Hon'ble Anil Kumar Sharma,J.
(By Hon. Anil Kumar Sharma, J) Challenge in this appeal is to the order dated 14.12.2011 passed by Addl. Civil Judge (S.D.)/Addl. Chief Judicial Magistrate (Court no. 5), Kanpur Nagar in O.S. no. 1056 of 2011 whereby the application of the plaintiff-appellant for ad interim injunction has been rejected.
Facts in brief germane to this appeal are that the plaintiff-appellant filed the aforesaid suit for declaration of sale deed dated 20.10.2010 executed by defendants-respondents no. 1 and 2 in favour of the defendant-respondent no. 3 in respect of premises no. 7/126, Swarup Nagar, Kanpur as ultra virus, null and void and not binding on the plaintiff. Relief for permanent injunction to restrain the defendants their workers, agents and assignees from selling, transferring, alienating or disturbing the peaceful possession and enjoyment of the plaintiff and from carrying out any constructions/ demolition work over the suit property had also been sought. The plaintiff alleged that the defendants no. 1 and 2 being the owners agreed to sell the suit property for Rs. 4.0 lacs to plaintiff and executed a registered agreement for sale on 16.1.1995 after receiving earnest money of Rs. 50,000/-. The same day the defendants no. 1 and 2 executed a registered general power of attorney in favour of Mukesh Kumar to perform all legal necessities/requirements in connection with execution of the sale deed. Pursuant thereto Mukesh Kumar executed registered sale deed in favour of the plaintiff on 8.7.2005 for higher sale consideration of Rs. 10.5 lacs and he received symbolic possession over the suit property and the tenants also adorned him as their owner and landlord. Thereafter the defendants no. 1 and 2 filed suit no. 1871/2005 for cancellation of sale deed dated 8.7.2005 on the ground that the general power of attorney executed in favour of Mukesh Kumar had already been revoked by them prior to execution of the sale-deed. The plaintiff further alleged that in negotiations it was settled between the parties that in case the plaintiff surrenders his right in respect of suit property he would get Rs. One Crore as compensation and a sum of Rs. 31.0 lacs were actually paid to the plaintiff by defendant no. 1 through defendant no. 3. However, defendants no. 1 and 2 subsequently resiled from their oral commitment to pay balance of Rs. 69.0 lacs which was also assured to be paid by defendant no. 3 and instead surreptitiously and fraudulently they executed sale deed in favour of defendant no. 3 on 20.10.2010. The contention of the plaintiff is that the second sale deed has no legal sanctity unless and until the sale deed in his favour was cancelled or set aside by a competent Court. Thereafter the defendants withdrew their suit no. 1871/2005, so the sale deed in favour of the plaintiff is valid and effective till today. The defendants no. 1 and 2 gave evasive replies and made false pretext to pay balance sum aforesaid to the plaintiff. When the plaintiff knew about the sale deed, he threatened the defendants to take criminal action against them for cheating him and the oral agreement between the parties also came to an end as the defendants no. 1 and 2 refused to pay the balance amount to the plaintiff. The plaintiff is still owner of the suit property and sale deed dated 20.10.2010 does not confer any right or title on defendant no. 3. Along with the plaint, the plaintiff filed application for ad interim injunction supported with affidavit.
