R.S.A. No. 2523 of 1989 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 2523 of 1989 (O&M) Date of decision: 24.02.2009 Chhota Singh ....Appellant Versus Bikkar Singh and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: Mr. B.S. Bhalla, Advocate, for the appellant. Mr. V. K. Kataria, Advocate, for respondent No. 1. ***** VINOD K. SHARMA, J The appellant/defendant has challenged the judgment and decree dated 15.1.1987 and 18.8.1989 passed by the learned Courts below decreeing the suit filed by the plaintiff/respondent for permanent injunction restraining the defendant/appellant from interfering with the possession of the plaintiff of agricultural land situated in village Bhag Thala Kalan Tehsil Faridkot. The plaintiff/respondent brought a suit for permanent injunction on the pleadings that Chhota Singh defendant No. 1 executed following agreements: - 1. Agreement to mortgage with possession dated 6.6.1969 R.S.A. No. 2523 of 1989 (O&M) -2- for a sum of Rs.1,500/- (Rupees one thousand five hundred only) advance received, and it was agreed that the mortgage deed was to be executed on 15.7.1969. 2. The agreement to sell the aforesaid land on 3.8.1970 for a sum of Rs.6000/- (Rupees six thousand only) against advance of Rs.5,700/- (Rupees five thousand seven hundred only) received upto 3.8.1970 vide which the possession of the land was delivered to plaintiff. The sale was agreed to be executed and registered on 5.10.1970 on payment of Rs.300/- (Rupees three hundred only). 3. The sale deed dated 1.9.1972 was executed in favour of plaintiff in pursuance to agreement to sell, but the same was not registered, though stamp duty was paid by the plaintiff. It was also the case of the plaintiff that a suit for mandatory injunction directing the defendant to get the sale deed registered was filed, in which on the pleadings of the parties, the learned Senior Sub Judge, Faridkot, framed the following issues: - "1. Whether the defendant executed agreements dated 6.6.1969 and 3.8.1970 in favour of the plaintiff and received Rs.857/- and Rs.4825/- respectively on the strength thereof and agreed to sell his land measuring 35 kanals 15 marlas? OPP. 2. Whether the suit is maintainable in the present form? OPP. 3. Whether the suit is not within time? OPP. R.S.A. No. 2523 of 1989 (O&M) -3- 4. Relief." In the suit, the execution of agreement dated 1.9.1972 by the defendant/appellant in favour of the plaintiff was upheld, but the suit was dismissed on technical grounds holding that the suit for mandatory injunction was not maintainable because plaintiff was to file a suit for specific performance. It was claimed that plaintiff was always ready and willing and still ready and willing to perform his part of contract, but the defendant committed breach of contract. It was further the case of the plaintiff that in part performance of agreement to sell, the plaintiff was in possession of the suit land, and thus he was entitled to defend his possession under Section 53-A of the Transfer of Property Act. It was further the case of the plaintiff that other co-sharer Mina Singh S/o Neta Singh sold his half share to the plaintiff, which was further sold to Sadhu Singh and Jang Singh S/o Pala Singh, but he continued to be in possession of the same as tenant. It was claimed that the defendants being influential persons were trying to interfere with the possession of the plaintiff over the entire suit land and have refused to admit the claim of the plaintiff. The suit was contested by defendants on the ground that the suit was not maintainable in present form. The suit was barred by principle of res judicata. It was also claimed that the suit was not within time. On merits, it was denied that defendant No. 1 ever executed agreement mentioned in the plaint in favour of the plaintiff/respondent. It was also denied that the possession of the property was handed over to the plaintiff in part performance of agreement to sell. However, it was R.S.A. No. 2523 of 1989 (O&M) -4- admitted that Mina Singh sold his half share to Sh. Bikkar Singh and he further sold it to Sadhu Singh and Jang Singh. The defendants claimed to be in possession of the suit land, and thus prayed that the suit be dismissed. In replication, the averments made in the plaint were reiterated and that of written statement were denied. On the pleadings of the parties, the learned trial Court was pleased to frame the following isuses: - "1. Whether Chhota Singh defendant No. 1 executed the agreement dated 6.6.69 and 15.7.69 to mortgage his land and agreement to sell dated 3.8.70 to defendant his land in favour of the plaintiff? 