Thursday, 28 February 2013

Whether suit for injunction is maintainable if plaintiff has failed to claim specific performance of contract?

 Plaintiff who is transferee under the agreement of sale failed to perform his part of contract i.e., in paying the balance of sale consideration to the transferors i.e., the appellant herein. Hence, the plaintiff is not entitled to claim protection under Section 53-A of the Transfer of Property Act on the basis of part performance of the contract.  suit filed for permanent injunction only without seeking the relief of specific performance of the agreement of sale is barred under Order 2, Rule 2 of the Civil Procedure Code. I am inclined to follow the decision of this Court especially in view of the fact that the relief of injunction is an equitable relief and the same cannot be granted when the plaintiff has not established his readiness and willingness to perform his part of the contract and failed to seek the relief of specific performance of the agreement of sale. Hence, the plaintiff's suit is not maintainable for the reason that the plaintiff has not sought for the relief of specific performance of the agreement of sale."


ANDHRA PRADESH HIGH COURT
Chellingi Narayanamurthy ... vs Chillingi Satyanarayana And ... on 27 June, 2007




1. On 26-6-1998, this Court made the following order: "Ground No.1(a) to (c) is the substantial question of law to be gone into. Hence, admit".
2. The substantial questions of law which had been pointed out and argued in elaboration by the Counsel on record Sri Addepalli Suryanarayana representing the appellant and Sri Chandra Shekar, representing the contesting respondents, are as hereunder :
1. Whether the Judgment and Decree of the appellate Court are not vitiated for non-framing of proper points for determination as required by Order XLI Rule 31 of the Code of Civil Procedure ?
2. Whether the agreement holder is not entitled to defend his possession under Section 53-A of Transfer of Property Act 1882 though title to the property had not been vested in him ?
3. Whether it is necessary under the Indian Evidence Act 1872 to prove a document though the execution of it was admitted ?
3. This Court in C.M.P.No.11138/98 on 26-6-1998 ordered:
"Status-quo as on today with regard to possession of the plaint schedule property shall be maintained until further orders".
4. Sri Addepalli Suryanarayana, the learned Counsel representing the appellant had pointed out to the substantial questions of Law specified supra and would maintain that for the applicability of the doctrine of part performance under Section 53-A of the Transfer of Property Act 1882, distinction cannot be drawn between plaintiff and defendant. The Counsel would submit that even if the claim of relief of specific performance is barred by limitation, since such defence can be putforth, such party can protect his possession either as plaintiff or as defendant and a distinction cannot be drawn in between the plaintiff and the defendant. The Counsel would maintain that in the light of the decision of the Apex Court in Shrimant Shamrao Suryavanshi and another Vs. Prahlad Bhairoba Suryavanshi (dead) by L.Rs. and others 1 the views expressed by the learned Judges of this Court may not be the correct view since the protection of possession had been specifically dealt with in the decision of the Apex Court specified above.
5. Per contra, Sri Chandra Shekar, the learned Counsel representing respondents 1 to 5, the contesting respondents, had pointed out to the findings recorded by the Court of first instance and also the findings recorded by the appellate Court and would maintain that even on facts, the contesting respondents are bound to succeed and the Second Appeal to be dismissed. Even otherwise, the learned Counsel would submit that there is no serious controversy between the parties that on the strength of an agreement of sale, simply relief of perpetual injunction was prayed for and the relief of specific performance had not been prayed for and when that being so, in the light of the views expressed by this Court in Mohd. Jahangir Vs. M/s. Mallikharjuna Co-op. Housing Society Ltd., rep. by its Secretary, G.Sambasiva Rao 2 and K.Venkata Rao and others Vs. Sunkara Venkata Rao 3, the plaintiff definitely is not entitled to such protection under Section 53-A of the Transfer of Property Act 1882. The learned Counsel also had drawn the attention of this Court to Section 41(h) of the Specific Relief Act 1963.
6. Heard the Counsel.
7. The parties hereinafter would be referred to as shown in O.S.No.140/84 on the file of Principal District Munsif, Razole for the purpose of convenience.
