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2011 DIGILAW 609 (PNJ)

Ram Singh v. Mansa Singh

2011-02-17

RAKESH KUMAR JAIN

body2011
JUDGMENT Rakesh Kumar Jain, J.:- The defendants are in second appeal against the judgment and decree of the First Appellate Court by which judgment and decree of the learned Trial Court has been reversed. 2. In brief, the plaintiffs filed a suit for declaration alleging therein that they are the owners in possession of the land in dispute by virtue of an agreement to sell dated 05.06.1971 entered into between the parties for a sum of ‘5,700/- which was paid then and there with a stipulation that whenever the plaintiffs would require to get the sale deed registered they would have the option to do the same. It was alleged that no sale deed has been registered so far, but as the plaintiffs are in peaceful continuous possession of the land in dispute for more than 12 years with the knowledge of the defendants, they have become owners by way of adverse possession. It was also alleged that the plaintiffs had requested the defendants many a times to get the sale deed registered in their favour, but they have been postponing the matter on one pretext or the other and finally refused to admit their claim a week back. It is also averred that the plaintiffs have come to know that the defendants have executed another agreement to sell in respect of the land in dispute in favour of other persons and started interfering in their peaceful possession. With these assertions, the following prayer was made in the suit: - “It is therefore prayed that a decree for declaration to the effect that the plaintiffs are the owners of the entire suit land as detailed above and as per copy of the jamabandi attached herewith for the facts given above with permanent injunction as consequential relief restraining the defendants from getting the sale deed registered of the land of which the plaintiffs are the owners in possession and to get registered the sale deed to any other person by dispossessing the plaintiffs from the suit land illegally and forcibly may kindly be passed in favour of the plaintiffs and against the defendants with costs. Any other relief which the Court deems fit may also be awarded to the plaintiffs.” 3. Any other relief which the Court deems fit may also be awarded to the plaintiffs.” 3. It may be pertinent to mention that initially the suit was filed on 21.04.1981 by Surain Singh but lateron, after the death of Surain Singh, an application was moved on 14.02.1983 for impleading his legal representatives which were brought on record and the suit was amended. Hence, the amended suit was filed on 05.03.1983 from which the prayer made in the suit has been extracted hereinabove. While contesting the suit, the defendants had denied the averments made in the plaint much-less the agreement and the amount of consideration as alleged by the plaintiffs. The plaintiffs filed replication and on the pleadings of the parties, the learned Trial Court framed the following issues: - “1. Whether the plaintiff is in possession of the suit land?OPP. 2. Whether there is any valid agreement dated 05.06.1971 as alleged?OPP. 3. If issue No.2 is proved whether the agreement is void etc. as alleged by the defendants?OPD. 4. Whether the plaintiff has become the owner by adverse possession?OPP. 5. Whether the suit is not maintainable in the present form?OPD (onus objected to). 6. Whether the suit is barred by principle of res judicata?OPD. 7. Whether the plaintiff is estopped by his own act and conduct from filing the suit?OPD. 8. Whether the plaintiff has no locus standi to file the suit?OPD. 9. Whether the plaintiff has now come to the Court with clean hands, if so its effect?OPD. 10. Whether the suit is time barred?OPD. 11. Whether the suit is false and frivolous? If so its effect?OPD. 12. Relief.” 4. In support of their case, both the parties led the following evidence: - “5. In evidence the original plaintiff came in the witness box as PW1, PW2 Nand Singh, PW3 Partap Singh and PW4 Anant Kumar were also examined. On behalf of the defendants, the following witnesses were examined: - DW1 Dr. Gian Bhushan DW2 Shifta Hassan DW3 Ram Singh (defendant) DW4 Ranjha Singh (defendant) DW5‘ Pehlwan Singh (defendant) 6. The following documentary evidence is available on the file on behalf of the parties: - A. By the plaintiff. Ex.P1 Agreement dated 05.06.1971 Ex.P2 Jamabandi for the year 1979-80. Ex.P3 Jamabandi for the year 1973-74. Ex.P4 Khasra girdawari from kharif 1979 to Rabi 1980. Ex.P5 Khasra girdawari from kharif 1975 to kharif 1977. The following documentary evidence is available on the file on behalf of the parties: - A. By the plaintiff. Ex.P1 Agreement dated 05.06.1971 Ex.P2 Jamabandi for the year 1979-80. Ex.P3 Jamabandi for the year 1973-74. Ex.P4 Khasra girdawari from kharif 1979 to Rabi 1980. Ex.P5 Khasra girdawari from kharif 1975 to kharif 1977. Ex.P6 Khasra girdawari from kharif 1975 to Rabi 1980. Ex.P7 Khasra girdawari from kharif 1980 to rabi 1982. Ex.P7/1 Jamabandi for the year 1971-72. Ex.P8 Khasra girdawari from kharif 1982 to rabi 1983. B. By the defendant. Ex.D1 Age certificate dated 03.02.1983 in respect of Ranjha Singh showing his age by appearance to be 25 years. Ex.D2 Age certificate dated 03.02.1983 regarding Pehlwan Singh showing his age by appearance to be 25 years. Ex.D3 Copy of order dated 19.07.1980 dismissed as withdrawn the suit filed by Surain Singh. Ex.D4 Copy of the plaint in civil suit No.185 of 1980.” 