C.R. No. 3178 of 2008 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.R. No. 3178 of 2008 Date of Decision: August 11, 2009 Daya Ram and another …..Petitioners Vs. Lekh Raj and others …..Respondents CORAM: HON’BLE MR. JUSTICE M.M.S. BEDI. -.- Present:- Mr. B.R. Mahajan, Advocate for the petitioners. Mr.Sanjay Mittal, Advocate for respondents No.1 and 2. -.- M.M.S. BEDI, J. (ORAL) Defendants, aggrieved by the order dated April 30, 2008 passed by Additional District Judge, Narnaul, allowing the appeal of the plaintiff- respondents and modifying the order dated October 13, 2006 passed by Civil Judge, Senior Division, Narnaul, has preferred this revision petition under Article 227 of the Constitution of India. C.R. No. 3178 of 2008 [2] Vide order dated October 13, 2006 in a suit of plaintiff- respondents for specific performance of agreement to sell dated June 15, 2005 filed against the defendants Om Parkash and others (petitioners being defendants No.2 and 3), the trial Court had restrained the petitioners from alienating the suit property till final decision of the suit. In an appeal filed by the plaintiff- respondents before the Lower Appellate Court, the lower Appellate Court also imposed a restraint by passing an interim order not to interfere in the possession of the plaintiffs over the suit property restraining them from alienating and creating any charge over the suit property. Mr.Mahajan, learned counsel for the defendant- petitioners has contended that the plaintiff- respondents claim their rights on the basis of an agreement of sale dated June 15, 2005 in which possession is also alleged to have been transferred to the plaintiff- respondents. Such an agreement of sale requires compulsory registration if seen in context to the provisions of Section 17 (1) (a) of the Registration Act, 1908, (for short ‘the Act’). He argued that if the abovesaid agreement of sale which requires compulsory registration is unregistered the provisions of Section 49 of the Act would make the said document ineffective qua the immoveable property. He also referred to Article 23-A of Schedule I of the Indian Stamp Act which was added in the year 2001, to contend that contracts for transfer of immoveable property in nature of part performance under Section 53 of the Transfer of Property Act, 1882, would required 90% of duty as a conveyance (No.23). It was vehemently urged that the agreement set up by the plaintiff- respondents is not legally enforceable agreement and no reliance on such C.R. No. 3178 of 2008 [3] agreement could be placed. The Courts below have failed to consider the said aspect. I have considered the legal contention raised by Mr.Mahajan and taken into consideration the factual aspects. In the present case, the plaintiff- respondents have alleged that defendant No.1 Om Parkash and Inderlal, predecessor in interest of defendant-petitioners were owners in possession of the suit property. They had allegedly agreed to sell suit property to plaintiff No.1 Lekh Raj and had executed an agreement of sale dated June 15,2005 in favour of plaintiff No.1 (Lekh Raj) and received a sum of Rs.7 lacs as earnest money and had agreed to receive balance sale consideration at the time of execution of the sale deed which was to be executed on or before November 15, 2005. The defendants have taken up a plea that the signatures of Inderlal, father of the petitioners were obtained by defendant No.1- Om Parkash under the pretext of taking loan for purchase of Tractor. Defendant No.1- Om Parkash is son of Inderlal. Delivery of possession of suit land appears to have taken place in favour of plaintiff- respondents, as Om Parkash, defendant No.1 has already executed the sale deed in favour of the plaintiffs. There is clear recital in the agreement of sale dated June 15, 2005 that possession of the suit property has been delivered to the vendee. It will be premature to express any opinion regarding the relevancy and admissibility of unregistered agreement of sale in which possession is stated to have been delivered. Whether the same can be used has to be considered in the light of the provisions of Section 49 of the Act. Prima facie, even if it is presumed that the agreement of sale in C.R. No. 3178 of 2008 [4] dispute is not registered the factor that possession has been delivered will not debar the plaintiff- respondents from the protection under Section 53 (a) of the Transfer of Property Act. Section 49 of the Act reads as follows:- “49. Effect of non-registration of documents required to be registered: No document required by section 17 32[or by any provision of the Transfer of Property Act, 1882] to be registered shall- (a) affect any immovable property comprised therein, or (b) confer any power to adopt, or (c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered: [PROVIDED that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877), or as evidence of any collateral transaction not required to be effected by registered instrument.]” The proviso of Section 49 of the Act lays down an exception that an unregistered document affecting immoveable property and required by this Registration Act or Transfer of Property Act, to be registered may be received as evidence of a contract in a suit for specific performance under C.R. No. 3178 of 2008 [5] Chapter II of the Specific Relief Act or as evidence of any collateral transaction not required to be effected by registered instrument. In this context reliance can be placed on the observations of this Court in the case of Balraj Singh Vs. Pritam Singh, C.R. No. 2238 of 2006, wherein dealing with the provisions of Section 49 of the Act in the matter of an agreement of sale in which possession was handed over to the proposed vendee even if the agreement of sale is not registered, it would not debar a party from protection under Section 53-A of the Transfer of Property Act and in view of provisions of Section 49 of the Registration Act, the said document can be used as evidence of possession once the document is not in dispute. It was also observed in the said case that the plea that the actual physical possession was not given and only symbolic possession was given will not be available. Since the interim order restraining the defendant- petitioner from alienating the property is concerned, same has not been challenged. The interim order restraining the defendant- petitioners from interfering in the possession of the plaintiffs over the suit property does not call for any interference. Dismissed. Nothing said in the order will, in any manner, prejudice the rights of the parties on merits. Any observation made in the abovesaid order is meant only for adjudication of the application for interim injunction filed by the plaintiff- respondents. August 11, 2009 (M.M.S.BEDI) sanjay JUDGE C.R. No. 3178 of 2008 [6]