Sansar Chand vs Som Dutt

Dhiraj Singh Thakur, J.—This petition is one filed under Article 226 of the Constitution of India read with Section 103 of the Constitution of

Jammu and Kashmir as also one under Article 227 of the Constitution of India read with Section 104 of the Constitution of Jammu and Kashmir

for quashing the judgment and order dated 11th of May, 2013 passed by the learned 1st Additional District Judge, Jammu in appeal whereby the

judgment and order dated 31-12-2010 passed by the learned Munsiff, Akhnoor in a suit for declaration-cum-permanent Prohibitory Injunction,

ordering maintenance of status quo, has been set aside. In order to appreciate the controversy in its correct perspective, it is necessary to give a

few facts in brief:

Land measuring 2 kanals underlying khasra No. 631/609 was a subject matter of an agreement to sell dated 18-12-1993 between the owner,

Puran Chand on the one hand and petitioner and respondent No. 1 in equal shares. A consideration amount of Rs. 5,000/-, was allegedly paid

equally to the extent of Rs. 2500/- each by petitioner and respondent No. 1 to the owner Puran Chand. It is stated that possession of. the

aforesaid land was given to the petitioner and respondent No. 1 and they came to occupy and possess one kanal each of the said two kanals. It is

further stated that whereas, petitioner was put in possession of one kanal on the eastern side of the plot, the respondent came to occupy one kanal

of land towards the western side. The petitioner herein alleged that he constructed a plinth over one kanal of land in his possession.

A suit came to be filed by the petitioner herein in the court of learned Munsiff, Akhnoor for declaration-cum-permanent prohibitory injunction

against respondent No. 1 when he alleged interference with the possession of the petitioner over the land (supra). It was then that the petitioner is

stated to have acquired the knowledge that the respondent No. 1 had got executed a sale deed in his favour in the year 1994 in respect of the

entire two kanals of land regarding which the petitioner had no knowledge. A mutation bearing No. 856 dated 28-11-2001 is also stated to have

been attested in favour of respondent No. 1 in regard to two kanals of land regarding which the petitioner is stated to have no knowledge. It was in

these circumstances that the petitioner states that the suit was filed by him to protect his possession over one kanal of land on the eastern side.

The learned Munsiff, Akhnoor vide order dated 24-5-2010 directed the parties to maintain status quo with respect of the suit property.

An appeal came to be preferred against the aforesaid judgment and order of the learned Munsiff before the 1st Additional District Judge,

Jammu, who accepted the appeal and set aside the order of the learned Munsiff by virtue of the order dated 11-5-2013, which is impugned in the

present petition.

The appellate court held that a mere contract of sale of immoveable property did not create any interest therein and that the purchaser on the

basis of the sale deed would have prima facie acquired the title and presumed to be in possession.

A finding was also recorded that there was nothing on record to substantiate the claim of the appellant having been in possession of one kanal of

land towards the eastern side except the agreement to sell, which did not describe the land sought to be purchased vis-a-vis the 64 kanals of land

under the same survey number. The court also came to a conclusion that the appellant-respondent No. 1 had lawfully acquired the title over the

property in question more than twenty years back and therefore, proceeded to hold that the plaintiff-petitioner herein had no prima facie case in his

favour against the appellant.

The petitioner questions the order of the appellate court on the ground that the court below had failed to consider the material on record, which

would prove his possession over the land in dispute measuring one kanal. It was urged that the report of the revenue officers along with Tatima

Shajra had not been considered by the court below at all and, therefore, the court below had failed to exercise its jurisdiction vested in it under

law.

Reference was also made to the report of the Settlement Officer, Jammu where a finding has been recorded that the petitioner was in possession

of the land in dispute, which also is stated to have not been considered at all by the appellate court, therefore, causing failure of justice.

Learned counsel for the respondent, on the other hand, defended the order passed by the appellate court and emphasized that no right or

interest was vested in the petitioner merely on account of the agreement to sell alleged to have been executed in favour of the plaintiff-petitioner

herein. It was further urged that the agreement to sell itself was disputed by the defendants-respondents herein.

Heard learned counsel for the parties.

Section 54 of the Transfer of the Property envisages that a contract of sale itself does not create any interest or charge on the immoveable

property, which is subject matter of contract of sale. Section 54 is reproduced hereunder for purposes of reference:

""Sale"" defined

Sale"" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.

Sale how made.

Such transfer, in the case of tangible immoveable property or in the case of a reversion or other intangible thing, can be made only by a registered

instrument.

Contract for sale.

A contract for the sale of immoveable property is a contract that a sale of such property shall take place on terms settled between the parties, but

no such contract shall be valid, unless it is in writing, and signed by the parties.

It does not, of itself, create any interest in or charge on such property.

In 1974 Gujrat 96 Motibhai Nathabhai v. Ramchandera, it was held that a contract for sale was merely a document creating a right to obtain

another document.

