Hon'ble Ram Surat Ram (Maurya), J.
Delivered by : Hon'ble. Ram Surat Ram (Maurya)
1.Heard Sri Mohan Srivastava, counsel for the appellant and Sri Ashish Kumar Singh for the respondents.
2.This appeal has been filed from the order of Civil Judge, (Senior Division), Hapur, Ghaziabad dated 28.1.2012, passed in Suit No. 89 of 2011, by which the application for interim injunction filed by the appellant has been rejected.
3.The appellant filed a suit (registered as O.S. No. 89 of 2011) for permanent injunction restraining the respondents from interfering with his possession and ejecting him from the land in dispute and transferring it to any other person. It has been stated in the plaint that Narendra Kumar (defendant-1) has 6.25% share and Pawan Kumar (defendant-2) has 12.5% share in the land of which total area was 2,700 sq. yard, situated in mohalla Feezganj Road, Hapur, district Ghaziabad. On 12.6.2009, defendant-1 took Rs. 10,000/- in cash and a cheque of Rs. 50,000/- and executed an agreement in favour of the plaintiff for selling his share in the aforesaid land for sale consideration of Rs. 8,50,000/- He agreed to execute the sale deed before 11.9.2009. Defendant-2 also took Rs. 10,000/- in cash and a cheque of Rs. 50,000/- and agreed to sell his 12.5% share for Rs. 17 lakhs before 11.9.2009 and executed an agreement to sell dated 12.6.2009 in favour of the plaintiff. Defendants-1 and 2 have not executed the sale deed within the aforesaid period in compliance of the agreement dated 12.6.2009. The plaintiff therefore sent a notice dated 29.10.2009 through post office under certificate of posting. On service of the aforesaid notice, defendants-1 and 2 informed that since a dispute between the co sharers was going on, as such, it was not possible for them to execute the sale deeds. Accordingly, defendants-1 and 2 executed a receipt dated 15.11.2009 acknowledging the agreement dated 12.6.2009 and further taking of earnest money of Rs. 2,40,000/- and Rs. 4,40,000/-, respectively and time for executing the sale deed was extended up to 14.10.2010 and the plaintiff was given possession over the property to be transferred. The dispute between the co-sharers of defendants-1 and 2 has been settled through family settlement dated 4.8.2010, but defendants-1 and 2 have not turned up for executing the sale deed. Therefore, the plaintiff gave a notice dated 27.9.2010 to defendants-1 and 2 for executing the sale deed. The plaintiffs came to know that Narendra Kumar (defendant-1) and his family members, executed an agreement to sell dated 4.9.2010 in favour of Ajay Goyal (defendant-3). Pawan Kumar (defendant-2), his brother Praveen Kumar and his mother Smt Nirmala Devi, executed an agreement dated 6.9.2010 in respect of their share in the property in dispute in favour of defendant-3. On coming to know about the aforesaid agreements, the plaintiff served another notice dated 20.11.2010 for getting the aforesaid agreement canceled. In spite of service of notice, defendants-1 and 2 have not taken any step for cancellation of the agreements executed in favour of defendant-3. The plaintiff came to know that in the meantime, Narendra Kumar (defendant-1) has executed a sale deed dated 25.9.2010 in respect of his share in favour of defendant-3. The defendants are trying to dispossess the plaintiff from the property in dispute. The plaintiff is ready and willing to perform his obligations under the agreements dated 12.6.2009 and 15.11.2009 and get the sale deed executed in his favour. As such, he is entitled to protect his possession over the property in dispute. On these allegations, the suit for permanent injunction has been filed.
4.Along with the plaint, the plaintiff has also filed an application for interim injunction restraining the defendants from taking forcible possession over the property in dispute during the pendency of the suit.
