?BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT %DATED: 10.07.2018 *CORAM THE HONOURABLE MR.JUSTICE S.S.SUNDAR +W.P.(MD)No.7196 of 2018 #1.R.Muthaiyah 2.R.Sithambaranathan 3.R.Suppiah (petitioners No.1 to 3 represented by their power agent S.Anand Kumar) ... petitioners ~Vs~ $1.The Deputy Inspector of General Registration, O/o. The Deputy Inspector of General Registration, Government Multipurpose Complex, 2nd Floor, Khajamalai, Mannarpuram, Tiruchirappalli~620 020. 2.The Enquiry Officer~cum~District Registrar (Admin) O/o. The District Registrar, District Court Compound, Thiruchirappalli~620 018. 3.The Sub~Registrar, O/o.Woraiyur Sub~Registrar, 25, Annamalai Nagar, Tiruchirappalli~620 018. 4.K.Chinnammal 5.D.Ramesh ... Respondents Prayer: Writ Petition is filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus, calling for the records relating to the impugned order passed by the second respondent in the proceedings Na.Ka.No.14841/A2/2017 dated 28.02.2018 and quash the same and consequently, directing the second respondent to cancel the sale agreement dated 23.06.2017 entered between the fourth and fifth respondents within a time frame fixed by this Court. !For petitioners : Mr.B.Saravanan ^For R1 to R3 : Mr.M.Murugan Government Advocate For R4 : No appearance For R5 : Mr.B.Jameel Arasu :ORDER This writ petition is filed for issuing a Writ of Certiorarified Mandamus, to call for the records relating to the impugned order passed by the second respondent vide his proceedings Na.Ka.No.14841/A2/2017, dated 28.02.2018 and to direct the second respondent to cancel the sale agreement dated 23.06.2017 entered into between the fourth and fifth respondents. 2.The brief facts that are necessary for the disposal of the writ petition are as follows:~ Father of petitioners in the writ petition purchased the property in dispute by a registered sale deed dated 22.03.1967. It is to be noted that the property namely, Plot No.C~36, 7th Cross, North East Extension, Thillai Nagar, Trichy~18 was originally allotted to the fourth respondent by Tiruchirappalli Co~operative House Construction Society Limited. Thereafter, the fourth respondent took possession of the plot from the society and subsequently, a construction was put up by the fourth respondent. Thereafter, the property was sold by the fourth respondent in favour of the father of the petitioners herein by way of a registered sale deed dated 22.03.1967 for valid consideration. As per the sale deed, a sum of Rs.8219.40/~ payable by the fourth respondent to House Construction Society has to be paid by petitioner-s father. The father of petitioner undertook to discharge the mortgage, dated 07.10.1964 for a sum of Rs.13,000/~. Another sum of Rs.12,840/~ was again retained for discharging another mortgage loan obtained by the fourth respondent by mortgaging the property on 03.04.1964. As stated earlier, the balance payable by the fourth respondent to the Housing Society was also retained. It is further stated that the amount payable to the society was also fully paid in terms of the sale deed in favour of the petitioners- father. After the sale deed in favour of the petitioners- father, a conveyance deed was executed by the Tiruchirappalli Co~operative House Construction Society only on 31.08.2008 in favour of fourth respondent. However, the fourth respondent did not handover the document nor did anything to prefect the title of father of petitioners. In the meanwhile, the father of petitioners died. However, the fourth respondent did not handover the conveyance document to the petitioners even though they are in possession of the property. Hence, the petitioners filed a suit in O.S.No.691 of 2009 on the file of the Sub Court, Tiruchirappalli for the relief of mandatory injunction directing the fourth respondent herein to handover the deed of conveyance, dated 31.08.2008 executed by the Tiruchirappalli Co~operative House Construction Society Limited in favour of the fourth respondent to the petitioners herein and for consequential permanent injunction restraining the defendants from interfering with the plaintiff-s peaceful and lawful possession and enjoyment of the property. The suit is also for the relief of injunction restraining the first defendant namely the fourth respondent herein and her men from encumbering the property under the guise of conveyance deed, dated 31.12.2008 by registering any deed or instrument before the third respondent herein. 