1 l 414 P RSAN0124 of 1985 1 ekKeekekek IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH e RSA Noe2124of1985 Date 0fdecisi0n117e022011 Ram Singhand others lppellants Versus 1 Mansa Singhand others 2esjondents 1 CORAM HONBLE MR JUSTICE RAKESH KUMAR JAIN 1 0 9 0 Presentl Mr Alok Jain Advocate for the 1 I 0 Mr SantoshSharmaAdvocate I for the 1 88888 Z RAKESH KUMAR JAIN J tr The defendantsare in secondappealagainstthejudgmentanddecree r 1 of the First AppellateCourt by which judgmentand decreeof 5e learnedTrial I Court hasbeenreversed 3 Z ln brief theplaintiffsfiled a suit for declarationallegingtheleinthat theyare the owners in possession of the land in disputeby vinue of an agreement 10 to sell dated05061971 enteredinto betweenthe partiesfor asum of 57001 V7 which was paidthenandtherewith a stipulation thatwhenevertheplaintiffs would Z requireto getthe sale deedregistered theywould havetheoptionto do thesame n It was allegedthat no saledeedhasbeenregistered so far but as theplaintiffs are Ill peacefulcontinuouspossession of the land in disputefor more than 12 years with the of the dcfendants theyhze become owners by way of 1 4 adversepossessionIt was also allegedthat the plaintiffshad rcquested the defendantsmany a times to getthesaledeed registered in their favour but they l have been postponing the mattcr on otle pretcxtor the other and Onallyrefusedto el admit their claim a week back It is also averredthat theplaintiffs have come to b 4 know thatthe defendantshaveexecutedanotheragreement to sellin respectofthe land in disputein favour of otherpersonsand startedinterfering in their paceful posscssionWith theseassertions the followingprayerwas made in thesuit 7t is therefore prayedthat a decreefor declarationto 1 Batra Amit Sh. Charanjit Batra 2012.05.16 00: 25 True Scaned Copy of Orignal PHHC, Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 415 4 1 RSA Noe2124of 1985 e 1 ekskekekek theeffectthat theplaintiHs are the owners ofthe entire 1 suit land as detailed above and as per copy of the jamabandi attachedherewithfor thefactsgivenabove r with pennanent injunctionas relief the defendantsom gettingthe sale deed of the land of which the plainti are the ownersin possession and to get thesale deed to any otherpersonby theplaintiffsfrom 0 thesuit land illegallyandforciblymay kindlybepassed 0 ln favourof theplaintiffsand againstthe defendants A with costs Anyother reliefwhichthe Court deemsflt C9 mayalso be awardedto theplaintiffs 33 I Jt may be pertinentto mention that initiallythe suit was filed on Z 211981 by Surain Singhbut lateron aRer the death of Surain Singh an application was moved on 1402983 for impleadinghis legal which were brought on recordandthesuit was amended Hence the amendedsuit I was filed on 05031983 from which the prayermadein the suit hasbeenextracted 11 hereinabove While contesting the suit the defendantshad deniedthe averments 1 Z made in the plaintmuclless the agreementand the amountof considerationas CO bytheplaintiffsThe plaintiffs filed replication and on thepleadings ofthe l partiesthe learnedTrial Court framedthefollowingissuesl W2 Z 1 WhethertheplaintiiT zs zn of the suit land2OPP 2 Whether lhere is any valid agreementdated 05061971 as alleged90PP 1 4 3 If issue No isprovedwhether the agreementlS void etc as allegedbythe 1 4 WhethertheplaintilThas becomethe owner by tzd17erse 5 Whether the suit is not maintainable in the presentform90PD 6onusobjectedto9 S 6 Whetherthe suit is barredoyprincipleof res 1 judicata20PD 7 I44zethertheplaintiffis estoppedby his own act Batra Amit Sh. Charanjit Batra 2012.05.16 00: 25 True Scaned Copy of Orignal PHHC, Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 416 1 1 t 6 RSA No2124 0f1985 8 ekRekek i and thesuit2OPD 8 Whethertheplaintihas no locus standi to Iile thesuit90PD 9 Whethertheplaintifhas now come to the Court with cleanhands ifso its ect90PD Il 10 Whetherthesuit is time baned2OPD 1 ll Whetherthe suit isfalse If so its tr effect20PD 0 12 Relief 0 In supportoftheir case both thepartiesled