5. The learned Trial Court decided the issues as under: - i) Issues No.1 and 2 were decided against the plaintiffs; ii) Issue No.3 was decided in favour of the defendants; iii) Issues No.4 & 5 were decided against the plaintiffs; iv) Issues No.6 & 7 were decided against the defendants; vi) Issues No.8 was decided in favour of the defendants. vii) Issues No.9, 10 & 11 were decided against the defendants; and finally the suit was dismissed. 6. The plaintiffs filed an appeal in which they only challenged finding of the learned Trial Court on issues No.1, 2, 3, 4, 5, 8 and 9. Since there was no challenge to the finding on issues No.6, 7, 10 and 11, those were affirmed by the learned First Appellate Court. It was also observed by the learned First Appellate Court that in the original suit, the plaintiffs had prayed for declaration and consequential relief of permanent injunction, but before the matter could be argued before the learned Trial Court, the plaintiffs gave up their claim of declaration regarding their ownership and restricted their claim to only for injunction. The learned First Appellate Court reversed the finding of the learned Trial Court on issue No.1 holding the plaintiffs to be in possession of the land in dispute. Issue No.2 was also decided in favour of the plaintiffs and issue No.3 against the defendants while holding that there is a valid agreement between the parties dated 05.06.1971. The learned First Appellate Court reversed the finding of the learned Trial Court on issue No.1 holding the plaintiffs to be in possession of the land in dispute. Issue No.2 was also decided in favour of the plaintiffs and issue No.3 against the defendants while holding that there is a valid agreement between the parties dated 05.06.1971. Finding on issue No.4 of the learned Trial Court was affirmed holding that the plaintiffs have not become owners of the land in dispute by way of adverse possession. Issue No.5 was also decided in favour of the plaintiffs and against the defendants holding that the suit is maintainable in the present form and ultimately it was held that since the agreement Ex.P1 has been proved and the plaintiffs have been found to be in possession of the land in dispute, the judgment and decree of the learned Trial Court was set aside and the plaintiffs were granted injunction of not to be dispossessed otherwise in due course of law. 7. Aggrieved against the judgment and decree of the learned First Appellate Court, the defendants have come up in second appeal in which it is, inter alia, contended that de hors the agreement Ex.P1, they are still the full owners of the property in dispute as it has not been legally conveyed by executing a registered sale deed in favour of the plaintiffs. It is submitted that the plaintiffs had claimed ownership only on the basis of adverse possession which is neither a right available to the plaintiffs nor it is held to be so in their favour by both the Courts below and moreover, they had also abandoned their right of declaration before the Courts below and only pursued their suit for injunction. It is also submitted that there was no period fixed in the agreement to sell for the purpose of registration of the sale deed, but it is mentioned in para No.6 of the plaint that the plaintiffs have been requesting the defendants number of times to get the sale deed registered, who had been postponing the matter and finally a week before the filing of the suit they had refused, giving a cause of action to the plaintiffs to file a suit for specific performance of the contract for the purpose of registration of sale deed, but no suit for specific performance was filed by the plaintiffs, rather a decree for declaration was sought to be obtained on the basis of having become owners by way of adverse possession and had also sought restraint order against the defendants not to register any sale deed in favour of any other party. Learned counsel for the appellants has submitted that now the plaintiffs cannot file a suit for specific performance as it has already become barred in terms of Article 54 of the Limitation Act, 1963 [for short “the Act of 1963”] and also in terms of the Order 2 Rule 2 of the Code of Civil Procedure, 1908 [for short “CPC”]. It is also submitted that the injunction cannot be granted in terms of Section 41(h) of the Specific Relief Act, 1963 [for short “the Act”] until and unless the plaintiffs have filed a suit for specific performance of the agreement to sell. In support of his contention, learned counsel for the appellants has relied upon a decision of the Andhra Pradesh High Court in the case of K. Venkata Rao Vs. Sunkara Venkata Rao, 1999(1) RCR(Civil) 399. 8. As against this, learned counsel for the respondents has submitted that the respondents are not the trespassers in possession, but the transferees in possession in part performance of the agreement to sell and are protected under Section 53-A of the Transfer of Property Act, 1882 [for short “the Act of 1882”]. It is submitted that they cannot be dispossessed as Section 53-A of the Act of 1882 is an equitable doctrine which creates bar of estoppel in favour of the transferee and against the transferor. 