3.During the pendency of the suit in O.S.No.691 of 2009, the petitioners herein filed I.A.No.811 of 2009 under Order 39 Rule 1 C.P.C for permanent injunction restraining the fourth respondent herein from encumbering the property under the guise of the conveyance deed, dated 31.12.2008 and registering the same before the third respondent, till the disposal of the suit. The Civil Court passed an order on 04.11.2009 in the following lines:~ ?Heard Documents perused. Prima facie case made out as the first defendant had already sold the property to the plaintiff-s father with an undertaking to hand over the original deed also to him as and when it was executed, the balance of convenience as of now is in favour of the petitioners. The petitioners also is in possession of the suit property. Hence ad~interim injunction is granted till 19.10.2009. Issue notice to the respondent by then. Order 39 Rule 3 to be complied with?. 4.The petitioners herein also obtained an order of injunction in I.A.No.812 of 2009 restraining the first defendant namely, fourth respondent herein from interfering with the peaceful possession and enjoyment of the property by the petitioners. The trial Court has granted an order of interim injunction restraining the fourth respondent herein from in any way interfering with the petitioner-s peaceful possession and enjoyment of the suit property after recording reason. The interim order in I.A.No.811 of 2009 was also extended. 5.However, quite surprisingly, the first defendant in the suit namely, the fourth respondent herein executed a sale agreement in respect of the very same plot which is the subject matter of the suit in favour of the fifth respondent on 23.06.2017. As per the agreement, the entire consideration for the property is to be paid at the time of registration and the fifth respondent herein has also paid a sum of Rs.10,00,000/~ (Rupees Ten Lakhs only) as advance. As per the agreement, the sale deed has to be executed within a period of three months from the date of sale agreement after receiving the balance namely a sum of Rs.1,92,00,000/~ (Rupees One Crore Ninety Two Lakhs only) from the fifth respondent herein. Immediately, after coming to know about the sale agreement which was executed by the fourth respondent in favour of the fifth respondent, the power of attorney agent of the petitioners sent a representation to the second respondent seeking to cancel the sale agreement dated 13.06.2017 which was registered by the Sub Registrar/the third respondent herein as Document No.2897/2017. A legal notice was also issued by the petitioners to all the official respondents to take action for cancellation of the sale agreement dated 10.07.2017 which was registered as document No.2897/17. In the notice, the official respondents were requested to cancel the sale agreement which is violation of Court order. Since the representation of the petitioners dated 26.08.2017 was not considered, the power of attorney agent filed a writ petition in W.P.(MD)No.19029 of 2017 for issuing a Writ of Mandamus, directing the official respondents to take appropriate action on the representation of the petitioners dated 26.08.2017 for cancellation of the sale agreement dated 23.06.2017. This Court, by order dated 21.11.2017, disposed of the said writ petition, directing the third respondent to consider the representation of the petitioners. Since the learned counsel appearing for the fourth respondent herein made a submission that the property was the subject matter of the sale deed obtained by the petitioners in the year 1967 and the subject matter is not related to T.S.No.43, this Court directed the third respondent to pass orders after considering the objections and after hearing the persons interested, within a period of six weeks from the date of receipt of a copy of the order. 6.The second respondent thereafter passed the impugned order dated 28.02.2018, rejecting the request of the petitioners to cancel the sale agreement. Challenging the said order, the petitioners have filed the present writ petition. 7.The learned counsel appearing for the petitioners submitted that the respondents 4 and 5 have entered into a sale agreement, despite the fact that the fourth respondent was restrained from alienating or encumbering the property by the order of injunction granted by the Civil Court. The learned counsel appearing for the petitioners further submitted that the impugned order passed by the second respondent is erroneous and referred to the order passed by this Court in W.P.(MD)No.19092 of 2017, dated 21.11.2017 and the order passed by the Civil Court in I.A.No.811 of 2009 in O.S.No.691 of 2009 on the file of the Principal Sub Court, Trichy. It is further stated that the registration of the sale agreement alleged to have been executed by the fourth respondent in favour of the fifth respondent is a fraudulent transaction. He submitted that the said transaction is in violation of the order or injunction passed by the Civil Court. He further submitted that though the petitioners has narrated all the facts in the representation which was sent to the official respondents, the second respondent, without considering the same, passed the impugned order refusing to cancel the sale agreement dated 23.06.2017 which is unsustainable in law. 8.The fourth respondent despite notice did not turn up and there was no representation on behalf of the fourth defendant. 