8. The unsuccessful plaintiff being aggrieved of the reversing Judgment and Decree made in A.S.No.9/95 on the file of Subordinate Judge, Razole had preferred this Second Appeal. The plaintiff instituted the suit O.S.No.140/84 as against the defendants praying for the relief of perpetual injunction restraining defendants 1 to 5 and their men from in any way interfering with the possession and enjoyment of the plaint schedule property with fruit bearing coconut trees and other trees and also for costs of the suit. It was pleaded in the plaint as hereunder:
The plaint schedule property which is an extent of Ac.0-08 cents out of Ac.0-15 cents out of full extent of Ac.1-02 cents of Zeroyiti dry land in R.S.No.40/5 in Kunavaram village fell to the share of the 1st defendant in a partition among himself, plaintiff and other brothers along with other properties. It was also pleaded that defendants 1 to 5 constituted members of Hindu Joint and undivided family and the 1st defendant happens to be the father, manager and kartha of his family. It was also further pleaded that for the purpose of discharging his joint family debts, the 1st defendant sold the plaint schedule property together with all the fruit bearing and other trees thereon and together with all easementary rights to the plaintiff and 6th defendant for Rs.3,200/- and executed an agreement of sale with possession of the plaint schedule property dated 24-8-1977 in favour of the plaintiff and the 6th defendant. It was further specifically pleaded that the 1st defendant received the entire consideration from the plaintiff and as part performance of the contract and he put the plaintiff in possession of the plaint schedule property. The plaintiff has nothing to perform under the agreement and his possession is to be protected. The 1st defendant promised to execute a sale deed and get it registered on behalf of himself and on behalf of his minor sons within one year either in favour of the plaintiff or in favour of the 6th defendant or in anybody's favour suggested by them. Soon after the agreement, the 6th defendant told the plaintiff that she was not interested in the matter and gave in affidavit also before filing the suit representing the truth that the entire consideration was paid by the plaintiff and that the plaintiff is in possession and enjoyment of the plaint schedule property since the date of agreement with possession. However, she refused to join as one of the plaintiff. So for abundant caution the plaintiff impleaded her as the 6th defendant. It was further pleaded that the plaintiff is in possession and exclusive possession and enjoyment of the plaint schedule property enjoying the usufruct of the fruit bearing coconut trees etc, since the date of agreement of sale dated 24-8-1977. The 1st defendant happens to be the own brother of the plaintiff and he is a most influential man in the village having got behind him rowdy elements and evil advisers. The 1st defendant played fraud upon the plaintiff and having received the entire consideration of Rs.3300/- and having put the plaintiff in possession on the date of agreement itself, had been evading to execute and get the sale deed registered. The plaintiff bona fide believed the representation of the 1st defendant and enjoying the usufruct since the date of the agreement. Since one year the 1st defendant had been trying ways and means on the evil advise of the henchmen to dispossess the plaintiff from the plaint schedule property by hook or crook due to the eye-sore he developed against the plaintiff since he is getting the usufruct from the coconut trees. While the plaintiff is in peaceful and exclusive possession and enjoyment of the plaint schedule property the 1st defendant had been proclaiming in the village since last week of November 1994 that he would dispossess the plaintiff by using force. The plaintiff is terribly afraid that the 1st defendant would put his threats into action. When protected by the order of Court, the 1st defendant or the other defendants 2 to 5, his sons, may not be able to dispossess the plaintiff. It was further pleaded that the plaintiff apprehends danger that the defendants would at any time get the coconuts plucked and dispossess the plaintiff from the plaint schedule property. The plaintiff requested the defendants 1 to 5 personally and through elders not to interfere with the peaceful possession and enjoyment of the plaintiff in respect of the plaint schedule property, but in vain and hence the suit.
