Smt. Devi vs Banwari Lal

R.R. Yadav, J.—This is an appeal filed against the order dated 20.3.1995 passed by learned Additional District Judge, Raisinghnagar making temporary injunction absolute in a suit for specific performance of contract restraining defendant-appellant from interfering in possession of the plaintiff-respondent over the agricultural land on the basis of an unregistered agreement for sale dated 31.12.92 although a revenue suit for eviction under Sec. 183 of the Rajasthan Tenancy Act. 1955 was pending against him respect of disputed land.

It is revealed from perusal of the record that the plaintiff-respondent filed a civil suit for specific performance of contract on 20.10.94 in respect of disputed land situated in Murabba No.233/364 measuring 12 Bigha 5 Biswas in Chak 5 TDD Tehsil Vijay Nagar on the basis of unregistered agreement dated 31.12.92. It is averred in the plaint that 24 Bighas 10 Biswas of command land was allotted on permanent basis under the Rajasthan Colonisation (Allotment and sale of Government Land in Indira Gandhi Nahar Project) Rules. 1975 (hereinafter referred to as ''Rules of 1975''). It is further averred that the plaintiff-respondent and defendant-appellant''s husband deceased Kishanlal were co-sharers of the disputed land to the extent of half share each.

The defendant-appellant was in need of money to construct a house at Loonkaransar and also to purchase land, so she entered into an agreement for sale of this land on 31.12.92 for a sum of Rs.3.00,000/-. Out of the aforesaid amount. Rs. 2.15.000/ - was paid on 31.12.92 and an unregistered agreement was executed by her. It is also averred that as the possession of the land in dispute was already with the plaintiff-respondent, hence, recital was made in the unregistered agreement about delivery of possession to him as a purchaser in pursuant to the aforesaid unregistered agreement dated 3 1.12.92. It is alleged that on 25.1.93. a sum of Rs. 15.000/- was further paid to the defendant-appellant. As the defendant-appellant refused to execute sale-deed on 16.10.94 in pursuant to aforesaid unregistered agreement, which necessitated to file the present suit for specific performance along with an application for temporary injunction under 0.39.Rr.1 and 2,CPC.

The defendant-appellant filed a reply opposing the aforesaid application moved under 0.39.Rr. 1.2 CPC on the ground, inter alia, that she had never executed so-called unregistered agreement dated 31.12.92 nor any consideration thereto had been paid to her as alleged by the plaintiff-respondent. It was averred that after death of her husband deceased Kishan Lal, her son and daughter were minors and she was not able to cultivate the land in dispute, hence, it was given on ''Thcka'' to the plaintiff-respondent who is her husband''s real brother. It was further averred that when plaintiff-respondent failed to pay "Theka" money and her son and daughter became capable to mange the agricultural operations over the disputed land, she revoked "Theka" and demanded possession from the plaintiff-respondent. On his refusal to hand-over possession of the land in question to her, she filed a revenue suit for his eviction in the Court of Assistant Collector, Anoopgarh on 26.7.93, in which, the plaintiff-respondent filed his written statement. In Ins written statement filed in the revenue suit for eviction before the Revenue Court, the plaintiff-respondent did not allege that she had executed an unregistered agreement for sale in his favour on 31.12.92. He did not allege in his written statement in Revenue Suit about delivery of possession in pursuant to the so-called unregistered agreement dated 31.12.92 nor about the payment of any consideration to her in lieu of said unregistered agreement. On the contrary, it was averred in the revenue suit for eviction before the Revenue Court that son and daughter of deceased Kishan Lal arc also necessary pans in the suit for eviction as they arc heirs and legal representatives of deceased Kishan Lal. It is also alleged in the written statement that both son and daughter got heir shares in the agricultural land in dispute, hence, in absence of son and daughter of deceased Kishan Lal the suit for eviction under Sec. 183 of the Rajasthan Tenancy Act. 1955 (hereinafter referred to as "Act of 1955") is not maintainable.

Learned trial Court after hearing learned counsel for the parties arrived at a conclusion that plaintiff-respondent succeeded to establish prima facie case, balance of convenience and irreparable loss in his favour, hence. temporary injunction under appeal dated 20.3.95 was granted in his favour as slated in the preceding paragraph.