9.The learned counsel appearing for the fifth respondent though had appeared for the fourth respondent in the earlier writ petition has stated that he has no instruction from the fourth respondent. It is further stated by him that the fourth respondent is not well and therefore, he could not get instructions. However, from the instructions, he had from the fifth respondent, it is seen that the fifth respondent supported the case of the fourth respondent as a successor in interest. 10.A detailed counter affidavit has been filed by the fifth respondent wherein the fifth respondent purchaser has raised all issues. The main contention that was raised by the fifth respondent is that the property purchased by the petitioners- father by a sale deed dated 22.03.1967 was not in respect of the property in old Survey No.17,21,30 and Plot No.C~36, situated at 7th Cross, North East Extension, Thillai Nagar, Trichy~18. 11.It is the case of the fifth respondent that the fourth respondent stoutly denied the contention that the fourth respondent had executed the document in favour of the petitioners- father in respect of the property comprised in Survey Nos.17, 21 and 30. It is also stated by the fifth respondent that one of the conditions in the allotment is that allottee should not sell the property to any one through any mode of transaction and should not create any encumbrance till the conveyance deed is executed in favour of the allottees. Since the fifth respondent dealt with the property only after five years from the date of conveyance in her favour, it is stated that the transaction is valid. However, the sale deed obtained by the father of the petitioners is stated to be one in violation of the conditions of allotment. It is also submitted that the sale deed is irregular and did not confer any right to the petitioners- father or the petitioners. It is further stated that the petitioners- father was not in possession of the property i.e., the subject matter of the sale agreement that was executed by the fourth respondent in favour of the fifth respondent. Since the petitioners has already filed a Civil Suit in O.S.No.691 of 2009 before the Sub Court, Trichy, seeking for the relief of mandatory injunction to return the deed of conveyance dated 31.12.2008, the petitioners are not entitled to the relief sought for in the present writ petition. It is further stated that the Sub Registrar is not a party in the interlocutory application and that therefore, the order passed by the Civil Court is not binding on the third respondent who had registered the document. 12.The learned counsel appearing for the petitioners relied upon the Full Bench decision of this Court in the case of Century Flour Mills Limited Vs. S.Suppiah and others reported in AIR 1975 MADRAS 270, wherein it has been held as follows:~ ?9.In our opinion, the inherent powers of this court under Section 151 C.P.C are wide and are not subject to any limitation. Where in violation of a stay order or injunction against a party, something has been done in disobedience, it will be the duty of the Court as a policy to set the wrong right and not allow the perpetuation of the wrong doing. In our view, the inherent power will not only be available in such a case, but it is bound to be exercised in that manner in the interests of justice. Even apart from Section 151, we should observe that as a matter of judicial policy, the Court should guard against itself being stultified in circumstances like this by holding that it is powerless to undo a wrong done in disobedience of the court-s orders. But in this case it is not necessary to go to that extent as we hold that the power is available under Section 151, C.P.C?. 13.The learned counsel further submitted that the Hon-ble Supreme Court as well as this Court have repeatedly held that if for proper administration of justice and to ensure due compliance of the orders passed by a Court, it is required to take strict view and it should not hesitate in wielding the potent weapon of contempt. 14.The learned counsel for the petitioners further submitted that in the case of C.Elumalai Vs. A.G.L.Irudayaraj and another reported in (2009) 4 SCC 213, the Hon-ble Supreme Court has held that in a case where something is done creating a third party right in violation of the order passed by the Court, such transactions creating right in third party will have no consequences. The relevant portion of the said order reads as follows:~ ?....There is an element of public policy in punishing civil contempt, since the administration of justice would be undermined if the order of any court of law could be disregarded with impunity...?. 