IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 29TH SEPTEMBER 2009 / 7TH ASWINA 1931 SA.No. 692 of 1999(G) ----------------------------- AS.78/1996 of ADDL.DISTRICT COURT, THODUPUZHA OS.20/1992 of MUNSIFF COURT, DEVICOLAM .................... APPELLANT(S): RESPONDENTS/ DEFENDANTS ------------------------ 1. *MRS. AMMINI, W/O. MATHEW, (MALIAKKATTU HOUSE), KALLUPALAM HOUSE, MUTTAMPALAM P.O., KANJIKUZHI KARA, KOTTAYAM. (DIED) 2. MRS. LISAMMA, W/O. THOMAS, PUTTUKALAM HOUSE, PAMPADY P.O., KOTTAYAM. ADDL. APPELLANTS IMPLEADED. 3. K.V.MATHEW, AGED 68 YEARS, KALLUPALAM HOUSE, MUTTAMPALAM P.O., KANJIKUZHI KARA, KOTTAYAM. 4. SANTHOSH K.MATHEW, AGED 38 YEARS, S/O. K.V.MATHEW, KALLUPALAM HOUSE, DO. DO. 5. SUDHA RENJI, AGED 36 YEARS, W/O. RENJI ABRAHAM, DO. DO. 6. SARITHA SAJI AGED 32 YEARS, W/O. SAJI, SEBASTIAN, DO. DO. 7. SUMOD K.MATHEW, AGED 30 YEARS, S/O. K.V.MATHEW, DO. DO. THE LEGAL REPRESENTATIVES OF DECEASED IST APPELLANT ARE IMPLEADED AS ADDITIONAL APPELLANTS 3 TO 7 AS PER ORDER DTD. 21.11.07 IN IA. 2090/07. BY ADVS.MR.BECHU KURIAN THOMAS MR.PRAKASH PUTHIADAM S.A. NO.692/1999 RESPONDENT(S): APPELLANT/ PLAINTIFF ------------------------ P.V.CHERIYAN, PULLUKKATTU HOUSE, VAKATHANAM VILLAGE, CHANGANASSERY. BY ADV. MR.K.JAJU BABU THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 29/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.N.KRISHNAN, J. ........................................... S.A.NO.692 OF 1999 ............................................. Dated this the 29th day of September, 2009 J U D G M E N T Questions of law 1 to 3 do not require consideration for the reason that answer to question of law No.4 will clinch the issue. 2. This second appeal is preferred against the judgment and decree of the Additional District Judge, Thodupuzha in A.S.No.78/1996. The said judgment is preferred against the judgment and decree of the learned Munsiff, Devikulam in O.S.No.20/1992. The suit is one for a permanent prohibitory injunction to restrain the defendants from transferring the proporty in favour of a third person. It is averred that the plaint schedule properties were given absolute possession and enjoyment of the plaintiff by the defendants as per an agreement dated 23.11.1990. It is submitted that now the defendants are attempting to transfer the property and therefore they must be restrained by an injunction from doing the same. The first defendant has filed a written statement raising the contention that it is : 2 : S.A.NO.692 OF 1999 true that the first defendant has singed an agreement on 23.11.1990 with the plaintiff for the sale of the properties covered by Survey No.156/1 alone. Even though there was a recital in the agreement regarding handing over of the possession, the plaintiff has not taken possession of the property of first and second defendants. It is further submitted that the first defendant has signed the agreement relating to Survey No.156/1 alone but in the plaint there are three items viz., 156/1,19/1 and 1/1. Therefore, it is stated that the suit has to be dismissed. 3. The second defendant in her separate written statement would contend that she is the joint owner of the property and she has no connection with the plaintiff and she has not consented to convey any of the above mentioned properties in favour of the plaintiff and therefore the plaintiff is not entitled to any relief. After an elaborate trial, the trial court held that the plaintiff should have filed a suit for specific performance and obtained an interim injunction. Here, without resorting to the same, he has filed a suit for injunction and therefore he is not entitled to get : 3 : S.A.NO.692 OF 1999 any decree. In appeal, the learned appellate judge reversed the finding and held that the plaintiff is entitled to the injunction prayed for and granted the same. It is against the same, the present appeal is preferred and I find that four substantial questions of law are raised in the appeal which are as follows: "1. On the basis of an inchoate right can the plaintiff claim injunction against the defendants. 2. Merely on the basis of an agreement for sale entered into by one of the co-owner of the property can an injunction be granted to restrain alienation of the property be either or any of the co-owner. 3. Can an agreement for sale entered into by one of the co-owner prevent alienation of the property by the other co-owner. 4. After the period of limits prescribed under Article 54 as elaspsed can the purchaser in the agreement for sale prevent the seller from selling the property". 4. Point No.4: I think, answer to question of law No.4 will decide the issue for the following reasons: Ext.A1 is the agreement alleged to be executed by the first defendant in favour of the plaintiff. A perusal of the same would show that it was executed on 23rd of November, : 4 : S.A.NO.692 OF 1999 1990. An endorsement on the reverse side of Ext.A1 would reveal that the time for performance of the contract has been extended up to 15.1.1992. Admittedly, the plaintiff has not filed any suit for the specific performance of the contract. Under Article 54 of the Indian Limitation Act, the time for filing a suit for specific performance is three years from the date fixed for the parties. So far as this case is concerned, by virtue of the endorsement in Ext.A1 made by the plaintiff and the first defendant the time is extended up to 15.1.1992. So, the maximum period for execution of the document or for filing a suit for specific performance of the contract is 3 years from 15.1.1992 which would be 15.1.1995. Now we are in the year 2009 and the plaintiff has not moved his little finger to enforce the agreement and get the document executed by seeking a decree for specific performance of the contract. Therefore, Ext.A1 has lost its value and nothing could be done on the basis of the same. When it is so, an order of injunction cannot be granted. So far as the possessory aspect is concerned, the said agreement cannot have any binding effect on the second : 5 : S.A.NO.692 OF 1999 defendant for the reason that she is not a signatory to the agreement and she has no parted with the possession of the property. Since there is an unenforceable agreement and as the suit is not based under Section 53 A of the Transfer of Property Act on part performance, no decree for injunction can be granted. Even if it is argued that it can be used as a sheild and not as a sword, Section 53 of the Transfer of Property Act contemplates something more to be done in pursuance of the contract after the execution of the agreement. Nothing is proved in this case. Therefore, I reverse the judgment of the appellate court and confirm the decree of the trial court thereby allowing this appeal without costs. M.N.KRISHNAN, JUDGE cl : 6 : S.A.NO.692 OF 1999 M.N.KRISHNAN, J. ........................................ S.A.NO.692 OF 1999 ....................................... 29th September, 2009 J U D G M E N T