R.S.A.No.763 of 2009(O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No.763 of 2009(O&M) Date of decision: 16.3.2011 Jarnail Singh ......Appellant Versus Jasbir Singh .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.G.S.Sandhawalia, Advocate, for the appellant. Mr.D.K.Bhatti, Advocate for respondent. **** SABINA, J. Plaintiff had filed a suit for possession by way of specific performance of agreement to sell dated 23.8.2002. The case of the plaintiff, in brief, was that the defendant was owner of the suit land and had agreed to sell the same to the plaintiff vide agreement dated 23.8.2002. The total sale consideration was ` 3,15,000/- per acre. ` 1,50,000/- were paid by the plaintiff to the defendant towards earnest money. The sale deed was to be executed on 23.8.2002. The suit land was mortgaged by the R.S.A.No.763 of 2009(O&M) 2 defendant with a bank and it was agreed that the defendant would get the land redeemed from the bank after repayment of loan before the date fixed for execution of the sale deed. On the stipulated date fixed for execution of the sale deed, plaintiff remained present in the office of the Sub Registrar along with balance sale consideration and other expenses required for registration of sale deed but defendant failed to appear. Defendant in his written statement denied the contentions in the plaint. It was averred that M/s Salwant Singh and company Dana Mandi, Talwani Chaudharian was doing the business of commission agent. Salwant Singh was a partner of the said agency. Defendant used to sell his crop through the said firm but for the last 3-4 years he had stopped doing so. On 23.8.2002 a constable came to the house of the defendant and called him to police post Talwandi Chaudharian. After some time, Kewal Singh, his brother Balwinder Singh along with Jasbir Singh and other persons came there. Signatures and thumb impressions of the defendant were obtained forcibly under police pressure on some documents. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether defendant executed an agreement to sell dated 23.8.2002 in favour of plaintiff and received ` 1,50,00/- as earnest money out of total sale consideration of ` 3,15,000/- ? OPP. 2. Whether plaintiff had been ready and willing and is still ready and willing to perform his part of contract? OPP R.S.A.No.763 of 2009(O&M) 3 3. Whether plaintiff is entitled to recover 3,00,000/- in the alternative? OPP 4. Whether plaintiff has got no cause of action to file present suit ? OPD 5. Whether plaintiff is estopped to file this suit for his own act and conduct? OPD 6. Relief.” The trial Court decreed the suit of the plaintiff vide judgment and decree dated 22.1.2004. Aggrieved by the same, defendant preferred an appeal and the same was dismissed vide judgment and decree dated 29.9.2008 passed by the Additional District Judge. Hence, the present appeal by the defendant. Learned counsel for the appellant has submitted that the suit filed by the plaintiff was liable to be dismissed as agreement to sell in question was not a registered document and as per agreement to sell in question, possession of the property had been handed over to the plaintiff towards part performance of agreement to sell. In this regard, learned counsel has placed reliance on Gurbachan Singh vs. Raghubir Singh 2010 (3) CCC 731 (P&H), wherein it was held as under:- The facts are not much in dispute. The plaintiff is in possession of the property in dispute in part performance of the agreement to sell which has been made the basis of the suit for specific performance and is unregistered. Section 53-A of the Act of 1882 empowers the transferee to resist any attempt on the part of the transferor to disturb transferee's lawful possession under the contract R.S.A.No.763 of 2009(O&M) 4 of sale in case of a suit having been filed for seeking decree for specific performance on the basis of an agreement to sell in which the plaintiff is already in possession in part performance of the contract but according to Section 17(1A) of the Act of 1908, the agreement shall have to be registered if it is executed on or after the commencement of the Registration and Other related laws (Amendment) Act, 2001 and if such documents are not registered, on or after such commencement, then the agreement shall have no effect for the purposes of the said Section. In the present case, since the agreement to sell is unregistered, therefore, in view of Section 49 of the Act of 1908 such an agreement would not be received as an evidence of any transaction affecting the property in question. Thus, the substantial question that has been raised by the learned counsel for the appellant is answered in his favour in affirmative and it is held that the agreement to sell being unregistered does not confer any right or title upon the plaintiff as the same cannot be received in evidence in view of Sections 17 (1A) and 49 of the Act of 1908. Insofar as the decision in the case of Balraj Singh (supra) is concerned that arises of a Civil Revision wherein application under Order 39 Rules 1 and 2 CPC filed by the petitioner was rejected in terms of the agreement to sell. It was argued by the learned counsel for the petitioner that as per the latest Khasra Girdawaris he is in possession of the property in R.S.A.No.763 of 2009(O&M) 5 dispute and that recital in the agreement is very weak type of evidence on which no prima facie reliance can be placed. In that background, this Court had held that the agreement to sell was executed and handing over the possession was mentioned in the document then even if the agreement to sell was not registered, it would not debar the purchaser from protection under Section 53-A of the Act of 1882. It was further observed that in view of the provisions of Section 49 of the Act of 1908 the same can be used as evidence of possession once the document is not in dispute. I am afraid that aforesaid case of Balraj Singh (supra) is of no help to the respondent because in that case there was no reference to Section 17(1A) of the Act of 1908 which specifically provides that in case of protection of Section 53-A of the Act of 1882, agreement to sell has to be registered. Learned counsel for the respondent has also relied upon the decision in Arvindra Kumar Singh's case (supra) in which though it has been held that plaintiff cannot sue under the agreement to sell in question for the simple reason that the said document having been executed after the amendment to the Registration Act, 1908 by Act No.48 of 2001 as it required registration and the document being not