Sreekumar vs T. Denson and C. Maria Francis Leela

K.B.K. Vasuki, J.—The Civil Miscellaneous Appeal is filed by the second Respondent/second Defendant in I.A. No. 427 of 2009 in O.S.

No. 137 of 2009 against the order of ad-interim injunction granted in favour of the Plaintiff/first Respondent herein thereby restraining the

Defendants, their men from interfering or disturbing the Plaintiff''s peaceful possession and enjoyment of the first floor portion of the plaint schedule

property.

The brief facts which are necessary for filing this appeal are as follows:

For the sake of convenience, the parties herein are referred to as per their rank in the lower court. The Plaintiff filed the suit in O.S. No. 137 of

2009 for specific performance of the contract and for the relief of permanent injunction against the owner of the suit property and the subsequent

purchaser of the suit property. The suit is filed along with an interlocutory application for the relief of ad-interim injunction by contending that the

agreement-holder was put in possession of the upstairs portion under the suit agreement in part performance of the suit agreement and the ground

floor portion was surrendered to the owner and he is in possession and enjoyment of the same and the same is said to be interfered with by the

owner and this subsequent purchaser. The interlocutory application was contested by the owner not by denying the suit agreement for sale and the

Plaintiff''s possession of the first floor under the contract and what is sought to be denied by the original owner of the suit property is that the

Plaintiff is not ready and willing to perform his part of the contract. As far as the second Respondent/subsequent purchaser is concerned, he

vehemently denied the Petitioner''s plea that he is in possession of the first floor portion. According to the subsequent purchaser, after sale he has

handed over the possession of the entire property and he has been from the date of his sale in possession and enjoyment of the suit property. The

trial court on the basis of the available records found that the upstairs portion is in possession of the Plaintiff/agreement-holder and the same is

interfered with and granted an interim order of injunction as sought for in respect of the first floor portion of the suit property. Aggrieved by the

same, the subsequent purchaser has preferred the present Civil Miscellaneous Appeal.

The only legal point raised herein against the order of injunction is that as per the amended Section 17(1-A) of the Registration Act, documents

containing contracts to transfer for consideration, any immovable property for the purpose of Section 53A of the Transfer of Property Act. It is

sought to be argued by the learned Counsel for the Appellant that the suit Ex.A1 unregistered agreement having been executed much after the

amended provision and having been not registered as required u/s 17(1-A) of the Act as the Plaintiff claims to be in possession only in

performance of part performance of Ex.A1, the Plaintiff cannot under the contract and on the basis of plea of part performance of the contract

claim any relief to protect his such possession of the suit property.

Per contra, the learned Counsel for the first Respondent/Plaintiff would defend the correctness of the order which is according to him based on

his physical possession of the suit property which is otherwise lawful. Both the learned Counsel for the Appellant and the Respondents have also in

support of their respectful contentions relied upon the unreported judgment of this Court respectively.

I have considered the submissions made by the learned Counsel appearing on either side and perused the records.

The suit property consists of ground and first floor portion. Though injunction was sought for the entire property, the injunction was restricted

only in respect of possession of the first floor portion as claimed by the Plaintiff/Petitioner and is admitted by the original owner of the property

who was arrayed as the first Defendant/first Respondent in the suit and in the I.A. Though the second Respondent claimed to be in possession of

the entire property from the date of his sale deed, which is much after the suit agreement, there is absolutely no particulars furnished as to the date

on which the first floor portion is surrendered to the owner of the property and the date on which the purchaser is put in possession of the entire

suit property.

On the other hand, the plea of the Plaintiff''s possession of the suit property is supported by the original owner of the property and other

documents Ex.P12 to Ex.P15 which are the receipts for the payment of Electricity charges and professional tax for the disputed period. On the

basis of the admission made by the first Respondent owner and the documents as referred to above, the trial court has rightly prima facie arrived at

a conclusion that the Plaintiff/Petitioner is in possession and enjoyment of the first floor portion which is undoubtedly under the sale agreement and

granted the relief. The same is now seriously questioned on the ground that the agreement-holder cannot under a unregistered agreement of sale

claim any benefit of part performance of the contract. The said contention is also sought to be supported by relying upon the unreported judgment