The apex court in Rambaran Prosad Vs. Ram Mohit Hazra and Others, held that a contract of sale did not create any interest in land. A

distinction was drawn between the position of law before the passing of the Transfer of Property Act, 1954 Section 54 where an agreement to sell

created an interest in the land itself in favour of the purchaser as against the position of law after the passing of the Transfer of Property Act, 1954,

Section 54 whereof specifically provides that an agreement to sell did not itself create any interest in a change on such property.

In Baruna Giri and Others Vs. Rajakishore Giri and Others, , the court held that even after a contract to sell, title clearly vested in the vendor

and even though the proposed vendee had taken possession, his possession was under contract and clearly permissive unless shown to be adverse

by subsequent conduct and event.

Similar is the view taken in Sujan Charan Lenka and Others Vs. Smt. Pramila Mumari Mohanty and Others, wherein it was held that a mere

contract of sale of immovable property did not create any interest in the property and the purchaser on the basis of the sale deed would have prima

facie acquired the title and presumed to be in possession.

Learned counsel for the appellant, however, tried to draw a distinction by placing reliance upon a Division Bench judgment of this Court in Gh.

Qadir and anr. v. Gh. Hussain, AIR 1972 SC 11, wherein their Lordships held in paragraphs 8 and 9 as under:

We find ourselves in complete agreement with the observations made by their Lordships in the aforesaid case. It is manifestly clear that where

the plaintiff voluntarily executes a contract of sale puts the proposed vendee in possession of the property and receives the entire consideration

money, there is no special equity in his favour to allow him to turn round and claim the property after a long time merely because the price of the

property has increased. He cannot be allowed to repudiate the fiduciary obligation arising out of the contract nor can the Court aid him to commit

fraud by dispossessing a prospective vendee who has done all that was required of him to do for purchasing the property.

For these reasons we find that even though the possession of the defendant may be permissive, since the plaintiff has received the entire

consideration money and allowed the position to be changed to the prejudice of the defendant, he will be stopped from repudiating the sale

transaction and recovering possession from the defendant. On this ground alone, in our opinion, the defendant is entitled to succeed.

However, the counsel for the petitioner cites these judgments on the premise that the appellant is in possession of one kanal of land which fact

is not supported by the order dated 31.12.2010 passed by the trial court where no finding was recorded, while ordering maintenance of status

quo, that the plaintiff petitioner herein was in possession of the property in question.

On the contrary, the finding recorded by the appellate court in its order dated 11.5.2013 impugned in the present petition is reproduced

hereunder:

Thus the claims of the respondent to be in possession of one kanal of land towards eastern are side farfetched against the specific case of

appellant to be lawfully acquired the same more than twenty years back. There is nothing on record to substantiate the claim of the appellant having

been in possession of the one kanal of the land towards eastern side except the agreement to sell which does not describe the land sought to be

purchased there under vis-a-vis the sixty four kanals of the total land under the survey number.

It was held in Sujan Charan Lenka and Others Vs. Smt. Pramila Mumari Mohanty and Others, that mere contract of sale of immovable property

does not create any interest therein and purchasers on the basis of sale deed have prima facie acquired the title and would ordinarily be presumed

to be in possession, have got prima facie title. Therefore, respondent/plaintiff had got no prima facie case in his favour as against the appellant who

is prima facie in possession of the suit land having lawfully acquired the same. The balance of convenience also does not lie in favour of the

respondent since, he is yet to establish his claim over the land in question whereas, appellant is undisputedly the lawful owner of the same for the

time being.

In the given circumstances, the respondents was not entitled to any temporary relief and the trial court has erred in making the interim directions

absolute thereby ordering the maintenance of status quo with respect to the suit property and putting fetters on a rights of a owner to use his own

property the way he likes.

For the foregoing reasons, this appeal is accepted and the order of the trial court directing the maintenance of status quo with respect to suit land is

set aside. Any observations about the merits, of the claims/counterclaims of the parties hereinabove, are only for the disposal of this appeal and

shall have no bearing on the final outcome of the suit. It is however, also made clear that any change in the nature of the suit land i.e. one kanal of

land towards the eastern side shall remain subject to the outcome of the suit and appellant shall file an undertaking before the trial court that he shall

not make any claim with respect to improvements made, if any, during the pendency of the suit if the respondents succeeds ultimately in the main

suit. The appeal stands disposed of accordingly. The record of the trial court shall be returned along with a copy of this order for further

proceedings. The parties are directed to appear before the said court below on 24.05.2013. The appeal file shall be consigned to records after

due compilation. Announced.

Be that as it may, the authorities relied upon by the petitioner are not apt in the present case.

Testing the facts of the present case also on the touchstone of the aforementioned judgments, it will be seen that the sale deed was executed in

favour of the respondent and acquired lawful title over the property some twenty years back.

The respondent would thus be presumed to be in possession of the said property as against the petitioner who is asserting his right on the basis

of the agreement to sell upon which no action at all was taken by the petitioner to acquire lawful title. Having considered the entire matter, it is clear

that the order impugned does not suffer from any illegality. The petition is thus found to be without merit and is accordingly dismissed along with

connected CMA(S).