thefollowing evidence I 5 In evidence the originalplainliffcame in the C5 WltnesS box as PWl PW2 Nand SinghPlV3 Partap Singhand PW4 Anant Kunlar were also examined On Z behalfof the defendanlsthefollowingWltnesses were examined DW1 Dr Gian Bhushan I DW2 SholaHassan t0 DW3 Ram Z DW4 RanjhaSingh efendano f10 DW5 PehlwanSingh 6 Thefollowing evidenceis available m Z on thejlleon belfofthe part A Bv theplaintit tl ExPl dated056971 ExP2 Jamabandifortheyear 1979e80 1 ExP3 Jamabandifor theyear 1993e74 ExP4 Khasra girdawarifrom kharif1979 toRabi 1980 ExP5 Khasra girdawarijomkharif1975 41 1 9 t0 kharif1977 eS ExP6 Khasra girdawarijPomkharif1975 toRabi1980 ExP7 Khasra girdawarifrom kltarif1980 to rabi 1982 Batra Amit Sh. Charanjit Batra 2012.05.16 00: 25 True Scaned Copy of Orignal PHHC, Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 417 1 4I J RSAN021240f1985 1 e4 4kekevk ExP711 theyear 1971a72 ExP8 Khasra girdawarifromkharif1982 1 to rabi 1983 1 B Bv the defendant ExDl Agecertiflcate dated 0321983 ln 1 respectofRanjhaSinghslrowing his m agebyappearanceto be 25years 1 Q ExD2 Age certiflcatedad 03021 983 J 0 regarding Pehlwan Singhshowing 0 hisage byappearanceto be25years 1 I 1 ExD3 Copyof order dated 1907980 C5 dismissedas withdrawnthesuitjIled I bySurainSingh Z Ex4 Copyof the plaint in civil suit N1850fI980 33 0 The leamedTrial Court decidedthe issues as under I i9 IssuesNol and2 were decidedagainsttheplaintiffs ii9 IssueNo3 was decidedin favourofthe defendants Z iiil IssuesNoA 85 were decidedagainsttheplaintiffs D iv9 IssuesNo687 were decidedagainstthe defendants vil lssues NoS was decidedin favourofthe defendants 7 Z viil IssuesNo 10 Ee 11 were decidedagainstthedefendantsand 1 finallythesuit was dismissed ll 1 The plaintiffs filed an appealin which theyonlychallenged OndiI of 1 the learnedTrial Court on issues No1 2 3 4 5 8 and 9 Since therewas10 1 challenge to the findingon lSSues Noo 7 10 and 11 those were affirmedbythe J learnedFirst Appellate Court It was alsoobservedbythe learnedFirst Appellate 1 Court that in the originalsuit the plaintiffshad prayedfor declarationand 4 injunctionbut beforethemauer could be argued before the leamed Trial Court the plaintiffs gave up their claim of declaration 1 regardingtheir ownership and restrictedtheir claim to onlyfor injunction learnedFirst AppellateCourt reversedtheflndingof the learned Trial Coun on J issue Nol holdingthe plaintiffs to be in possession of the land in disputelssue 1 No was also decided in favour of the plaintiffsand 1Ssue 03 againstthe Batra Amit Sh. Charanjit Batra 2012.05.16 00: 25 True Scaned Copy of Orignal PHHC, Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 418 1 Al RSA Noe2124of 1985 5e ek9tR9tek defendantswhile holdingthattherelS a validagreementbetween1hepartiesdated 051971 Findingon issue NoA of the learned Trial Court was affirm6d holding thattheplaintiffs havenot becomeowners ofthe land in dispute byway of adversepossessionIssueNo was alsodecidedin favour of theplaintiffs aiid J against the defendantsholdingthatthesuit is maintainablein thepresentform aIid 1 J ultimatelyit was held that since the agreementExl has been provedand the m havebeenfound to be in possession ofthe Iandin disputethejudgrt anddecreeof theleamedTrial Court was set asideandtheplaintiYfs were grant 1 0 injunction ofnot to be otherwisein duecourse oflaw 1 0 againstthe judgmentand decree of the learned First I Appellate Court the defendantshave come up in secondappealin which it is 9 mter alia contendedthat de holls the agreementExPl theyare still the full I ownersof thepropertyin dispute as it hasnot beenlegallyconveyedbyexecuting 1 Z a registered saledeed in favour ofthe plaintiffsIt is submittedthat theplaintiffs 1 hadclaimed ownership onlyon thebasisof adverse u81ichis neiti a C 1 rightavailableto the plaintiffs nor lt 1Sheld to be so in their favour by both the I Courts below and moreover theyhad also abandonedtheir rightof declaration t before the Courts below and onlypursued their suit for injunction