IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE No.12406 of 2011 Md.Yusuf Versus Jamil Akhtar @ Hira ---------------------------------- 2. 04.08.2011 Heard the learned counsel for the petitioner. The defendant-petitioner has filed this application under Article 227 of the Constitution of India against the order dated 9.6.2011 passed by Sub- ordinate Judge, Kishanganj in Title suit No.24 of 2010 whereby the learned court below rejected the application under Order 7 Rule 11(d) of the Code of Civil Procedure. The learned counsel Mr. Ganpati Trivedi appearing on behalf of the petitioner submitted that the plaintiff filed the suit for specific performance of contract claiming possession over the suit property when he received the notice from the Land Dispute Redressal Tribunal, therefore, the possession of the plaintiff cannot be protected in view of Section 53-A of the Transfer of Property Act read with Section 17(1)(A) of the Registration Act because the alleged Mahadanama is unregistered one. He further submitted that in fact the suit has been filed for protecting the possession only. From perusal of the impugned order it appears that the learned court below found that the suit is 2 simplicitor for specific performance of contract dated 8.2.2007. The learned court below also found that since it is a suit for specific performance of contract the suit is not barred either under Section 53-A of the Transfer of Property Act or Section 17(1)(A) of the Registration Act. The plaint has been annexed with this application. From perusal of the plaint it appears that the plaintiff has filed the suit for specific performance of contract dated 8.2.2007. The petitioner denied to have executed such Baibeyana in favour of the plaintiff. Admittedly, the Baibeyana is unregistered one. No doubt, the plaintiff has claimed possession at paragraph 10 of the plaint but because only the plaintiff has asserted that he is in possession it cannot be said that the suit is barred under Section 53-A of the Transfer of Property Act. So far Section 17(1)(A) of the Registration Act is concerned in the explanation it has been specifically mentioned that a document purporting or operating to effect a contract for the sale of immovable property shall not be deemed to require or ever to have required registration by reason only of the fact that such document contains a recital of the payment of any earnest or of the whole or any part of the purchase money. So far Section 53-A of the Transfer of Property Act is concerned the transferee is entitled to resist any attempt on the part of the transferor to disturb 3 transferee’s lawful possession under the contract for sale. Here in the present case the plaintiff has filed simple suit for specific performance of contract and this Section 53-A of the Transfer of Property Act is not a bar created by any law so as to reject the plaint under Order 7 Rule 11(d) of the Code of Civil Procedure. I therefore, find no reason to interfere with the impugned order and accordingly, this application is dismissed. S.S. (Mungeshwar Sahoo,J.)