P.S. Sugumaran vs Ragini alias Usha and Another

Prabha Sridevan, J.—The appellant is the plaintiff who has not succeeded in obtaining an interim injunction against the respondents

restraining them from disturbing his peaceful possession. According to the appellant, he was a tenant in respect of ''A'' schedule A property under

an agreement dated 6.7.1981 from one Baalamirtham (''B''). She is the mother of the 1st respondent. The appellant was paying an advance of Rs.

1,000. The lease deed permitted him to put up superstructure and the appellant also did so. Thereafter, in a family arrangement of ''B'' and her

family members, this property was allotted to the 1st respondent. The rent was paid to ''B'' alone who received it. An un-registered lease deed was

prepared in 1984, but since the signature of the 1st respondent was not obtained, the appellant continued to pay the rent to ''B''. On 19.4.1989,

''B'' offered the ''A'' schedule property for sale. The sale consideration was also fixed. An agreement of sale was prepared on stamp paper and

shown to ''B'' and the 1st respondent and an advance of Rs. 50,000 was paid. The 1st respondent did not comply with the terms and conditions of

the sale agreement. The appellant is already in possession of the plaint schedule property pursuant to the agreement and entitled to protection of

Section 53-A of the Transfer of Property Act. Now, the appellant learns that desirous of getting a higher price of the properties, the 1st

respondent executed two registered sale deeds in favour of the 2nd respondent on 11.12.1992. These sale deeds are not binding on the appellant.

On 12.10.1995, the 2nd respondent filed R.C.O.P. No. 110 of 1995 for eviction on the ground of wilful default and owner''s occupation. The

eviction petition was dismissed, but the appellate authority allowed the appeal and ordered eviction. This order was confirmed by this Court in

C.R.P.No. 3949 of 1999. The SLP was also dismissed by the Supreme Court with an observation ""The SLP is dismissed without prejudice to the

rights of the petitioner to seek his remedy if advised through a suit"". Therefore, the appellant filed the present suit out of which this appeal arises.

This suit O.S.No. 84 of 2001 is for a declaration that the registered sale deeds executed by the 1st respondent in favour of the 2nd respondent

are null and void and for a declaration that the appellant is the absolute owner, and for permanent injunction, and pending suit, he prayed for

interim injunction. The 2nd respondent resisted the prayer for injunction on the ground that the agreement on which the appellant bases his right is

itself fabricated. Having lost in the rent control proceedings up to the Supreme Court, the appellant cannot avoid the execution of the lawfully

obtained decree for eviction against him. At the most, the appellant can seek specific performance of the agreement. He is not entitled to the

discretionary relief of injunction.

The learned Additional Sub Judge, Pondicherry vacated the injunction. Against that, the present C.M.A. had been filed. Pending C.M.A., an

interim order was prayed for. Since the question to be considered in the C.M.P. and the C.M.A. is one and the same, by mutual agreement, the

main C.M.A. itself was taken up.

Mr. M. Venkatachalapathy, learned senior counsel appearing for the appellant submitted that pursuant to the agreement between the appellant

and the original owner of the property, he had put up construction with a very heavy cost and has been in possession from 1968. According to the

learned senior counsel, the only factor which appears to have prevailed upon the Court below is that this is the second round of litigation. Learned

senior counsel would submit that the Court below ought to have considered the prima facie case, the balance of convenience and irreparable

injury. Regardless of whether it is a second round of litigation, if these factors exist, interim injunction ought to have been granted. Learned senior

counsel also submitted that it is irrelevant that the appellant had not filed the suit for specific performance. If it is demonstrated that the appellant is

in possession pursuant to an agreement, then, Section 53-A of the Transfer of Property Act will have to come to his aid and his possession has to

be protected. He relied on the following judgments:

(i) Narasimhasetty v. Padmasetty AIR 1998 Karn. 389, where it was held thus:

Section 53-A of the Act creates a statutory right in favour of transferee though the inspiration for incorporating the same might have been delivered

from the English equitable doctrine of part performance. But, it is now more than settled that in India the right of a transferee to defend his

possession over a immovable, property acquired pursuant to a contract and subject to fulfilment of statutory conditions contained in the said

Section is statutory in nature and cannot be whistled down on the equitable concept of latches or implied limitation.

The failure on the part of the transferee to bring a suit for specific performance of the contract within the period of limitation prescribed therefore

under the Limitation Act 1963 does not lead to extinction of his statutory right created by the legislature by incorporating Section 53-A in the Act.