9. Defendants 4 to 6 remained exparte. The 1st defendant filed written statement on his behalf and also on behalf of the then minors defendants 3 and 5 and the 3rd defendant filed a Memo of adoption. In the written statement filed by the 1st defendant it was pleaded as hereunder :
The 1st defendant never executed any agreement of sale either in favour of the plaintiff or in favour of the 6th defendant or in favour of both. The 1st defendant had no necessity to sell away the plaint schedule land. The plaintiff has no capacity to lend any amount or to purchase the plaint schedule land. The suit agreement is a rank forgery. The plaint schedule land is still in possession and enjoyment of the 1st defendant. The 1st defendant had been also paying land revenue for the plaint schedule land even till today. It was further pleaded that the 1st defendant borrowed an amount of Rs.3200/- from the 6th defendant in August 1977 at interest of Rs.2/- per month per hundred. At that time as per the request of the 6th defendant the 1st defendant put his signature on three N.J. Stamps worth Rs.5/- for all the three stamps put together. Subsequently in the year 1983 the 1st defendant paid Rs.3200/- to the 6th defendant with interest in the presence of Chellingi Setti, Kandregula Nookalu, Chellingi Tatayya of Kunavaram village. The 1st defendant demanded the 6th defendant to return those three blank N.J. Stamps containing his signatures. The 6th defendant represented that the blank N.J. Stamps had been misplaced and she will return the same after they were found. The 1st defendant believed the representation of the 6th defendant and thereafter did not demand for the return of the blank N.J. Stamps. It was further pleaded that the defendants believe that the plaintiff and the 6th defendant might have colluded and brought into existence the suit agreement on the N.J. Stamps containing the signatures of the 1st defendant with a view to knock away the plaint schedule property. The suit agreement is a rank forgery. The plaintiff is not in possession of the plaint schedule property by the date of the suit and hence he cannot ask for permanent injunction against the defendants. The plaintiff did not issue any registered notice prior to the suit and that itself shows that the suit agreement is a forgery. When the plaintiff paid an amount of Rs.3200/- to the 1st defendant on the date of the alleged agreement of sale and possession also was delivered to the plaintiff and when the plaintiff performed his part of the contract on the date of the alleged agreement of sale itself, it is doubtful what prevented the plaintiff from taking a sale deed and this itself shows that the alleged agreement of sale is not genuine and it is a brought up document. It was further pleaded even to the knowledge of the plaintiff the suit is false and vexatious and hence the defendants are entitled for compensatory costs under Section 35-A of the Code of Civil Procedure. There was no cause of action in the suit and the cause of action alleged in the plaint is false. Hence the suit be dismissed with compensatory costs.
10. Before the Court of first instance, the following Issues were settled :
1. Whether the plaintiff is in possession of the plaint schedule property by the date of suit under agreement of sale dated 24-8-1977 ?
2. Whether the trespass alleged is true ?
3. To what relief ?
11. The plaintiff examined himself as P.W.1 and also examined P.W.2 to P.W.4 and Exs.A-1 and A-2 were marked. On behalf of the defendants, the 1st defendant examined himself as D.W.1. The dispute appears to be between the real brothers, the plaintiff and the 1st defendant. The Court of first instance recorded reasons in detail, came to the conclusion that Ex.A.1 agreement of sale dated 24-8-1977 is true, valid and binding and granted the relief of perpetual injunction as prayed for. Aggrieved by the same, the matter was carried by way of Appeal A.S.No.9/95 on the file of Subordinate Judge, Razole. The appellate Court at para-8 framed the Point for consideration, proceeded to discuss the oral and documentary evidence available on record commencing from paras 10 to 15 and ultimately allowed the Appeal setting aside the Decree and Judgment of the Court of first instance. Hence this Second Appeal.
12. No doubt, several factual controversies between the parties had been pointed out in the oral evidence available on record. The discrepancies in the oral evidence adduced by the parties also had been pointed out by the respective Counsel representing the parties. The Counsel for the appellant placed strong reliance on the decision of the Apex Court referred (1) supra wherein at paras 15 and 16 it was observed :
"The Special Committee's report which is reflected in the aims and objects of the Amending Act, 1929 shows that one of the purposes of enacting Section 53-A was to 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. In that view of the matter, Section 53-A is required to be interpreted in the light of the recommendation of the Special Committee's report and aims, objects contained in the amending Act, 1929 of the Act and especially when Section 53-A itself does not put any restriction to plea taken in defence by a transferee to protect his possession under Section 53-A even if the period of limitation to bring a suit for specific performance has expired.
But there are certain conditions which are required to be fulfilled if a transferee wants to defend or protect his possession under Section 53-A of the Act. The necessary conditions are :
(1) there must be a contract to transfer for consideration of any immovable property ;
(2) the contract must be in writing, signed by the transferor, or by someone on his behalf;
(3) the writing must be in such words from which the terms necessary to construe the transfer can be ascertained;
(4) the transferee must in part-performance of the contract take possession of the property, or of any part thereof;
(5) the transferee must have done some act in furtherance of the contract; and (6) the transferee must have performed or be willing to perform his part of the contract."