9. It is submitted that they cannot be dispossessed as Section 53-A of the Act of 1882 is an equitable doctrine which creates bar of estoppel in favour of the transferee and against the transferor. 9. Learned counsel for the appellants has submitted that substantial question of law involved in this appeal is as to “whether the plaintiffs can claim protection of Section 53-A of the Act of 1882 and seek only injunction without filing a suit for specific performance, though the right was available to them at the time when the suit was filed, or the injunction has to be refused in view of Section 41(h) of the Act”. 10. I have heard both the learned counsel for the parties and perused the available record with their able assistance. 11. In order to appreciate the respective submissions and the question of law, it would be worthwhile to refer to the relevant provisions of law which have been invoked by both the parties in their favour. In this regard, first of all reference is to be made to Article 54 of the Act of 1963, which reads as under: - ------------------------------------------------------------------------------------------------------------------------------------ “Description of suit Period of Time from which period limitation begins to run ------------------------------------------------------------------------------------------------------------------------------------ 54. For specific performance Three years The date fixed for the Performance, or, if of a contract. no such date is fixed, when the plaintiff as notice the performance is refused.” ------------------------------------------------------------------------------------------------------------------------------------ Order 2 Rule 2 of CPC reads as under: - “2. Suit to include the whole claim. -- (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. (2) Relinquishment of part of claim – Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.” 12. Section 41(h) of the Act: - “41. Injunction when refused. -- An injunction cannot be granted --- (a) to (g) xxx xxx xxx xxx (h) when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust; xxx xxx xxx xxx” 13. Section 41(h) of the Act: - “41. Injunction when refused. -- An injunction cannot be granted --- (a) to (g) xxx xxx xxx xxx (h) when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust; xxx xxx xxx xxx” 13. Insofar as Section 53-A of the Act of 1882 is concerned, it reads as under: - “53-A. Part performance. -- Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainly, 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 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.” 14. In order to answer the question posed by learned counsel for the appellants, who has not challenged the finding of the learned First Appellate Court on issues No.1 and 2 wherein the agreement and the possession of the plaintiffs on the disputed land are proved, it is now held that the equitable doctrine of part performance can be used as a shield and not a sword. It can be used to defend or protect one’s possession as held by the Supreme Court in the case of Biswabani Pvt. Ltd. Vs. Santosh Kumar Dutta, 1980 AIR (SC) 226. Learned counsel for the respondents has relied upon a decision of the Supreme Court in the case of Rambhau Namdeo Gajre Vs. It can be used to defend or protect one’s possession as held by the Supreme Court in the case of Biswabani Pvt. Ltd. Vs. Santosh Kumar Dutta, 1980 AIR (SC) 226. Learned counsel for the respondents has relied upon a decision of the Supreme Court in the case of Rambhau Namdeo Gajre Vs. Narayan Bapuji Dhotra (D) by L.Rs., AIR 2004 Supreme Court 4342(1) to contend that where a person is in possession as a transferee in part performance of the contract, his possession cannot be disturbed by the transferor. This judgment, however, is altogether on different issue because in that case, the plaintiff had entered into an agreement of sale with ‘P’ who had taken possession of the suit land in part performance of the contract. Sale deed was not executed and registered in his favour. ‘P’ did not take any steps for getting the agreement of sale specifically enforced and obtain a registered sale deed in respect of the suit land. The transferor, within a period of two and a half months executed a similar agreement of sale in favour of the appellant in that case and put him in possession. The appellant did not care to ascertain the title of ‘P’ to the suit land before entering into the transaction with him. The appellant invoked the equitable doctrine of part performance against the respondent with whom he had no privity of contract. It was held by the Apex Court that the appellant not being the transferee could not invoke the equitable doctrine of part performance to protect his possession. 