Aggrieved against grant of temporary injunction dated 20.3.95 under 0.39.Rr. 1, and 2 CPC by the learned trial Court, the defendant-appellant has preferred the present appeal.

I have heard learned counsel for the parties.

Perused the order granting temporary injunction under appeal dated 20.3.95 and other materials available on record. 1 also examined the written arguments exchanged between the parties.

From perusal of the materials on record, the facts which are not disputed in the present case are that the land in dispute was jointly acquired by the plaintiff-respondent and his deceased real brother Kishan Lal husband of the defendant-appellant under the Rules of 1975, in which, the plaintiff-respondent and deceased Kishan Lal husband of the defendant-appellant had 1/2 share each. After death of Kishan Lal. his 1/2 share over the disputed land devolved upon the defendant-appellant, his son and daughter under the Act of 1955 according to the personal law.

Indisputably, the defendant-appellant has filed a suit for eviction against the plaintiff-respondent under Sec.183 of the Act of 1955. in which, the plaintiff-respondent has neither pleaded unregistered agreement for sale dated 31.12.92 nor he took defence to protect his possession under Sec.53 A of the Transfer of Property act. 1882. On the contrary, he admitted son and daughter of deceased Kishan Lal to be co-sharers in the disputed land. For the reasons best known to the plaintiff-respondent. instead of defending his possession, alleged to have been delivered to him. in pursuant to the alleged unregistered agreement for sale dated 31.1.292 within the meaning of Sec, 53 A of the Transfer of Property Act in the revenue suit for eviction, he preferred to file the present suit for specific performance of contract on the basis of the aforesaid unregistered agreement for sale, which indisputably, required registration within the meaning of Sec. 17(0 of the Indian Registration Act and is made enforceable with effect from 18,9.89 by Rajasthan Amendment act No. 18 of 1989 along with an application for temporary injunction under 0.39.Rr. 1 and 2. CPC. Although the plaintiff-respondent has already filed written statement in the revenue suit for eviction admitting son and daughter of deceased Kishan Lal to be co-sharers in the land in dispute yet they have not been impleaded as party in the present suit for specific performance of contract. Obviously for the reason that the alleged unregistered agreement for sale dated 31. 12.92 has not been executed by them.

Indisputably, the revenue suit for eviction was filed against the plaintiff-respondent earlier in point of lime than the present suit for specific performance of contract along with an application for temporary injunction.

On the basis of the aforesaid undisputed facts and also for the reasons given herein below the order granting temporary injunction by the learned trial Court to the plaintiff-respondent in the present case, is held to be perverse, arbitrary, most improper, unreasonable and capricious. I am of the view that such temporary injunction granted by the learned trial Court in favour of the plaintiff-respondent deserves to be set aside.

I am further of the view that grant of temporary injunction in the present case by the learned trial Court is a classic illustration of "Matsay Nyay". which means "a big fish cats a small fish". It is 19 be imbibed that the old concept of Maisay Nyay was based on prerogative of Crown representing a relic of feudal era but now in modern justice system, subordinate Courts arc not empowered with prerogative of Crown in granting temporary injunction in a democratic country like ours. The old concept of Matsay Nyay has been disproved in the present justice system long ago and now dispensation of justice including grant of temporary injunction is to be based on law. equity and good conscience, It seems to me that in the present case, the learned trial Court has no regard for truth and justice and also miserably failed to look into the well-recognised principles for grant of equitable discretionary relies of temporary injunction

Indisputably, the land in dispute was acquired in the state of jointness by the plaintiff-respondent and his real deceased brother Kishan Lal in which both of litem had 1/2 share. It is admitted by the plaintiff-respondent himself in the written statement filed by him in the revenue suit for eviction before the revenue court that son and daughter of deceased Kishan Lal are also co-sharers over the disputed land even then in the present suit filed by him son and daughter of deceased Kishan Lal were not impleaded as party. Reasons are not far to seek. Indisputably, the alleged unregistered agreement for sale dated 31.12.92 has not been executed either by son or daughter of deceased Kishan Lal upon whom the land in dispute devolved after death of Kishan Lal under the act of 1955.

