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2002 DIGILAW 1353 (ALL)

Rajendra Singh v. Narpal Singh

2002-09-25

S.N.SRIVASTAVA

body2002
JUDGMENT : - S.N.Srivastava 1. PLAINTIFFS-petitioners by way of this writ petition challenged the order dated 14.5.1993, Annexure-4 to the writ petition by which Misc. Civil Appeal No. 45 of 1993 was allowed and temporary injunction granted by the trial court was set aside. Application for temporary injunction 7C was rejected. 2. THE land in dispute is Plot Nos. 257, 270, 271 and 272 situate in village Khanpur, Pargana Najibabad, district Bijnor. Madan Gopal, Krishna Gopal and Hari Gopal were original tenure holders. They executed three registered agreements in favour of the plaintiffs, one on 25.2.1987 by Hari Gopal and two agreements dated 24.2.1987 by Madan Gopal and Krishna Gopal. It was alleged that plaintiffs did not execute sale deed hence, a notice was sent to Madan Gopal, Hari Gopal and Krishna Gopal for getting execution of the sale deed on payment of remaining amount. 3. SUIT Nos. 203 of 1991, 204 of 1991 and 205 of 1991 for specific performance filed by petitioners were decreed on 11.9.1991 with the condition that the plaintiffs were to deposit remaining amount within a period of 15 days from the date of decree and if plaintiffs did not deposit money within 15 days, they shall not be entitled to get execution of sale. 4. IT is admitted that money was not deposited by plaintiffs in the Court either within 15 days from the date of decree or upto now. Thus, right of petitioners came to an end on expiry of fifteen days from 11.9.1991. Madan Gopal, Hari Gopal and Krishna Gopal thereafter executed registered sale deed in favour of Narpal Singh and Munni Devi through sale deed dated 24.2.1992 for consideration of Rs. 1,47,000 and the opposite party Nos. 1 and 2 executed registered sale deed in favour of respondent Nos. 4, 5 and 6 through registered sale deed dated 2.5.1997. 5. THE plaintiffs filed Suit No. 120 of 1993, for permanent injunction for restraining defendants from interfering in the possession of plaintiffs and harvesting the standing crops on the ground that plaintiffs Hari Gopal, Madan Gopal and Krishna Gopal executed a registered agreement to sale in their favour on 24.2.1987 and 25.2.1987 and kept the plaintiffs in possession as part performance of agreement and they are in possession, as defendants are now trying to interfere in the possession hence the suit. An application for temporary injunction for restraining defendants from cutting the standing crops and interference in possession of plaintiffs was also filed. 6. THE trial court vide order dated 7.5.1993 granted injunction in favour of plaintiffs against the defendants on execution of personal bond of Rs. 40,000. On appeal preferred by the defendants, the order of the trial court was reversed. Injunction application was rejected. 7. SRI W. H. Khan, learned counsel for the petitioners urged that the plaintiffs were given possession on the land in dispute as part performance of the contract. They are entitled to get injunction against defendants. SRI Khan further urged that the trial court recorded a finding that possession of the plaintiffs was handed over as part performance of contract and the appellate court erred in law in reversing the finding of trial court which is perverse and unsustainable in law. 8. LEARNED counsel for the opposite party Sri Mahipal Singh and Sri Navin Sinha on behalf of Opposite Parties 4, 5, 6 and Opposite Parties 1 and 2 urged neither in the agreement to sale nor in the earlier suits filed by plaintiffs for specific performance any reference was made to hand over possession as part performance. He urged that plaintiffs on the basis of concealment of fact obtained temporary injunction. The finding of appellate court that possession was never handed over to the plaintiffs as part performance is a finding of fact based on material on record supported by evidence. He further urged that after the decree dated 11.9.1991 the plaintiffs did not deposit remaining money within 15 days ; his right to the land in dispute had already came to an end after 15 days from 11.9.1991. The sale deed was rightly executed on 24.2.1992 in favour of the defendants. Plaintiffs ceased to have any right at all and the principle of part performance contained in Section 53A of Transfer of Property Act is not attracted in the present case. He further urged that the trial court has assessed the valuation of crops for Rs. 40,000. Defendants are entitled to get the damages of Rs. 40,000 per year from 1992. After having heard learned counsel for the parties and perusal of the record, following questions are necessary to be determined in the present case : (1) The plaintiffs-petitioners are entitled to get benefit of Section 53A of Transfer of Property Act. 40,000. Defendants are entitled to get the damages of Rs. 40,000 per year from 1992. After having heard learned counsel for the parties and perusal of the record, following questions are necessary to be determined in the present case : (1) The plaintiffs-petitioners are entitled to get benefit of Section 53A of Transfer of Property Act. (2) Whether the plaintiffs-petitioners have any subsisting rights on the basis of agreements to sale dated 24.2.1987 and 25.2.1987? (3) Whether plaintiffs are entitled to injunction in their favour in the fact and circumstances of the case? 9. SECTION 53A of the T. P. Act is necessary to be referred to : "53A. Part performance.-Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty : and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract : Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof." 10. BOTH the courts below recorded a finding in the present case that there is no mention of giving possession to the plaintiffs as part performance in the agreement to sale and it is also not mentioned in the plaint of Suit Nos. 203 of 1991, 204 of 1991 and 205 of 1991 that possession was handed over to plaintiffs as part performance of contract. 203 of 1991, 204 of 1991 and 205 of 1991 that possession was handed over to plaintiffs as part performance of contract. To the contrary, in the notice dated 21.1.1991 sent by Hari Gopal, Madan Gopal and Krishna Gopal, this was specifically denied that possession of the land was given as part performance of the agreement to sale. The finding of fact of appellate court that the defendants had taken possession illegally not as part performance of contract is supported by evidence on record. I agree with this finding recorded by appellate court which does not suffer from any infirmity or illegality. 11. SECTION 53A of Transfer of Property Act also requires a person claiming benefit of part performance to show that he was ready and willing to perform his part of contract. If it is established that they were not willing to perform their part of contract, protection of doctrine of part performance would not be extended to them. 12. A decree was passed in favour of the plaintiffs for specific performance on 11.9.1991 with a clear direction that they will deposit money within 15 days. Admittedly, plaintiffs did not deposit money within 15 days. Right of the plaintiffs on the basis of agreement to sale dated 24.2.1987, came to an end. It is not the case of the plaintiffs that the terms of the decree dated 11.9.1991 was modified by Court. Thus, the decree dated 11.9.1991 is final and whatever rights or interest of the plaintiffs on the basis of agreement came to an end after 15 days from the date of decree. Mere possession will not give any right to plaintiffs to get injunction. They have to establish that the possession was handed over to them as part performance. They must establish that they have done something in furtherance of the contract. In the present case, after execution of the agreement to sale plaintiffs have not done anything in furtherance of agreement to sale. Appellate court has rightly held that possession was not handed over as part performance. It is not disputed that in the agreement to sell as well as in the plaint of Suit Nos. 203 od 1991, 204 of 1991 and 205 of 1991 plaintiffs did not mention about handing over possession in part performance of agreement. Appellate court has rightly held that possession was not handed over as part performance. It is not disputed that in the agreement to sell as well as in the plaint of Suit Nos. 203 od 1991, 204 of 1991 and 205 of 1991 plaintiffs did not mention about handing over possession in part performance of agreement. Plaintiffs neither have any right nor are entitled to get any protection under Section 53A of Transfer of Property Act. 13. MY view is supported by this Court's judgment in Mahendra Kumar Gupta and others v. Special Judge, Allahabad, 2000 ALR 499. Paras 8 and 9 are being quoted below : "Para 8. The petitioners have laid great emphasis upon Section 53A of the Transfer of Property Act which provides that where any person contacts to transfer for consideration of any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that the contract, though required to be registered, has not been registered, or where there is an instrument of transfer, that the transfer has not been completed in manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract. Para 9. The authorities below have considered in detail this aspect. A copy of the agreement for sale dated 23.12.1987, has been annexed as Annexure-1 to the writ petition. The agreement nowhere states that the possession was being delivered to the petitioners or they may continue in possession in pursuance of the agreement. The petitioners were required to pay Rs. 2,00,000 under the agreement but admittedly the amount has never been paid. The respondents have denied that the erstwhile owners had ever executed any such agreement in favour of the petitioners. As the petitioners were not put in possession in pursuance of the agreement, Section 53A of the Transfer of Property Act is not applicable to the facts of the present case." 14. The respondents have denied that the erstwhile owners had ever executed any such agreement in favour of the petitioners. As the petitioners were not put in possession in pursuance of the agreement, Section 53A of the Transfer of Property Act is not applicable to the facts of the present case." 14. IT has also been held by judgment by this Court in Indira Fruits and General Market, Meerut v. Bijendra Kumar Gupta and others, 1995 (1) AWC 438 : AIR 1995 All 316 , that mere agreement did not create any interest. Relevant para 5 is being quoted below : "The court below has rightly pointed out that the alleged agreement did not create any interest in the land in suit. Section 54 of the Transfer of Property Act specifically provides that a contract of sale does not, of itself, create any interest in or charge on immovable property, which is subject matter of contract of sale." The appellate court rightly recorded a clear finding after considering the agreement and other materials on record that the plaintiffs are not entitled to get benefit of Article 53A of Transfer of Property Act. I fully agree with the finding of appellate court. The appellate court has rightly reversed findings and order of trial court. 