registered the plaintiff cannot rely upon Section 53-A of the Transfer of Property Act, 1882 yet it was also held that plaintiff being in actual physical possession of the property cannot be dispossessed and the seller has to R.S.A.No.763 of 2009(O&M) 6 take recourse to procedure established by law to regain possession. It was also observed that though the position of such a purchaser would not be better than that of a trespasser who comes into settled possession yet he cannot be dispossessed by use of force and in this regard, reliance has been placed upon the decision of the Supreme Court in the case of Rame Gowda (D) Lrs Versus Mr.Varadappa Naidu (D) by LRs and another 2004(1) RCR (Civil) 519. Even the aforesaid judgment is not applicable to the facts of the present case because agreement to sell was executed on 25.4.2003 and the plaintiff who has not come to the Court on the basis of his title cannot claim injunction against a true owner. This view has been taken by this Court in RSA No.3800 of 2004 titled as Sukhwant Singh Vs. Divisional Forest Officer and another decided on 2.4.2009 in which it has been held as under : In Rame Gowda (D) LRs's case (supra), the plaintiff filed a suit alleging his title as also his possession over the disputed piece of land. The trial Court found the plaintiff as having failed in proving his title. Nevertheless he was found to be in settled possession of the property. Even the defendant failed in proving his title over the disputed land so as to substantiate his entitlement to evict the plaintiff. The trial Court, therefore, left the question R.S.A.No.763 of 2009(O&M) 7 of title open and proceeded to determine the suit on the basis of possession protecting the established possession and restraining the attempted interference therewith. On the appeal of the defendant, the Hon'ble Supreme Court held that the trial Court and the High Court have rightly decided the suit as it was still open to the defendant- appellant to file a suit based on his title against the plaintiff and evict the latter and the former establishing his better right to possess the property. Thus, in Rame Gowda (D)L Rs's case(supra), the title of the parties was in dispute and the Hon'ble Apex Court reiterated its earlier view observing as under: “In Fakirbhai Bhagwandas v. Maganlal Haribhai AIR 1951 Bombay 380, a Division Bench spoke through Bhagwati, J.(as his Lordship then was) and held that it is not necessary for the person claiming injunction to prove his title to the suit land. It would suffice if he proves that he was in lawful possession of the same and that his possession was invaded or threatened to be invaded by a person who has no title thereof. We respectfully agree with the view so taken. The High Court has kept the question of title open. Each of the two contending parties would be R.S.A.No.763 of 2009(O&M) 8 at liberty to plead all relevant facts directed towards establishing their titles, as respectively claimed, and proving the same in duly constituted legal proceedings. By way of abundant caution, we clarify that the impugned judgment shall not be taken to have decided the question of title to the suit property for or against any of the contending parties. From the above discussion , it is also clear that there is no conflict with regard to ratio of law as settled in Rame Gowda(D) LRs's case(supra) and the other judgments supporting the view taken in aforesaid case and the view taken in Premji Ratansey Shah and others's case (supra) and other judgments supporting the same view. In the cases in hand, there is no dispute with regard to the title of the defendants in the suit property. Therefore, in view of the above discussion only one conclusion can be drawn that an injunction cannot be granted in favour of the plaintiffs who are trespassers and against the defendants who are the true owners of the suit land.” Learned counsel for the respondent, on the other hand, has submitted that the plaintiff was not in possession of the suit property and had rather filed a suit for possession by way of specific R.S.A.No.763 of 2009(O&M) 9 performance of the agreement to sell. Hence, the agreement to sell in question did not require registration. After hearing learned counsel for the parties, I am of the opinion that the present appeal is devoid of any merit and deserves dismissal. Ex.P-1 is the agreement to sell in question dated 23.8.2002. The same is duly thumb marked and signed by the defendant. As per the same, defendant had agreed to sell the suit land to the plaintiff and had received ` 1,50,000/- towards earnest money. In fact, the defendant has written in his own hand that he had received ` 1,50,000/- as earnest money. Although it has also mentioned in the hand of the defendant that possession has been given to the plaintiff but the case of the plaintiff is that the possession of the suit land had not been given to the plaintiff. Thus, the plaintiff had not claimed to be in possession of the suit property by way of part performance of the agreement to sell in question. In these circumstances, the agreement to sell in question did not require registration. The judgment relied upon by the learned counsel for the appellant, thus, fails to advance the case of the appellant as it is based on different facts. In the present case, plaintiff had been successful in proving the due execution of the agreement to sell in question. In this regard, the plaintiff had examined PW-2 Sohan Singh, who was an attesting witness to the agreement to sell in question. PW-3 Balwinder Singh, deed writer, also deposed qua the execution of the agreement to sell in question. The appellant, on the other hand, had failed to establish that his signatures and thumb R.S.A.No.763 of 2009(O&M) 10 impression had been taken on the agreement to sell in question under police pressure. The defendant had failed to examine any official from the concerned police station regarding the complaint moved by him against the plaintiff. Both the Courts below, after appreciating the evidence led by the parties on record, have given a finding of fact that the agreement to sell in question was duly executed by the defendant in favour of the plaintiff. The plaintiff had also been successful in proving that he was always ready and willing to perform his part of the contract. In this regard, plaintiff proved on record his affidavit Ex. P-3. No substantial question of law arises in this regular second appeal, which would warrant interference by this Court. Accordingly, the same is dismissed. (SABINA) JUDGE March 16, 2011 anita