Hon'ble Rakesh Srivastava,J.
1. Heard Ms. Rama Goel Bansal learned counsel for appellant and Sri Iqbal Ahmad for respondent.
2. This appeal under Section 96 of Civil Procedure Code (hereinafter referred to as CPC) has come up at the instance of defendant assailing judgment and decree dated 13.02.2004 and 26.02.2004 passed by Sri N.A. Zaidi, Additional District Judge, Court no. 4, Moradabad decreeing Original Suit no. 43 of 2003 granting permanent injunction against defendant appellant restraining from interfering in property in dispute which was in possession of plaintiff.
3. The plaintiff Satendra Kumar Singh instituted Original Suit no. 43 of 2003 impleading Sri Amolak Singh defendant appellant as sole defendant setting up his case that property dated at the bottom of plaint was owned by late Ram Rakshpal Singh father of plaintiff in view of gift deed dated 22.02.1954 executed by Kunwar Jagannath Singh. Plaintiff's father Ram Rakshpal Singh died on 23.09.1996 leaving his widow, five sons and three daughters as legal heirs. At the time of filing suit, widow of Ram Rakshpal Singh and two sons had also died. Both these sons were unmarried at the time of death. Three daughters of Ram Rakshpal Singh had married and were staying with in-laws, outside Moradabad City. Plaintiffs' two other elder brothers with their family were residing at Varanasi and Haridwar. In the disputed house, plaintiff was residing along with his family and in some part thereof tenants were occupying the premises. No partition in respect to disputed property, owned earlier by late Ram Rakshpal Singh, has taken place between his legal heirs and entire property therefore, was in joint ownership of plaintiff and his brothers and sisters.
4. Defendant-appellant Amalok Singh was engaged in business of Real Estate and wants to purchase plaintiff's property under undue coercive. Defendant, an active worker of Samajwadi Party and had political resources, on 13.01.2013, came to disputed property so as to forcibly evict plaintiff and his family members and caused law and order situation therein. However, due to neighbors calling and protest defendant could not succeed in his attempt. Defendant then pressurized plaintiff to execute a registered power of attorney in respect to vacant land which is part of disputed property which was denied by plaintiff. Plaintiff's family consists of his wife and two minor children i.e. son aged about 12 years and daughter 14 years. Wife of plaintiff is a school teacher and children are also school going. Plaintiff used to visit different places in the context of his business and had serious apprehension that defendant may forcibly got possession of property in dispute. Hence, a suit for injunction was instituted by plaintiff respondent seeking permanent injunction restraining defendant from interfering in possession of disputed property of plaintiff.
5. Suit was contested by defendant appellant vide written statement dated 18.07.2003 wherein he admitted that property was owned by late Ram Rakshpal Singh, who had already died. Thereafter property inherited by widow and eight children of Ram Rakshpal Singh. Widow and two sons of Ram Rakshpal Singh had died but two sons before death had executed an agreement of sale in favour of defendant. It is further admitted that three daughters of Ram Rakshpal Singh had already married and two sons were staying at Varanasi and Haridwar. In paragraph 6 of written statement defendant admitted that some part of disputed property was in possession of plaintiff and some part, in possession of tenants inducted by co-owners of property. It is also admitted in para 7 of written statement that there is/was no partition in respect to property, between legal heirs of Ram Rakshpal Singh, by metes and bounds.
6. In additional plea defendant appellant pleaded that three sons of Ram Rakshpal Singh namely Ashok Kumar Singh, Manoj Kumar Singh, Arvind Kumar Singh as also three daughters namely Smt. Kumud Singh, Smt. Ranjana Singh and Smt. Aruna Singh executed an agreement to sell their shares in disputed property in favour of defendant, his brother Bhagwant Singh, nephews Manpreet Singh and Rajkumar on 01.01.1998. After execution of aforesaid registered agreement to sell, Manoj Kumar Singh and Arvind Kumar Singh died. Both were un-married at the time of death. Even plaintiff, executed agreement to sell his own share in favour of defendant and three persons named above on 19.02.1998 which is also a registered document.
7. Another son of Ram Rakshpal Singh, i.e. Ajeet Kumar Singh, executed sale deeds in respect to his share of disputed property in favour of defendant one on 18.04.2000 and another, of same date in favour of defendant's brothers Bhagwant Singh and both of them were given possession. Defendant and other prospective purchasers continued to persuade plaintiff and his brothers and sisters to execute sale deed to which they extended assurance and said that it will be done in future. It is said that all these facts were concealed by plaintiff. Defendant has never attempted to get possession of disputed property as alleged, forcibly, there is no cause of action, proper parties have not been impleaded and suit is liable to be dismissed.