15.In Anil Ratan Sarkar Vs. Hirak Ghosh, reported in (2002) 4 SCC 21, the Hon-ble Supreme Court has held that there can be no laxity in such a situation, like this, where the disobedience or breach of the Court-s order is noticed. ?....There can be no laxity in such a situation because otherwise the court orders would become the subject of mockery. Misunderstanding or own understanding of the Court-s order would not be a permissible defence.? 16.In yet another judgment in All Bengal Excise Licensees- Association. Vs. Raghabendra Singh and others reported in (2007) 11 SCC 374, the Hon-ble Supreme Court has held as follows:~ ?26.This Court can only say it is rather unfortunate that such officers who are not capable of or not able to understand the implication of the prohibitory orders passed by the High Court should be allowed to hold such high offices. During the course of the hearing of the contempt application, the matter was adjourned by the High Court to enable the respondent to consider whether the contemnors were prepared to cancel the lottery held on 20.03.2005, 21.03.2005 and 22.03.2005 in violation of the Court-s orders and on such adjourned date, the contemnors did not agree to cancel the lottery. Under such circumstances, the plea of mistake of understanding the order cannot at all be accepted. Likewise, the High Court was also not justified in not directing the contemnors to cancel the lottery held on 20.03.2005, 21.03.2005 and 22.03.2005 in violation of the solemn orders passed by the very same judge and in view of the clear finding of the Court that they had acted in clear violation of the said interim order made by the High Court 27.Even assuming that there was any scope for bona fide misunderstanding on the part of the respondents, once it was found that the respondent had disobeyed the specific order passed earlier by the Court, the High Court should have directed the contemnors to undo the wrong committed by them which was done in clear breach of the order of the Court by restoring the status quo ante by cancelling the lottery wrongfully held by them. The learned Judge found that the respondent contemnors had held the lottery in violation of the Court-s order and the results of the said lottery should not be permitted to take effect and should be treated as unlawful and invalid for the purpose of grant of licence. The learned Single Judge for the purpose of upholding the majesty of law and the sanctity of the solemn order of the court of law which cannot be violated by the executive authority either deliberately or unwittingly should have set aside the lottery held and should not have allowed the respondents to gain a wrongful advantage thereby. 28.In our opinion, a party to the litigation cannot be allowed to take an unfair advantage by committing breach of an interim order and escape the consequences thereof. By pleading misunderstanding and thereafter retaining the said advantage gained in breach of the order of the Court and the wrong perpetrated by the respondent contemnors in contumacious disregard of the order of the High Court should not be permitted to hold good. In our opinion, the impugned order passed by the High Court is not sustainable in law and should not be allowed to operate as a precedent and the wrong perpetrated by the respondent contemnors in utter disregard of the order of the High Court should not be permitted to hold good.? 17.It is pertinent to mention that the fourth respondent is injuncted from alienating or encumbering property as per the order of injunction and the question raised is as to whether, the sale agreement can be considered as alienation or encumbrance. It is well known that the sale agreement does not create any right in respect of the property in favour of the agreement holder. 18.In Sulochana Chandrakant Glande Vs. Pune Municipal Transport and others reported in (2010) 8 SCC 467 the word ?encumbrances? has been dealt with in the following manner: ?14.-Encumbrance- actually means the burden caused by an act or omission of man and not that created by nature. It means a burden or charge upon property or a claim or lien on the hand. It means a legal liability on property. Thus, it constitutes a burden on the title which diminishes the value of the land. It may be a mortgage or a deed of trust or a lien of an easement. An encumbrance, thus, must be a charge on the property. It must run with the property.-? 19.Again in the case of A1 Champdany Industries Limited Vs. Official Liquidator and another reported in (2009) 4 SCC 486, the Hon-ble Supreme Court elaborately at paragraphs 12 and 13 has held as follows:~ ?12.The terms and conditions of the sale must be read as a whole. It must be given a purposive meaning. The word -encumbrance- in relation to the word immovable property carries a distinct meaning. It ordinarily cannot be assigned a general and/or dictionary meaning.? 