Defendants-respondents filed separate objections inter alia admitting the execution of agreement for sale in favour of plaintiff dated 16.1.1995 as also appointment of Mukesh Kumar as general power of attorney of defendants no. 1 and 2, but further stated that the said power was revoked by them through registered deed dated 28.2.1998 and charged the plaintiff for having committed fraud in collusion with Mukesh Kumar with regard to execution of sale deed dated 8.7.2005 on the ground that both the plaintiff and Mukesh Kumar knew about revocation of general power of attorney, so on that date Mukesh Kumar has no right to execute any sale deed in favour of the plaintiff on their behalf. It was contended that defendants no. 1 and 2 filed suit no. 1871/2005 for cancellation of the sale-deed, in which the plaintiff on 19.10.2010 filed an application supported with affidavit wherein he admitted that he is not the owner of the suit property as on the date of sale deed Mukesh Kumar has no right to execute the deed in his favour. Since the plaintiff admitted that sale deed executed in his favour is a nullity, so the defendants no. 1 and 2 filed application for withdrawal of the suit on the basis of admission of the plaintiff which was allowed by the Court. They have further stated that there was no occasion for the plaintiff to get possession over the suit property and this fact has also been admitted by him in the afore stated application. The plaintiff has already deposed on affidavit that he will not claim any title in respect of the suit property, so no question arose to claim any possession and the plaintiff has submitted false affidavit. Denying any oral settlement to pay Rs. One crore to the plaintiff it has been stated that on the request of the plaintiff the matter was negotiated and settled between the parties and pursuant thereto defendants no. 1 and 2 have paid Rs. 31 lacs to the plaintiff through defendant no. 3, which had also been acknowledged by the plaintiff in suit no. 1871 of 2005. The claim of the plaintiff in this regard is misconceived as there was no occasion for such an agreement when the plaintiff has admitted that he has no right, title or interest in the disputed property of defendants no. 1 and 2, and only on humanitarian grounds an amount of Rs. 31 lacs were paid to the plaintiff by defendant no.3. The story of outstanding amount of Rs. 69 lacs has been concocted by the plaintiff with ulterior motive and in the facts and circumstances of the case the instant suit is not maintainable and he cannot be permitted to take back his own admission made in the Court through affidavit and it was on this basis that the defendants no. 1 and 2 have executed sale deed on 20.10.2010 in favour of the defendant no. 3, who is now owner in possession of the disputed property. After purchase of suit premises the defendant no. 3 got the building vacated from the tenants and he has demolished the entire building and started raising constructions and plaintiff did not raise any objection though he knew about the sale transaction. The defendants have altogether denied the oral agreement between the parties to pay Rs. One crore to the plaintiff stating that as per terms of the agreement a sum of Rs. 31.0 lacs have already been paid to the plaintiff, which had been acknowledged by him, so no question arises to pay any more amount to him. The plaintiff has no right to seek injunction against the true and bonafide purchaser of the property for value and the application for ad interim injunction is liable to be rejected and he will not suffer any irreparable loss in case ad interim injunction is refused and on the contrary the defendant no. 3 would suffer irreparable loss in case interim relief is granted to the plaintiff. The defendant no. 3 in his objections has reiterated the facts alleged by defendants no. 1 and 2.
The learned trial Court after hearing the parties' counsel has rejected the plaintiff's application for ad interim injunction. Aggrieved the plaintiff has come up in appeal.
We have heard arguments of learned counsel for the parties at length and have perused the documents submitted by the parties in appeal.
In this Court, the defendant no. 3 filed counter affidavit reiterating the pleas taken in objections before the trial Court and further annexed the receipt executed by the plaintiff for Rs. 11.0 lacs as part payment for cancellation of agreement pertaining to house no. 7/126, Swarup Nagar. The defendant no. 3 has also filed the deeds of possession executed by several tenants of suit property in their favour and its statement of Bank account, showing further payment of Rs. 20,00,050.00 to the plaintiff with regard to oral settlement between the parties. The undisputed facts, which culled out from the pleadings and affidavits of parties are :
1.that the defendants no. 1 and 2 were owners of the property in suit;
2.that they executed an agreement to sell in favour of the plaintiff on 16.1.1995 and on the same day also appointed Mukesh Kumar as their general power of attorney to manage 25 different properties situated in Kanpur including the disputed property;
3.that Mukesh Kumar executed sale-deed in favour of the plaintiff on 8.7.2005, however defendants have alleged fraud and cheating in this sale transaction;
4.that the defendants no. 1 and 2 filed Original Suit no. 1871/2005 against the plaintiff for cancellation of sale deed dated 8.7.2005;
5.that in the aforesaid suit the plaintiff filed an application along with affidavit on 19.10.2010 admitting the case of the defendants no. 1 and 2 as also revocation of general power of attorney of Mukesh Kumar by them and did prayed for decretal of the suit;
6.that the defendants no. 1 and 2 withdrew their aforesaid suit, however, ere that the plaintiff filed application on 26.10.2010 charging his advocate for filing application and his affidavit in the case against his instructions and prayed for dismissal of his application as not pressed and to cancel his vakalatnama;
7.that the Court allowed the application of defendants no. 1 and 2 and the aforesaid suit was withdrawn;
8.that the defendants no. 1 and 2 have sold the suit property to defendant no. 3 on 20.10.2010 through registered sale deed for sale consideration of Rs. 81.0 lacs.
