TMI Blog2017 (11) TMI 1994X X X X Extracts X X X X X X X X Extracts X X X X ..... rs' name in the revenue record were also recorded in the year 1995. Thus, the suit filed by the respondent No. 1 is clearly barred by limitation. In light of the aforesaid judgment it can be safely gathered that the plaintiffs were having knowledge of the sale deed which was executed in the year 2010 and therefore, as the limitation provided is only three years for challenging the sale deed, the issue framed by the trial Court in respect of limitation has to be answered in favour of the defendants. As civil suit was filed after six years from the date of execution of the sale deed praying declaration of sale deed as null and void, the suit was certainly barred by limitation in light of Article 59 of the Limitation Act - the revision stands allowed and the suit is dismissed as it is barred by limitation. - Civil Revision No. 88 of 2017 - - - Dated:- 1-11-2017 - S.C. Sharma, J. For the Appearing Parties : Veer Kumar Jain, Senior Advocate, Abhishay Jain and Rajendra Kumar Samdani ORDER S.C. Sharma, J. 1. The applicant before this Court has filed present revision petition against order dated 9.2.2017 passed in Civil Suit No. 52-A/2017 by whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The issue No. 4 is with respect to valuation and court-fees, while the issue No. 5 is with respect to the fact whether the suit is barred by time or not? 6. It is pertinent to mention here that nowhere it is claimed by the respondents that respondent No. 1 and wife of respondent No. 2 are not the attesting witnesses to the sale deed in question. The respondents have stated that on 26.1.2016 the petitioner started demolishing the ground floor of the suit property, therefore, the cause of action has arisen on that day and the suit is within time. 7. The learned trial Court by order dated 9.2.2017 has held that issue No. 5 ie. issue with regard to limitation and the suit being barred by limitation, will be considered after recording the evidence. With regard to issue No. 4 relating to valuation and Court fees, the learned trial Court has held that the respondents are liable to pay ad valorem court-fees according to the valuation of the suit property (sale deed). The learned trial Court has granted them time to pay ad valorem court-fees. 8. In the present case, it is not in dispute nor can be disputed that the respondents since inception were fully aware being the witn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... necessary averments so as to attract the provisions of section 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 section 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 i ..... 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 plaintiffs 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 relief's. A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such relief's; but if the omits, except with the leave of the Court, to sue for all such relief's, 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. The plaint shall be rejected in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 part-promised. 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 such property. Sections 34 and 41 of the Specific Relief Act, 1963 34. Discretion of Court as to declaration of status or right-Any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reements 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 under section 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 and others v. Gangamma and others, 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; (ii) The transferee should have got possession of me immovable property covered by the contract; (iii) The transferee should have done some act in furtherance of the contract; and (iv) The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an 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. 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 that a person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 documents thereby preventing forgeries and frauds in regard to transactions and execution of documents. Registration provides information to people who may deal with a properly, so as to the nature and extent of the rights whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 sufficient grounds to reject the plaint. 24. The manner in which the learned trial Court has dealt with the judicial precedent relied upon by the petitioners is also not proper because it has merely been observed that those citati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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