. for interim injunction against the appellants not to interfere with his possession and enjoyment of the suit property. It is the pleaded case of the respondent that the land admeasuring Acs.5.17 guntas in Survey No.272/201 (old) corresponding to Survey No.173 (new) situated at Adarshnagar Village near Kamalkota, was agreed to be sold for a sale consideration of Rs.7,50,600/- @ Rs.1,44,000/-per acre by appellant No.1 in his favour, pursuant to which appellant No.1 has received a sum of Rs.2,00,000/- as part sale consideration and agreed to register the sale deed on or before 14.07.2011, after receiving the balance sale consideration. That the respondent requested appellant No.1 to receive the balance sale consideration and execute the sale deed, but he has postponed execution on one pretext or the other. It is further pleaded that appellant No.1 measured the suit land, that both appellant No.1 and the respondent went to Sub Registrar, Khanapur, for registration, that the Sub Registrar wanted NOC from the Revenue Divisional Officer and that they have made an application on 06.08.2011 before the Revenue Divisional Officer for grant of NOC. The respondent further pleaded that appellant No.1 has delivered possession of the suit land as the process of getting NOC may take time and the factum of sale and delivery of possession was recorded in the record of rights. That due to Telangana agitation, there was delay in issuing NOC, which was eventually issued on 15.02.2012, wherein it was stated that 0.08¼ guntas out of the total extent of Acs.5.17 guntas was under acquisition and that the Government has no objection for alienation of the balance extent of Acs.5.08 guntas. That when the said fact was informed to appellant No.1, he has avoided to give any response and that a legal notice was issued on 19.04.2012. That the respondent was surprised to know that on 21.04.2012, appellant No.1 has sold the suit land to appellant Nos.2 and 3 under a registered sale deed. That when the documents were pending before the District Registrar, Adilabad, the respondent filed the suit and secured the order of interim injunction in I.A.No.150 of 2012 not to finalise the registration of the sale deed. That despite the said order, appellant Nos.2 and 3 have secured registration of the sale deed and, therefore, the respondent has filed I.A.No.43 of 2013 for the above-mentioned relief i.e., interim injunction restraining the appellants from interfering with his possession.

The appellants were represented by a common counsel. Separate written statements were filed by appellant No.1 and appellant Nos.2 and 3. It was pleaded by the appellants that the alleged agreement of sale shall be treated as a sale deed under Article 47-A of the Indian Stamp Act, 1899 (for short ‘the Act’), as possession was stated to have been delivered and, therefore, the same is not admissible in evidence unless it is properly stamped. Appellant No.1 has denied execution of agreement of sale and also receiving of advance sale consideration of Rs.2,00,000/-.

On behalf of the respondent-plaintiff, Exs.P1 to P11 were marked. On behalf of the appellants-defendants, Exs.R1 to R5 were marked. On appreciation of the pleadings and the documentary evidence, the lower Court has allowed the I.A. by granting temporary injunction restraining the appellants from utilizing the registered sale deed bearing document No.722/2012 of the Sub-Registrar’s office, Khanapur, and also from interfering with the possession and enjoyment of the resp