8. Plaintiff got the suit amended by inserting paragraph 8A, 8B, 8C and 8D, consequently additional written statement dated 21.10.2003 was filed by defendant.
9. Plaintiff stated in newly added paragraph that on 09.06.2003 and 21.06.2003 again defendant made an attempt to forcibly posses property and also threatened plaintiff's wife in respect whereto she sought to lodge report with Police but it did not register report whereupon Senior Superintendent of Police was informed and on his instructions, Police visited the site as a result whereof defendant and persons accompanying him, ran away. Disputed property has an area of about four thousand sq. yard. On western side building is constructed in about one thousand sq. yard of land and no part of property is in possession of defendant.
10. Trial Court, on the basis of pleadings framed three issues which are as under:-
^^1- D;k oknh iz'uxr lEifRr ds Lokeh rFkk dkfct gS ;fn gka rks izHkkoA
(i)Whether plaintiff is owner in possession over disputed property, if yes, its effect, 2- d;k oknh dksbZ okn dkj.k miyC/k ugha gS vkSj okn la/kkfj; ugha gSA
(ii) Whether plaintiff has no cause of action and suit is not maintainable, 3- vuqrks"k dksbZ oknh ikus dk vf/kdkjh gksA**
(iii) Relief if any, petitioner is entitled.
(English translation by Court)
11. Issues 1 and 2 were taken together and answered in favour of plaintiff and against defendant-appellant. Consequently, suit was decreed and permanent injunction as prayed for was granted by impugned judgment and decreed dated 13.02.2004 and 26.02.2004.
12. Ms. Ram Goel Bansal, learned counsel for appellant argued that there were two sale deeds executed by co-sharer of property in dispute in favour of defendant-appellant and in that view of matter he became co-sharer in property in dispute hence decree of permanent injunction could not have been granted against defendant-appellant.
13. Learned counsel appearing for respondent, per-contra, sought to support the judgment and decree in view of findings recorded by Court below therein.
14. The points for determination which have arisen in this appeal for its adjudication are:-
(i) Whether defendant-appellant had status of co-sharer in property in dispute.
(ii) Whether defendant-appellant had possession over entire or some part of property in dispute.
(iii) Whether Trial Court was justified in passing decree of permanent injunction in property in dispute against defendant-appellant.
15. Plaintiff's right over property in dispute as co-owner i.e. co-sharer in property in dispute is admitted. There where eight co-sharers in property in dispute i.e. Ashok Kumar Singh, Arvind Kumar Singh, Satendra Kumar Singh, Manoj Kumar Singh, Ajeet Kumar Singh, Smt. Kumud Singh, Ranjana Singh and Aruna Singh. One of the brother, Ajeet Kumar Singh, executed two sale deed dated 18.04.2000 in respect of his share i.e. 1/8 in property in dispute in favour of defendant-appellant and his brother Bhagwant Singh. Copies of aforesaid sale deeds are Paper no. 36-Ga/13 and 36-Ga/20. Sale deeds nowhere mention that at the time of execution thereof, vendor Ajeet Kumar Singh, gave actual possession of any part of disputed property to defendant-appellant or his brother Bhagwant Singh.
16. In the written statement, defendant-appellant has specifically admitted in para 6 that plaintiff is residing in some part of disputed property and some part is in possession of tenants of all co-sharers. It is not stated in the aforesaid paragraph of written statement that the defendant-appellant also had possession over some part of property. It is only in para 20 of written statement where reference of sale deed is made in a vague manner. It is also stated that on execution of sale deed the vendees were also given possession over property in dispute. The possession pleaded in paragraph 28 is clearly a notional one since only share in disputed property was sold by Ajeet Kumar singh for the reason that there was no partition in disputed property by metes and bounds. Only 1/8 share was sold by Sri Ajeet Kumar Singh to the defendant-appellant and his brother Bhagwant Singh. It is also not stated anywhere that vendor actually possess any or some part of property and vendees were put in possession of that part of property. No evidence has been placed before Court below or even before this Court that defendant-appellant actually got possession of any part of property. It is also admitted by defendant-appellant that different co-sharers including plaintiff respondent had executed different agreements to sell but at the time of execution of agreement to sell proposed purchasers were put in possession of property subject to agreement to sell is neither stated in the said agreements nor any evidence otherwise has come on record in this regard. Mere execution of agreement to sell does not result in transfer of ownership of property.