2. Whether the defendants No. 1 received any advance from the plaintiff in connection with the aforesaid agreement? 3. Whether defendant No. 1 delivered the possession of the land in suit to the plaintiff pursuance to this agreement? 4. Whether defendant No. 1 Chhota Singh executed the sale deed dated 1.9.72 in favour of the plaintiff pursuant to the agreement dated 3.8.79 if so, its effect? 5. Whether the plaintiff filed a suit No. 233/No. 600 of 16.8.75/4.1.77 against the defendant and whether the aforesaid suit was dismissed? If so, its effect? 6. Whether the plaintiff has been ready and willing to perform his part of the contract? 7. Whether the plaintiff is in possession of the suit land and is entitled to protect his possession under Section 53-A of the Transfer R.S.A. No. 2523 of 1989 (O&M) -5- of Property Act? 8. Whether the plaintiff is in possession of a part of the land as tenant? 9. Whether the suit is not in proper form? 10. Whether the suit is barred by the rule of res judicata? 11. Whether the suit is time barred? 12. Relief." The learned trial Court decided issues No. 1 and 4 together, and on the basis of evidence brought on record, recorded the finding that defendant No. 1 executed the agreements dated 6.6.1969 and 3.8.1970 in favour of the plaintiff. He also executed the sale deed dated 1.9.1972 in favour of the plaintiff in pursuance to the agreement to sell. Thus issues No. 1 and 4 were decided in favour of the plaintiff. On issue No. 2, the learned trial Court was pleased to hold that the defendant received the advance as mentioned in the agreement and thus issue No. 2 was also decided in favour of the plaintiff. Issues No. 3 and 7 were taken up together. The learned trial Court in view of Ex.PW-2/B held that the possession of suit land was delivered by defendant No. 1 to the plaintiff at the time of execution of agreement to sell in part performance. It was also proved that the defendant/appellant received a sum of Rs.5,700/- (Rupees five thousand seven hundred only) out of sale consideration of Rs.6,000/- (Rupees six thousand only). The learned Court held that the plea of the defendant that the plaintiff was not put in possession by way of part performance of agrement to sell merely beause he was in possession as mortgagee, was not accepted in view of the stipulation in the agreement to sell as well as R.S.A. No. 2523 of 1989 (O&M) -6- sale deed that the plaintiff was in possession of the property in dispute. The learned trial Court also noticed that the revenue record brought on recrod also showed the plaintiff to be in possession. The learned trial Court, therefore, held that defendant No. 1 delivered possession of the suit land to the plaintiff in pursuance to the agreement to sell and, therefore, the plaintiff is entitled to protect his possession under Section 53-A of the Transfer of Property Act. Thus issues No. 3 and 7 were also decided in favour of the plaintiff. The learned trial Court decided issue No. 5 also against the defendant/appellant and in favour of the plaintiff. On issue No. 6 it was held that the plaintiff has always been ready and still willing to perform his part of agreement. On issue No. 8, it was held that the plaintiff was owner in possession of the land purchased by him and further sold to Sadhu Singh and Jang Singh as tenants. Issues No. 9, 10 and 11 were not pressed. Consequently, the suit was decreed. The plaintiff preferred an appeal, which was dismissed and the findings recorded by the learned trial Court on all the issues were affirmed. Mr. B.S. Bhalla, learned counsel appearing on behalf of the appellant, raised the following substantial questions of law: - "1. Whether the suit filed by the plaintiff was time barred and also being barred by res judicata? 