IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.518 of 2008 RAM NARAYAN SINGH, son of late Sohrai Singh, resident of village Basant Bigha, Sikaria English P.S. Karakat (Gorari), District- Rohtas. Versus KRISHNA DEO SINGH, son of late Parmeshwar Prasad Singh, resident of village Karma, P.S. Karakat (Gorari), District- Rohtas. ----------- For the appellant: Mr. Dhrub Narayan, Senior Advocate Mr. Jitendra Prasad Singh,Advocate For the Respondent: Mr. Sanjay Singh, Advocate. --- 8. 26.10.2009 Heard learned counsel for the appellant and learned counsel for the respondent. The appellant has come to this Court against the order dated 25.7.2008 passed in Title Appeal No.8 of 2008, by which an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure for temporary injunction has been dismissed. The title appeal itself was filed by the present plaintiff-appellant on the dismissal of his suit for specific performance. The said Title Suit No. 313 of 1998 was filed by him with respect to an agreement for sale dated 17.6.1997, in which there was an averment that an amount of Rs.67,250/- had been paid against the total sale price of Rs.80,000/- and possession had been given to the plaintiff-appellant and the sale deed was to be executed on receiving the balance amount of - 2 - Rs. 12,750/- by 16.6.1998. The plaintiff- appellant’s suit was dismissed on the finding of the Court below found that he has not shown that he was willing to perform his part of the terms of the agreement for sale. However, no finding of possession was recorded in favour of the plaintiff, although specific averment in that regard had been made in paragraph No.7 of the plaint, which was also specifically denied in paragraph No.12 of the written statement, since no issue regarding possession at all was framed. It is also relevant that prior to the filing of the present application on 23.5.2008 for temporary injunction, another petition to the same effect was filed by him on 26.2.2008 for restraining the respondent from disturbing the possession of the appellant and from harvesting the Rabi crops, which was dismissed as withdrawn on 9.5.2008. Learned counsel for the appellant submits that since there was a clear averment in the agreement for sale itself regarding the possession having been handed over to the plaintiff- appellant, hence, the same ought to have been considered sufficient by the Court below to have granted an injunction in favour of the appellant - 3 - against the respondent. It is submitted by him that the case of the appellant falls squarely under the provisions of Section 53-A of the Transfer of Property Act and thus on the basis of the doctrine of part performance, the appellant was entitled to claim protection of his possession. It is further submitted that the respondent not having filed any suit for the rescission of the agreement for sale or for declaring the same void, which remedy he had under Section 27-A of the Specific Reliefs Act, it is not open to him to challenge the averments made in the said agreement and the Court below ought to have, accordingly, acted on the basis of the said averments. In support of the aforesaid stand, learned counsel for the appellant relies upon a decision of a Division Bench of the Bombay High Court in the case of Venkat Dharmaji Gontalwar v. Vishwanath and another: AIR 1983 Bombay 413, in paragraph No.12 of which it has been held as follows: “12. Injunction is a preventive relief. If a party to the suit invades the rights of the other party in any manner which resulted in causing obstruction to the peaceful enjoyment of right of the other party then that party always can claim - 4 - relief of injunction in the suit itself.” He further relies upon a decision of a Division Bench of the Madras High Court in the case of S.F Munuswami Gounder and others v. Erusa Gounder: AIR 1975 Madras 25, in paragraph No.2 of which it has been held as follows: “2. It seems to us that the judgment in second appeal cannot be supported. Subba Rao, C.J. (as he then was) himself observed in that case- “It is settled law, that, under Section 53-A of the Transfer of property Act, no title passes to a transferee. He cannot file a suit for declaration of his title to the property or seek to recover possession of the same on the basis of any title conferred on him”. Venkatadri J. was, therefore, not right in allowing the appeal, which would mean that he was giving declaration of title sought for. As pointed out in AIR 1957 Andh Pra 854 which is representative of a large volume of judicial opinion Section 53-A of the Transfer of Property Act does confer some right on the transferee, if the conditions of that section are fully satisfied, and what is that right is also clear from the provisions of Section 53-A. The right is to have the transferor or any person claiming under him debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession. This right can be enforced by the transferee always as a shield and not as an independent claim either in the capacity of plaintiff or defendants, that is to say, he cannot ask for title basing his claim on the fact that he has fulfilled the conditions of Section 53-A. But he can, as a shield, ask for protection of the right envisaged by - 5 - Section 53-A by debarring; in other words, by getting an injunction against the transferor and those claiming under him from interfering with his possession.” He also relies upon another decision of a learned single Judge of the Bombay High Court in the case of Laxman Pandu Khadke v. Pandharinath Purushottam Rane: AIR 1988 Bombay 196, which is to the similar effect. Learned counsel for the respondent, on the other hand, submits that it was the specific case of the defendant- respondent that no agreement for sale was ever executed by him nor any money received under it nor the possession was ever given to the plaintiff- appellant and he never came in possession of the suit land, rather it is the defendant-respondent, who has always continued in possession of the land in question having derived title to the same through his fore- fathers. Learned counsel also harps on the fact that no finding of possession was given in favour of the appellant by the trial Court or by the first Appellate Court. He further submits that earlier a similar petition having been rejected by the lower Appellate Court on 9.5.2008, the learned - 6 - Appellate Court has rightly rejected the subsequent injunction petition filed just 14 days later by the appellant. On a consideration of the facts and circumstances of the case, this Court does not find any illegality in the order of the learned first Appellate Court. So far as the decisions relied upon by learned counsel for the appellant are concerned, in those cases there was a clear finding regarding the possession of the concerned transferee, which is not so in the present matter. Merely on the basis of averments made in the agreement for sale, it cannot be held that as a matter of fact the appellant was given possession and he continued in possession over the suit land, particularly when the same has been specifically denied in the written statement filed by the defendant- respondent. It is also evident from the decisions relied upon by learned counsel for the appellant that there must be a finding regarding possession in his favour before the protection of Section 53- A of the Transfer of Property Act by issuing injunction can be granted to him. Moreover, in the cases cited, there was no denial of possession or - 7 - the existence of the agreement for sale. The fact that the suit filed by the plaintiff- appellant has been dismissed does not, in any case, enhance his claim for a prima facie case in his favour. This Court also finds that in the absence of any finding of possession in his favour, the balance of convenience cannot be said to be in favour of the appellant. For the same reason, it is not a case where any irreparable injury will be caused in the circumstances of the case to the appellant, if the injunction is not granted. Thus, there does not appear to be any ground to interfere with the impugned order dated 25.7.2008. The appeal is, accordingly dismissed. Since the parties have already appeared before the lower Appellate Court, it is directed that the appeal itself be disposed of expeditiously, preferably within a period of four months from the date of receipt/ production of a copy of this order. VPS ( Ramesh Kumar Datta, J. )