It is well-settled that the right and the remedy for enforcement therefore are mutually exclusive jurisprudential concepts. Remedies are availed for

exercise or enforcement of legal rights. Even if a statutory remedy is lost because of limitation or some other procedural bar, the right subsists.

Notwithstanding the fact that a transferee in possession pursuant to a contract of sale fails to file a suit for specific performance within the

prescribed period of limitation, still in law, the contract remains valid and operative entitling him to exert his right to retain the possession over the

property in exercise of his statutory right conferred by Section 53-A of the Act by way of defence in a suit brought against him by his transferee for

recovery of possession. The law of limitation does not apply to a defence raised u/s 53-A of the Act since the Section does not provide for any

limitation on expiry whereof the defence contemplated in the Section will be lost or will extinguish.

(ii) Chinna Thevar v. Gnanaprakasi Ammal (1978)2 M.L.J. 533, where it was held thus:

Till the contract of sale was obtained, the petitioner- tenant only occupied the position of lessee. But after the date of the contract and after it was

performed in part by consideration being paid for the contract and the landlord allowed the tenant to remain in possession by reason of the new

status created under the contract it was no longer open to the landlord, to contend that the right of possession claimed by the petitioner was

referable to the contract of lease. The conditions laid down in Section 53-A of the Transfer of Property Act are fulfilled even though a contract to

sell alone had been obtained.

Mrs. Hema Sampath, learned Counsel appearing for the respondents, on the other hand, submitted that the suit itself is not maintainable. The

agreement based on which the protection of Section 53-A of the Transfer of Property Act is claimed was itself not believed by the Courts in the

Rent Control proceedings. The observation of the Supreme Court cannot be taken to be direction to file a suit. Even now, the appellant has not

come forward with a suit for specific performance and has filed a suit claiming peculiar reliefs to which he is not entitled to. She also contended that

after the dismissal of the I.A. petition u/s 47, C.P.C. has also been filed and the successful party in a well fought-out proceedings which went up to

the Supreme Court is prevented from enjoying the benefits of his success. She relied on the following judgments: Zaibnnnissa Bi and Anr. v. Ram

Kishore and Anr. (2000)1 L.W. 506, Anantha Pillai Vs. Rathnasabapathy Mudaliar and Others, and S. Sugumaran v. Seenu alias Natarajan

(2000)1 L.W. 897, which is the rent control proceedings between the same parties and A. Shanmugasundara Pandia Nadar and Anr. v. Raja

Vaithialingam and Ors. (1992)2 L.W. 603.

The basis of the appellant''s case is the agreement in his favour pursuant to which, he has been put in possession. It is only on this ground that he

claims the protection of Section 53-A of the Transfer of Property Act. In the Full Bench decision that has been cited before me, the Karnataka

High Court held that even though a suit for specific performance of the contract has not been filed within the time prescribed, under the Limitation

Act, it will not extinguish the Statutory right created u/s 53-A of the Act. This Section gives a certain protection to the Transferee for consideration,

who is in possession under a contract.

In the case of Patel Natwarlal Rupji Vs. Shri Kondh Group Kheti Vishayak and another, , it was held:

It would thus be clear that Section 53-A confers no title on the transferee but imposes a statutory bar on the transferor to seek possession of the

immovable property from the transferee.

Relying upon this, the Karnataka High Court held thus:

From the above pronouncement and discussion it is quite clear to us that notwithstanding the fact that a transferee in possession pursuant to a

contract of sale fails to file a suit for specific performance within the prescribed period of limitation, still in law, the contract remains valid and

operative entitling him to exert his right to retain the possession over the property in exercise of his statutory right conferred by Section 53-A of the

Act by way of defence in a suit brought against him by his transferor for recovery of possession.

A reading of the decision would show that what is essential while protecting the transferee with a shield of Section 53-A is a valid contract.

Whether there is a valid contract in the case has to be decided. The decision relied on by the learned Counsel for the appellant reported in Chinna

Thevar v. Gnanaprakasi Ammal (1978)2 M.L.J. 533 will not come to his aid since in that case, it was held in the revision filed against the order for

eviction that the tenant is entitled to set up the agreement of sale as a shield in defence to the eviction action. In this case however, this Court

specifically held in the C.R.P. that the agreement is not genuine.

