IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 12.07.2010 CORAM: THE HONOURABLE MRS.JUSTICE CHITRA VENKATARAMAN C.M.A.No.1265 of 2009 D.K.Sekar .. Appellant versus 1. R.K.Natarajan 2. K.Ganesan 3. R.Moorthy 4. R.Gnanavel .. Respondents ----- PRAYER: Civil Miscellaneous Appeal filed under Order XLIII Rule 1(r) of the C.P.C. against the fair and decreetal order dated 4.2.2009 made in I.A.No.244 of 2005 in O.S.No.66 of 2005 on the file of the Principal District Judge, Villupuram. For appellant : Mr.M.Balasubramanian For respondents-1 & 2 : Mr.R.Balakrishnan for respondents-3 & 4 : Mr.D.Rajasekar JUDGMENT The plaintiff is the appellant herein, questioning the order of the Court below dated 4.2.2009 made in I.A.No.244 of 2005 in O.S.No.66 of 2005, rejecting the plea for an injunction to restrain the respondents herein from disturbing his possession of the suit property. 2. The plaintiff/appellant claims that under a deed executed by the first defendant as evident from the materials, in the month of Adi, 2000, the plaintiff was put in possession of the suit property on an annual lease rental of 6 bags of paddy or its value per acre. The plaintiff had been paying the above annual rent regularly. Thereafter, respondents-1 and 2 agreed to sell the property to him for a consideration of Rs.6,44,000/-. Respondents-1 and 2 had already received an advance of Rs.4,30,000/- on 18.11.2002. They had https://hcservices.ecourts.gov.in/hcservices/ agreed to receive the balance amount of Rs.2,14,000/- within a period of one year and have the sale deed executed at his costs. An agreement was duly executed in this regard between the parties. The appellant is in possession of the suit property. 3. It is stated that the appellant had expended on digging up a borewell in January, 2003, spending a sum of Rs.70,000/- and again in January, 2004 to a depth of 190 feet and has improved on the land. In spite of requests made to respondents-1 and 2 to receive the balance amount, respondents-1 and 2 showed no interest to receive the balance consideration and execute the sale deed. On the other hand, the plaintiff learnt that respondents-1 and 2 have created a sham and nominal document by executing sale deed dated 11.10.2004 in favour of respondents-3 and 4. In the circumstances, a suit for specific performance was laid seeking a direction to the first and second respondents to execute the sale deed in favour of the appellant herein in respect of the suit property on receipt of the balance amount, failing which, the Court to execute the same for and on behalf of the first and second respondents, and to direct the respondents to pay a sum of Rs.5,80,000/- as damages with subsequent interest on Rs.4,30,000/- at 12% per annum from the date of the suit till the date of realisation. The claim was resisted by the third and fourth respondents that the agreement stated to have been entered into by defendants-1 and 2 with the plaintiff was only an imaginary one. Denying the allegation of the plaintiff as to the payment of part consideration of the plaintiff being in possession of the suit property pursuant to the alleged agreement for sale, the defendants contended that the plaintiff was only an agent looking after the lands of defendants-1 and 2 and the plaintiff has no means to carry on any cultivation. Apart from that, the written statement also contains further allegation on the plaintiff's brother Kasinathan who had the design to purchase the suit lands and when the defendants refused to that course, the said Kasinathan had turned the plaintiff against the defendants and hence, the allegation did not merit consideration. 4. Pending disposal of the suit, the plaintiff sought for an injunction to restrain the defendants from interfering with the suit property and the defendants filed a counter affidavit that the plaintiff was only an employee to take care of the lands. There was never an understanding to convey the land in favour of the plaintiff/appellant. Questioning the correctness of the claim that the first respondent had agreed to execute the sale deed, it was contended on their behalf that under a valid sale deed registered on 11.10.2004, for a valuable consideration, sale had been effected; as such, the petition for injunction does not lie. 5. The respondents contended that the appellant did not have any right or interest in the suit property. As no prima facie case was made out, they sought for rejection of the interim application. https://hcservices.ecourts.gov.in/hcservices/ 6. On hearing both sides, the Court below pointed out that the sale deed executed in favour of the third and fourth respondents was marked as Exs.D1 and D2. Apart from that, the patta in favour of the respondents were marked. The electricity charges paid for the connection was also marked as Exs.D11, D12 and D20. Going by the documents thus