1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 08.03.2010 CORAM: THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN C.M.A(MD)No.70 of 2010 and M.P(MD)Nos. 2 and 3 of 2010 Rajinder Singh ... Appellant/Petitioner/Plaintiff Vs. 1. Vasudevan 2. Mariammal 3. Thayammal ... Respondents /Respondents/Defendants PRAYER: Civil Miscellaneous Appeal filed under Order 43 Rule 1(i)of the Civil Procedure Code, against the judgment and decree dated 21.08.2009 made in I.A.No.1 of 2009 in O.S.No.1 of 2009, on the file of the Principal District Judge, Virudhunagar at Srivilliputhur. For Appellant : Mr.Kadarkarai for Mr.F.Deepak For Respondent-1 : NDW For Respondents : Mr.G.Venugopal 2 and 3 for Mr.K.Srinivasan JUDGMENT The appellant is the plaintiff in O.S.No.1 of 2009, on the file of the Principal District Judge, Virudhunagar, at Srivilliputhur. The respondents 1 to 3 are the defendants 1 to 3 in O.S.No.1 of 2009. 2. The first defendant entered into an agreement for sale, dated 03.10.2008, with the plaintiff, for the land measuring an extent of 7 acres and 9 cents with the plaintiff on 03.10.2008, for a sale consideration of Rs.14 lakhs. According to the agreement Rs.80,000/- has been paid by way of Cheque, bearing No.953181,dated 03.10.2008, drawn on ICICI Bank,Virudhunagar Branch. However, the cheque was not realised. As per the agreement of sale, possession was handed over.The plaintiff paid Rs.4 lakhs as cash on 04.11.2008 and the same was recorded in the agreement for sale. On the same day, another sum of Rs.50,000/- was paid towards standing crops on the land. It was agreed that Rs.10,000/- more could be paid and the possession could be taken over. 3. The first defendant mortgaged the same property to the defendants 2 and 3 on 14.11.2008. Thereafter, four sale deeds were executed, one for a sum of Rs.1,15,000/-, and other three for a sum of Rs.67,000/-each for the lands that were covered under the agreement of sale, dated 03.10.2008 entered into between the plaintiff and the first defendant. Thus, the defendants 2 and 3 are the subsequent purchasers. 4. In these circumstances, the plaintiff instituted O.S.No.1 of 2009, praying for declaration declaring that the sale deed executed by the first https://hcservices.ecourts.gov.in/hcservices/ 2 defendant in favour of the defendants 2 and 3 are not valid and not binding on the plaintiff and for a direction to the defendants 1 to 3 to execute a sale deed in favour of the plaintiff in respect of the suit properties and get it registered at the expense of the plaintiff (or in alternative), it was prayed that if the court declined to pass a decree of specific performance, a direction was sought to the first defendant to return the advance amount with interest at 12%, towards damages. 5. The plaintiff also filed I.A.No.1 of 2009 in O.S.No.1 of 2009, praying interim injunction restraining the defendants 1 to 3, from interfering with the peaceful possession and enjoyment of the suit properties. Initially, an ex-parte order of injunction was passed on 05.01.2009. The defendants 1 to 3 filed a counter affidavit in I.A.No.1 of 2009 in O.S.No.1 of 2009. The District Court rejected the said I.A on 21.08.2009. The present appeal is against the said order, dated 21.08.2009, made in I.A.No.1 of 2009 in O.S.No.1 of 2009.11. The learned counsel for the appellant has made an endorsement that the appellant is dispensing with the notice to the first defendant in the appeal alone, as the main contest is between the plaintiff and the defendants 2 and 3. Hence, with the consent of both parties, the appeal is taken up for final disposal. 6. Heard the learned counsel appearing on either side and perused the records. 7. The learned counsel for the appellant submits that the trial court vacated the injunction mainly on the ground that the plaintiff was not entitled to protection under Section 53-A of the Transfer of Properties Act, since, the sale agreement, dated 03.10.2008 was not a registered one. It is submitted that it was true that after Section 17(1)(A) was introduced in the year 2001 in the Registration Act, the plaintiff is not entitled to protection under Section 53-A of the Transfer of Properties Act. The learned counsel for the appellant further submits that the case of the plaintiff was not seeking protection under Section 53-A of the Transfer of Properties Act. He laid the case for specific performance of the agreement of sale, dated, 03.10.2008. The learned counsel also refers to proviso to Section 49 of the Registration Act and submits that the unregistered sale agreement could be admissible in evidence and therefore, the trial court erred in rejecting the injunction petition. 8. The learned counsel for the plaintiff further submits that as per the sale agreement, dated 03.10.2008 as well as the endorsement made on 04.11.2008, the suit properties came into his possession. The learned counsel further submits that all the original documents relating to the properties were handed over to the plaintiff, while the agreement was entered into between them. It is submitted that the possession of the original documents would also go a long way in establishing his possession of the suit properties. 