TMI Blog1995 (12) TMI 424X X X X Extracts X X X X X X X X Extracts X X X X ..... village of the debtor in Surendranagar in Gujarat State was attached on February 1, 1969 to recover the said dues. A public notice [Exh. 123] was published in Gujarat Samachar in March 1969. The petitioner filed Special Civil Suit No. 69/71 in the court of the Senior Civil Judge at Surendranagar for a declaration that the suit land was not liable to attachment and sale by public auction to execute the award made in favour of the first respondent-Society and also for permanent injunction restraining the second respondent [Sale Officer] from selling the land and also for perpetual injunction restraining them front interfering with the petitioner's possession and enjoyment of the land. According to the petitioner, Bai Leelawati, wife of Na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ine, true and valid and that the petitioner was inducted into possession under the said agreement. The respondents obtained a decree against Nagindas on May 19, 1970. The proclamation of sale was issued on January 22, 1971. The agreement of sale had by the petitioner is dated June 29, 1969. Therefore, the petitioner, having been in possession of the land under the agreement, is entitled to retain possession of the land and he could not be proceeded with against the said property. Accordingly, the suit was decreed on July 31, 1975. On appeal, the Division Bench by the aforesaid judgment and order dated June 11, 1988 allowed the appeal and dismissed the suit. 4. Shri Mehta, learned senior counsel for the petitioner contended that by operat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e transferee being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then notwithstanding that the contract, though required to be registered, has not been registered, the transferor or any person claiming under him shall be debarred 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. 6. Though the doctrine of part performance embodied in Section 53-A of the Act is part of equitable doctri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the property had under the contract. It would thus be clear that Section 53-A confers no title on the transferee but. imposes a statutory bar on the transferor to seek possession of the immovable property from the transferee. Equally, Section 53-A does not confer any title on the defendant in possession nor can he maintain a suit on title. 7. In Ram Gopal Reddy v. The Additional Custodian Evacuee Property, Hyderabad [1966]3SCR214 , a Constitution Bench of this Court had held that the benefit of Section 53-A cannot be taken aid of by the plaintiff to establish his right as owner of the property. Therefore, Section 53-A can be used as a shield but not as an independent claim either as a plaintiff or as a defendant. In Delhi Motor Co. a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m title of ownership against suit of mortgagor for redemption. Therefore, the doctrine of part performance in Section 58(3) was held not available to establish title to the property. In Sheth Maneklal Mansukhbhai v. Hormusji Janishedji Ginwalla Sons [1950]1SCR75 , this Court had held that Section 53-A of the Act is only a partial importation of English doctrine of part performance. 8. The contract for sale of immovable property does not create any title except when covered under Section 54 of the Act and registered under Section 17 of the Registration Act. Equally, it does not create an interest in the property. It merely gives a right to enforce it specifically as an equitable relief in a court of law. In Technicians Studio Pvt. Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, agreement of sale is a registerable document but was not registered. The attachment before judgment prevails over the agreement. That apart it cannot be used as a title for the declaration in the suit but the benefit of Section 53-A can be availed of as a shield to retain possession. Instead agreement is sought to be used as a sword to defeat the rights of the respondents who have obtained lawful award. An order of attachment before judgment was issued pending making of the award. The attempt of the petitioner is to defeat the rights of the first respondent to proceed against the property of the debtor. Thus, it would be clear that the petitioner has not come to the court with clean hands. He is a party to the fraud and his alleged posse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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