This first appeal is directed against the judgment and decree dated 17.07.2003, passed by the Additional District Judge, Nainital, in Civil Suit No. 75 of 1998, whereby said court had dismissed the suit.

2. Heard learned counsel for the parties and perused the record.

3. Brief facts, giving rise to this appeal, are that plaintiff/appellant instituted civil suit No. 75 of 1998, for permanent injunction restraining the defendants from transferring the rights over the property, shown by red letter (sic) in the plaint map. A further prohibitory injunction has been prayed restraining the defendants from interfering in the peaceful possession of the plaintiff over the basement of the cottage, in suit. Also further prohibitory injunction has been sought restraining the defendants from making alterations in rooms, removal of furniture, fixtures and fittings in the cottage, in suit. Lastly, a mandatory injunction has been sought directing the defendants to vacate the premises occupied by them. It is pleaded by the plaintiffs in the plaint that the plaintiff purchased land along with the dilapidated cottage known as ‘Clifton Oaks’ in Ayarpatta, Mallital, Nainital, from one Shashi Raj Singh through registered sale deed dated 04.07.1991. Thereafter, the plaintiff raised two duplex cottages over the land purchased by them, Defendants No. 1 Smt. Neelam Singh entered into agreement dated 09.09.1993, with the plaintiff to purchase property in suit. The defendant No. 1 did not comply the terms of the agreement, due to which a dispute arose between the plaintiff and defendant No. 1. Consequently, defendant No. 1 filed a petition under Section 20 of the Arbitration Act, 1940, in the High Court of Delhi, bearing Petition No. 1154 of 1994. While, said petition was pending, on 04.06.1998, the defendants took forcible possession of the property in suit, occupying major portion of duplex cottage No. 1, shown by red colours in the plaint map. On this, plaintiff filed a complaint to the police on which proceedings under Section 145 of Cr.P.C., were initiated. Since, the defendants are threatening to take possession of remaining portion of the property in suit and likely to cause damage to the property, and also to alienate the property, this suit is instituted by the plaintiff.

4. Defendants contested the suit and filed their written statement before the trial court. It is pleaded by them that the defendants are co-owners of the property in suit and the property in their co-possession. It is denied that defendant No. 1 did not comply with the terms mentioned in agreement dated 09.09.1993. It is further stated that the possession of the defendants is not unlawful. As to the proceedings under Section 145 of Cr.P.C., it is stated that the plaintiff had initiated the same for multiplying the litigation between the parties for unlawful gain. It is denied that defendants intended to transfer the property or to cause any damage to it. In the additional pleas it has been stated that in pursuance to the agreement dated 09.09.1993, the defendant No. 1 has deposited the entire amount of consideration (i.e. rupees nine lakh only), which includes Rs. 3,00,000/- deposited by defendant No. 1 in pursuance to the orders of the Delhi High Court, where the arbitration case was pending.

5. On the basis of the pleadings of the parties, the trial court framed following issues:

i) Whether, the plaintiff is the sole owner in possession of the property in suit, as alleged in Para 2 of the plaint?

ii) Whether, the defendant has forcibly occupied cottage No. 1 on 04.06.1998, if so, its affect?

iii) Whether, the agreements dated 09.09.1993, between the plaintiff and defendant No. 1, are null and void?

iv) Whether, the defendant No. 1 has got possession of cottage No. 1 in suit in pursuance to the agreement dated 09.09.1993, if so, its effect?

v) To what relief, if any, the plaintiff is entitled?

After recording the evidence and hearing the parties, the trial court f