9. On the other hand, learned counsel for the defendants 2 and 3, the contesting parties, submits that the defendants are bona-fide purchasers for valuable consideration and that they were not aware of the agreement said to have been entered into between the first defendant and the plaintiff, on 03.10.2008. Had it been registered, they could not have agreed for making payment towards mortgage and later in purchasing those https://hcservices.ecourts.gov.in/hcservices/ 3 properties. The first defendant contested the application and disputed the very agreement of sale itself. According to the first defendant, he did not sign the agreement, dated 03.10.2008 and that he did not receive any amount from the plaintiff towards sale consideration. 10. I have considered the learned counsels appearing on either side and perused the materials available on record. 11. The learned counsel for the appellant submits that the appellant is in possession of the suit properties. On the other hand, the learned counsel for the defendants 2 and 3 submits that as per the mortgage deed and also the subsequent sale deeds, they are in possession of the suit properties. 12. In these circumstances, I am not going into the issue as to who are in possession and enjoyment of the suit properties and the same has to be adjudicated by the parties before the trial court. 13. As rightly contended by the learned counsel for the appellant, the trial court passed the impugned order mainly on the ground that the plaintiff is not entitled to protection under Section 53-A of the Transfer of Properties Act, as the sale agreement was not a registered instrument. But, neither in the plaint nor in the application praying for interim injunction ,the plaintiff relied upon Section 53-A of the Transfer of Properties Act. The suit was for specific performance of the agreement of sale, dated 03.10.2008, entered into between the first defendant and the plaintiff. 14. It is true that the sale agreement, dated 03.10.2008 is disputed and that the issue as to whether there was really an agreement of sale between the first defendant and the plaintiff could be agitated only at the time of trial. Thus, the question as to who are in possession and enjoyment of the suit properties as well as the issue of the genuineness of the sale agreement would be gone into at the time of trial. The plaintiff could make necessary amendment to the plaint relating to possession, if so advised. 15. The learned counsel for the appellant submits that status-quo should be maintained and that no alterations should be made in the physical features of the suit properties, as the plaintiff paid a substantial sum of Rs.4 lakhs towards sale consideration and he seeks to enforce the sale agreement, It is further submitted that the defendants 2 and 3, the subsequent purchasers, could not take advantage of the impugned order and that they could not claim equity that by altering the physical features of the suit properties. The learned counsel for the appellant submits the interest of the appellant has to be protected to this extent alone. (*)16. As far as the learned counsel for defendants 2 and 3 are concerned, they are reiterating that they are in possession of the suit properties, but, the https://hcservices.ecourts.gov.in/hcservices/ 4 plaintiff reiterates that he is in possession of the suit properties. The issue as to whether who are in possession of the suit properties has to be decided at the time of trial and both parties, namely, the plaintiff and defendants 2 and 3 are directed not to make any alterations changing the character of the suit properties in the mean time.' 17. In these circumstances, status-quo is directed to be maintained and further direction is issued that no alterations changing the character of the suit properties would be made by both the parties. The parties are at liberty to raise all their contentions during the time of trial. The impugned order is modified to the extent as indicated above and the trial court is directed to dispose of the suit, within a period of six months from the date of receipt of a copy of this order. 18. The Civil Miscellaneous Appeal is disposed of in above terms. Consequently, connected Miscellaneous petitions are closed. No costs. SD ASST REGISTRAR ( CO ) (*)AMENDED BY SUBSTITUTING THE PARA No. 16 AS DICTATED IN THE ORDER DATED: 24.03.2010 MADE IN CMA(MD)70 OF 2010. SD ASST REGISTRAR ( CO ) /TRUE COPY/ SUB ASST REGISTRAR vsn To TO BE SUBSTITUTED TO THE ORDER ALREADY DESPATCHED ON 11.03.2010 The Principal District Judge, Virudhunagar at Srivilliputhur. 1CC TO MR.F. DEEPAK, ADVOCATE,S R: 11390: 1CC TO MR.K. SRINIVASAN, ADVOCATE, SR: 8568: DM::2010::MARCH::11:: DM::2010::MARCH::31:: C.M.A(MD)No.70 of 2010 08.03.2010 4P:4C:: https://hcservices.ecourts.gov.in/hcservices/