17. A agreement for sale or contract for sale, by itself is not an instrument giving effect to sale of immoveable property. The title to property agreed to be sold continued to vests in the vendor, in case of agreement for sale, but in case of sale, title or property vests with purchaser. In other words an agreement for sale is an executory contract whereas sale is an executed contract. An agreement for sale does not create an interest in the proposed vendee in the suit property but only creates an enforceable right in parties. An agreement for sale of property, and promise to transfer the property convey the same meaning and effect in law. A promise to transfer property is an agreement for sale of property.
18. In Maung Shwe Goh Vs. Maung Inn, 1917(1) Bom LR 179 the Court considered Section 54 of Act, 1882 and said that a contract for sale by virtue of Section 54 creates no interest in or charge upon the land.
19. Again in Rupchand Balmukund Aharwala Vs. Jankibai Kanhyalal, AIR 1926 Bom 24 the Division Bench of Bombay High Court said that an agreement executed between the parties to divide property at the expiration of litigation would not create any interest on property under the provisions of Section 54 of Act, 1882. A temporary arrangement with regard to profits during litigation is nothing but a system evolved by parties amongst themselves from management of property during litigation, does not mean that it has created any right or interest in property itself. The Court relied on an earlier decision of Privy Council in Rajangam Ayyar Vs. Rajangam Ayyarta, ILR (1922) Mad. 373 where a document, i.e., a memorandum regarding secession of jointness of parties making a declaration that from that time forth the parties became entitled to possession and enjoyment of their properties in separate shares and further providing for execution of further deed effectuating partition would mean that document/ memorandum itself did not create or declare or assign or limit or extinguish any right or interest in the moveable property.
20. In English Law, there is recognition of two classes of ownership, legal and equitable but this has not been recognized in Indian Law. Here the Legislature has recognized, in its wisdom, only one owner. There has been a catena of authorities including that of Privy Council in Chhatra Kumari Devi v. Mohan Bikram Shah and Ors., AIR 1931 PC 196 where it was observed that the Indian Law does not recognize legal and equitable estates. The Privy Council referred to and relied on earlier decisions in J.M. Tagore Vs. G.M. Tagore (1872) IA Sup. Vol. 47 and Webb Vs. Macpherson, (1904) 31 Cal 57. The Privy Council further said that by that law there can be only one owner.
21. It is thus evident that exposition of law is very clear that contract for sale would not make the purchaser/vendee to be owner in equity of estate so long as the sale deed is executed and registered. Mere execution of contract for sale by itself would not create any right or interest in property.
22. In Rambaran Prosad v. Ram Mohit Hazra and Ors., AIR 1967 SC 744 it was held that a contract for sale does not create any interest in property. A three Judge Bench of the Court noticed distinction in law as it was prior to enactment of Transfer of Property Act, 1882 and thereafter. In para 14 of the judgment, it said, that in the case of an agreement for sale entered into, prior to passing of Act, 1882 could have resulted in creating an interest in land itself in favour of purchaser. Thereafter the Court referred to the change resulted with enactment of Act, 1882, and in para 17, said as under:
". . . . . a mere contract for sale of immovable property does not create any interest in the immovable property and it therefore follows that the rule of perpetuity cannot be applied to a covenant of pre-emption even though there is no time limit within which the option has to be exercised." (emphasis added)
23. The Court also noticed, when agreement itself recited with that sale deed would be executed within three years, the purchaser had a right to sue for specific performance and this by itself mean that agreement for sale does not create any right or interest in property.
24. In Jiwan Das Vs. Narain Das, AIR 1981 Delhi 291 a Single Judge in para 10 and 11 of the judgment following Rambaran Prosad (supra) said:
"10. . . . . . . the law in India does not recognise any such estate. Section 54 of the Transfer of Property Act in specific terms provides that a contract for sale does not, of itself, create any interest in or charge on such property. Such contract is merely a document creating a right to obtain another document in the form of sale deed to be registered in accordance with law. In other words, a contract for sale is a right created in personam and not in estate, No privity in estate can be deduced there from which can bind estate, as is the position in cases of mortgage, charge or lease. Of course, such personal right created against the vendor to obtain specific performance can ultimately bind any subsequent transferee who obtains transfer of the property with notice of the agreement of sale.
11. Till, therefore, a decree for specific performance is obtained, the vendor or a purchaser from him is entitled to full enjoyment of the property. In fact, even if a decree for specific performance of contract is obtained, and no sale-deed is actually executed, it cannot be said that any interest in the property has passed."