15. However, still the question is as to whether the plaintiffs can seek protection of their possession without filing suit for specific performance which is an equally efficacious relief. In this regard, the judgment relied upon by learned counsel for the respondents in the case of Municipal Corporation of Delhi Vs. Suresh Chand Jaipuria, AIR 1976 SC 2621 is of help in which it was held that “permanent injunction cannot be granted when an alternative efficacious relief is obtainable in any other usual mode of proceedings. Section 41(h) of the Act lays down that an injunction cannot be granted when equally efficacious relief can certainly be obtained by any other usual mode or proceedings. Section 41(h) of the Act lays down that an injunction cannot be granted when equally efficacious relief can certainly be obtained by any other usual mode or proceedings. The principle underlying in clause (h) of Section 41 of the Specific Relief Act can be invoked so as to refuse the preventive relief in favour of such suitor who does not even after repudiation of agreement of sale by the other party, seek the specific relief of enforcement of agreement of sale and merely seeks discretionary relief and preventive injunction from the Court. The position would be different if having asked for such a relief of specific performance, such a suitor seeks preventive injunction of a temporary nature during the pendency of the adjudication. It is not possible to uphold the entitlement of such a suitor who has omitted to claim the real and as such efficacious relief which was available for the purpose of perpetual or permanent injunction so as to protect mere possession alleged and claimed under the agreement of sale. It would be a wise exercise of discretion not to further the inquiry and unfairness that would arise under such a situation. Further, when the plaintiff is entitled to seek the relief of enforcement of the agreement of sale by filing a suit for specific performance and omits to do it and merely seeks relief of injunction only for protection of possession, it will be open to the Court to infer that the plaintiff is not ready and willing to stand by and as such enforce the agreement of sale under which he seeks to protect his possession”. In the case of K. Venkata Rao (supra), a similar view was taken by the Andhra Pradesh High Court on the ground that the plaintiff has not asked for specific performance of the agreement because he was not found to be ready and willing for part performance of the agreement and as such the suit was not found to be maintainable. In the present case, although the entire sale consideration had been paid as observed by the learned First Appellate Court, but the fact remains that the plaintiffs had not filed suit for specific performance of the contract for the purpose of registration of the sale deed though the right was very much available to them and now the said suit cannot be filed in terms of Article 54 of the Act of 1963 which provides three years’ limitation from the date fixed for the performance, or, if no such date is fixed, when the plaintiff has noticed that performance is refused. In the present case, in the agreement of sale there is no date fixed for the purpose of performance of the contract, but the plaintiffs had themselves claimed in para No.6 of the plaint that despite repeated requests, the defendants had not come forward for the purpose of registration of sale deed and had finally refused a week before the filing of the suit, meaning thereby, a right to sue had accrued for the specific performance of the contract but the plaintiffs only filed a suit seeking ownership on the basis of adverse possession which right was even abandoned during the trial and a finding of fact has also been recorded against the plaintiffs that right of ownership has not matured by way of adverse possession and that point has not even been argued before this Court because only injunction has been sought to protect the possession on the strength of Section 53A of the Act of 1882. Moreover, Order 2 Rule 2 of CPC provides that where the plaintiff has a right which he intentionally omits, he shall not allowed to sue in respect of the right so omitted or relinquished. In this case, the plaintiffs had a right to ask for registration of the sale deed to acquire full ownership rights over the property in dispute, but they had omitted to sue and now in future they would not be able to sue for it in terms of Order 2 Rule 2 of CPC. In this case, the plaintiffs had a right to ask for registration of the sale deed to acquire full ownership rights over the property in dispute, but they had omitted to sue and now in future they would not be able to sue for it in terms of Order 2 Rule 2 of CPC. Thus, in normal circumstance, Section 53-A of the Act of 1882, which is an equitable doctrine, can protect the disturbance of the possession of a transferee at the hands of the transferor, but in a case where the transferee omitted to sue for specific performance and had not sued for it specifically and his suit is now for all intents and purposes barred by law, he cannot seek permanent injunction in view of Section 41(h) of the Act. 16. Thus, the question of law framed by learned counsel for the appellants is answered in his favour and in view thereof the present appeal is hereby allowed and judgment and decree of the learned First Appellate Court by which permanent injunction has been granted to the plaintiffs, is hereby set aside. Both the parties, in these circumstances of the case, shall bear their own costs. ---------0.B.S.0------------