It is further to be noticed that the plaintiff-respondent in his written statement filed before the Revenue Court, did not disclose the alleged unregistered agreement for sale dated 31.12.92 which must be presumed to be within his personal knowledge. The written statement filed by him was on record, hence the leaned trial Court ought to have taken note of Sec.57 of the Indian Evidence Act which mandates all judicial courts to take judicial notice of all laws in the territory of India and also all public acts passed by the Parliament or the State Legislature. In process of doing so. the learned trial Court ought to have taken note of the mandatory provisions of the Act of 1955. according to which, in respect of agricultural land, personal laws of inheritance arc made applicable. If the learned trial Court would have taken judicial notice of law relating to inheritance of agricultural land as provided under the Act of 1955 then it ought to have arrived at a conclusion that the land in dispute docs not belong to widow of deceased Kishan Lal defendant-appellant alone namely Smt.Devi. who is alleged to have executed the alleged unregistered agreement for sale dated 31.12.92 in favour of the plaintiff-respondent but would have arrived at a conclusion that the land in dispute also belong to son and daughter of deceased Kishan Lal who were not impleaded as party before it. This ground itself was sufficient to refuse temporary injunction to the plaintiff-respondent in the present case under 0.39.Rr. I and 2 CPC.

In order to avoid miscarriage of justice in future in graining temporary injunction under 0.39.Rr. 1 and 2 CPC. I have no hesitation to hold that in those cases, where the persons arc likely to be adversely affected by grant of temporary injunction are not impleaded as party to the suit, the law courts have no jurisdiction to grant temporary injunction under 0.39.Rr. I and 2 CPC. It is well-recognised principle for grant of equitable interim injunction that the plaintiff must come to Court with clean hands and he must disclose all the facts in his favour and against him to make him entitled for equitable discretionary relief of temporary injunction. If it is found by Courts that plaintiff in his pleadings is making concealment of the relevant facts having bearing on the merit of the case or in case, temporary injunction is granted then some persons arc likely to be adversely affected who arc not impleaded as party before such Courts, in such a situation, temporary injunction cannot be granted.

In the present case, it is not disputed before me by the learned counsel for the parties that prior to filing of the suit for specific performance by the plaintiff-respondent, the defendant-appellant Smt.Devi has filed a Revenue Suit for eviction against him under Sec. 183 of the Act of 1955 before the Revenue Court, where he can successfully defend his possession alleged to have been delivered to him in pursuant to the unregistered agreement for sale dated 31.12.92 within the meaning of Sec. 53 A of the Transfer of Property Act. But he did not even disclose the existence of alleged unregistered agreement for sale dated 31.12.92 and preferred to file the suit for specific performance along with an application for temporary injuction.

For better and deeper understanding of the aforesaid point, it is to be determined as to whether statutory protection envisaged under Sec.53 A of the Transfer of Property act can be used as a shield or a sword.

A similar question arose before Hon''ble Supreme Court in case of Nathulal Vs. Phoolchand, where in paragraph 9. it was ruled by the Apex Court.

which reads thus:

"The conditions necessary for making out the defence of part performance to an action in ejectment by the owner are:

(1) that the transferor has contracted to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty:

(2) that the transferee has. in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession continues in possession in part performance of the contract:

(3) that the transferee has done some act in furtherance of the contract, and

(4) that the transferee has performed or is willing to perform his part of the contract.

if these conditions are fulfilled then notwithstanding that the contract, though required to be registered, has not been registered, or where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefore by the law for the time being force, the transferor or any person claiming under him is debarred from enforcing against the transferee any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contact."

The aforesaid question again came up for consideration before the Supreme Court in case of Ranchor Dass Chhagan Lal V. Devaji and others. AIR 1077 SC 1517, where it is ruled by the Apex Court that the doctrine of part performance is a defence. It is a right to protect his possession against any challenge to it by the transferor or any person claiming through him contrary to the terms of the contract. The statutory protection envisaged u/s 53A of the Transfer of Property act can be used as a ground of defence and not as a ground of attack.