2. Whether the plaintiff could maintain the suit for injunction on the defence of Section 53-A of the Transfer of Property Act?" R.S.A. No. 2523 of 1989 (O&M) -7- In support of first substantial question of law, the learned counsel for the appellant contended that the suit, as framed, was not competent as the earlier suit filed by the plaintiff/respondent for mandatory injuction was dismissed. The contention of the learned counsel for the appellant was, that even at the time of filing of previous suit, the remedy with the plaintiff/respondent was to file a suit for specific performance. Once having not done so, he could not maintain the second suit on the same cause of action. There is force in this plea, but the suit filed is not for specific performance, which could be said to be barred. Whereas in support of second substantial question of law, Mr. B.S. Bhalla, learned counsel for the appellant, contended that provisions of Section 53 can be invoked in defence, and cannot be basis for filing the suit. On the contentions referred to above, the learned counsel for the appellant prayed that the substantial questions of law, as framed, deserve to be answered in favour of the appellant/defendant. Mr. V.K. Kataria, learned counsel appearing on behalf of respondent No. 1, however, contended that the learned Courts below rightly held that the suit was not barred under the principle of res judicata. Firstly, for the reason that in previous suit it was held that the defendant/appellant executed the agreement to sell, wherein a stipulation was contained that the possession has been given to plaintiff. The second suit for injunction was on fresh cause of action. It is also the contention of the learned counsel for the respondent that suit for injunction under section 53-A of the Transfer of R.S.A. No. 2523 of 1989 (O&M) -8- Property Act is competent. In support of this contention, reliance was placed on the judgment of Hon'ble Bombay High Court in Dharmaji alias Baban Bajirao Shinde Vs. Jagannath Shankar Jadhav since deceased by his heirs Bhanudas Jagannath Jadhav etc., AIR 1994 Bombay 254. The reliance was also placed on the judgment of this Court in Rani Sambhi and others Vs. Lt. Col. (Retd.) R.L.Vashisht, 2003(3) PLR 490, wherein this Court has been pleased to lay down as under: - "I am afraid, the said contention raised by the learned counsel for the defendant-petitioners is not tenable in law. Protection under Section 53-A of the Transfer of Property Act is an independent right and a person in part performance of the agreement, if shown that he was always ready and willing to perform his part of agreement and had been delivered the possession in performance of the agreement, was entitled to the said protection. It was not required that he should have filed a suit for specific performance within limitation. This view of mine finds support from a judgment of the Hon'ble Supreme Court of India of the case of Shrimant Shamrao Suryavanshi Vs. Pralhad Bhairoba Suryavanshi, 2002(1) Rent Law Reporter 494. On consideration of matter, I find force in the contentions raised by the learned counsel for respondent No. 1. The suit filed by the plaintiff/respondent could not be said to be barred on the principle of res judicata inasmuch as the previous suit filed by the plaintiff was for mandatory injunction for directing the defendant/appellant to execute the sale deed in pursuance to the agreement to sell and draft sale deed duly exeucted. The said suit was dismissed on technical grounds. Though on R.S.A. No. 2523 of 1989 (O&M) -9- merits, issues were decided in favour of the plaintiff/respondent. The suit now filed is for injunction, as the defendant/appellant threatened to interfere with the possession of the plaintiff/respondent. This was a new cause of action on the basis of which the suit filed was competent and, therefore, it could not be held that the suit filed was liable to be rejected on the principle of res judicata. Nor the suit can be said to be time barred. The first substantial question of law, is thus, answered against the appellant and in favour of the plainitff/respondent. The second substantial question of law also deserves to be answered against the defendant/appellant in view of the law laid down by this Court in Rani Sambhi and others Vs. Lt. Col. (Retd.) R.L.Vashisht (supra). For the reasons stated above, the substantial questions of law are answered against the appellant/defendant and the appeal is ordered to be dismissed, but with no order as to costs. (Vinod K. Sharma) Judge February 24, 2009 R.S.