5.The trial court issued notices in the application for temporary injunction and summons in the suit. On service of the summons and notices, the defendants appeared and filed their written statement in the suit as well as objection and counter affidavit in the application for temporary injunction. In the joint written statement filed on behalf of the defendants, they have admitted execution of the deed dated 12.6.2009 and taking Rs. 60,000/- each as earnest money. But they have stated that defendant-1 has 1/80 share while defendant-2 has 1/24 share in the property in dispute. Since the dispute between the co sharers was going on, as such, it was not possible to execute the sale deed by them in favour of the plaintiff. Accordingly after the notice dated 29.10.2009, there was a settlement between the parties before the Panches on 10.8.2010, in which earnest money received by defendants-1 and 2 had been returned to the plaintiff. However, the plaintiff did not return the deeds dated 12.6.2009 executed by defendants-1 and 2 on the pretext that these documents were not brought by them at that time. He assured that it would be returned later on as at that time, these documents were not with the plaintiff. The defendants have stated that the alleged documents dated 15.11.2009 are forged document. Neither the amount mentioned in this document has been paid to the defendants, nor they gave possession to the plaintiff over the property of their share. Since the property was joint and their share was not partitioned, as such, it was not possible to give possession to the plaintiff over the property of their share. As the contract between the parties has already been broken before the Panches on 10.8.2010 and earnest money has been returned, as such, the plaintiff has no right to file any suit and the suit is misconceived and is liable to be dismissed.
6.The application for interim injunction was heard by Civil Judge, (Senior Division), Hapur who by order dated 28.1.2012 held that in the alleged agreement dated 12.6.2009, no identifiable land has been mentioned. However, in the suit, the plaintiff has mentioned his possession over 1/3rd share towards west side of the land in dispute which is also not identifiable. Accordingly, prima facie, title and possession of the plaintiff is not proved. On these finding, the application for interim injunction has been rejected. Hence, the present appeal has been filed by the plaintiff.
7.The counsel for the appellant submits that defendants-1 and 2 have entered into a written contract dated 12.6.2009 by which they have agreed to sell their share to the plaintiff. At that time, they also took an earnest money of Rs. 60,000/- each. Later on, they executed another deed dated 15.11.2009 by which they further took Rs. 2,40,000/- and Rs. 4,40,000/- respectively and extended the time for executing the sale deed up to 14.10.2010 and simultaneously they handed over possession over the property in dispute. As in part performance of the contract, the plaintiff was put in possession over the property in dispute and the plaintiff is ready to perform his obligations under the contract, for that purpose, he has also given several notices to the defendants for getting the sale deed executed, but the defendants have not turned up, therefore, the plaintiff is entitled to protect his possession under Section 53-A of Transfer of Property Act. In support of his contentions, he has placed reliance on the judgments passed by Hon'ble Supreme Court in the case of Hamzabi vs. Syed Karimuddin, reported in 2000 LAWS (SC) Pg. 114 and Nathulal vs. Phoolchand, reported in AIR 1970 SC 546. He submits that the language of Section 53-A of Transfer of Property Act is mandatory, and if the conditions are fulfilled, then "notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer and that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him is debarred from enforcing any right in respect of the property of which, the transferee has taken or continued in possession, against the transferee, other than a right expressly provided by the terms of the contract". He further submits that at the stage of grant of interim injunction, prima facie case is required to be examined. The court below has illegally gone in to title at this stage and held that title of the plaintiff is not proved over the property in dispute. The court below has illegally confused with 'prima facie case' as 'prima facie title'. He relied upon the judgment of Hon'ble Supreme Court in the case of Dalpat Kumar and Another vs. Prahlad Singh and Others, reported in RD 1991 Pg. 210, in which it has been held that 'prima facie case' is not to be confused with 'prima facie title', which has to be established on the evidence at trial and not at the time of grant of interim injunction.
8.In reply to the aforesaid arguments, the counsel for the respondent submits that under the law, an agreement to sell can only be executed through a registered document. Since the alleged agreements dated 12.6.2009 and 15.11.2009 are unregistered documents, these documents are not admissible in evidence. Apart from these documents there is no evidence regarding possession of the plaintiff. The land in dispute was in joint possession of several co sharers, therefore, without partition, it was not possible to hand over possession over any specific portion to the plaintiff. The subsequent document dated 15.11.2009 are forged documents and has been denied by the defendants. Therefore, the plaintiff has neither a prima facie case nor balance of convenience is in his favour. The trial court has rightly rejected his application for interim injunction. Counsel for the respondents relied upon judgment of Division Bench of this Court in Vijay Kumar Sharma Vs. Devesh Behari Saxena, 2008 (1) AWC 664.