of the High Court, dated 21.10.2010 made in C.R.P. Nos. 1738 to 1740 of 2010 in B. Jegadeeswaran .vs.1.R. Sriram and others. In the above

case also, the agreement-holder filed similar suit for permanent injunction restraining the Defendant from interfering with their possession and

according to the agreement-holder he is put in possession of the property in pursuance of the contract and hence entitled to the benefit of part

performance u/s 53A of the Transfer of Property Act. The claim was disputed by questioning the maintainability of the suit on the ground that the

agreement of sale which is the foundation of the claim is unregistered and the maintainability issue is at the instance of the Defendant taken up as

preliminary issue by the trial court and the same was questioned by way of revision. While disposing of the Civil Revision Petition, our High Court

is pleased to confirm the trial court order on more than one ground and one of the grounds is that after the amendment, the Plaintiffs/agreement-

holders cannot claim benefit and rely upon an unregistered agreements of sale. But, the issue as to whether the unregistered agreement of sale

under which the possession is handed over to the agreement-holder can be relied upon for collateral purpose to prove physical possession and to

seek injunction to protect the physical possession does not arise for consideration in the case referred to above. However the issue whether the

holder of the agreement is entitled to an order of injunction to protect his physical possession is answered by our High Court in the other judgment

reported in 2010 (1) MWN (Civil) 382 in S. Bhaskar .v. A.R. Palanisamy(deceased) and others and the same is in favour of the claim made by

the Plaintiff/Petitioner. Even if the contention is for argument sake treated as acceptable, the unregistered document can be in my considered view

relied upon by the Plaintiff/Petitioner to seek interim relief, pending disposal of suit for specific performance, to protect his physical possession.

Further, the reading of the relevant provision of Section 53A of Transfer of Property Act discloses that it only debars the transferor or any

person under him from enforcing against the transferee and persons claiming under him 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 contract and the agreement-holder can, independent

of this provision, claim the relief to protect his physical possession during the pendency of the suit filed under the Specific Relief Act. In the event of

agreement-holder being disentitle to claim the benefit of part performance for want of registration of the agreement of sale, the same will only

remove the bar against the transferee u/s 53A of the Transfer of Property Act.

As a matter of fact, in the batch of cases cited on the side of the Appellant, our High Court has observed having found that leave is already

granted to the Plaintiff under Order 2 Rule 2 of CPC observed that the agreement-holder is entitled to the benefit of such leave and is entitled to

file fresh suit for specific performance and the Petitioner is also in the same order given the liberty to withdraw the suit for permanent injunction and

to file fresh suit for specific performance. It is observed by our High Court in the event of the suit for specific performance being filed, other issues

can be decided in the suit for specific performance. The High Court has made some observations against the grant of decree of perpetual injunction

in favour of the Petitioners for specific performance and no observation is made in the same to the effect that the Petitioners are not entitled to seek

the relief of specific performance. In the other case, our High Court has held that the possession of the Plaintiff/agreement-holder under an

unregistered document is lawful and is entitled to an order under Order 39 Rule 1 and 2 of CPC to protect his physical possession. Here again,

independent of the benefit of part performance u/s 53A of the Transfer of Property Act, the Petitioner can, based on his physical possession of the

suit property, seek the interim relief to protect the same during the pendency of the suit for specific performance.

The only two aspects to be considered in this case is prima facie case and the balance of convenience. As the Petitioner has prima facie

proved the existence of the document and proved his possession of the first floor and that the balance of convenience is only in his favour, the trial

court thought fit to grant an order of injunction till the disposal of the suit and this Court finds no irregularity or infirmity in the order so passed by

the trial court and the same does not call for any interference by this Court.

In the result, the Civil Miscellaneous Appeal is dismissed. As the suit is of the year 2009, direction is issued to the lower court to dispose of the

suit as expeditiously as possible, not later than six months from the date of receipt of a copy of this order along with the documents, if any. The trial

court is also directed to decide all the issues including the right of the Plaintiff to enforce his right under the suit unregistered sale agreement without

being influenced by any observation made in this order. Consequently, connected Miscellaneous Petition is dismissed. No costs.