filed, prima facie, the Court below came to a conclusion that respondents-1 and 2 have executed the sale deed along with their mother and sister in favour of respondents-3 and 4. Thereupon, there had been a transfer of patta and electricity connection. Referring to the decision reported in (1998) 3 MLJ 708 (Multichannel (India) Limited, rep. by its Director, Mumbai-52 Vs. Kavitalaya Productions Pvt., Limited, Chennai-4 and two others) that in the matter of granting interim protection, the Courts are bound to consider the balance of convenience and the prejudice that would be caused to the other side, the Court below pointed out that after the sale, the appellant had been creating problem in not handing over possession to the purchasers - respondents-3 and 4. Therefore, the suit was filed before the Principal District Judge, Villupuram, in O.S.No.132 of 2005. Going by the prima facie case of the respondents, the Court below rejected the plea. Hence, the present appeal. 7. Learned counsel appearing for the appellant pointed out that the Court below had not denied as a matter of fact that the appellant was in possession of the property. That being the case, the question of rejecting the plea of the appellant, as such, does not arise. In this connection, learned counsel appearing for the appellant placed reliance on the decision reported in (2008) 8 MLJ 105 (K.Rajasekaran Vs. K.Sakunthala (Selvi), (1999) 3 SCC 161 (Ashwinkumar K. Patel Vs. Upendra J. Patel & Others, AIR 1997 Delhi 380 (Sanjay Tandon Vs. Sarabjit Singh and another), (1989) 4 SCC 131 (Krishna Ram Mahale (Dead), by his Lrs. Vs. Mrs. Shobha Venkat Rao) as well as AIR 1996 Bombay 98 (Smt.Sarladevi Vs. Shailesh) that an occupant in possession of the property cannot be dispossessed by the owner of the property except by recourse to law. The prescription given under Order 39 Rule 1 of the C.P.C. have relevance in granting the relief to the appellant herein, particularly when the Court below had found possession with the appellant. 8. Per contra, learned counsel appearing for the respondents placed reliance on the decision reported in AIR 1981 Madras 310 (Krishnamoorthy Koundar Vs. Paramasiva Koundar) and 1993-1-L.W. 109 (Parameshwari, T and 4 others Vs. S.S.Investments Private Ltd.) and pointed out that when a claim is made in the suit based on Section 53-A of the Transfer of Property Act seeking specific performance, the relief itself being one based on equity, the question of granting temporary injunction to enable the appellant to protect his possession, does not arise. https://hcservices.ecourts.gov.in/hcservices/ 9. Heard learned counsel appearing for both sides. 10. A reading of the decision of the Division Bench of this Court reported in AIR 1981 Madras 310 (Krishnamoorthy Koundar Vs. Paramasiva Koundar) shows that in a suit for specific performance of an agreement for sale by a prospective vendee, the relief of temporary injunction could not be granted to such vendee so as to enable him to protect his possession only on the basis of the terms of the agreement that he was in possession of the property on the date of the agreement, as the relief of temporary injunction pending the suit can be taken to have been claimed only on the basis of Section 53-A of the Transfer of Property Act. This Court pointed out that unless the plaintiff established prima facie proof that possession was given to him by the vendor on the date of the agreement, the plaintiff was not entitled to the relief based on the agreement. This Court pointed out that the truth of the agreement for sale under which possession was given, was to be established only at the trial. Referring to the scope of Section 53 of the Transfer of Property Act, this Court held that the relief that the agreement holder can claim is only an equitable right based on Section 53-A of the Transfer of Property Act. Therefore, the relief of temporary injunction claimed by the plaintiff pending the suit can be claimed by the plaintiff only on the basis of Section 53-A of the Transfer of Property Act, by way of an equitable relief under Section 53-A of the Transfer of Property Act. This Court held that a mere possession of the suit property as on the date of the suit can be taken to enable him to obtain injunction from the Court. If that would be the case, even a trespasser in possession can approach the Court and ask for an injunction to protect his possession. In the background of the said fact, this Court pointed out that the plaintiff in the said suit used his right under Section 53-A of the Transfer of Property Act not as a shield but as a sword. Differentiating the law prevailing in the English System, the Division Bench held that such equity is not available after the amendment of the Transfer of Property Act in the year 1929. This decision is followed by a Division Bench of this Court in the