13.We may, however, notice some dictionary meanings of the said word as reliance thereupon has been place by Mr.Sibaji Sen. In Stroud-s Judicial Dictionary of Words and Phrases, 5th Edition encumbrance is defined as: ?being, -a claim, lien, or liability, attached to property-; and this definition is wide enough to cover the plaintiff-s claim, which was, as assignee for value of a reversionary interest, against a person coming in under a subsequent title?. In Supreme Court on Words and Phrases it is stated that ?the word -encumbrance- means a burden or charge upon property or a claim or lien upon an estate or on the land?. In Advance Law Lexicon, encumbrance is defined as: ?An infringement of another-s right or intrusion on another-s property. In Black-s Law Dictionary encumbrance is defined as: ?Any right to, or interest in, land which may subsist in another to diminution of its value, but consistent with the passing of the fee.... Encumbrance, therefore, must be capable of being found out either on inspection of the land or the office of the Registrar or a statutory authority. A charge, burden or any other thing which impairs the use of the land or depreciates in its value may be a mortgage or a deed of trust or a lien or an easement. Encumbrance, thus, must be a charge on the property. It mus run with the property. If by reason of the statute no such burden on the title which diminishes the value of the land is created, it shall not constitute any encumbrance.? 20.It is to be seen that Section 55 of Transfer Property Act dealing with the rights of buyers and sellers is relevant in this regard and Section 55 of Transfer Property Act refers to contract and an enforceable right has been created in favour of the agreement holder as against the property and therefore, this Court has no hesitation to hold that an agreement of sale is an encumbrance and the sale agreement executed by the fourth respondent in favour of the fifth respondent, certainly, is an encumbrance over the property which is in violation of the order of injunction granted by the Civil Court in I.A.No.811 of 2009 in O.S.No.611 of 2009 on the file of the Sub Court, Tiruchirappalli, dated 23.10.2009. The interim injunction granted in I.A.No.811 of 2009 in O.S.No.691 of 2009 was extended periodically and by an order dated 10.06.2011, the petition was also allowed. Hence, the injunction order is still in force. 21.The learned counsel appearing for the third respondent, however, reiterated the stand taken by the fifth respondent in the counter affidavit by stating that the third respondent is not a party. It is further stated that the Sub Registrar namely third respondent has no power to cancel the document after it was registered. In this regard, the learned counsel appearing for the fifth respondent relied upon a judgment of the Hon-ble Supreme Court in the case of Sathya Pal Anand Vs. State of Madhya Pradesh reported in (2016) 10 SCC 767, wherein it has been held that the Registering Officer who is only expected to reassure himself that the documents to be registered are accompanied by supporting documents. It is further held that the Registering Officer is not expected to evaluate the title or irregularity in the documents as such and that the examination to be done by the Registering Officer is incidental and conferred to ascertain whether there is any violation of provisions of the Registration Act. It is categorically held by the Hon-ble Supreme Court that the Registering Officer cannot decide as to whether a document presented for the registration is executed by person having title, as mentioned in the instrument. The situation here is different. The sale agreement in violation of Court order should be treated as a fraudulent transaction. Fraud vitiates any solemn transaction. 22.In view of the above position, this Court has no hesitation to hold that the registration of a document is violation of Court order is a fraudulent transaction and it is therefore void. The unilateral cancellation of registration is impermissible in law in normal circumstances. However, the position in this case is entirely different. It is nobody-s case that the fourth respondent and the fifth respondent are not aware of the interim order passed by the Civil Court in I.A.No.811 of 2009, dated 23.10.2009. The fourth respondent is a party in the suit and it is not in dispute. Though the fifth respondent is not a party in I.A.No.811 of 2009 in O.S.No.691 of 2009, he seems to be fully aware of the order of injunction. The stand taken by the third respondent is that there is no injunction in the suit against the third respondent and that therefore, the petitioners can proceed only against the fourth respondent. However, it is admitted that the order of injunction was brought to the notice of the third respondent,