C.R.No.4455 of 2011 #1# IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.R.No.4455 of 2011 Date of decision: 26.7.2011 Yash Pal Jindal and another ….Petitioners Vs. Smt Rama Rani and others ….Respondents CORAM: HON’BLE MR. JUSTICE JASWANT SINGH Present: Mr. T.S. Gujral, Advocate for the petitioners. Jaswant Singh, J Plaintiff-petitioners have filed the present petition under Article 227 of the Constitution for setting aside the impugned order dated 1.6.2011 (P.2) passed by learned Additional District Judge, Ambala vide which an appeal against the order dated 19.2.2011 passed by learned Civil Judge (Sr. Division), Ambala granting interim injunction in an application under Order 39 Rules 1 & 2 CPC has been allowed. Brief facts of the case are that the plaintiffs-petitioners filed a Civil Suit No.107 dated 15.9.2005 for specific performance on the basis of an agreement dated 20.11.2003. Alongwith the suit, an application under Order 39 Rules 1 & 2 CPC was filed by the plaintiff-petitioner for restraining the defendants from alienating or transferring the suit land in any manner. Upon notice, the same was opposed by the defendants alleging that no such agreement has been executed. It was further submitted that the suit land has already been alienated to defendant/respondent Nos.8 to 10 by way of registered sale deed and they are in possession of the same. After C.R.No.4455 of 2011 #2# hearing both the sides, learned trial Court allowed the application while restraining the defendants-respondents from alienating/transferring the suit property in any manner during the pendency of the civil suit vide order dated 19.2.2011 (P.1). On an appeal having been filed by defendant Nos.4,6 & 7/respondent Nos.1 to 3 herein, the same has been allowed by the learned Additional District Judge, Ambala while setting aside the order dated 19.2.2011 (P.1) vide impugned judgment dated 1.6.2011 (P.2), hence the present petition. After hearing learned counsel for the petitioners and perusing the paper book, this court does not find any merit in the present petition and the same deserves dismissal. Learned counsel for the petitioners argues that the learned Appellate Court has gravely erred while setting aside the interim injunction granted by the learned trial Court and that in case the impugned order is not set aside, the plaintiffs-petitioners shall suffer an irreparable loss and injury, which cannot be compensated in any way as they have already paid substantial amount by way of earnest money. It is further argued that the plaintiffs-petitioners are apprehending that the defendants-respondents will further alienate the land or may raise construction over the land in question. It is the case of the plaintiffs-petitioners that defendant Nos.1 & 2-respondent Nos.4 & 5 entered into an agreement to sell dated 20.11.2003 through their General Power of Attorney-defendant No.3/respondent No.6 regarding the suit land measuring 37 kanal 17 marlas for a total sale consideration of Rs.46,17,700/-. It is further alleged that an earnest money amounting to Rs.1,00,000/- was paid on 20.11.2003 and Rs.3,50,000/- was paid on 20.12.2003. Last date for registration of sale deed was fixed as C.R.No.4455 of 2011 #3# 20.5.2005. The deed could not be fructified thereby leading to filing of the civil suit for possession by way of specific performance of the agreement dated 20.11.2003 at the instance of the plaintiff-petitioner before the learned trial Court at Ambala. No doubt, in the alleged agreement to sell dated 20.11.2003, it is incorporated that the possession of the suit land was handed over to Sh. Yashpal Jindal at the spot but at the same time, it is necessary to mention here that the defendants are specifically denying the execution of said agreement. The learned First Appellate court has rightly come to the conclusion that after incorporation of Section 17 (1-A) of the Registration Act, 1908 (for short “Act of 1908”) and keeping in view the provisions of Section 49 thereof as well as Section 53 (A) of the Transfer of Property Act, 1882 (for short “Act of 1882”), no document, which requires compulsory registration, shall affect any immovable property or shall be received in evidence of any transaction effecting such property unless it has been registered. Undisputedly, the alleged agreement to sell dated 20.11.2003 is not a registered document. The very execution of the agreement is denied by the defendants-respondents and this Court has an occasion to deal with the proposition in the case of Gurbachan Singh v. Raghubir Singh (2010) 5 RCR (Civil) 737 where the plaintiff was claiming the benefit on the basis of an unregistered agreement to sell by alleging that he is in possession of the property in dispute as a part performance of the agreement thereby filing a suit for specific performance wherein it was held that an unregistered agreement to sell does not confer any right or title upon the plaintiff and the same cannot be received in evidence and the relevant part of the said C.R.No.4455 of 2011 #4# judgment reads as under: “The facts are not much in dispute. The plaintiff is in possession of the property in dispute in part performance of the agreement to sell which has been made the basis of the suit for specific performance and is unregistered. Section 53A of the Act of 1882 empowers the transferee to resist any attempt on the part of the transferor to disturb transfer's lawful possession under the contract of sale in case of a suit having been filed for seeking decree for specific performance on the basis of an agreement to sell in which the plaintiff is already in possession in part performance of the contract but according to Section 17(1A) of the Act, 1908, the agreement shall have to be registered. If it is 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, the agreement shall have no effect for the purposes of the said Section. In the present case, since the agreement to sell is unregistered, therefore, in view of Section 49 of the Act of 1908 such an agreement would not be received as an evidence of any transaction effecting the property in question. Thus, the substantial question that has been raised by the learned counsel for the appellant is answered in favour in affirmative and it is held that the agreement to sell being unregistered does not confer any right or title upon the plaintiff as the same cannot be received in evidence in view of Section 17 (1A) and 49 of the act of 1908.” Keeping in view the legal position above, the finding of learned trial Court that the plaintiffs have a prima facie case in their favour is not legally sustainable and has rightly been set aside by the learned Appellate Court while passing the impugned order. Defendant Nos.4,6 & 7/respondent Nos.1 to 3 herein are claiming to be the subsequent purchasers of the part of land in dispute for valuable consideration and without notice C.R.No.4455 of 2011 #5# of the alleged agreement to sell dated 20.11.2003 and thus prima facie they are owners of the said land. The learned Additional District Judge, in my opinion, has rightly evaluated the facts of the case while coming to the conclusion that the alleged unregistered agreement to sell coupled with possession does not confer any right or title in favour of the plaintiffs- petitioners to prove the prima facie case and balance of convenience in their favour. Keeping in view the facts and circumstances discussed hereinabove, this Court finds no illegality or perversity in the impugned order dated 1.6.2011 (P.2) passed by learned Additional District Judge, Ambala warranting interference under Article 227 of the Constitution. Dismissed. July 26, 2011 ( JASWANT SINGH ) manoj JUDGE