9.that there was an oral agreement between the parties and plaintiff relinquished his right, title and interest in the suit property and acknowledged payment of Rs. 31.0 lacs by defendant no. 3 on behalf of defendants no. 1 and 2;
On the basis of pleadings of the parties and affidavits, following disputed facts emerge:
i.According to defendants Mukesh Kumar has no right or authority to execute the sale deed dated 8.7.2005 in favour of the plaintiff on behalf of the defendant no. 1 and 2, because the general power of attorney in his favour had already been cancelled by them through registered deed dated 28.2.1998;
ii.that the agreement to sell the suit house was only for Rs. 4.0 lacs and the plaintiff allegedly purchased it for Rs. 10.50 lacs and paid more than double the stamp duty i. e. Rs. 21.83 lacs, which is evident of the fact that the sale deed dated 8.7.2005 was a sham and suspicious transaction;
iii.that according to plaintiff the oral agreement was for Rs. 1 Crore, while the defendants' case is that it was only for Rs. 31.0 lacs and full payment has been made to and acknowledged by the plaintiff and now he has no right, title or interest in the suit property.
iv.that at the most it is a case of breach of alleged oral contract for which the plaintiff can be compensated in terms of money in appropriate judicial proceedings, so he is not entitled for any injunction;
v.that the plaintiff is not in possession of the suit house, so he has no prima facie case for ad interim injunction;
vi.that the defendant no. 3 is bonafide purchaser for value i. e. Rs. 81.0 lacs and has demolished the entire more than 70-years' old constructions after getting it vacated from the tenants and the plaintiff cannot seek ad interim injunction against the true owner.
Now with regards to revocation of general power of attorney of Mukesh Kumar by defendants no. 1 and 2, Section-3 of Transfer of Property Act provides that a person is said to have notice of a fact when he actually knows that fact, or when, but for willful abstention from an inquiry or search which he ought to have made, or gross negligence, he would have known it.
Explanation I.-- Where any transaction relating to immovable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration or, where the property is not all situated in one sub- district, or where the registered instrument has been registered under sub- section (2) of section 30 of the Indian Registration Act, 1908 (16 of 1908), from the earliest date on which any memorandum of such registered instrument has been filed by any Sub- Registrar within whose sub- district any part of the property which is being acquired, or of the property wherein a share or interest is being acquired, is situated: Provided that--
1.the instrument has been registered and its registration completed in the manner prescribed by the Indian
2.Registration Act, 1908 (16 of 1908 ), and the rules made thereunder,
3.the instrument or memorandum has been duly entered or filed, as the case may be, in books kept under section 51 of that Act, and
4.the particulars regarding the transaction to which the instrument relates have been correctly entered in the indexes kept under section 55 of that Act.
Explanation II.-- Any person acquiring any immovable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof.
