JUDGMENT Umeshwar Pandey, J.
1. Heard Sri S.K. Rai, learned Counsel for the appellant.
2. This appeal arises out of the judgment and decree dated 8.8.2006 whereby the plaintiffs appeal has been dismissed and the judgment of the trial court has been affirmed.
3. The appellant plaintiff filed a suit for specific performance of a contract and also for permanent injunction stating that an agreement of sale was executed in his favour by defendant No. 2 for a total consideration of Rs. 40,000, out of which Rs. 11,000 was received by him as earnest money. Plaintiffs possession over the disputed property in question was continuing from before the execution of the agreement. The defendant No. 2, however, did not execute the sale-deed in compliance to that agreement inspite of several requests and reminders. Later on it was brought to the knowledge of the plaintiff through reply notice dated 3.7.1995 that the property in question was transferred by defendant No. 2 through a sale-deed dated 30.5.1995 in favour of defendant No. 1. On the basis of that sale-deed the defendant No. 1 threatened the possession of the plaintiff over the disputed property which gave rise to the filing of the suit.
4. The suit was contested by defendants No. 1 and 2 by filing separate written statements in which the execution of the agreement in question was denied and receipt of the earnest money was also denied. It is stated that the property in question since belonged to defendant No. 2, he had every right to transfer the same in favour of defendant No. 1. That sale-deed is valid and no right or title of the plaintiff is there in the property as to entitle him to get the reliefs claimed.
5. The trial court upon the evidence and other materials available on record was of the view that the agreement in question was not executed by defendant No. 2. The document being an unregistered one, it could not be enforced for grant of the relief of specific performance of the same. This finding was also concurred by the appellate court. It is, however, found in the judgments of the courts below that the possession of the plaintiff over one room of the disputed property is there in which he was inducted as a tenant. The courts below on the basis of findings that the plaintiff does not have a vested right or title over the property did not find it proper to grant the relief of permanent injunction and the suit as a whole as well as the appeal have been dismissed.
6. The learned Counsel appearing for the appellant has tried to submit that the relief of specific performance of contract has rightly been refused in view of the agreement in question being an unregistered document. It could not be enforced under law for the grant of such relief by the Court. He has of course rightly emphasised that the relief of permanent injunction should have been easily granted giving benefit to the plaintiff of the provisions of Section 53A of the Transfer of Property Act. His possession in part of the building have been found by both the courts below. In support of his arguments, the learned Counsel cited the case law of Wilfred Lovette v. Ganesh , and a decision of the Hon'ble Supreme Court given in Sheth Maneklal Mansukhbhai v. Hormusji Jamshedji Ginwalla and sons (1950) SCR 75. Much emphasis has been given on the point that when Section 53A of the Transfer of Property Act, 1882 debars the transferee or any person claiming under him from enforcing his right against such person in whose favour the transfer has not been completed in respect of a property in question over which he is continuing in possession.
7. The actual import of Section 53A of the Transfer of Property Act, 1882 is that it grants certain protection to a transferee in whose favour the transfer has not been completed. But it does not recognize any right whatsoever of such transferee to enforce the same, in the property against the real owner on the basis of that continued possession. Section 53A postulates certain conditions for its application in favour of a transferee which are (i) existence of a contract for the transfer of immovable property, (ii) which should be in writing signed by the other party and the terms thereof should be ascertainable with reasonable certainty, (iii) the transferee in part performance of the contract should have either taken possession or continued in possession or have done some other act in furtherance of the contract, (iv) the transferee should perform or be willing to perform his part of the bargain set down in the writing, though (v) the doctrine would not be attracted against another transferee without notice of the contract or its part performance : Kamalabai Laxman Pathak v. Onkar Parrsharam Patil and Jacobs Pvt. Ltd. v. Thomas Jacob . If these conditions are not present in the case of a particular contract, the protection would not be available to the transferee. This is what has been said in so many words and also explained. The doctrine of part performance is intended to be used as a shield and not as a sword : Jacobs Pvt. Ltd. (supra). But in the present case while seeking the relief of permanent injunction, the plaintiff appellant actually intends to use this doctrine for his benefit as a sword and not as a shield.
8. The plaintiff has been held to be in possession over a room which is just a small portion of the entire building in suit. The plaintiff claims relief of permanent injunction in his favour with regard to the entire building against the transferor and his subsequent transferee, the defendants No. 2 and 1 respectively. A relief of permanent injunction has to be granted only to a person who has one or the other vested right and title in the property over which injunction is sought. Since the plaintiff does not have any settled title in the property, this relief only in view of the aforesaid provisions of Section 53A of the Transfer of Properties Act, could not be recognized by the court for grant of permanent injunction. In a way the grant of such relief by the court is recognition of the perfect title of the plaintiff in the property and in case that right is not possessed by such plaintiff, the relief of the nature would never be granted. No doubt, the plaintiff does not have a perfect title in the property. He just cannot be granted a relief of permanent injunction. Therefore, the courts below appear to be wholly justified in refusing that relief also to the plaintiff-appellant and this Court in second appeal would be loath to interfere against the same and grant such relief of permanent injunction in favour of the appellant.
9. The appeal is without any merit and accordingly fails and is hereby dismissed at the admission stage itself.