TMI Blog2016 (3) TMI 1437X X X X Extracts X X X X X X X X Extracts X X X X ..... inst the purchaser for consideration without notice like the present petitioners. Hence, the Respondent No. 1 is not entitled to maintain the suit for permanent injunction u/s 53-A of the Transfer of Property Act. Maintainability of suit for permanent injunction - HELD THAT:- In view of proviso to the Section 53-A of the Transfer of Property Act and also in view of section 41(h) of the Specific Relief Act, because the Respondent No.1 has not resorted to equally efficacious remedy i.e. by filing a suit for specific performance, hence the suit for permanent injunction was not maintainable. It is not in dispute in the present case that the Respondent No.1 is not the owner of the suit land as there is no conveyance deed in his favour and the Respondent No. 1 is claiming his right on the basis of alleged agreements to sale. It cannot be disputed that in view of clear provision of section 54 of the Transfer of Property Act, an agreement to sale does not confer any title. Thus, if the Respondent No. 1 himself is not the owner of the suit property, how can he challenge the title of the other who acquired title by registered sale deed in his favour. It is settled position of law th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uently the suit deserves to be dismissed. The present civil revision stands allowed - The application preferred under Order VII Rule 11 of the Code of Civil Procedure, 1908 stands allowed and the plaint is rejected. - Civil Revision No. 275/2011 - - - Dated:- 8-3-2016 - S.C. Sharma, J. For the Petitioner : V.K. Jain, Vishal Verma, Sumit Mittal, Vaibhav Jain, Akhil Godha, Advocates. For the Respondent : Vijay Kumar Asudani, Shailendra Dixit, Ravindra Bhawsar, Advocates. ORDER The present civil revision has been filed against order dated 17/10/2011 passed by XXI Additional District Judge, Indore in Civil Suit No.8-A/2011 by which the application preferred under Order VII Rule 11 of the Code of Civil Procedure, 1908 by the present petitioners who are the defendants No.4, 5 and 6 has been dismissed. 2. The facts of the case reveal that the respondent No.1 Anwar Patel (plaintiff) has filed a suit for declaration against the present petitioners as well as respondents No.2, 3 and 4 claiming declaration of sale deeds dated 15/06/1995 and 19/06/1995 executed by defendants No.1 and 2 in favour of defendants No.3, 4 and 5 (the present petitioners) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the necessary averments so as to attract the provisions of Sec.53-A of the Transfer of Property Act, 1882. Another ground has been raised that the trial Court has failed to consider that the suit is barred by Sec.34 of the Specific Relief Act, 1963. Another ground was raised that the trial Court has failed to consider that the respondent No.1 (plaintiff) has not complied with the mandatory provisions of order VI Rule 4(a) of the Code of Civil Procedure. 8. It was also argued that earlier also a civil suit was filed i.e. Civil Suit No.5-A/20011 which was filed in respect of some piece of land with a prayer clause for restraining the defendants therein from interfering with the peaceful possession of the plaintiff and subsequently with the same prayer including a prayer for cancellation of sale deeds a subsequent suit was filed and therefore, the subsequent suit was hit with the provisions of Order II Rule 2 of the CPC. 9. Learned counsel appearing for the petitioners has vehemently argued before this Court that the plaintiff is not a title holder of the property and in absence of any right, title or interest, he is seeking declaration of sale deeds as null and void in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. Suit to include the whole claim. (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any protection of his claim in order to bring the suit within the jurisdiction of any Court. (2) Relinquishment of part of claim. Were a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. (3) Omission to sue for one of several reliefs. A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if the omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted. Explanation. For the purpose of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action. Order VII Rule 11 of the Code of Civil Procedure, 1908 : - 11. Rejection of plaint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... possession, other than a right expressly provided by the terms of the contract: Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.] 54. Sale defined. Sale is a transfer of ownership in exchange for a price paid or promised or part-paid and partpromised. Sale how made.-Such transfer, in the case of tangible immoveable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument. In the case of tangible immoveable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. Delivery of tangible immoveable property takes place when the seller places the buyer, or such person as he directs, in possession of the property. 