It is true that the Apex Court observed that a person obtaining possession of the property in part-performance of agreement of sale can defend his possession in a suit for recovery of possession filed by the transferor or by the subsequent transferee of the property claiming under him even if the suit for specific performance of agreement of sale had become barred by limitation. Strong reliance was placed on this decision and elaborate submissions were made that inasmuch as protection of possession had been emphasized, distinction cannot be drawn between the plaintiff going to Court praying for a positive relief of perpetual injunction on the strength of an agreement of sale and the defendant defending his possession when action is initiated in relation thereto by the opposite party. The learned Counsel representing the respondents 1 to 5 had placed strong reliance on the decision of the learned Judge of this Court referred (2) supra wherein it was held that in order to avail the protection under Section 53-A of the Transfer of Property Act 1882 it is necessary that the terms of the contract should be certain and a permanent injunction can be asked for where there is a legally enforceable obligation in favour of the plaintiff in respect of possession which is sought to be protected and the respondent having chosen to sue for permanent injunction only without seeking any relief of specific performance of agreement of sale, prima facie may be barred from filing such suit under Order II Rule 2 of the Code of Civil Procedure and in such circumstances especially in view of the fact that the relief of injunction is an equitable relief the same cannot be granted when the plaintiff had not shown his readiness and willingness to perform his part of the contract to seek specific performance of agreement of sale.
13. Further, reliance was placed on the decision referred (3) supra wherein the learned Judge observed :
"On an earnest consideration of the facts and circumstances in this case, even though there are concurrent findings of fact by both the Courts below, I am satisfied that there is much force in the contentions raised by the learned Counsel for the appellants-defendants for interference by this Court. Admittedly, the respondent-plaintiff filed the suit for permanent injunction restraining the appellants-defendants with respect to the suit land on the ground that he has been put in possession of the same in pursuance of the agreement of sale and as such it is lawful and, therefore, he is entitled for injunction and that he should not be disturbed and he should not be dispossessed thereof except under due process of law. It is significant to note that he filed the suit for injunction simpliciter. He did not choose to seek the relief of specific performance of the agreement of sale under which he is claiming possession of the suit land. The defendants in their written statement as well as the second defendant in his evidence as D.W.1 have categorically admitted that the suit property was delivered to the plaintiff as part performance of the agreement of sale. Thus, the cause of action for the plaintiff's suit for permanent injunction is founded on the basis of possession under the suit agreement of sale. Therefore, the plaintiff is defending his possession, though as plaintiff under Section 53-A of the Transfer of Property Act. Thus, the suit itself is based upon the provisions of Section 53-A of the Transfer of Property Act. For the sake of convenience, I quote the Section 53-A of the Transfer of Property Act which reads as follows:
"53-A 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 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 claim under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly 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."
The necessary conditions for the application of Section 53-A of Transfer of Property Act are :
(i) There is a contract to transfer immovable property for consideration; (ii) The contract is signed by or on behalf of transferor; (iii) The terms can be ascertained with reasonable certainty from the document; (iv) The transferee is put in possession or if he is already in possession, continues in possession;
(v) The transferee has done some act in furtherance of the contract; and (vi) The transferee has performed or is willing to perform his part of the contract.
