R. S. A. No. 4255 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 4255 of 2010 Date of Decision : November 17, 2010 Jai Parkash .... Appellant Vs. Raj Pal and another .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Adarsh Jain, Advocate for the appellant. * * * L. N. MITTAL, J. (Oral) : Plaintiff Jai Parkash having remained unsuccessful in both the courts below has filed the instant second appeal. Appellant Jai Parkash filed suit against respondents-defendants Raj Pal and Babu Lal alleging that the plaintiff-appellant is owner in possession of the suit property measuring 149 sq. yds., which he purchased from his brother Raj Pal – defendant no.1 vide agreement to sell dated 03.07.1999 for Rs.60,000/- by paying total consideration and since then, he is owner in possession thereof. He constructed boundary wall of the plot and also constructed mangers etc. for the cattle. However, defendant no.1, R. S. A. No. 4255 of 2010 2 out of greed, was bent upon to alienate the suit property to defendant no.2 or somebody else without any right to do so. The defendants also threatened to interfere in peaceful possession of the plaintiff over the suit property. Accordingly, the plaintiff sought permanent injunction restraining the defendants from interfering in peaceful possession of the plaintiff over the suit property and from dispossessing him therefrom and from alienating the same. Defendant no.1 was proceeded ex-parte in the trial court. Defendant no.2 contested the suit and inter alia pleaded that he has purchased plot measuring 54 sq. yds. out of the suit property from defendant no.1 vide registered sale deed dated 05.07.1999 and since then, he is owner in possession of the said plot. Plaint averments were controverted. Various other pleas were also raised. Learned Civil Judge (Junior Division), Faridabad, vide judgment and decree dated 03.03.2010, dismissed the plaintiff's suit. First appeal preferred by the plaintiff has been dismissed by learned Additional District Judge, Faridabad, vide judgment and decree dated 16.08.2010. Feeling aggrieved, plaintiff has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Plaintiff has produced agreement Ex.P-2 dated 03.07.1999, vide which he purchased the suit plot measuring 149 sq. yds. from his R. S. A. No. 4255 of 2010 3 brother – defendant no.1. Plaintiff also produced receipt Ex.P-3 regarding payment of sale consideration. On the other hand, defendant no.2 had produced sale deed dated 05.07.1999 Ex.D-1, whereby he purchased 54 sq. yds. plot from defendant no.1. Perusal of alleged agreement Ex.P-2, set up by the plaintiff, as shown by counsel for the appellant, reveals that it is not an agreement to sell, but is in fact unregistered sale deed for consideration of Rs.60,000/-. Consequently, the said sale deed, which required compulsory registration, is inadmissible in evidence being unregistered. However, even if this document is assumed to be an agreement to sell, the plaintiff has not sought relief of specific performance of the agreement and has filed the instant suit for permanent injunction only. Consequently, in view of Section 41(h) of the Specific Relief Act, 1963, the instant suit for permanent injunction alone is not maintainable as the plaintiff had equally efficacious remedy to seek relief of specific performance of the alleged agreement. On the other hand, agreement Ex.P-2 does not confer ownership of the suit property on the plaintiff, being unregistered document. However, defendant no.2 has purchased part of the suit property by registered sale deed and consequently, defendant no.2 has become owner in possession of the property purchased by him. It may be mentioned that even according to plaintiff's own version, he had constructed boundary wall and mangers etc. in the property purchased by him. It would depict that the R. S. A. No. 4255 of 2010 4 property is a vacant plot. It has also been so stated by defendant no.2, while appearing in the witness-box. He has stated that the plot purchased by him is a vacant plot. Possession of the said vacant plot would go with the ownership. Defendant no.2 has acquired valid title over the plot measuring 54 sq. yds. purchased by him by registered sale deed dated 05.07.1999. Consequently, he is deemed to be in possession thereof. Learned counsel for the appellant vehemently contended that even defendant no.2, while appearing in the witness-box, has admitted that the plaintiff has presently merged the suit plot with his house. On the basis of this statement, counsel for the appellant vehemently contended that plaintiff-appellant is proved to be in possession of the suit plot. The contention cannot be accepted. The aforesaid sentence in cross-examination of defendant no.2 cannot be torn out of context and cannot be read in isolation. Defendant no.2 specifically stated that he is owner in possession of the plot purchased by him vide registered sale deed dated 05.07.1999 since the date of purchase. He has also stated that the plot purchased by him is still lying vacant. Moreover, defendant no.2 appeared in the witness-box more than ten years after the filing of the suit. The suit was filed on 21.07.1999. Sale deed in favour of defendant no.2 is dated 05.07.1999 and agreement in favour of the plaintiff is dated 03.07.1999. Consequently, if in the year 2009, when defendant no.2 appeared in the witness-box, the plaintiff has merged the plot with his adjoining house by raising boundary R. S. A. No. 4255 of 2010 5 wall, it cannot be said that plaintiff is in possession of the suit land or that defendant no.2 has been dispossessed from the plot purchased by him. It may be added that even defendant no.1 – vendor has stepped into the witness-box and has supported the case of defendant no.2. Learned counsel for the appellant, relying on a judgment of this Court in the case of Chaman Lal vs. Smt. Surinder Kumari reported as AIR 1983 Punjab and Haryana 323, contended that the plaintiff, even on the basis of agreement Ex.P-2, is entitled to protect his possession in view of Section 53-A of the Transfer of Property Act (in short – the Act). The contention cannot be accepted. In that case, the defendant was protecting her possession under the Act. Even otherwise, language of Section 53-A of the Act makes it clear that transferror cannot enforce any right against the transferee, who is in possession of the property in part performance of the agreement to sell. Thus, it is defendant, who can protect his possession by taking shelter under Section 53-A of the Act. The plaintiff is not entitled to any such protection. In addition to it, another condition has to be satisfied to avail of the benefit of Section 53-A of the Act. The person claiming such protection has to aver and prove that he has performed or is willing to perform his part of the contract. In the instant case, this essential ingredient of the aforesaid statutory provision is also completely missing from the case of the plaintiff-appellant. For the reasons aforesaid, I find no merit in the instant second R. S. A. No. 4255 of 2010 6 appeal. The plaintiff has been rightly non-suited by the courts below. There is no infirmity, much less illegality or perversity in concurrent finding recorded against the plaintiff-appellant. The said finding is justified by the evidence on record and supported by cogent reasons recorded by both the courts below. No question of law, much less substantial question of law, arises for determination in the instant second appeal. Accordingly, the appeal is dismissed in limine. November 17, 2010 ( L. N. MITTAL ) monika JUDGE