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Judgment
B.V. Nagarathna, J.—1. Though the matter is listed for admission, with the consent of learned counsel on both sides, it is heard finally.
The defendants in O.S. No. 608/1998 have preferred this appeal, assailing judgment and decree dated 29.07.2010 passed in R.A. No. 286/2009 by Fast Track Court - II and Additional District Judge, Belgaum, modifying judgment and decree dated 11.09.2002 passed in O.S. No. 608/1998 by III Additional Civil Judge (Jr. Dn.) Belgaum. At this stage it may be mentioned that respondent plaintiff''s suit was dismissed by trial Court against which respondent herein had preferred regular appeal, out of which this second appeal arises.
For the sake of convenience, parties shall be referred to, in terms of their status before the trial Court.
The respondent plaintiff filed a suit seeking decree of permanent injunction restraining defendants or anybody acting on their behalf from disturbing peaceful possession and enjoyment of suit property; from creating any encumbrance or alienating any suit property to any third party during the subsistence of agreement without following due process of law. The suit property is Sy. No. 321/A measuring 1 acre 27 guntas 15 anas and R.S. No. 323/1 measuring 2 acres situated at Belgaum city.
It is the case of plaintiff that, it is the Co-operative Housing Society registered under the provisions of Karnataka Cooperative Societies Act, 1959. The Society deals in purchasing of agricultural lands, which are converted to non-agricultural use developed as housing layouts and sold to its members or allotted to its members and other needy persons. That the suit schedule properties belong to defendants. Defendants agreed to sell property to plaintiff for a consideration of Rs. 18,000/- per gunta. Accordingly, defendants have received a sum of Rs. 20,000/- as earnest money from plaintiff - Society and have issued a receipt in that regard. The agreement to sell is dated 05.05.1987 in favour of plaintiff - Society. Defendants No. 2 and 3 are witnesses. Under the agreement it was agreed that permission from competent authority had to be obtained under the provisions of the Urban Land Ceiling Act, 1976, Income Tax Authority and sale deed had to be executed within a period of six months from the date of completion of the said legal formalities. That the defendants handed over actual physical possession of suit lands to the plaintiff for the purpose of fixing boundaries. The balance sale consideration was to be paid by plaintiff at the time of executing sale deed. That after the execution of sale deed, plaintiff - Society paid a sum of Rs. 40,000/- by cheque No. 090473 dated 30.04.1998, another sum of Rs. 40,000/- by cheque No. 09474 dated 30.04.1998, both drawn on B.D.C.C. Bank Bazar Branch, Belgaum. Thus, in all, defendants have received a sum of Rs. 1,00,000/-, out of total consideration that has to be paid by plaintiff. That the plaintiff is ready and willing to perform his part of contract. But defendant No. 1 has hatched a plan to dupe plaintiff - Society and instead of getting his name recorded, name of defendant No. 2 and others are recorded in the records. Plaintiff has reliably learnt that there is a dispute between defendants and one Shirahatti, which has also come to an end. But the defendants are not coming forward to execute sale deed. As the plaintiff apprehended that defendants may alienate suit properties or create third party encumbrances of same during the subsistence of agreement dated 05.05.1987, hence, suit was filed by plaintiff seeking aforesaid reliefs.
After service of suit summons and notices by trial Court, defendant No. 1 appeared and filed his written statement denying plaint averments. According to this defendant, defendants No. 2 and 3 and one Nagesh Maruti Kangralkar are the owners in possession of suit lands. It is denied that suit lands have been handed over to plaintiff pursuant to the agreement to sell dated 05.05.1987. It was denied that defendants had received Rs. 20,000/- as earnest money from plaintiff - Society and had issued a receipt in that regard or for that matter the plaintiff had paid Rs. 80,000/- by way of cheques. It was contended that defendant has other effective remedies with regard to suit properties and that the present suit was not maintainable. That the defendants are cultivating suit lands and plaintiff - Society has never been in possession of suit lands at any point of time. Therefore, defendant No. 1 sought for dismissal of suit.
Defendant No. 3, during the pendency of proceedings has been deleted at the instance of plaintiff.
On the rival pleadings, trial Court formulated following issues and additional issues for its consideration:
Whether the plaintiff Society proves that it is in actual possession of the suit property by virtue of agreement of sale dated 05.05.1987?
Is there any cause of action to this suit?
Whether the plaintiff society is entitled for the relief of permanent injunction as sought in the plaint?
Additional Issues:
1a. Whether the plaintiff proves the alleged obstruction by the defendants over the suit property?
What order or decree?
The plaintiff let in evidence of two witnesses and produced 14 documents, which were marked as Exs. P-1 to P-14. Defendants have let in evidence of two witnesses and produced 12 documents, which were marked as Exs. D-1 to D-12. On the basis of said evidence, trial Court answered issues No. 1, 3 and additional issue No. 1a in the negative and issue No. 2 in the affirmative and dismissed the suit.
Being aggrieved by the judgment and decree of trial Court dated 11.09.2002, plaintiff filed R.A. No. 286/2009 before I Appellate Court, which, on hearing respective parties framed following points for consideration:
Whether the plaintiff proves that defendants have agreed to sell the suit property under agreement of sale dated 05.05.1987 in favour of the said plaintiff society?
Whether the plaintiff proves that he was in possession and enjoyment of the suit property?
Whether the plaintiff is entitled for injunction as sought for?
Whether the judgment and decree needs interference?
What order or decree?
It answered points No. 1, 3 and 4 in the affirmative and point No. 2 in the negative, modifying the judgment and decree of trial Court by decreeing the suit and issuing an order of permanent injunction restraining the defendants, their men, agents, etc. from creating any encumbrance or alienating the suit property to any third party during the subsistence of the agreement without following due procedure of law. It was made clear that plaintiff was not entitled for permanent injunction in respect of possession and enjoyment of suit property.