25. In Sujan Charan Lenka and others Vs. Smt. Pramila Mumari Mohanty and others, AIR 1986 Ori 74 the Court in para 7 of judgment said that a bare contract for sale of immoveable property does not create any interest in immoveable property. Referring to Section 54 of Act, 1882, it says:
"7. . . . . . a contract for sale does not, by itself, create any interest in or charge on such property. Such contract is merely a document creating a right to obtain another document in the form of sale deed to be registered in accordance with law. In other words, a contract for sale is a right created in personam and not in estate. No privity in estate can be deduced therefrom which can bind the estate, as is the position in cases of mortgage, charge or lease. Of course, such personal right created against the vendor to obtain specific performance can ultimately bind any subsequent transferee who obtains transfer of the property with notice of the agreement of sale. Till, therefore, a decree for specific performance is obtained, the vendor or a purchaser from him is entitled to full enjoyment of the property. In fact, even if a decree for specific performance of contract is obtained, and no sale-deed is actually executed, it cannot be said that any interest in the property has passed."
26. A Division Bench in Dewan and sons Investments Pvt. Ltd. Vs. Delhi Development Authority, AIR 1997 Delhi 388 said:
"6. In our opinion, the submission of the learned counsel for the petitioner that as a result of agreement to still dated the 1st May. 1970 in respect of the properly in question, entered into between the petitioner and M/s. Goodwill India Limited, the petitioner had acquired a 'vested right' not only in the property in question bill also to claim a 'No Objection Certificate' on that basis, is devoid of substance. . . . . . . In Kanaya Ram v. Rajender Kumar, AIR 1985 SC 371 their Lordships of the Supreme Court have held that in cases where after oral sales mutation of lands was effected in favour of the transferees even then i.e. after the mutation of properties, no rights accrued in favour of the transferees in respect of such lands as the purported sales and the subsequent mutation based on those sales did not create any right or title in favour of the transferees as the provisions of Section 54 of the Transfer of Property Act were not complied with-their being no registered sale deeds. In the present case too the agreement to sell dated the 1st May, 1970 in the absence of any registered sale deed by itself would not be sufficient to create any right or title in favour of the petitioner in respect of the property in question. The registered sale deed, admittedly, in respect of the property in question, was executed on 13-2-90 and thus the petitioners acquired a right and a title in respect of the property in question only after the execution of the registered sale deed on 13-2-90." (emphasis added)
27. A person who has contracted to buy land is not the owner of any interest in the land and is, therefore, not competent to apply to set aside an execution sale of the same land.
28. Section 54 itself says that a contract for sale does not create any interest in or charge upon such property. This is what has been noticed by this Court in Indira Fruits and General Market, Meerut Vs. Bijendra Kumar Gupta, AIR 1995 All 316.
29. In other words, a person having an agreement for sale in his favour does not get any right in the property except the right of litigation on that basis. Sometimes it is also described that a contract for sale is merely a document, creating a right to obtain another document.
30. In Imtiaz Ali Vs. Nasim Ahmed, AIR 1987 Del 36 it was said that in absence of a registered sale deed, nobody can call himself as owner by purchase, on the basis of agreement for sale and power of attorney executed by alleged vendor in favour of prospective purchaser cum attorney. The agreement for sale, therefore, by itself does not create any status to petitioner to enter into the shoes of owner of building in dispute.
31. Further in the sale deeds dated 18.04.2000 it is not stated anywhere that any part in the disputed property has been sold and possession has been given to defendant-appellant. Therefore, while possession of plaintiff and some other tenants was admitted by defendant-appellants he clearly failed to prove his own possession over any part of property. It is no doubt true in law a co-sharer is supposed to have an element title and possession over property in question but if there is no partition by metes and bounds and co-sharer is not in actual possession over disputed property, he can get possession only after having partition by metes and bounds and not forcibly or by any other means not authorised by law.
32. In view thereof, even if defendant-appellant is co-sharer in the present case, Court below has rightly decreed the suit of plaintiff-respondent granting permanent injunction that defendant-appellant shall not interfer in possession of plaintiff-respondent but we clarify hereat that this injunction is subject to further order which may be passed by any Court of competent jurisdiction, if any co-sharer including defendant-appellant brings appropriate action in law for partition of co-owned property by metes and bounds and thereafter claim possession over part of property which comes to their share.
33. The questions no. 2 and 3 formulated above are answered against appellant which question 1 is returned in affirmative i.e. in favour of appellant.
34. Subject to aforesaid clarification/observation, we find no merit in this appeal.
35. It is accordingly dismissed.
Order Date :- 22.2.2016 Pravin