decision reported in 1993-1-L.W. 109 (Parameshwari, T and 4 others Vs. S.S.Investments Private Ltd.), wherein, this Court held that on a reading of the provisions under Sections 53A and 54 of the Transfer of Property Act, there could be no manner of doubt that an agreement holder has no right under a contract for sale except to sue for its enforcement; that possession in part performance of the contract in the hands of the transferee shall not defeat any transfer to a third party who had no notice of the contract or of the part performance thereof. In so holding, this Court once again reiterated the principles of equity which operate in the field of specific performance only to hold that the decision reported in AIR 1981 Madras 310 (Krishnamoorthy Koundar Vs. Paramasiva Koundar) laid down that the right under Section 53-A of the Transfer of Property Act can only be used as a shelter of defence under law by an agreement holder. This Court further held as to the scope of Sections 53 and 54 as follows: https://hcservices.ecourts.gov.in/hcservices/ " These two provisions together leave no manner of doubt that there is no right under a contract for sale except to sue for its enforcement and that possession in part performance of the contract in the hands of the transferee shall also not defeat any transfer to a third party who had no notice of the contract or of the part performance thereof. " 11. This Court also referred to the decision of the Bombay High Court reported in AIR 1983 Bombay 413 (Venkat Dharmaji Vs. Viswanath) ultimately to hold that all adjudications must conform to the rules of equity and discretion must also be exercised within the bounds of law. The Division Bench once again reiterated the said principle to hold that the law does not defeat the suit for specific performance of a contract for sale merely because a third party intervenes as a purchaser. But for the very same reason, if the third party purchaser is present and equity is in his favour, the aspects of such facts have to be gone into only in the course of a trial before the Court. Based on the principles of law, this Court rejected the plea for injunction by a holder of agreement. 12. In the decision reported in 1995 (1) CTC 556 (Vijay Lalchand HUF and Anr. Vs. K.M. Lulls HUF), referring to the said decision, pointing out to yet another decision reported in 1993-1-L.W. 109 (Parameshwari, T and 4 others Vs. S.S.Investments Private Ltd.), a Division Bench of this Court held that even in a suit for specific performance of a contract for sale, the Court could grant temporary injunction. However, while exercising the discretion, the Court has to take into consideration the various provisions governing the suit for specific performance of a contract for sale of immovable property as well as other equitable doctrines. On the facts of the case, this Court pointed out that the defendant had delivered the original title deeds with the agreement holder and had also put the agreement holder in possession. The draft sale deed was also handed over to the defendant, the owner of the property, who had applied for clearance certificate under Section 230-A of the Income Tax Act and the concerned authority also issued the clearance certificate. When the agreement holder tendered the sale consideration and requested for execution of the sale deed, the defendant postponed the execution of the sale deed for some reason or the other. The agreement holder started putting up a compound wall. When the vendor started interfering with the possession, trespassed into the suit property and gave a complaint against the plaintiffs, they filed a suit for specific performance and injunction and pending the suit, sought for interim protection. The injunction granted was subsequently vacated by the Court. Aggrieved by the same, appeal was preferred before the Division Bench. In considering the said prayer, this Court referred to the decision reported in (1974) 1 MLJ 499 (Munuswamy Gounder v. Erusa Gounder) that an agreement holder could ask for protection of https://hcservices.ecourts.gov.in/hcservices/ his rights envisaged under Section 53-A of the Transfer of Property Act as a shield. In the said decision, this Court referred to the decision reported in 1993-1-L.W. 109 (Parameshwari, T and 4 others Vs. S.S.Investments Private Ltd.) holding that there may be exceptional cases where the rules of equity, as are noticed in the cardinal principles of jurisdiction for grant of injunction, will intervene and injunction may be the proper and equitable order. Noting the fact that the agreement holder had gone ahead with putting up a compound wall around the property which was the subject matter of the agreement and that the vendor had also obtained the necessary tax clearance certificate which clearly showed that the applicant (vendor) intended to execute the sale deed conveying the property in favour of the plaintiff therein, this Court granted the order of injunction in favour of the agreement holder. This Court pointed out that the balance of convenience was undoubtedly in favour of the plaintiffs and allowing the defendant in any manner to alienate the property would only give rise to unnecessary complication and third party's right would intervene. The facts in the reported decision are distinguishable to the facts pleaded in the case on hand and hence, I do not find any justifiable ground to grant the relief to the plaintiff/ appellant. 