If the aforesaid conditions are fulfilled, 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 that property. As has been pointed out by Subba Rao, C.J. (as he then was) in Achayya v. Venkata Subba Rao, 1956 AWR 830=AIR 1957 A.P. 854, the right conveyed under Section 53-A of Transfer of Property Act can be relied upon only as a shield and not as a sword but the protection is available to the transferee both as a plaintiff and as a defendant so long as he uses it as a shield. Further the safe-guarding the possession of the transferee under this provision, the transferee should have performed or is willing to perform his part of the contract. It is only then the transferee is entitled to defend his possession of the property which came into his possession under the agreement of sale. In the instant case, it is no doubt true that there is a written agreement of sale between the parties and the plaintiff was also put in possession of the suit property in part performance of that agreement of sale. The plaintiff pleaded in the plaint that he paid the balance of sale consideration of Rs.9,295/- through the elders-P.W.2 and Ramsetti Doraiah on 10-12-1978. But the trial Court on an elaborate discussion of the evidence on record held in para 9 of its judgment that "there is absolutely no reliable evidence to show that the plaintiff has paid the balance of sale consideration to the defendants under the suit agreement. I am of the opinion that the plaintiff has only paid Rs.1,500/- as advance to the defendants under Ex.A.4 and nothing more". The plaintiff did not choose to prefer any appeal against this finding of the trial Court. Hence, this finding of fact of the trial Court went unchallenged before the appellate Court. Thus, there is a categorical finding of fact that the plaintiff who is transferee under the agreement of sale failed to perform his part of contract i.e., in paying the balance of sale consideration to the transferors i.e., the appellant herein. Hence, the plaintiff is not entitled to claim protection under Section 53-A of the Transfer of Property Act on the basis of part performance of the contract. The next point to be considered is regarding the maintainability of the suit filed by the plaintiff for mere injunction without seeking the relief of specific performance of the agreement of sale. The learned Counsel for the respondent-plaintiff vehemently contends that a person who enters into possession lawfully on the basis of agreement of sale can maintain a suit for injunction simpliciter without seeking the relief of specific performance of the agreement of sale. He further contends that it was more so, when, as in the instant case, the plaintiff had issued a notice to the defendant expressing his readiness and willingness to pay the balance of sale consideration. The learned Counsel for the respondent-plaintiff also relied on the decision of Bombay High Court in Laxman Pandu Khade v. Pandharinath Purushottam Rane (referred supra) for the said proposition. The facts in that case were that the plaintiff agreed to purchase the land belonging to the defendants for total sum of Rs.11,500/- and paid a sum of Rs.8,500/- as earnest money and the possession of the land was made over by the defendant to the plaintiff by way of part performance of the agreement. The land was agricultural land and one of the terms of the agreement was that the permission for sale of land had to be obtained by the parties from the Collector. The plaintiff filed an application to the revenue authorities for necessary permission for sale of land but on the date fixed for consideration of the application, the plaintiff was present before the revenue authorities but the defendant failed to appear before the said authorities and as a result the revenue authorities had no other alternative but to pass an order to the effect that the application was disposed of. Thereafter, the plaintiff wrote registered letter to the defendant expressing his willingness to pay the balance of amount and to take the conveyance from the defendant. Thereafter the plaintiff got information that the defendant was intending to transfer the said land to some one else and hence he filed the suit for declaration about his right under the agreement and for injunction restraining the defendant from interfering with his possession without seeking the relief of specific performance of the agreement. Under those circumstances, the learned single Judge while observing that the plaintiff was ready to perform his part of the contract and that the plaintiff's possession is lawful, held that the plaintiff's suit for injunction simpliciter is maintainable. In the instant case, as stated above, the concurrent findings of facts by both the Courts below is that the plaintiff failed to pay the balance of sale consideration as per the agreement of sale, and that the plaintiff's plea in the plaint that he paid the balance of sale consideration before the elders P.W.2 and another is not established. Hence that decision has no application for the facts in this case. In Mohd.Jahangir v. M/s. Mallikharjuna Coop. Housing Society Limited, Represented by its Secretary, 1991(1) ALT 575, it has been held by this Court that a suit filed for permanent injunction only without seeking the relief of specific performance of the agreement of sale is barred under Order 2, Rule 2 of the Civil Procedure Code. I am inclined to follow the decision of this Court especially in view of the fact that the relief of injunction is an equitable relief and the same cannot be granted when the plaintiff has not established his readiness and willingness to perform his part of the contract and failed to seek the relief of specific performance of the agreement of sale. Hence, the plaintiff's suit is not maintainable for the reason that the plaintiff has not sought for the relief of specific performance of the agreement of sale."
14. Though strong reliance was placed on the decision of the Apex Court specified (1) supra, it was in relation to the question of limitation and putting forth the defence under Section 53-A of the Transfer of Property Act 1882 while defending the possession. It is needless to say that no positive relief of perpetual injunction as such had been prayed for on the strength of the agreement of sale by the agreement holder. Hence, on facts, the decision of the Apex Court is distinguishable. Further, this Court does not see any reason to express a different opinion from what had been expressed by the learned Judges of this Court in the decisions specified supra. In the light of the same, it is needless to say that the Second Appeal being devoid of merit, the same shall stand dismissed. However, since the brothers are fighting the litigation, the parties to bear their own costs.
?1 2002(3) SCC 676
2 1991(1) ALT 575
3 1998(6) ALT 278


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