It is also Z submittedthatthere was no periodflxed in theagreementto sell for thepurposeof f10 ofthe saledeed but it is mentionedin paraNoo ofthe plaintthatthe plaintiffs havebeenrequesting the defendantsnumberof timeslo getthesaledeed aa 1 Z registered who hadbeenpostponing thematter andflnallya weekbeforetheOling of the suit theyhad refused givinga cause of action to theplaintiffs to Ole a lit for specific ofthe contract for thepurpose ofsale 0ed but no suit for specific was filed by the plaintiffsrathera decree for 1 declaration was soughtto be obtainedon the basisof havingbecomeowners by 1 way of adverse possessionand had also soughtrestraint orderagainstthe defendantsnot to registerany sale deed in favour of any other pany Learned counselfor the has submittedthat now theplaintiffs dnnot flle al suit 1 for speciflcperformance as it hasalreadybecomebarredin terms of Anicle 54 of 1 the Limitation Act 1963 lfor short the Act of 1963l and also in terms of the 1 Order 2 Rule 20fthe Code ofCivil Procedure 1908 for short CPC1 lt isalso submittedthat the injunction cannot be grantedun terms of Section416h9of the SpecillcReliefAct 1963 or short theActl until and unlesstheplaintiffshave f Batra Amit Sh. Charanjit Batra 2012.05.16 00: 25 True Scaned Copy of Orignal PHHC, Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 1 419 0 2 l 7 RSA No2124 of 1985 6 9tlt 1 filed a suit for specific of the agreementto sell In supponof his contention leamed counsel for the has relied upon a decision of tl 1 1 Andhra PradeshHigh Court in the caseof IC VenkataRao Vs Sunkara 1 VenkataRao 19999RCRiD 399 As againstthis learnedcounselfor the hassubmiuedthat 1 the are not the trespassersin possessionbut the transfereesinl 1 in part of the agreementto sell and are under Section53A of the Transfer of Property Act 1882lforshort the Act of 18821j 0 lt is submittedthattheycannot be as Section534 of theAct of 18821 0 3 is an equitabledoctrinewhich createsbar of estoppelin favour of the transferee I andagainstthetransferor C5 Learned counsel for the appellants has submittedthat substantial I questionof law involved in this appeal ls as to whether the plaintiffs can claim Z protectionof Section 534 of the Act of 1882 and seek onlyinjunctionwithout filinga suit for specific therightwas availableto them at the timewhen thesuit was filed or theinjunction hasto be relsed in view of Section 1 4 I 416h1 ofthe Act l I haveheardboth the learnedcounselfor thepartiesandperused the Z availablerecordwith their ableassistance m In order to appreciate therespective submissionsandthequestionof law it would be worthwhile to referto the relevantprovisions of law which have en Z been invoked by both the partiesin their favour In this regardflrst of all referenceis to be madeto Article 54 ofthe Act of 1963 which readsas under Qm e 9e ee eee a mee e aeae wev e e e eeee Descriptionofsuit Pmiod of Timefromwhichperiod limitaiion begs to run t 54 For speciflcperformanceThreeyears The datefixedfor the of a contract PerformanceOr l7 no such dateisjluedwhen 11 theplaintiffhas notice the performancelS relused 31 4 Order 2 Rule 20fCPC readsas under 2e Suit to include the wholeclaim OllEvery suit shall includethe wholeof the claim which theplaintiBis enled to makein 7pect of the cause of actionObut a 1 Batra Amit Sh. Charanjit Batra 2012.05.16 00: 25 True Scaned Copy of Orignal PHHC, Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 420 C 4 17 1 RSA Noe2124of 1985 7e 1r4t9tekak relinquishanyportionofhisclaimin order to bringthe suitwithin ofanyCourt 29 Relinquhment of part of c Where a plaintiHomits to sue in respectof or any portionof his claim he shall not afterwards sue ln respectof theportionso omittedor m 13 Section41011 ofthe Act 0 410 Itounc8onwhen resedm An injunction cannot 0 begranted I C5 al to XXX XXX XXY 9 X hl when equallyef8caciousreliefcan certainlybe obtainedbyany other usual modeofproceeding Z exceptincaseofbachoftt 2 Xxx XXX XXX 33 1 0 lnsofar as Section53A of the Act of 1882 is concerned it readsas I