I am of the view that if the conditions enumerated by the Apex Court in case of Nathu Lal (supra) are satisfied then the plaintiff-respondent is entitled to resist the suit for recovery of possession filed by defendant-appellant Smt.Devi under Sec. 183 of the Rajasthan Tenancy act. 1955 before the revenue Court but he is not entitled to claim temporary injunction under 0.39.Rr. 1 and 2 CPC in a subsequent suit filed by him for specific performance of contract.

It is true that plaintiff-respondent is entitled to file a suit for specific performance but in my opinion in the present case filing of suit for specific performance of contract by plaintiff-respondent though not barred yet its trial is not permissible within the meaning of Sec.10 CPC. Trial of suit means final hearing of the matter consisting of examination of witnesses, filing of documents and addressing argument sin the subsequent suit. I am also of the view that in the present case previously instituted suit for eviction under Sec. 183 of the Rajasthan Tenancy act 1955 by the defendant-appellant Smt.Devi alone should be proceeded with and subsequent suit filed by plaintiff-respondent for specific performance must be stayed within the meaning of Sec. 10 CPC.

It is to be imbibed that for application of Section 10 CPC. four essential conditions arc to be fulfilled, which arc: firstly, the mailer in issue in the second suit is also directly and substantially in issue in the first suit: secondly that parties in the second suit arc the same or parties under whom they or any of them claim litigating under the same title; thirdly the Court in which the first suit is instituted. is competent to grant the relief claimed in the subsequent suit and: lastly that previously instituted suit is pending either in the same Court in which the subsequent suit is filed or in any other Court in India or any Court beyond [the limits of India established or continued by the Central Government and having like jurisdiction, or before the High Court or Supreme Court. Thus, Sec. 10 CPC is definite and mandatory. The Court in which the subsequent suit is instituted is prohibited from proceeding with its trial. It is to be noticed that Sec. 10 CPC docs not become inapplicable by holding that previously instituted suit is vexatiously instituted in violation of the terms of the contract.

In abundant caution, it is held that Sec. 10 of CPC does not take away the inherent power of civil or revenue Court to slay the subsequent suit u/s 151 CPC. In a peculiar facts and circumstances of a case if justice and fair play demands to stay the subsequent suit even if the aforesaid four conditions arc not strictly fulfilled even then subsequent suit can be stayed u/s 151 CPC.

The principles of staying of the subsequent suit evolved by this Court after interpreting Section 10 as well as Sec. 151. CPC would govern both civil courts and revenue courts. It is made clear that both civil courts and revenue courts arc required to act to stay the subsequent suit with due regard with each other''s jurisdiction. It is reiterated at the risk of repetition that in those cases where the requirements of Section 10 CPC arc not strictly satisfied, both civil and revenue courts will have jurisdiction to stay the subsequent suit u/s 151 CPC.

Lastly, admittedly the unregistered agreement for sale in the present case dated 31.12.92 where there is a recital about delivery of possession requires compulsory registration under Sec. 17(0 of the Indian Registration Act made enforceable w.e.f. 18.9.89 by Rajasthan Amending Act No. 18 of 1989. The transferee doc not get any right to claim possession or any other right in the property on the basis of an unregistered agreement for sale. Such unregistered agreement for sale conferred a statutory right within the meaning of Section 53 A of the Transfer of Property act on a transferee to defend his possession in a suit for recovery of possession filed by transferor or any other person claiming under him.

It is well to remember that Section 53A of the Transfer of Property act does not confer a right on a transferee to move an application for temporary injunction under 0.39. Rr. 1 and 2 CPC in a suit for specific performance on basis of unregistered agreement for sale which requires compulsory registration. To my mind Section 53 A of the Transfer of Property Act only creates an estoppel against the transferor or persons claiming under him form enforcing any right in respect of the property against the transferee or persons claiming under him.

In a suit for recovery of possession filed by plaintiff or any person claiming through him an agreement for sale even if it required compulsorily registration, is admissible in evidence only to defend defendant''s possession and conferred a right to the transferee akin to the principles of estoppel and not more than this.