9.In view of the aforesaid arguments, the points arise for consideration are (i) whether any unregistered agreement can be made basis for a claim under Section 53-A of the Transfer of Property Act? (ii) In order to decide prima facie case, what exercise is required to be done by the court?
10.In U.P., U.P. Civil Laws (Reforms and Amendment) Act, 1976, (U.P. Act No. 57 of 1976) has been enforced, w.e.f. 1.1.1977. By virtue of Section 30 of this Act, Section 54 of Transfer of Property Act has been amended as follows:
30. Amendment of Section 54 of Act 4 of 1882 - In Section 54 of the Transfer of Property Act, 1882, hereinafter in this Chapter referred to as the principal Act, -
(a) In the second paragraph, the words "of the value of one hundred rupees and upwards" shall be omitted;
(b) the third and fourth paragraphs shall be omitted;
(c) after the last paragraph, the following paragraph shall be inserted, namely: -
"Such contract can be made only by a registered instrument."
11.Similarly, by Section 32 of this Act, Section 17 of the Registration Act has been amended and Clause (f) has been inserted in it.
32. Amendment of Section 17 of Act 16 of 1908 - In Section 17 of the Registration Act, 1908, hereinafter in this Chapter referred to as the principal Act -
(a) In Sub Section (1) -
(i) In clause (b) the words "of the value of one hundred rupees and upwards", shall be omitted;
(ii) In clause (e) the words "of the value of one hundred rupees and upwards", shall be omitted;
(iii)after clause (e), the following clause shall be inserted, namely:
(f) any other instrument required by any law for the time being in force, to be registered."
12.By virtue of the aforesaid amendments w.e.f. 1.1.1977, an agreement to sell of the immovable property is a compulsorily registrable document in U.P. and no un-registered agreement to sell can be executed nor it can be taken in evidence in view of Section 49 of the Registration Act.
13.Similarly, Parliament passed the Registration and Other Related Laws Amendment Act, 2001 (Act No. 48 of 2001), which has come into force on 24.9.2001. By Section 3 of this Act, Section 17 of the Registration Act has been amended as follows: -
3. Amendment of Section 17-In Section 17 of the Registration Act-
(a) after sub-section (1), the following sub-section shall be inserted, namely: -
"(1-A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of Section 53-A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related Laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purpose of the said Section 53-A",
(b) In sub-section (2), in clause (v), for the opening words "any document", the words, brackets, figure and letter "any document other than the documents specified in sub-section (1-A)" shall be substituted.
14.By Section 6 of this Act, Section 49 of the Registration Act has been amended as follows: -
6. Amendment of Section 49 - In Section 49 of the Registration Act, in the proviso, the words, figures and letter "or as evidence of part performance of a contract for the purposes of Section 53-A of the Transfer of Property Act, 1882 (4 of 1882)," shall be omitted.
15.By Section 10 of this amending Act, Section 53-A of Transfer of Property Act has been amended as follows: -
10. Amendment of Section 53-A of Act 4 of 1882 - In Section 53-A of the Transfer of Property Act, 1882, the words "the contract, though required to be registered, has not been registered, or," shall be omitted.
16.Thus, w.e.f. 24.9.2001, even for the purposes of claiming right under Section 53-A of the Transfer of Property Act, an agreement to sell is required to be a registered. Documents being un-registered are not admissible in evidence in view of Section 49 of the Registration Act. As in this case documents were allegedly executed on 12.06.2009 and 15.11.2009, therefore, the case laws relied upon by the counsel for the appellant are not applicable in this case.
