RSA No.3107 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3107 of 2009 (O&M) Date of decision: 13.10.2010 Ranjit Singh through LRs ......Appellant(s) Versus State of Haryana and others ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. O.P.Sharma, Advocate for the appellants. Mr. Ashok Jindal, Additional Advocate General, Haryana for the State. Mr. V.K. Jain, Sr. Advocate with Mr. J.K.Bhatti, Advocate for respondents No.4 to 6. Rakesh Kumar Garg, J. This is plaintiffs' second appeal challenging the judgment and decrees of the Courts below whereby their suit for declaration and permanent injunction was dismissed holding the same as not maintainable. In the suit, the appellants claimed that they have become the owners of the suit land on the basis of agreement to sell dated 16.3.1981 as total sale consideration was paid to the prospective vendor Tehal Ram (defendant-respondent No.8), who was the allottee of the suit land and were put into possession. It was further averred that Rapat No.391 dated 15.7.1981 which was entered in favour of appellant No.1 was wrongly cancelled by the Revenue Authorities and issuance of Sanad dated 3.5.1995 and subsequent proceedings conducted on the basis of that instrument were illegal and the appellants were entitled to get their names entered as owners in possession from original allottee i.e. respondent No.8. The plaintiff-appellants also claimed ownership by way of adverse RSA No.3107 of 2009 (O&M) 2 possession. The plaintiff-appellants also prayed for issuance of injunction against the respondents and to interfere in their possession over the suit land and further restraining them from alienating the suit land. The defendant-respondents denied the averments made by the appellants alleging that agreement to sell confers no title. The plea of adverse possession was also denied and it was claimed that the suit was not maintainable and was liable to be dismissed. The issues were framed by the trial Court on 19.1.2006 and issue No.1 “whether the suit is not maintainable in the present form? OPP” was treated as a preliminary issue. While deciding, the trial Court observed that no evidence was required to decide the maintainability of the suit and after hearing learned counsel for the parties and perusing the pleadings, dismissed the suit holding the same as not maintainable. The appeal filed by the plaintiffs against the aforesaid judgment and decree of the trial Court was also dismissed by the Lower Appellate Court vide impugned judgment and decree dated 12.5.2009. While dismissing the appeal, the Lower Appellate Court observed as under: “After going through the record carefully and considering the judgment of learned trial Court, I have come to the conclusion that the maintainability of suit may be decided while framing preliminary issue, in view of authority titled as Krishna Kumar Birla v. Rajendra Singh Lodha & Ors (supra), it is settled principle of law that agreement confers no title. In the present suit plaintiffs have claimed ownership and wants to get them declared as such, except agreement no pleadings have been given by the plaintiffs regarding their title. In these RSA No.3107 of 2009 (O&M) 3 circumstances, it is established that the plaintiffs cannot claim declaration of title on basis of the agreement to sell. As far as question of adverse possession is concerned, the plaintiffs have claimed that they came into possession by way of agreement, therefore, the possession of plaintiffs for the suit land is permissive as alleged. Therefore, the plea of adverse possession is not available to the plaintiffs. As far as relief of injunction is concerned, the plaintiffs can claim under Section 53 (A) of Transfer of Property Act but the plaintiffs have no where pleaded in their plaint regarding their readiness and willingness and they have also not pleaded as to why sale deed was not executed after a lapse of about couple of years. Therefore, in absence of pleadings of readiness and willingness, the suit is not maintainable. Even otherwise the plea on part of performance of contract to protect possession of prospective vendee cannot be taken by the plaintiffs because the right given under Section 53 (A) of Transfer of property Act 1882 can be used as a shield and not as a weapon as held in authority titled as Williams v. Lourdusamy & Anr. (supra). The authorities cited by counsel for the appellants are not applicable to the facts of the present case. Therefore, the appellant cannot derive any benefit by citing aforesaid authorities.” Still not satisfied, the plaintiff-appellant has filed the instant appeal before this Court challenging the impugned judgment and decrees of the Courts below. RSA No.3107 of 2009 (O&M) 4 On 24.8.2009, learned counsel for the appellants had contended before this Court that even if the suit for declaration was not maintainable on the basis of agreement to sell in favour of the plaintiffs, they were entitled to protect their possession being in possession of the suit property in part performance of the agreement and therefore, the suit could not have been dismissed as not maintainable in its entirety. Noticing the aforesaid argument, this Court issued notice of motion to the respondents. I have heard learned counsel for the parties and perused the impugned judgment and decrees of the Courts below. To be fair to the learned counsel for the appellants, it is relevant to mention that findings of the Courts below regarding the claim of declaration of ownership on the basis of agreement and on the plea of adverse possession was not pressed. Thus, it is not in dispute that in the present case, the appellants have not challenged the title of the respondents. It stands settled by the Hon'ble Supreme Court in Williams v. Lourdusamy & Anr.2008(3) Civil Court Cases 022 (SC) that the plea to protect possession of prospective vendee on the plea of part performance of contract can be used as a shield and not as a weapon. Not only this, the appellant is claiming the possession on the basis of agreement to sell in question which is unregistered. This Court in the case of Gurbachan v. Raghbir 2010 (2) PLR 511, after relying upon the provisions of Section 17 (1A) and 49 of the Indian Registration Act, 1908, has held that such unregistered agreement to sell would not be received as an evidence. In view of the aforesaid settled proposition of law, learned counsel for the appellants has also not challenged the findings of the Lower Appellate Court regarding the relief of injunction on the basis of plea RSA No.3107 of 2009 (O&M) 5 of part performance of the contract under Section 53-A of the Transfer of Property Act. However, what has been argued before this Court is that the appellants are admittedly in long and settled possession of the suit property and therefore, they are entitled to protect their possession and they cannot be evicted forcibly and illegally except in due course of law. In support of his contention, learned counsel for the appellants has relied upon a judgment of this Court in the case of Sohan Singh and another v. Jhaman 1986(1) PLR 326. The argument as raised by the learned counsel for the appellants is without any merit in view of the judgment of this Court in Sukhwant Singh Versus Divisional Forest Officer and another 2009 (3) PLR 433 wherein after relying upon various judgments of the Hon'ble Supreme Court in Premji Ratansey Shah and others v. Union of India and others (1994) 5 SCC 547, Sopan Sukhdeo Sable and others v. Assistant Charity Commissioner and others (2004) 3 SCC 137, Prataprai N. Kothari v. John Braganza (1999) 4 SCC 403, Mahadeo Savlaram Shelke and others v. Pune Municipal corporation and another (1995) 3 SCC 33 , Tamil Nadu Housing Board v. A.Viswam (Dead) by LRs. (1996) 8 SCC 259, Shiv Kumar Chadha v. Municipal Corporation of Delhi (1993) 3SCC 161, it has been held that an injunction cannot be granted in favour of the plaintiffs who are in an unauthorized possession and against the defendants who are the true owners of the suit land. In the above referred judgments, it is clearly made out that it is the consistent view of the Hon'ble Supreme Court that a trespasser cannot seek injunction against the true owner though he may have a right to protect his possession against the whole world. Even in the judgment relied upon by the learned counsel for the appellants it has been observed that in case the plaintiff comes to the RSA No.3107 of 2009 (O&M) 6 Court on the basis of his title to the suit property and if he fails to prove the same to the contrary, then the relief of permanent injunction on the basis of his possession alone will have to be ordinarily refused. In this view of the matter, the judgment cited by the learned counsel for the appellants is of no help to them. Thus, I find no merit in this appeal. No substantial question of law arises in this appeal. Dismissed. October 13, 2010 (RAKESH KUMAR GARG) ps JUDGE