In the decision reported which is interprets in S. Sugumaran v. Seenu alias Natarajan (2000)1 L.W. 897, the learned Judge finds that the

agreement itself is not genuine. The learned Judge relies on Mohan Lal (Deceased) through his Lrs. Kachru and Others Vs. Mirza Abdul Gaffar

and Another, where the scope of Section 53-A of the Transfer of Property Act is discussed: Even otherwise, in a suit for possession filed by the

respondent, successor-in-interest of the transferor as a subsequent purchaser, the earlier transferee must plead and prove that he is ready and

willing to perform his part of the contract so as to enable him to retain his possession of the immovable property held under the agreement. The

High Court has pointed out that he has not expressly pleaded this in the written statement. We have gone through the written statement. The High

Court is right in its conclusion. Except vaguely denying that he is not ready and willing to perform his part, he did not specifically plead it. u/s 16(c)

of the Specific Relief Act 1963, the plaintiff must plead in the plaint, his readiness and willingness from the date of the contract till date of the

decree. The plaintiff who seeks enforcement of the agreement is enjoined to establish the same. Equally, when the transferee seeks to avail of

Section 53-A to retain possession of the property which he had under the contract, it would also be incumbent upon the transferee to plead and

prove his readiness and willingness to perform his part of the contract. He who comes to equity must do equity. The doctrine of readiness and

willingness is an emphatic way of expression to establish that the transferee always abides by the terms of the agreement and is willing to perform

his part of the contract. Past performance, as statutory right, is conditioned upon the transferee''s continuous willingness to perform his part of the

contract in terms covenanted thereunder.

In that case between the same parties that are before this Court in this appeal, the learned Judge held thus:

It is clear from the above decision that merely because he happened to be in possession he cannot claim protection of Section 53-A unless he is

also ready to take sale deed in his favour. Even for the purpose of defence, he has to prove the ingredients of Section 16 of Specific Relief Act.

Once it is found that the agreement is not proved to be prima facie genuine and also he is not entitled to the benefit of Section 53-A of Transfer of

Property Act, it can only be held that denial of title is not bona fide.

Even assuming that the powers exercised by Courts under the Rent Control Act is summary in nature and not as elaborate as the procedure

adopted in a Civil Court, it cannot be denied that as on date, there is finding against the appellant that the agreement is not genuine and he is not

entitled to the benefit of Section 53-A. In the decision reported in Zaibunnissa Bi v. Ram Kishore (2000)1 L.W. 506, this Court has held that

possession of property in the capacity of a tenant is not possession pursuant to the agreement of sale and Section 53-A of the Transfer of Property

Act cannot be attracted. In this decision, the learned Judge also holds by relying on S. Doraisami Nadar v. Nagammal 1993 L.W. 858, that merely

by entering into an agreement of sale, the tenant does not acquire any right in the property.

In this case, even the agreement itself has a shaky basis having been found by this Court in the revision arising out of the rent control

proceedings that it is not genuine. As regards the contention raised on behalf of the appellant that the suit itself was filed only pursuant to the

directions of this Court, reliance is placed by the learned Counsel for the sign on a decision reported in A. Shanmugasundara Pandia Nadar v. Raja

Vaithialingam (1992)2 L.W. 603, wherein a suit was filed to question validity of an order passed in C.R.P. in respect of the same proceedings.

The matter had gone up to Supreme Court and the Supreme Court observed: ""It is open to the petitioners to approach the proper Court for such

reliefs as they are entitled"". So, the stand was taken that this would amount to the Supreme Court giving liberty to the respondent to file a suit to

question the validity of the order. This Court held:

It will be absolutely improper to contend that the Supreme Court gave liberty to the institution of a vexatious litigation challenging the order of the

High Court after confirming it. Hence, the interpretation placed by the lower Court on the observation of the Supreme Court in the order dated

10.12.1990 is wholly unsustainable. In the context, the observation could only mean that if the parties before the Supreme Court were entitled to

any reliefs in law which were not covered by the order of this Court as confirmed by the Supreme Court, such reliefs could be obtained by the said

party by approaching the appropriate Court. The observation does not enable the plaintiff herein to file a suit questioning the said order by raising

the same grounds which were rejected by the Supreme Court.