15. MOREOVER, the benefit of Section 53A of Transfer of Property Act is available only as a defence and cannot be invoked for enforcement of right on the basis of agreement to sale. My view is supported by law in case of Delhi Motor Co. and others v. U. A. Basrukar (dead) by his legal representative and others, AIR 1968 SC 794 . Relevant para 6 is being quoted below : ".........In our opinion, this argument proceeds on an incorrect interpretation of Section 53A, because that section is only meant to bring about a bar against enforcement of rights by a lessor in respect of property of which the lessee had already taken possession, but does not give any right to the lessee to claim possession or to claim any other rights on the basis of an unregistered lease. Section 53A of the Transfer of Property Act is only available as a defence to a lessee and not as conferring a right on the basis of which the lessee can claim rights against the lessor. Section 53A of the Transfer of Property Act is only available as a defence to a lessee and not as conferring a right on the basis of which the lessee can claim rights against the lessor. This interpretation of Section 53A was clearly laid down by their Lordships of the Privy Council in Probodh Kumar Das v. Dantmara Tea Co., 66 Ind App 293 : AIR 1940 PC 1." 16. I agree with the finding recorded by the appellate court that there is no material available on record to prove that the equitable principle of part performance to protect possession as part performance is available to a person to protect his possession as a defence and is not available to the plaintiffs in the present case. Whatever rights plaintiffs could claim under law had already came to an end on expiry of 15 days of the decree dated 11.9.1991 as plaintiffs did not deposit remaining amount. Their right already came to an end. This decree is final. The application moved by plaintiffs for extension of time was dismissed on 15.7.1992. A recall application according to petitioner moved in 2001, as Misc. Case No. 32 of 2001 will not give any right to plaintiffs to get an injunction in this suit instituted by the petitioners. 17. QUESTION No. 1 is decided against petitioners that they are not entitled to get any protection of Section 53A of Transfer of Property Act. 18. QUESTION No. 2 is also decided against the petitioners-plaintiffs that petitioners have no subsisting right on the basis of agreements of sale dated 24.2.1987 and 25.2.1987 after 15 days of decree dated 11.9.1991 as the petitioners failed to deposit remaining amount under the decree. Thus, it is clearly established that plaintiffs have no prima facie case at all. 19. THE plaintiffs approached trial court with unclean hands also to obtain temporary injunction without disclosing the fact that they filed Suit Nos. 203 of 1991, 204 of 1991 and 205 of 1991, which were decreed and their rights came to an end after 15 days from the date of decree. THE discretionary remedy cannot be given in favour of the persons who tried to get an order in their favour by concealment of fact which amounts to fraud. 203 of 1991, 204 of 1991 and 205 of 1991, which were decreed and their rights came to an end after 15 days from the date of decree. THE discretionary remedy cannot be given in favour of the persons who tried to get an order in their favour by concealment of fact which amounts to fraud. I entirely agree with the finding of appellate court that plaintiffs have approached the Court with uncleaned hands by concealing the fact and are not entitled to get injunction on this ground also. 20. QUESTION No. 3 is also decided against plaintiffs-petitioners that they are not entitled to get injunction. It is not disputed by the plaintiffs that they were allowed to harvest the crops by the order of trial court dated 7.5.1993 by executing a bond of Rs. 40,000 for that very year. They did not challenge the order dated 7.5.1993 or terms of the order of assessment of Rs. 40,000 for the crop for one year. On the basis of the order passed by trial court on 7.5.1993 and subsequent order including the order of status quo dated 27.5.1993 petitioners succeeded to remain in possession and deprived the legitimate owners from their legitimate rights on the land in dispute (31 bighas 12 biswansi). The plaintiffs are entitled to pay Rs. 40,000 (Forty Thousands) per year from 7.5.1993 till they handover the possession to the defendants. 21. WITH the result, the writ petition fails and is dismissed. Interim order dated 27.5.1993 extended by subsequent order dated 27.10.1998, is discharged. The petitioners are liable for payment of Rs. 40,000 (Rupees Forty Thousand) per year from 7.5.1993 upto the date of actual possession handed over to the defendants.