2006 PLP 1537 (MLD)

MAULVI ANWARUL HAQ, J.

On 22-2-2005 the appellant filed a suit against the respondents. According to the plaint the suit property mentioned in the plaint was owned by respondents Nos.3 to 10 while respondent No.1 was their general attorney. The property was purchased by the appellant and respondents Nos.1 and 2 for a consideration of Rupees one Crore, Six Lac. He claimed to be entitled to 1/3rd share in the said property as all the three persons paid consideration in equal shares. According to the plaint the appellant was a busy person and the matter of completion of the sale was left to respondents Nos. 1 and

2. He also paid his share amount of stamp duty to respondents Nos. 2 and

3. On 22-4-2004 stamp worth Rs.2,12,000 were obtained. On 27-9-2004 two sale-deeds were scribed. These were read over to the appellant who found them to be correct. In October, 2004 the appellant was informed that the documents have been registered. He obtained certified copies on 28-12-2004 and upon examination he found that his name has been deleted from the array of vendees. Then there are allegations against the Officers and staff of Registration Office. He accordingly sought declaration that he is owner of 1/3rd share of the said property on the basis of said sale-deeds and his name be restored in the same. He also sought a decree for damages in the sum of Rupees One Million. In the alternate he prayed for a decree in the sum of Rs.37,45,

364. Along with the suit an application was filed seeking temporary injunction restraining respondents Nos.1 and 2 from alienating the suit property. In their written statement respondents Nos.1 to 11 admitted the factum of joint purchase as also the scribing of the sale-deeds in the manner stated in the plaint. They, however, stated that the total consideration was Rs.8,000,000 but Rupees One Crore and six lacs was entered as it was the schedule rate. According to them the appellant paid only Rs.13,00,000 which was returned vide agreement, dated 4-10-2004 through cheques and as a result of the said agreement the name of the appellant was deleted from he sale deeds. They also stated that the expenses including the stamp duty were incurred by them. The application was resisted. The learned trial Court vide order, dated 27-2-2006 dismissed the application.

2. Learned counsel for the appellant contends that on the face of pleadings on record his client had a prima facie case and the questions of irreparable loss and balance of inconvenience were to be answered accordingly. According to him the learned trial Court has acted against the law governing the grant and refusal of temporary injunction by refusing to grant the stay for reasons stated in the impugned order. Learned counsel for the contesting respondents on the other hand contends that since the appellant had worked out the amount to the last penny and sought its recovery, it cannot be said that he would suffer an irreparable loss in case of refusal of temporary injunction. Rule of lis pendens is also being pressed.

3. I have gone through the copies of records. I have already noted above the respective pleadings of the parties. It will be seen that upon a plain reading of the material facts narrated in the plaint stand admitted and the counter-case is that amount contributed by the appellant was returned and that his name was deleted with his consent. I have also examined the impugned order. The learned trial Court has opted to remain obvious of the pleadings reproduced by him in the impugned order and has proceeded to dismiss the application stating that since the documents have been registered and the appellant has not moved the higher forums he had no prima facie case and the other reason is that since in the alternate amount has been claimed along with damages there is no irreparable loss.

4. Now the primary plea of the appellant is that he has acquired title in the suit property by means of the said documents wherefrom his name has been deleted illegally. This matter requires deeper consideration after recording of evidence and in the light of the applicable law. Similarly the plea of the respondents that his name was deleted with the consent of the appellant after refund of the amount actually paid by him also needs to be established in the course of trial. I will not making further comments at this stage as I am told that the issues in the case have been framed and the trial has commenced. Now as I have noted above, it is in the plaint that the sale-deeds as scribed were read over to the appellant and he found them to be correct. Now according to sale-deed registered at No.2677 it can be easily read that the appellant purchased 4-1/2 marlas out of total 21-1/2 marlas while in the document registered at No.2676 he purchased 4-1/2 marlas out of 21-1/2 marlas. This means that through both the sales he purchased 9 marlas out of total land sold through the said sale-deeds.

5. This F.A.O. is accordingly allowed. The impugned order, dated 27-2-2006 of the learned trial Court is set aside. The application filed by the appellant for the grant of temporary injunction is allowed inasmuch as the respondents shall remain restrained from alienating the land so mentioned in the said sale-deeds to have been acquired by the appellant ' and later deleted pending the decision of the suit. No order as to costs. A copy of this order be remitted to the learned trial Court who shall take all steps to decide the suit on merits within one year of the date of receipt of the order. The records of the learned trial Court be also remitted back immediately. M.H./M-365/L???????????????????????????????????? ??????????????????????????????????? Appeal allowed.