Thus, in the present case, the plaintiff-respondent who alleged himself to be in possession over the disputed land in pursuant to unregistered agreement for sale dated 31.12.92 which indisputably requires compulsory registration docs not create an active title or interest in him over the land in dispute but create only an estoppel to defend his possession within the meaning of Section 53A of the Transfer of Property act in the suit for eviction filed by defendant-appellant in revenue Court.

My aforesaid view is further fortified from perusal of Section 54 of the Transfer of Property Act which provides that a contract for sale of immovable property does not by itself create any interest in or charge on such property.

From the aforesaid discussion, it is crystal clear that the learned trial Court has committed grossest error in holding and branding that the plaintiff-respondent has succeeded to establish prima facie case, balance of convenience and irreparable injury in is favour, therefore, he is entitled to obtain equitable discretionary relief of temporary injunction under 0.39.Rr. 1 and 2 CPC. Learned trial Court has ignored to consider the aforesaid facts and circumstances, which lead towards an irresistible conclusion that the plaintiff-respondent miserably failed to establish a clear and free from objection a prima facie case on equitable grounds. Learned trial Court failed to notice in the present case that the plaintiff-respondent has not come before it with clean hands. Learned trial Court has further ignored the fact that in the event of grant of temporary injunction, son and daughter of deceased Kishan Lal upon whom after death of Kishan Lal, land in dispute indisputably devolved would be adversely affected with the temporary injunction who had neither executed the alleged unregistered agreement for sale nor they were parties before it. The factum of devolution has been admitted by the plaintiff-respondent himself in his written statement filed by him in the revenue suit. Learned trial Court also failed to take judicial notice of the mandatory provisions envisaged under Sec.53-A and Sec.54 of the Transfer of Property act and Sec. 17(f) of the Indian Registration Act made enforceable with effect from 18.9.1989 by Rajasthan Amending act No. 18 of 1989 as well as the mandatory provisions envisaged under Sec. 10 read with Sec. 151 CPC which has resulted in miscarriage of justice in the present case.

The Revenue and Civil Courts both are expected to take judicial notice of this fact that peasantry of Rajasthan are socially, economically and educationally in disadvantageous position and as such neither they themselves nor by engaging roaring practitioners of the Bar are capable to raise intricate question of law, hence, onerous duty is cast upon the revenue Courts as well as upon the civil Courts to decide the (sic) between the poor and illiterate agriculturists after taking judicial notice of public Acts passed by the Parliament as well as State Legislature even if such picas arc not raised before it as envisaged under Scc.57 of the Indian Evidence Act.

33.I am of the view that in these days of crisis of confidence if a party or a lawyer engaged by him fails to raise a question of law or fact borne out fro the record before a Court, this docs not give a ground to a Court to decide a case illegally.

In a welfare State like ours the Courts being constitutional functionaries cannot afford to allow substantial justice either to escape or slide on mere technicalities of pleadings or argument sal the Bar. Suffice it to say in this regard that strict rules of pleadings have often been held to be not applicable to Indian justice system.

On the premises, in the present case, revenue Court where suit for eviction under Sec. 183 of the act of 1955 and Civil Court where present suit for specific performance is pending are expected to implead son and daughter of deceased Kishan Lal as party in the array of plaintiffs and in the array of defendants respectively in exercise of its suo motu powers as envisaged under O.I.R. 10(2). CPC as they arc necessary parties for effective adjudication. The Revenue Court is also expected to explore the possibility of adding relief for partition in eviction suit pending before it and learned civil Court is expected to explore the possibility of moving an application under Sec. 10. CPC for staying the subsequent suit for specific performance after giving an opportunity of hearing to both the parties. In case, it is not possible to explore the possibility of stay of the subsequent suit for specific performance of contract under Sec. 10. CPC. 1earned civil Court would be at liberty to stay the aforesaid subsequent suit in exercise of its suo motu power as contemplated under Sec. 151. CPC in the light of the observations made in the body of this judgment.

As a result of the aforesaid discussion, the order granting temporary injunction dated 20.3.1995 is hereby set aside and the present appeal is allowed with costs assessed to Rs.5.000/-(Rupees Five Thousand).