underl Il Pazt performmcee Where ary person Z contracts to transfer for considerationany immoveable 00 propertybywritingsignedbyhim Or on his behalffrom which theterms necessaryto constilutethe transfercan 7 1 1 Z be ascertainedwith reasonablecertainTy and lhe has in part ofthe 1 contract takenpossessionof the propertyor any part l thereofor the transfereebeingalreadyin ossession continues in possession ln part performanceof the 1 contract and has done some act in furtheranceof the l t corltract and thetransferee hasperformed or is willingto perj29nn hispart ofthecontract then that where there lS an L lnstrument of transferthat the transferhasnot been completed in the manner prescribedthereforbythe law for thetime beinginforce thetransferor or any person Batra Amit Sh. Charanjit Batra 2012.05.16 00: 25 True Scaned Copy of Orignal PHHC, Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 421 RSA N0124 of 1985 41 k5eksk claimingunder him shall be debarredfrom enforcing 1 againstthe and personsclaimingunder him 1 any nght ln respectof the property of which the 1 transferee has takenor continuedin possessionother than a right providedby the terms of the COntract Provided that nothingin this sectionshall aect the rightsof a transferee for considerationwho has no 0 notlce of the contract or of the part perfornlance 0 thereo I In order to answer the questionposedby Iearnedcounsel for the 0 who hasnot thefindingofthe leamedFirst Appellate Coun Z on issuesNol and 2 whereintheagreement and thepossession ofrtheplaintiffs on Z the disputedland are provedit is nOW held that the equitabledoctrineof part can be usedas a shieldand not a sword It can be usedto defendor protectones possession as held by the Supreme Court in the caseof Biswabani I Pvt Ltd Vs SantoshKumar Dum 1980AlR Cl 226 Leamedcounselfor the has relied upon a decision of the SupremeCourt in the case of Z Rambhau Namdeo Gaire VseNaravanBapuii Dhotra I bv LRse AIR 2004 QO SupremeCourt 434129to contendthat where a person is in as a transfereein part of the contract his possession cannotbe disturbed em Z bythetransferor This judgment however is altogether on differentissuebecause Il ln that case the plaintiffhad enteredinto an agreementof salewith P who had takenpossession of the SUlt land in partperformance of the contract Saledeed wasnot executedand registered in his favour P did not takeany stepsfor getting the agreementof sale enforcedand obtain a registered sale deed in respectof the suit lancl The transferorwithin a periodof two and a half months executeda similar agreementof salein favourof theappellant in thatcase and put him in possessionThe appellant did not care to ascertainthe title of P to the suitl land before enteringinto the transactionwith him The appellant invoked thel equitable doctrineof part againstthe respondent with whom hehad no privityof contract lt was held by the ApexCourt thattheappellant not beingl the transfereecould not invoke the equitabledoctrine of part erformanceto protecthis possession 4 1 Batra Amit Sh. Charanjit Batra 2012.05.16 00: 25 True Scaned Copy of Orignal PHHC, Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 422 tfl 1 1 47 l RSAN0e21240f1985 8e kekekakR However still the questionlS as to whetherthe plaintiffscan seek of theirpossession without filingsuit for specific which 1S equallyefficaciousrelief In thisregardthejudgment relied uponby leamed 1 an counsel for the in the case of Municipal Corporationof Delhi Vs Suresh Chand Jauri AIR 1976 SC 2621 is of helpin which it was held that pennanentinjunctioncannot begranted whenan altenzativeecacious reliefis obtainablein any other usual mode Section41o oftheAct lays down that an injunctioncannot be grantedwhen equallyefcc1ous reliefcan 0 certainlybe obtained byany other usual nlode or proceedings Theprinciple C3 in clause ofSection41 oftheSpeciflcReliefActcan be invokedso I as to refusethe reliefinfavourofsuch suitor who doesnot even after 40 of agreementof sale by the other party seek the speciflcreliefof I of agreementof