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IN THE HIGH COURT OF ALLAHABAD
B. M. LAL, BEERENDRA DIXIT
SHEFALI ROY - Appellant
Versus
HERO JASWANT DASS - Respondents
FIRST APPEAL 156 Of 1992
Decided On : 03/25/1992
SPECIFIC RELIEF ACT - SECTION 34 - COURT FEES ACT - SECTION 7 (IV-A) - TRANSFER OF PROPERTY ACT - SECTION 54 - REGISTRATION ACT - SECTION 47 - INJUNCTION - PRINCIPLES - SALE DEED - VALIDITY - AMBIGUITY - PASSING OF TITLE - FRAUD - CANCELLATION OF DOCUMENTS - COURT FEES - PAYMENT - AD VALOREM - DECLARATION SUIT - MAINTAINABILITY - POSSESSION - RELIEF - NECESSITY.
Fact of the Case:
Plaintiff sought a declaration that sale deeds executed by Hero Jaswant Das (Respondent No. 1) in favor of respondents are not binding on her. An application under O. 39, Rr. 1 and 2, C. P. C. was also made for restraining the respondents from interfering with her possession of the suit land. The trial court dismissed the application, holding that no case for grant of temporary injunction was made out in favor of the plaintiff-appellant and that the suit was not maintainable in view of S. 34 of the Specific Relief Act.
Finding of the Court:
The court held that the suit as framed and filed neither suffers from the proviso of S. 34 of the Specific Relief Act nor for want of proper Court-fee under S. 4 (iv-A) (State of U. P. Amendment) of Court-fees Act. The court also held that the sale deed as it stands today does not inspire confidence that it passes title in favor of the respondents.
Issues: 1. Whether the suit is maintainable in view of the proviso to S. 34 of the Specific Relief Act? 2. Whether proper Court-fee has been paid in accordance with the amended provisions of S. 7 (IV-A) (State of U. P. Amendment) of the Court-fees Act? 3. Whether the sale deed is valid and passes title in favor of the respondents? 4. Whether the appellant has made out a case for grant of injunction?
Ratio Decidendi: 1. The proviso to S. 34 of the Specific Relief Act does not bar a suit for declaration where the plaintiff is in possession of the suit property and does not seek any further relief. 2. In a suit for mere declaration that the plaintiff is the owner of the property in suit, the payment of Court-fee is governed under Art. 17, Schedule II of the Court-fees Act and not under S. 7 (iv-A) (State of U. P. Amendment) of the Court-fees Act. 3. A sale deed which contains patent ambiguities on its face does not inspire confidence that it passes title in favor of the vendee. 4. An appellant has made out a case for grant of injunction where the appellant has established a serious question to be tried at the hearing of the suit, the balance of convenience tilts in his favor, and irreparable injury will be caused in the absence of the injunction.
Final Decision: The appeal was allowed, the impugned order was set aside, and the appellant's prayer for grant of injunction was allowed, thereby restraining the respondents from interfering with her possession over the land in dispute till the final decision of the suit.
Key Points: - The suit for declaration is maintainable even without seeking further relief, as the plaintiff is in possession (!) (!) . - Court-fee for a mere declaration suit is governed by the Court-fees Act, not the Specific Relief Act, when no monetary relief is claimed (!) (!) (!) . - A sale deed containing patent ambiguities does not inspire confidence that it passes title to the vendee (!) (!) .
( 1 ) HAVING heard learned counsel for the parties, we propose to dispose of this appeal finally at the admission stage.
( 2 ) THE present appeal filed under O. 43, R. 1 (r) of Civil P. C. , is directed against an order dated 1-2-1992 passed by the learned Civil Judge, Kanpur Nagar in Civil Suit No. 839 of 1990, whereby application made under O. 39, Rr. 1 and 2, C. P. C. by the plaintiff for restraining the defendants from interfering with her possession over the suit land, has been dismissed.
( 3 ) THE appellant-plaintiff brought an action against the respondents seeking a relief for declaration that sale deeds executed by Hero Jaswant Das (Respondent No. 1) in favour of respondents are not binding on her. An application under O. 39, Rr. 1 and 2, C. P. C. was also made for restraining the respondents from interferring with her possession of the suit land.
( 4 ) IN short the case of the appellant-plaintiff is as under: the appellant-plaintiff is owner of plot Nos. 461, 360, 361, 381, 367, 368, 369, 374 and 376 measuring an area of 4 Bighas, 8 Biswas and 10 Biswansis located in village Gajjupurwa, Jajmau, Kanpur Nagar.
( 5 ) IT is averred that the appellant wanted to dispose of the aforesaid agricultural holdings, and for that purpose bargains were going on with intending purchasers. Sheikh Abdul Rashid (Respondent No. 3), who is Secretary of Nagar Vikas Sahkari Avas Samiti Ltd. Babu Purwa, Kanpur, was also one of them and he agreed to purchase the aforesaid agricultural holdings for Rs. 12 lacs (12,00,000/-), and consequently Sheikh Abdul Rashid issued two cheques, one dated 27-1-1987 for an amount of Rs. 2,30,000. 00and another dated 27-3-1987 for amount of Rs. 3,00,000. 00for the purchase of agricultural holdings of the appellant. It appears that the aforesaid two cheques could not be honoured by the Bank. Having brought this fact to the notice of Sheikh Abdul Rashid, the parties further entered into an agreement on 17-6l988 vide Annexure-1 for the sake (fake?) amount of Rs. 12 lacs. It is further averred that with the connivance of Hero Jaswant Das and Sheikh Abdul Rashid, a power of attorney on behalf of the appellant was got prepared in favour of Hero Jaswant Das (respondent No-1) which is filed as Annexure-2.
( 6 ) IN para 3 of the said power of attorney it is stipulated that power of attorney holder Hero Jaswant Das shall take steps for obtaining necessary permissions for the sale from concerned departments, ceiling department, income tax department etc. and also obtain income tax clearance certificate for the said agricutlural holdings, but neither any application was made for any permission nor permission was obtained.
( 7 ) ON 21-6-1988 respondent No. 1 Hero Jaswant Das has executed a registered sale deed in favour of Sheikh Abdul Rashid (respondent No. 3) without taking necessary steps as well as without any content of the plaintiff-appellant for a meagre amount of Rs. two lacs whereas vide Annexure-1 the respondent No. 3 had agreed to purchase the aforesaid agricultural holdings for Rs. 12,00,000 /. (Twelve lacs ).
( 8 ) THE execution of power of attorney in favour of Hero Jaswant Das has been denied by the appellant and on that basis it is alleged that the sale deed dated 21-6-1988 is not binding on her and the respondents do not get any right and title by virtue of the alleged fictitious documents.
( 9 ) IT is. also contended that when this forgery practised upon the appellant was brought to her notice, a first information report was lodged against respondent Nos. 1 and 3 and on that basis Police Station Chakeri, Kanpur Nagar registered a case on 7-10-1989 vide case crime No. 725 of 1989 for the offences punishable under Ss. 420/467/ 468 / 506 / 120, I. P. C. and the same is pending before the Court.
( 10 ) IT is also averred that though the appellant has not executed any power of attorney in favour of respondent No. 1, but as a precautionary measure, notice was got published in the newspa
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