13. As already pointed out, the possession of the plaintiff was denied as one under the agreement for sale. The defendants had taken a specific stand as regards the genuineness of the agreement for sale. The defendants had purchased the property under a valid sale deed registered in their favour. With possession claimed by the defendants, I find that even applying the principles of a prima facie case and balance of convenience, the appellant is not entitled to have an order of injunction pending disposal of the suit. 14. I must point out herein that the prejudice that the title holder, namely, the defendant would suffer by the grant of injunction in favour of the appellant would be much more than what the plaintiff/ appellant would suffer by not granting the injunction in his favour. When there is a serious dispute raised as to the genuineness of the agreement for sale, and the same has to be necessarily proved in the trial, I do not find that the balance of convenience is in favour of the appellant. In the above circumstances, I have no hesitation in rejecting the appeal, thereby confirming the order of the Court below dated 04.02.2009. 15. The Court below pointed out that the third and fourth defendants have filed a suit in O.S.No.132 of 2005 before the Principal District Munsif Court, Villupuram, that even after the sale in their favour, the plaintiff had been refusing to hand over possession to them. The plaintiff had possession of the property only on account of the first and second defendants' absence from the place; but on that score, the plaintiff was not entitled to an injunction in his favour. Going by the prima facie case that the https://hcservices.ecourts.gov.in/hcservices/ plaintiff had no title or interest in the property, the Court below rejected the plea for injunction, pending disposal of the suit. In the light of the prima facie view thus taken and the balance of convenience considered by the Court below, I have no hesitation in rejecting the appeal. 16. In the face of the decision of the Division Bench of this Court, I do not find that the decision relied on by the appellant, particularly the decision reported in (2008) 8 MLJ 105 (K.Rajasekaran Vs. K.Sakunthala (Selvi), would be of any assistance to the appellant, or the decision of the Apex Court reported in (1993) 3 SCC 161 (Shiv Kumar Chadha and Ors. Vs. Municipal Corporation of Delhi and Ors.), which is distinguishable from the facts herein. The plaintiff sought for perpetual injunction to restrain the defendant from selling the suit property or interfering with his possession. The agreement holders had paid the full consideration, which was also admitted by the vendors and they supported the stand of the plaintiff too. The contesting defendants therein were the power of attorney holders of the original owner, which the original owner denied. So too, the decision reported in (1989) 4 SCC 131 (Krishna Ram Mahale Vs. Shobha Venkat Rao) has no relevance to the facts herein. 17. In the light of the Division Bench decision which is binding in this matter, I do not find that the appellant could successfully rely upon the decision reported in AIR 1997 Delhi 380 (Sanjay Tandon Vs. Sarabjit Singh and another). 18. It is stated that the suit itself is pending right from the year 2005. Considering the pendency of the suit on the file of the Principal District Judge, Villupuram on account of the pendency of the appeal before this Court, it is but necessary that the trial Court be directed to take up the suit out of turn and the same shall be disposed of within a period of four months from the date of receipt of a copy of this order. The order passed by this Court, however, does not, in any way, affect any finding that the Court below may arrive at after hearing the parties and the materials and evidence placed in the course of hearing of the suit. In the result, this Civil Miscellaneous Appeal stands dismissed. No costs. ksv Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To The Principal District Judge Villupuram. + 1 cc to Mr. M. Balasubramanian, Advocate SR No.49949 + 1 cc to Mr. R. Balakrishnan, Advocate SR No.50138 + 1 cc to Mr. D.Rajasekar, Advocate SR No.50139 KJ(CO) SR/20.9.2010 C.M.A.No.1265 of 2009 https://hcservices.ecourts.gov.in/hcservices/