sale and merelyseeks discretionaryrelief and l Z preventiveinjunctionfrom the Court Thepositionwould be dirent if halling askedfor such a reliefof specUc such a suitor eekspreventiveI r irljunctionfa temporarynature during ofthe lt is not I possibleto upholdthe entitlementofsuch a suitor who has omittedto claim the real and as such e8icaciousreliefwhich was available for the purpose 0 Z perpetual or permanentinjunction so as to protectmerepossessionallegedand J OO claimedunder theagreementofsale Itwould be awise exercise ofdiscretion not to furtherthe inquiryand that would arise under such asituation wao Z Further when the plaintiffis entitled to seek the reliefof enftrcementof tl 7 tl ofsalebyjlinga sult for speciflc and omitsto do it and 5 merelyseeks it will be ope7 1 6 to the Court to inferthathe plaintiffilSnot readyand willingto standbyand as such enforcelhe agreementof sale under which he seeks to protect his possession ln the case ofIC VenkaRao upra a similar view was takenby the Andhra PradeshHighCourt on thegroundthattheplaintiffhas notaskedfor 1 specific of the agreementbecausehe was not foundto be readyand 4 5 willingfor part ofthe agreement and as such the suit was not found to 1 be maintainable ln the presentcase although the entire sale consideration1 beenpaidas observedby the IeamedFirst AppellateCoun but the fact remains 1 thattheplaintiffs had not flled suit for specic performance of thecontract for the purposeof registration of the saledeedthoughtherightwas very much available Batra Amit Sh. Charanjit Batra 2012.05.16 00: 25 True Scaned Copy of Orignal PHHC, Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 423 t 1 1 Pt RSA No2124 of 1985 Oe 4kR tothemand now the said suit cannot be Oledin terms of Article 54 of the Act of 1963 which three years limitation from the date Oxed for the 1 or if no such date is fixed when the plaintiff1asnoticed that 1 is relsed In the presentcase in the agreementof sale thereis no 1 date8xed for the purposeof of the contract but the plaintiffs had themselvesclaimedin paraNo6 of theplaintthat despiterepeatedrequeststhe defendantshad not come forwardforthe purposeof registration of saledeedand 1 tr hadfinallyrefuseda week beforetheOlingof the suit meaningtherebya rightto 0 sue hadaccruedfor thespeciflc of the contract but theplaintiffs only 0 1 flled a suit seekingownership on the basisofadverse rightu I 1 even abandonedduringthe trial and a Ondingof fact has also been recorded C5 1 against the plaintiffs that rightof has not maturedbyway of advrse I and thatpointhasnot even beenarguedbeforethis Coun becauseolly 1 Z has beensoughtto protectthepossession on thestrength ofSection 53A of the Act of 1882 Moreover Order 2 Rule 20f CPC providesthat wherethe tr plaintiff has a rightwhich he intentionally omits he shall not allowed to sue in 1 I of the rightso omittedor In this case thcplaintiHs had a rightto ask for registration of the saledeed to acquirefull rights Jover Z the propertyin disputebut theyhadomittedto sue and now in futuretheywould CO not be able to sue for it in terms of Order 2 Rule 20f CPC Thus in n6rmal 1 circumstanceSection53A ofthe Act of 1882 which is an doctril can 7 Z protect the disturbanceof the possession of a transfereeat the hands of the nl transferor but in a case where the transfereeomitted to sue for oecific 0 and had not suedfor it and his suit is now for all lntents 1 i and purposesbarred by law he cannot seek pennanentinjunctionin View of Section41h9ofthe Act Thus the questionof law framed by learned counsel 6r the Sl is answeredin his favour and in view thereof the present8Dpeal 1S 1 herebyailowed andjudgmentand decreeof the leamedFirst AppellateCoun by 1 J which permanentinjunctionhasbeengranted to theplaintiffsis hereby5etaside 1 Both thepartiesin thesecircumstancesofthe case shall beartheirown costs l J J February17 2011 vinod JUDGE 1 1 Batra Amit Sh. Charanjit Batra 2012.05.16 00: 25 True Scaned Copy of Orignal PHHC, Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document