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. It does not, of itself, create any interest in or charge on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lleged agreements to sale and possession of the Respondent No.1 are disputed but even if, they are considered as it is, clear from the plaint that the Respondent No. 1 has done nothing in pursuance of the alleged agreements to sale. It is also not pleaded that the Respondent No.1 was ready and willing to perform his part of contract or was willing to get sale deed executed. It is also pertinent to mention that according to the proviso no such right is available against the purchaser for consideration without notice like the present petitioners. Hence, the Respondent No. 1 is not entitled to maintain the suit for permanent injunction u/s 53-A of the Transfer of Property Act. Learned counsel for the petitioners has placed reliance upon a judgment delivered by the Apex Court in the case of Nanjegowda Ors. Vs. Gangamma Ors. reported in (2011) 13 SCC 232. The apex Court in paragraph 9 has held as under: 9. From a plain reading of the aforesaid provision, it is evident that a party can take shelter behind this provision only when the following conditions are fulfilled. They are: (i) The contract should have been in writing signed by or on behalf of the transferor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the negative and against the appellants. 16. It has been argued by learned counsel for the petitioners that a suit on basis of section 53-A of Transfer of Property Act is not maintainable as the said provision can be used as a shield and not as sword. On the other hand, learned counsel for the Respondent No. 1 has relying upon several judgments and has argued that a suit on the basis of section 53-A of Transfer of Property Act can be filed. Leaving this question apart, in view of proviso to the Section 53-A of the Transfer of Property Act and also in view of section 41(h) of the Specific Relief Act, because the Respondent No.1 has not resorted to equally efficacious remedy i.e. by filing a suit for specific performance, hence the suit for permanent injunction was not maintainable. 17. It is not in dispute in the present case that the Respondent No.1 is not the owner of the suit land as there is no conveyance deed in his favour and the Respondent No. 1 is claiming his right on the basis of alleged agreements to sale. It cannot be disputed that in view of clear provision of section 54 of the Transfer of Property Act, an agreement to sale does not confer any title. Thu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 08, was enacted with the intention of providing orderliness, discipline and public notice in regard transactions relating to immovable property and protection from fraud and forgery of documents of transfer. This is achieved by requiring compulsory registration of certain types of documents and providing for consequences of non-registration. Section 17 of the Registration Act clearly provides that any document (other than testamentary instruments) which purports or operates to create, declare, assign, limit or extinguish whether in present or in future any right, title or interest whether vested or contingent of the value of Rs.100 and upwards to or in immovable property. Section 49 of the said Act provides that no document required by Section 17 to be registered shall, affect any immovable property comprised therein or received as evidence of any transaction affected such property, unless it has been registered. Registration of a document gives notice to the world that such a document has been executed. Registration provides safety and security to transaction relating to immovable property, even if the document is lost or destroyed. It gives publicity and public exposure to docu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 22. The aforesaid facts are undisputed and are clear from the plaint and undisputed documents and the objections raised by the petitioners are purely legal objections, hence no evidence with regard thereto is required and can be decided on the basis of legal position. Thus, the learned trial court has clearly committed jurisdictional error firstly in not considering the aforesaid objection and secondly in holding that evidence is required to be recorded for deciding the aforesaid issues. 23. The petitioners have also raised objections with regard to valuation of the suit, court fees, etc. It has also been objected that the petitioners are in possession of the suit land since 1995 which is not only proved from the registered sale deeds as also from the revenue record. There no evidence to even show that the Respondent No. 1 is in possession of the suit land, hence a suit without claiming the relief of possession is not maintainable. Certain objections with regard to the alleged agreements to sale are also raised. These objections may require some kind of evidence, however in view of the above legal objections, the suit is barred and hit by law, therefore, there more than suffi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