These are the observations of the learned Judge in this regard:

The main question which arises for consideration is whether the suit which has been filed by the respondent herein is sustainable in law. The learned

District Judge has understood the observation of the Supreme Court as giving liberty to the respondent to file a suit questioning the validity of the

order of this Court in C.R.P. No. 2308 of 1990. That is clearly erroneous. The context in which the observation has been made should not be

ignored. It should be remembered that the members of the Administrative Council were represented by their President and another member who

filed an SLP which was dismissed on 24.10.1990. The Secretary of the Sangam filed another SLP which was numbered as SLP No. 13773 of

1990 and dismissed on 24.10.1990 after a long hearing. The third SLP was filed by the plaintiff himself along with the Secretary Dhanraj and that

was dismissed on 10.12.1990. The fourth SLP filed by another member of the Administrative council along with some other members was also

dismissed on 10.12.1990. Hence, in the context of dismissal of four S.L.Ps. confirming the order passed by this Court, can it be said that the

Supreme Court passed a self-stultifying order and permitted the plaintiff to challenge the order of this Court which has been confirmed by the

Supreme Court, not once, but four times? But, it will be absolutely improper to contend that the Supreme Court gave liberty to the institution of a

vexatious litigation challenging the order of the High Court after confirming it.

He also held:

In the context, the observation could only mean that if the parties before the Supreme Court were entitled to any reliefs in law which were not

covered by the order of this Court as confirmed by the Supreme Court referred to above, such reliefs could be obtained by the said party by

approaching the appropriate Court. The observation does not enable the plaintiff herein to file a suit questioning the said order by raising the same

grounds which were rejected by the Supreme Court.

In the present case also, the argument was advanced that the suit itself was filed ""pursuant"" to the order of the Supreme Court"". The order of

the Supreme Court cannot be construed to be that the appellants could file a suit which would result in defeating or nullifying a lawful decree. The

dismissal of the SLP filed by the appellant herein against the order of eviction would mean two things: that the status of the appellant was that of a

tenant and therefore, the provisions of the Rent Control were applicable and also that he was liable to be evicted. The question of the appellant

being in possession pursuant to the agreement had been raised even in the C.R.P., since in the counter it was the case of the appellant that his

genuineness in possession on the basis of the agreement requires protection u/s 53-A of the Transfer of Property Act. It was also the case of the

appellant in the Rent Control proceedings that his possession is only pursuant to the agreement and not as a tenant. This Court was not satisfied

prima facie about the genuineness of the agreement. The Supreme Court also did not deem it fit to interfere in this regard. Had the case of the

appellant been accepted by either this Court or the Supreme Court, the jurisdiction of the Rent Controller would have been ousted and an order of

eviction would not have been passed. That did not happen in this case. The decision relied on by the learned senior counsel for the appellant that

even though the suit for specific performance has not been filed, yet the transferee will be entitled to protection u/s 53-A of the Act does not come

to the aid of the appellant in this case for the simple reason, in previous proceedings doubts have been raised as to the genuineness of the

agreement. Unless there is a valid agreement, the protection u/s 53-A will not ensure to the benefit of the transferee, Section 53-A lays down an

equitable principle and therefore, a person who has been unable to satisfy the authorities under the Rent Control Act or the High Court and the

Supreme Court regarding the truth and validity of the agreement cannot protect himself with this shield. It is pertinent to note that even in the main

suit, the primary relief sought for is for a declaration that the sale deeds in favour of the respondents are null and void. No doubt, the relief of

declaration that the appellant is the absolute owner has also been asked and there is an averment in the plaint that he is even now ready and willing

to perform his part of the agreement between the parties. But even till date, the appellant has not chosen to file a suit for specific performances.

The fact that he has not filed the suit for specific performance per se does not disentitle him from availing of the protection as person in part

performance. But, his conduct in not asserting his right though there is a finding that the agreement is not genuine has to be noted. Summary though

the proceedings under the Rent Control Act may be, it is an inescapable fact that this Court has doubted the veracity of the agreement. Until the

appellant is able to establish that he is genuinely in possession pursuant to a valid contract, he will not be entitled to an interim injunction to restrain

interference with his possession and that too, by executing a validly obtained decree.

Another factor that persuades me to hold that the petitioner is not entitled to injunction is the fact that the basis of his case itself is the

agreement and the protection that he is entitled to pursuant to that. He had sought for protection from eviction on the same basis and his claim was

rejected. The complaint of the learned senior counsel is that the question of injunction should not be decided solely on the ground that it is a second

round of litigation. But here, this Court is only called upon to decide whether the petitioner has made out a prima facie case for injunction and when

even the truth of the agreement which is the basis of his claim is shaky, the prima facie case cannot be said to have been made out. On the other

hand, to deprive the respondents from executing the order of eviction of which they have fought all the way up to Supreme Court will definitely

mean irreparable injury and the balance of convenience is also in favour of the respondents.

None of the principles that should be present in an application for interim injunction under Order 39, C.P.C. are available in this case. The

C.M.A. is therefore dismissed with costs of Rs. 2,000. C.M.P. Nos. 4478 and 5240 of 2001 are closed.