Tuesday, 8 November 2016

Whether it can be held that possession is delivered to a party relying on recital of agreement of salel?


 I am at present inclined to take the view that the agreement of sale is on a stamp-paper and this agreement is specifically admitted by the Defendant to the extent of execution. In view of the admission of the Respondent No. 1 at this stage it would improper to infer that prima facie the recitals in the agreement are not true. It would be open for the Plaintiff to support his case of delivery of possession by substantive evidence at the trial. It would also be open for the Defendant to dispute the claim of possession if he so chooses. At present I think that here is a plaintiff who has paid Rs. 20,000/- to the Defendant and obtained the agreement of sale in regard to an agricultural land. There is a reference in the allegations made by the Plaintiff to certain improvements made by him. I also find that in pursuance of this agreement of sale, though it is not clear from the Judgment, that an entry in 7/12 Extract was also carried out. It must be assumed that if agreement was executed in March, 1980 and an entry came to be carried out immediately thereafter this entry for the purposes of interim relief is sufficient to infer that the Plaintiff must have obtained possession under the agreement of sale. These observations are made without prejudice to the final adjudication of question of delivery of possession at the trial.
Citation : AIR 1983 Bom 413
IN THE HIGH COURT OF BOMBAY AT AURANGABAD
A.F. Os. No. 7-A of 1982
Decided On: 19.11.1982
Venkat Dharmaji Gontalwar
Vs.
Vishwanath and Anr.
Hon'ble Judges/Coram:
S.J. Deshpande, J.


1. Plaintiff -Appellant is the prospective purchaser of the Suit-land Gut No. 63. It is alleged that the portion of this suit-land to the extent of 8 Acres 10 Gunthas was purchased, by plaintiff under a agreement of sale executed by the Respondent No. 1 --- original Defendant No. 1. Consideration for the agreement was Rs. 31, 590/-. Out of which, it is alleged, Rs. 20,000/- have been paid before the agreement to the Respondent No. 1. The agreement recites that on the date of execution of agreement Plaintiff has obtained possession. This agreement is on a stamp-paper and written in Marathi language. This agreement has been signed by both the parties. Defendant refused to execute the sale deed and therefore, the Plaintiff has filed the present suit to obtain specific performance of the aforesaid agreement.
2. During the pendency of the suit, plaintiff made an application for temporary injunction under Os. 39, Rr. 1 and 2 read with Section 151 of the Civil P. C. for an interim relief to protect his possession. By this application Plaintiff prayed that the interference of the Respondents and obstruction to the peaceful enjoyment of this suit-land be prevented.
3. This application was opposed by the Defendants. Defendants, however, admitted the execution of the agreement. It was the case of the Defendants that the agreement does not reflect the true nature of transaction but it was an agreement executed only to secure the amount taken by him. No agreement of sale, as alleged by the Plaintiff, was passed. He also disputed the recital that the possession was delivered to the Plaintiff.
4. Parties have filed certain affidavits. There is no reference to these affidavits in the Judgment of the learned trial Judge. I find on page 11 of the Judgment of the learned trial Judge that there is a reference to the 7/12 Extracts only.
5. The learned trial Judge after considering the merits of the application was persuaded to take the view that under Section 53-A of the Transfer of Property Act it is not open for a Plaintiff to obtain an interim relief by way of injunction. The learned trial Judge derived support to his conclusion from the Judgment reported in MANU/TN/0263/1981 : AIR1981Mad310 . He had dealt with the academic question only in regard to the claim of the Plaintiff suing for specific performance under an agreement of sale to obtain relief of injunction . He has rejected the application of injunction filed by the Plaintiff on the ground that the Plaintiff has no title to the suit-property and if he has no title to the suit-property his possession obtained under the agreement of sale is only of defensive character and he cannot claim protection as the Plaintiff is suing for specific performance on the strength of an agreement of sale. This Judgment was delivered by the trial Court on 29th Jan 1982.
6. Plaintiff has challenged this Judgment in this Appeal. The learned Advocate for the Appellant-Plaintiff, Shri R. G. Deo, invited my attention to certain Judgments. I am not referring to those Judgments as in my opinion the true position of law is not reflected in those authorities for the purposes of deciding this Appeal.