Explanation III.-- A person shall be deemed to have had notice of any fact if his agent acquires notice thereof whilst acting on his behalf in the course of business to which that fact is material: Provided that, if the agent fraudulently conceals the fact, the principal shall not be charged with notice thereof as against any person who was a party to or otherwise cognizant of the fraud.] These provisions clearly indicate that the executor of sale deed dated 8.7.2005 i. e. Mukesh Kumar as well as the plaintiff had notice of the revocation of the general power of attorney by defendants no. 1 and 2 by registered deed dated 28.2.1998, so he has no power to execute sale deed on 8.7.2005 on behalf of defendant no. 1 and 3 in favour of the plaintiff. Moreover it does not appear from the pleadings of the plaintiff that he ever took any steps to get the sale deed of the disputed premises executed in his favour pursuant to agreement for sale dated 16.1.1995. This fact has also been clearly admitted the plaintiff in his affidavit dated 19.10.2010 filed in suit no. 1871/2005 Smt. Shanti Devi & others Vs. Balraj Rupani. Learned counsel for the appellant has tried to convince us about the fact that the defendants no. 1 and 2 had knowledge of the sale deed 8.7.2005 as they have received the balance sale consideration of Rs.10.0 lacs through cheques from Mukesh Kumar. These cheques are of much later date than the date of sale deed in favour of the plaintiff. It is pertinent to note that the defendants no. 1 and 2 appointed Mukesh Kumar as their attorney to manage 25 properties situated at different places in Kanpur, so it cannot be said with certainty that the payment of Rs. 10.0 lacs aforesaid was with regard to sale transaction dated 8.7.2005. Thus, it is prima facie clear that Mukesh Kumar had no authority to execute the sale deed of the disputed premises in favour of the plaintiff on 8.7.2005.
Now as regards withdrawal of suit no. 1871/2005 is concerned, the Court concerned has allowed the subsequent application of plaintiff dated 26.10.2010 permitting him to withdraw his application dated 19.10.2010 and vakalatnama filed by him for Sri Sarvesh Chandra Dubey, Advocate but has declined to reject the affidavit filed by the plaintiff in support of his application under Order XII Rule 1 and 4 and Section 151 CPC. Paras-2 to 5 of the plaintiff's affidavit are as under:
1. That the plaintiffs filed the aforesaid suit for cancellation of sale deed declaring the sale deed executed on 18.7.2005 in favour of the deponent by Mukesh Kumar which was registered at Book No. I Volume No. 3052 on pages 187 to 370 at serial no. 2385 in the office of the Sub-Registrar, Kanpur be declared null and void.
2.That the deponent has filed his written statement against the aforesaid suit. However, later on it has been came to the notice of the deponent, that the power of attorney dated 16.1.1995 duly registered in the office of Sub-Registrar, Kanpur in Book No. IV Volume no. 21 on pages 99 to 110 at serial no. 8 had been revoked/cancelled by the plaintiff by cancellation of Power of Attorney duly registered in the office of the Sub-Registrar, Kanpur in Book no. IV Volume no. 35 on pages 272 to 280 at serial no. 40 on 28.2.1998.
3.That it is settled principle of law, that the powers exercised by the Attorney holder after notice of revocation are not binding upon the principal does not confer any valid title upon the purchaser or any other person, in whom favour powers have been exercised. Since the sale deed under reference had been executed by the attorney Mr. Mukesh Kumar on behalf of the plaintiff, after revocation of the Power of attorney and he was no more the constituted attorney of the plaintiff on the date of execution of the sale deed in favour of deponent, therefore, the sale deed is nullity in the eye of law. The said fact is duly proved from the Regd. Documents, the inference of which are final and conclusive and can not be challenged, therefore, the defendant is confident and sure that he may loose the case, hence no useful purpose will serve the continue with the litigations.
4.That in these circumstances, the defendant admits the truth and acknowledges the sale deed dated 18.7.2005 executed by Mr. Mukesh Kumar (as a attorney of plaintiff) in favour of deponent is nullity and confer no title upon the deponent, therefore, in the interest of justice, the plaintiffs suit be decreed as prayed for."
