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2014 DIGILAW 329 (KAR)

A. N. Nagarajaiah v. B. Aravind

2014-03-07

N.KUMAR

body2014
ORDER N. Kumar, J. 1. This is a first defendant's writ petition challenging the orders passed by the Courts below concurrently holding that the plaintiff is in lawful possession of the suit schedule property and therefore, he is entitled to an order of temporary injunction. 2. The case of the first defendant is that, one Smt. Nanjamma was the owner of land bearing Sy. No. 69/2 measuring 2 acres 12 cents. He entered into an agreement to purchase the said property on 27-06-05 and Six months was stipulated for completion of the transaction. In the meanwhile, Nanjamma died and he was constrained to file a suit for specific performance of the agreement of sale against her L.Rs. But the L.Rs. of Nanjamma have executed a registered sale deed in favour of the plaintiff to an extent of 1 acre and the plaintiff has filed suit for declaration of title and for permanent injunction. The plaintiff has also filed an application for grant of temporary injunction. 3. After contest, the trial Court granted an order of temporary injunction in favour of the plaintiff. The said order was challenged by the 1st defendant by preferring an appeal. The appeal came to be dismissed. Therefore, the present writ petition is filed. 4. The learned Counsel for the petitioner argued that the possession was delivered to the first defendant under the agreement of sale: L.Rs. of Nanjamma since were not in possession of the property could not have put the plaintiff in possession of the suit property as on the date of execution of the sale deed; mere recital in the sale deed that possession is delivered is not sufficient. After obtaining an order of injunction the plaintiff with the help of Police has taken possession. Therefore, the Courts below were in error in granting an order of temporary injunction. 5. The 1st defendant is claiming to be in possession of the property admittedly under an unregistered agreement of sale. On the other hand, the plaintiff has produced registered sale deed to show that he is in possession of the suit property since the date of purchase from the L.Rs. of Nanjamma. Sec. 17(1-A) of the Indian Registration Act, 1908, requires an agreement of sale to be compulsorily registered whenever possession of an immovable property is delivered thereunder. On the other hand, the plaintiff has produced registered sale deed to show that he is in possession of the suit property since the date of purchase from the L.Rs. of Nanjamma. Sec. 17(1-A) of the Indian Registration Act, 1908, requires an agreement of sale to be compulsorily registered whenever possession of an immovable property is delivered thereunder. Otherwise it cannot affect the immovable property comprised therein by virtue of Sec. 49 of the Indian Registration Act. Section 17(1-A) of the Registration Act, 1908 reads as under:- 17. Documents of which registration is compulsory (1A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A. 6. Section 53A of the Transfer of Property Act reads as under:- 53A. 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 certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, beings 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. 7. 7. Section 54 of the Transfer of Property Act, 1882 (hereinafter for short referred to as 'the Act') categorically states that a contract for sale itself does not create any interest in or charge on such property. Section 53A of the Act provide protection to a transferee who in part performance of the contract had taken possession of the property even if the limitation to bring a suit for specific performance has expired. One of the essential conditions to be fulfilled for being entitled to the said protection is, the transferee must in part performance of the contract taken possession of the property or of any part thereof. Therefore, Section 53A of the Act confers a statutory right on the transferee. This provision has been abused in recent years. Taking note of the recent trends, especially under the guise of these agreements of sale containing a recital to the effect possession is delivered to the transferee, the transferors were dispossessed and protection was sought in a Court of law putting forth this statutory right. In those circumstances, the Parliament has stepped in and has amended the Registration Act, 1908 by the Amendment Act, 2001. The amended provision Section 1A of Section 17 makes it clear that, if the benefit of Section 53A of the Act is to be available then the contract for sale shall be registered. If not registered then they shall have no effect for the purpose of the said Section 53A. However, this provision is made prospective and it applies to a contract for sale executed on or after the commencement of the Registration and Other Related Laws (Amendment) Act, 2001. The said amendment came to force on 24.9.2001. 8. In the instant case, the agreement of sale is dated 27.6.2005. There is a recital to the effect that possession was delivered to the first defendant. But, the said agreement for sale is not registered. Therefore, the said agreement of sale shall have no effect for the purpose of Section 53A. The defendant cannot rely on the said document and contend that he was in possession of the schedule property on the date of sale in favour of the plaintiff. In the sale deed in favour of the plaintiff there is a recital that possession has been delivered to him on the date of sale. The defendant cannot rely on the said document and contend that he was in possession of the schedule property on the date of sale in favour of the plaintiff. In the sale deed in favour of the plaintiff there is a recital that possession has been delivered to him on the date of sale. On proper appreciation of these facts, both the Courts below have rightly come to the conclusion that the plaintiff has made out prima facie case of lawful possession and granted temporary injunction in his favour. Therefore I do not find any merit in the arguments canvassed on behalf of the petitioner. Hence, the Wit Petition is dismissed. Petition dismissed