7. Reliance place by the learned Advocate for the Respondent No. 1 and on the Judgment of the Madras High Court MANU/TN/0263/1981 : AIR1981Mad310 (supra). Adopting the reasoning given by the learned Judges of the Madras High Court, the learned Advocate for the Respondent No. 1 submitted that the ratio of this decision should be followed and Plaintiff's application should be dismissed. Next contention of the learned Advocate for the Respondent No. 1, was that there is no finding with regard to the actual delivery of possession and therefore, the matter should be remanded back to the lower Court.
8. The learned Advocate for the Appellant contended before maintenance that the agreement which is executed by the Respondent No. 1 is on the stamp-paper. The execution of the agreement is admitted by the Respondent No. 1 although he has disputed the nature of transaction. It is also suggested by the learned Advocate for the Appellant-Plaintiff that Rs. 20,000/- have been paid as a part of earnest money. This fact, however, is disputed by the Respondent No.1 alleging that he has received only Rupees 2,000/- On the face of admission and recitals contained in the agreement of sale such a defence does not appear to be quite proper. After hearing the learned Advocates on both the sides, I think that the Judgment of the learned trial Judge is based on an erroneous view of law both relating to the injunction and the nature of possession as contained under S. 53-A of the Transfer of Property Act. In a suit for specific performance, when the Plaintiff alleges that he has been put in possession in pursuance of the agreement and he further alleges that the amounts have been paid in terms of the agreement and he only asks for specific performance of execution of a document and also claims an incidental relief of injunction as is in this case, I do not see why he should not be entitled to claim protection on equitable grounds inviting the Court to adjudicate the legal injury which he may suffer during the course of trial. Injunction is a preventive relief. It is granted only on equity. It is based on the fact that a person who is seeking any relief of injunction is suffering in his major right. This right can be protected in several ways. this right to enjoy peacefully the property is an important right attached to any interest which may be carved out as title of the Plaintiff. It is true that under the agreement of sale normally when possession is not delivered it is possible to say that such an agreement with out delivery of possession creates only a right to obtain another document but when a Plaintiff comes to the Court with a case that under an agreement of sale he has also been put in possession of the suit-land and prima facie when the agreement itself recites that the possession has been delivered to the Plaintiff and when such respondent-Defendant then the Plaintiff is entitled to injunction. If these three facts are taken into consideration. I do not see any impediment in the way of Plaintiff to claim injunction provided that he proves the necessary requirements of Order 39, Rule 1 and 2 of the Civil P. C.
9. The learned Judges of the Madras High Court who were dealing with a case of specific performance have stated at page 311 that the relief which was claimed by Plaintiff will be a part of relief under Section 53-A of the Transfer of Property Act. In fact, the learned Judges converted the said application of injunction into an application to enforce the terms of the agreement as if the Plaintiff was asking at that stage to enforce the terms of the agreement executed by the Defendant. The learned Judges in their Judgment at Page 311 have observed as follows:--
"Therefore, we have to treat the Plaintiff's application for temporary injunction pending the suit as an application for claiming equitable relief under se 53-A of the Transfer of Property Act".
I am unable to agree with this view taken by the Division Bench of Madras High Court. the provisions which governed the grant of injunction are contained in the Civil P. C. Supplemental proceedings are provided under Part VI of the Civil P. C. Heading of Part VI of the Civil P. C. is "Supplemental Proceedings" and Section 94 Clause (c) provides as follows:--
"Section 94(c): --- grant of a temporary injunction and in case of disobedience commit the person guilty thereof to the civil prison and order that his property be attached and sold;".
This Section 94 has to be read with O. 39 of the Civil P. C. When a plaintiff applies for temporary injunction it is possible to infer that he is either invoking the provisions of Order 39, Rules 1 and 2 or he is basing his application on Section 151 of the Civil P. C. itself. Normally, the notice issued to the Defendant under the forms given in the Civil P. C. shows that this notice is issued in compliance with the forms provided in the Schedule which shows that the application is governed by O. 39 of the Civil P. C. There is no bar under the Civil P. C. which can be invoked in support of the proposition that a Plaintiff suing for specific performance cannot obtain any injunction whatsoever. If there is no bar in the Civil P. C. and if the application for temporary injunction is solely governed either by the Order 39, Rules 1 and 2 or in the alternative, by invoking the inherent powers of the Court under S. 151 of the Code of Civil Procedure I do not see any jurisdiction to treat such a application as an application for relief of injunction as provided by Section 53-A of the Transfer of Property Act. Merely because the Plaintiff sues for obtaining specific performance and applies for injunction it does not mean that all the reliefs which he can claim as a plaintiff under the Civil P. C. are not available to him. There are specific interim reliefs provided in the Civil P. C. I may just mention the reliefs for illustration : application for the attachment before judgment, application for the appointment of receiver and the application for stay of suit. All these reliefs are specifically provided by the Code and it cannot be said that such an application made by any Plaintiff during the pendency of suit is treated as some other application with reference to some other substantive provisions of law. In view of this legal position I am unable to agree with the view taken by the learned single Judge of the Madras High Court that the provisions of Order 1 of the Code are not available to the Plaintiff suing for specific performance.