Being aggrieved by the judgment and decree of trial Court, defendants have preferred this appeal. At this stage itself it could be noted that as against the rejection of prayer for permanent injunction in respect of possession and enjoyment of suit property, plaintiffs have not filed any second appeal before this Court.
I have heard learned counsel for the parties.
It was contended on behalf of appellants that First Appellate Court was not right in modifying the decree of trial Court, which had rightly dismissed the suit, and thereby granting injunction restraining the appellants from alienating suit property during the subsistence of agreement.
Learned counsel for appellants contended that plaintiff had no right or locus standi to maintain the suit as the plaintiff was not a party to the agreement to sell dated 05.05.1987, which was executed in favour of one Ramnath Santu Angolkar and not the plaintiff, which is a House Building Co-operative Society. She contended that plaintiff being a stranger to agreement, Ex. P-3 could not file the suit and suit filed at the instance of plaintiff was not maintainable. In the circumstances, trial Court had rightly dismissed the suit, but I Appellate Court had issued an order of injunction against appellants restraining them from alienating suit property during the subsistence of agreement, in respect of which plaintiff is not a party. It is, therefore, contended that substantial question of law which arise in this appeal may be admitted for a detailed hearing.
Per contra, learned counsel for respondent plaintiff supporting the judgment of I Appellate Court contended that Ramnath Santu Angolkar is none else than the former Secretary of plaintiff - Housing Society. His name has been lent to the agreement, but, in reality, it is the Society which has agreed to purchase suit lands from the defendants. The Society has paid part of sale consideration to the defendants, who have issued receipts to plaintiff, and therefore, at this stage appellants cannot contend that plaintiff has no locus standi to maintain the suit. Supporting the judgment of I Appellate Court, he contended that I Appellate Court has rightly issued an injunction against defendants restraining them from alienating suit property as Ex. P-3. The agreement to sell is a valid document, which is still in operation and that defendant has every right to enforce the said agreement, which liberty is still reserved with plaintiff. That, Sri Ramnath Santu Angolkar, who is shown as purchaser in Ex. P-3 was erstwhile Secretary of plaintiff - House Building Society and he acted on behalf of Society while entering into an agreement with defendant No. 1. He, therefore, submitted that there is no merit in the appeal and that no substantial question of law would arise in the matter.
In the reply, learned counsel for the appellant submitted that if indeed respondent plaintiff has right to enforce the agreement dated Ex. P-3 then they ought to have filed a suit seeking specific performance of that agreement, not having done so, the suit is hit by Section 41(h) of the Specific Relief Act, 1963. She, therefore, contended that there is no substance in the submission of learned counsel for respondent.
Having heard learned counsel for the parties and on perusal of material on record and also the original records, in my view, appeal requires to be admitted on the following substantial question of law:
"Whether I Appellate Court was justified in granting an order of permanent injunction in favour of respondent herein restraining appellants from alienating suit schedule property during the subsistence of Ex. P-3 agreement to sell dated 05.05.1987 when the respondent is not a party to said agreement?"
The appeal is admitted on aforesaid substantial question of law.
Since I have heard learned counsel at length on the aforesaid question of law and having perused original records, it is noted that agreement to sell has been executed by Sri Maruti Laxman Kangralkar/Patil, defendant No. 1 in favour of one Ramnath Santu Angolkar. The agreement states that seller is absolute owner of land bearing Sy. Nos. 321/A measuring 1 acre 27 guntas 15 anas and R.S. No. 323/1 measuring 2 acres respectively situate within the limits of Corporation of the city of Belgaum. The sale consideration is Rs. 18,000/- per gunta. The purchaser, i.e., Ramnath Santu Angolkar has paid Rs. 20,000/- as earnest money to seller in cash and seller has acknowledged the receipt of same by this agreement and remaining consideration is to be given at the time of execution and registration of sale deed. There are various other terms and conditions in the agreement to sell. On a detailed and close perusal of Ex. P-3 agreement to sell, it is noted that said agreement is between defendant No. 1 and Ramnath Santu Angolkar. Nowhere in the said agreement it has been stated that the intending purchaser acted as a Secretary of plaintiff - House Building Society, as has been argued in the course of this appeal, nor is there any reference to the plaintiff -- Society in the agreement to sell. Therefore, plaintiff is a stranger to agreement. It is a settled position in law that a person, who is a stranger to an agreement or a contract cannot seek any remedy on the basis of said agreement or contract. Therefore, plaintiff had no locus standi to maintain the suit. This aspect of the matter has not been gone into by I Appellate Court. In fact, trial Court has also not adverted to this aspect. But the fact remains that trial Court dismissed suit after recording evidence. But, the elementary consideration in adjudication of any suit is as to whether the party approaching Court, as a plaintiff, has a right to approach the Court as an aggrieved party and in the instant case whether plaintiff is a party to agreement to sell, as in the instant case the entire case of plaintiff is based on said agreement. It is noted that plaintiff Society is not a party to agreement to sell, and therefore, had no right to maintain the suit. Thus, plaintiff had no right to enforce the agreement entered into between defendant and Ramnath Santu Angolkar. Plaintiff Society being a stranger to agreement could not thus seek specific performance of said agreement. In the circumstances, substantial question of law has to be answered in favour of appellants herein by holding that First Appellate Court was not justified in granting an order of permanent injunction in favour of respondent herein restraining appellants from alienating suit schedule property during the subsistence of Ex. P-3 agreement to sell dated 05.05.1987 as respondent was not a party to said agreement. The appeal succeeds and is allowed by setting aside the judgment and decree dated 29.07.2010 passed by the First Appellate Court in R.A. No. 286/2009.
Parties to bear their respective costs.