Ram Kumar vs Satbir Singh

Jaswant Singh, J.—Defendant-appellant has filed the present regular second appeal for setting aside the impugned judgment and decree dated 24.12.2010 passed by the learned Addl. District Judge, Karnal whereby an appeal filed by him against the judgment and decree dated 24.7.2010 passed by the learned Additional Civil Judge (Sr. Division), Assandh decreeing the suit of the plaintiff-respondent No. 1, has been dismissed. Brief facts of the case are that the plaintiff-respondent filed a suit for possession along with mesne profit and consequential relief of permanent injunction regarding the shop in dispute as described in para No. 1 of the plaint. Upon notice, the suit was resisted. After hearing both the sides, learned trial Court decreed the suit ordering that the defendant-appellant shall hand over the vacant possession of the shop in question to the plaintiff-respondent within a period of two months from the date of judgment. Thereafter, on an appeal having been filed, the same has been dismissed by the learned appellate Court, hence the present second appeal.

Learned counsel for the appellant has argued that both the courts below have gravely erred while decreeing the suit of the plaintiff-respondent in view of the facts & circumstances of the case in hand.

After hearing learned counsel for the appellant and perusing the paper book, this Court does not find any merit in the present appeal and the same deserves dismissal.

A perusal of paper book reveals that the learned trial Court framed as many as ten issues and issues Nos. 1 & 6, being material are reproduced hereunder:

Whether the plaintiff is entitled to the possession of the suit property as prayed for?OPP

Whether the suit of the plaintiff is time barred by principle of res-judicata?OPD"

It is the specific case of the plaintiff-respondent that he purchased the shop in question from Piara Singh, Karnail Singh and Swaran Singh sons of Amar Singh on payment of sale consideration of Rs. 3,15,000/-. Defendant challenged the sale deed dated 13.6.1997 (Ex. P.2) by way of civil suit No. 180 of 2001 but the same was dismissed by the leaned Civil Judge (Jr. Division), Karnal vide judgment and decree dated 9.2.2006 (Ex. P.3 and P.4), however, in appeal the possession of plaintiff was protected by decreeing the suit qua relief of permanent injunction while granting the liberty to the plaintiff-respondent to seek possession of shop in dispute in accordance with law vide judgment and decree dated 13.2.2008 (Ex. P.6 and P.7).

On the other hand, the defendant-appellant while appearing as DW 1 has deposed in consonance with the written statement that though the shop in question has been purchased by the plaintiff but the possession of the defendant over the shop in question is legal, valid and settled in view of the agreement to sell dated 31.3.1968 and the same is protected under the provisions of Section 53A of the Transfer of Property Act, 1882 (for short "the Act").

In view of the above, the plaintiff-respondent is seeking the possession of the shop in question based upon title having purchased the shop from his vendors vide sale deed dated 13.6.1997 but on the other hand, the defendant-appellant is resisting his claim on the basis of his established possession from the previous owner-Amar Singh on the basis of agreement to sell dated 31.3.1968. It is claimed by the defendant-appellant that the entire sale consideration had been paid and the possession being the result of part performance of agreement to sell dated 31.3.1968, the same can be protected in view of the provisions of Section 53A of the Act.

It is not in dispute that in Civil Suit No. 180 of 2001, the legality and validity of sale deed dated 13.6.1997 (Ex. P.2) was challenged by way of suit for declaration and permanent injunction but the claim of declaration was given up by the defendant-appellant and only permanent injunction was pressed and decreed by the learned first appellate court vide judgment and decree dated 13.2.2008 (Ex. P.6 & P.7) and the relevant part of the said decree reproduced as under:

It is ordered that the appeal is allowed and the impugned judgment and decree dated 9.2.2006 passed by the trial Court stands modified to the extent that the appellant has given up his claim/relief about the legality and validity of the sale deed but he is entitled to get protection of his possession as required u/s 53A of the transfer of property Act and will not be dispossessed except in due course of law."

It is not the case of the defendant-appellant that he has pursued his remedy under law for specific performance of the agreement to sell dated 31.3.1968 at the appropriate time and was ready and willing to perform his part of contract, being a prospective vendee. Rather, his only claim is that his rights are fructified under the provisions of Section 53A of the Act.

Once it is proved on record that the plaintiff-respondent has purchased the shop in dispute by way of registered sale deed dated 13.6.1997 (Ex. P.2) and the challenge laid to the same had also remained unsuccessful at the hands of the defendant-appellant before the court of competent jurisdiction, then it can be safely concluded that the plaintiff-respondent has become the true owner of the shop in dispute and once it is proved that the plaintiff-respondent is a true owner of the shop in question, then he is entitled to receive the possession of the same in accordance with law from the defendant appellant and provisions of Section 53A of the Act will not be helpful to the defendant-appellant at all, especially in view of the absence of readiness and willingness on the part of the defendant-appellant.

Even otherwise, mere agreement to sell will not confer the title upon the defendant-appellant in view of the latest judgment of Hon''ble Supreme Court reported as Suraj Lamp and Industries Pvt. Ltd. Vs. State of Haryana and Another, by a Bench of Three Hon''ble Judges. The relevant extract of this judgment reads as under: Scope of art Agreement of sale

Section 54 of TP Act makes it clear that a contract of sale, that is, an agreement of sale does not, of itself, create any interest in or charge on such property. This Court in Narandas Karsondas Vs. S.A. Kamtam and Another, observed:

A contract of sale does not of itself create any interest in, or charge on, the property. This is expressly declared in Section 54 of the Transfer of Property Act. See Rambaran Prosad v. Ram Mohit Hazra [1967]1 SCR 293. The fiduciary character of the personal obligation created by a contract for sale is recognised in Section 3 of the Specific Relief Act, 1963, and in Section 91 of the Trusts Act The personal obligation created by a contract of sale is described in Section 40 of the Transfer of Property Act as an obligation arising out of contract and annexed to the ownership of property, but not amounting to an interest or easement therein.

In India, the word ''transfer'' is defined with reference to the word ''convey''. The word ''conveys'' in section 5 of Transfer of Property Act is used in the wider sense of conveying ownership that only on execution of conveyance ownership passes from one party to another.

In Rambhau Namdeo Gajre Vs. Narayan Bapuji Dhotra (dead) through Lrs., this Court held:

Protection provided u/s 53A of the Act to the proposed transferee is a shield only against the transferor. It disentitles the transferor from disturbing the possession of the proposed transferee who is put in possession in pursuance to such an agreement. It has nothing to do with the ownership of the proposed transferor who remains full owner of the property till it is legally conveyed by executing a registered sale deed in favour of the transferee. Such a right to protect possession against the proposed vendor cannot be pressed in service against a third party.

It is thus clear that a transfer of immoveable property by way of sale can only be made by a deed of conveyance (sale deed). In the absence of a deed of conveyance (duly stamped and registered as required by law), no right, title or interest in an immoveable property can be transferred.

Any contract of sale (agreement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of sections 54 and 55 of Transfer of Property Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted u/s 53A of TP Act). According to TP Act, an agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 of TP Act enacts that sale of immoveable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subject matter.

In view of the aforesaid discussion, this court does not find any substantial question of law involved as per Section 100 of the Code of Civil Procedure, 1908.

Dismissed.