10. I also find from the said judgment of the learned single Judge of the Madras High Court that there is no reference throughout the judgment to the provisions which deal with the injunction and therefore, I am unable to take any assistance of this judgment in support of the reasoning presented by the learned trial Judge in his judgment.
11. The learned trial Judge has proceeded solely on the basis of the judgment of the Madras High Court and has come to the conclusion that the Plaintiff is not entitled to claim relief of injunction.
12. Injunction is a preventive relief. If a party to the suit invades the rights of the other party in any manner which resulted in causing obstruction to the peaceful enjoyment of right of the other party then that party always can claim relief of injunction in the suit itself.
13. It is true that in this case I am not able to derive any assistance from the learned Judge's decision with regard to the factual position in this case. It appears that the plaintiff has not chosen to refer to any affidavits or other material to show that actual possession was delivered to him in pursuance of the agreement on the date of agreement itself. However, I am at present inclined to take the view that the agreement of sale is on a stamp-paper and this agreement is specifically admitted by the Defendant to the extent of execution. In view of the admission of the Respondent No. 1 at this stage it would improper to infer that prima facie the recitals in the agreement are not true. It would be open for the Plaintiff to support his case of delivery of possession by substantive evidence at the trial. It would also be open for the Defendant to dispute the claim of possession if he so chooses. At present I think that here is a plaintiff who has paid Rs. 20,000/- to the Defendant and obtained the agreement of sale in regard to an agricultural land. There is a reference in the allegations made by the Plaintiff to certain improvements made by him. I also find that in pursuance of this agreement of sale, though it is not clear from the Judgment, that an entry in 7/12 Extract was also carried out. It must be assumed that if agreement was executed in March, 1980 and an entry came to be carried out immediately thereafter this entry for the purposes of interim relief is sufficient to infer that the Plaintiff must have obtained possession under the agreement of sale. These observations are made without prejudice to the final adjudication of question of delivery of possession at the trial.
14. The question whether a prospective purchase under an agreement of sale can claim protection by reason of his possession or not can be shortly disposed of. Possession has got two aspects. One aspect is that a party has a right of possession. Second aspect is that a party is in physical possession. Here is a case where it cannot be said that the Plaintiff is eager to obtain forcible possession or he has wrongfully taken the possession or he is in illegal possession. In the absence of any of these three circumstances the possession obtained by the Plaintiff under an agreement of sale can be said to be a lawful possession to the extent that the factual entry of possession on the land can be supported by a reason of consent embodied in the agreement as is evidenced in this case. A person obtaining possession under an agreement of sale cannot be said to be a person in wrongful possession. It is well settled that the question of title. It is true that a person having obtained possession on the basis of a title in as much possession is a substantive right and if such a right has been under the terms of agreement defined by the parties and they have acted in pursuance of this right to create certain obligations and duties as provided by the agreement. Now, it is impossible to contend that such a person who obtains possession cannot claim a preventive relief of injunction to protect his possession during the pendency of the suit. It is open for the Court to see that no injury is caused to him or no invasion has occurred at all and the relief will be refused to him. But, a Plaintiff cannot be disentitled for a relief of injunction only on the ground that the possession which he is claiming or which he wants to protect is not a possession based on title.
15. In my opinion, the grievance made by the learned Advocate for the respondent No. 1 that the matter should be remanded for trial on the fact of delivery of possession to the trial Court is not sustainable. I am inclined to hold that prima facie the agreement in this case can be itself relied on which contains a recital of delivery of possession coupled with the plaint-allegations and the affidavits made by certain witnesses in support of the case of the plaintiff. At this stage the plaintiff can be said to be prima facie in possession of the suit-property. Therefore, I do not accept this request to remand the matter to the lower court for recording the fact of possession at the interim stage.
16. In this view of the matter I set aside the order of learned trial Judge and allow this appeal. There will be no order as to costs.
17. Appeal allowed.
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