It is pertinent to note here that the plaintiff did not file any affidavit in support of his subsequent application. Even in this application he has noted in para-1 that he had given instructions to his duly appointed advocate Sri Sarvesh Chandra Dubey not to press his defence before the Court. The plaintiff in later paras has stated that he has not given instructions for the averments made in the application supported with affidavit. He has no where stated as to which paragraphs of application were beyond or contrary to his instructions. However, the fact remains that even after this application, this case of the defendant remained intact that he did not intend to press his defence in his suit. The obvious answer would be that he admits the case of the plaintiff in toto. In view of this application and the affidavit of the plaintiff dated 19.10.2010, the suit of defendants no. 1 and 2 was liable to be decreed, and they were ill-advised to file an application for withdrawal of the suit.
The defendant no. 3 had annexed copy of its statement of bank account and the copies of receipt executed by the plaintiff and cheque for Rs. 11.0 lacs. These documents show that by 12.10.2010 the plaintiff has received Rs. 31.0 lacs from the defendant no. 3. In the receipt regarding payment of Rs. 11.0 lacs through cheque, the plaintiff has noted that he is receiving cheque no. 466284 dated 8.5.2010 from defendant no. 3 as part payment against the cancellation of agreement of 7/126, Swarup Nagar i.e. the suit premises. It is, therefore, clear that the plaintiff filed application under Order 12 rule 1 and 4 and section 151 CPC in suit no. 1751/2005 after receipt of aforesaid amount from defendant no. 3. This conduct of the plaintiff clearly proves that he has relinquished his right, title or interest in the disputed property in any manner. The plaintiff has no where stated in his plaint about filing application under Order 12 Rule 1 and 4 and section 151 IPC along with his affidavit in the plaint of the instant suit. Thus, the plaintiff has not approached the Court with clean hands. The law is very much clear that if the plaintiff suppresses the material facts in the plaint and does not come with clean hands, he is not entitled to discretionary or equitable relief of ad interim injunction in the suit.
The agreement for sale in favour of the plaintiff about the suit premises was executed by defendants no. 1 and 2 on 16.1.1995 and they have agreed to sell the suit property for Rs. 4.0 lacs and received Rs. 50,000/- as earnest money and the time for execution of sale deed was 1½ years. However, the the plaintiff has no where alleged that he ever gave any notice to the defendnats showing his intention to get the sale deed executed after paying balance sale consideration. No notice was ever given by the plaintiff to defendants no. 1 and 2 nor any suit for specific performance was filed by him showing his readiness and willingness to get the sale deed executed pursuant to agreement for sale dated 16.1.1995. Further, in the sale deed the sale consideration of Rs. 10.50 lacs had been mentioned and the amount of Rs. 21.83 lacs was spent on stamp duty. This fact alone shows ill-intention of the plaintiff and creating reasonable suspicion about the veracity of sale transaction in collusion with Mukesh Kumar apart from his competence to execute the sale deed dated 8.7.2005 on behalf of defendants no. and 2 after revocation of his power of attorney on 28.2.1998.
The defendant no. 3 has filed counter affidavit and it has been argued by their learned counsel that the defendant no. 3 had purchased the suit property for Rs. 81.0 lacs from defendants no. 1 and 2 through registered sale deed on 20.10.2010 and after taking possession they had got the suit property vacated from its tenants after negotiations and paying adequate compensation to them and got deeds of possession executed from them. It has been further stated that the existing old constructions over the suit property had been demolished by them. It is significant to note that in the rejoinder affidavit on behalf of the plaintiff it has not been mentioned that he is in possession of the suit property rather its has been averred that he was in possession and evasive reply had been given to the counter affidavit with regards to possession of defendant no. 3 over the suit property. Thus, it is clear that on the date of suit, the plaintiff was neither owner nor in possession over the suit premises.
In view of the afore stated discussion, we find that the plaintiff has no prima facie case for ad interim injunction, nor the balance of convenience lies in favour. He will not suffer any irreparable loss, if ad interim injunction is not refused, rather the defendant no. 3 would suffer irreparable injury in case interim relief is granted to the plaintiff. Thus, the appeal has no merits and is accordingly dismissed. There is no order as to costs.
Order Date :- 27.8.2012 Ak/