17.Order 39 Rule 1 (c) provides that temporary injunction may be granted where, in any suit, it is proved by the affidavit or otherwise, that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in the suit to any property in dispute. The court may by an order grant a temporary injunction to restrain such act or make such other order for the purpose of staying and preventing injury or dispossession of the plaintiff or otherwise causing injury to the plaintiff in relation to any property in dispute as the court thinks fit until the disposal of the suit or until further orders. Pursuant to the recommendation of the Law Commission clause (c) was brought on statute by Section 88 (i) (c) of the Amending Act 104 of 1976 with effect from 1.2.77. Earlier there was no express power except the inherent power under Section 151 C.P.C. to grant ad-interim injunction against dispossession. Rule 1 primarily concerns with the preservation of the property in dispute till legal rights are adjudicated. Injunction is a judicial process by which a party is required to do or refrain from doing any particular act. It is in the nature of preventive relief to a litigant to prevent future possible injury. In other words, the court, on exercise of the power of granting ad interim injunction, is to preserve the subject matter of the suit in the status quo for the time being. It is settled law that the grant of injunction is a discretionary relief.
18.Order 39 Rule 3 C.P.C. requires to issue notice to the defendant and hear him before passing any order of interim injunction except in cases of urgency where reasons are required to be recorded for passing exparte injunction. Purpose of issuing notice to the other party is to examine relative strength of the cases of the both the parties. The word 'prima facie' means 'at first sight'. The existence of the right of the plaintiff is be adjudicated on the first sight on comparative consideration of pleadings and evidence of the parties. The Court has to form his opinion as to who has a better case. If the defendant has better case and evidence in his favour then the Court cannot ignore it only on the basis of good drafting of the plaint. It is in this view it has been held that 'prima facie case' and not 'prima facie title' has to be examined at the time of granting interim injunction.
19.Even if, the plaintiff may not have title of the property in dispute at the time of filing of the suit but from the rival contention of the parties, the court is satisfied that the plaintiff is on better footing, and on trial relief may be granted to him in all probabilities. Then it can be said that prima facie case of the plaintiff has been established. It is in this context, it has been held that prima facie case shall not mean frima facie title. Thus finding in respect of the 'prima facie case' is not required to be recorded only by examining a good drafting of the plaint but by examining rival contention of the parties and their supporting evidence.
20.The exercise to be done by the court grant of interim injunction to record satisfaction that (i) there is a serious disputed question to be tried in the suit and there is probability of the plaintiff being entitled to the relief asked in the suit; (ii) the court's interference is necessary to protect the party from the species of injury. In other words, irreparable injury or damage would ensue, before the legal right would be established at trial; and (iii) that the comparative hardship or mischief or inconvenience which is likely to occur from withholding the injunction will be greater than that would be likely to arise from granting it.
21.The word 'prima facie case' has been interpreted time to time by the courts. Hon'ble Apex Court, in United Commercial Bank Vs. Bank of India, AIR 1981 S.C. 1426 held that 'prima facie case' means in the facts and circumstances of the case, there is a bonafide contention between the parties and a serious question is to be decided. This court in the case of National Textiles Corporation (U.P.) Ltd. Vs. Swadeshi Cotton Mills, 1987 A L J 1266 (D.B.) held that in order to pass an interim order, the Court is to take immediate decision, estimating relative strength of the each parties case. If the plaintiff has a week case or is meat by a strong defense the Court may refuse an injunction. In that case, it was found that the plaintiff has frivolous, vexatious and not even stateable case, the Court therefore rejected the injunction application.
22.Since admittedly, the property in dispute was a joint property in which there were various co sharers, it was not possible for respondents-1 and 2 to give possession to the plaintiff over any specific portion of the property. Neither in the alleged deed dated 15.11.2009, nor in the plaint, any specific portion of the property has been shown, over which the possession of the plaintiff is being claimed. In the plaint, the plaintiff claimed 1/3rd western portion, while share of defendants-1 and 2 is less than 1/3rd as such, they were not able to hand over possession of 1/3rd share. In view of the aforesaid discussion, the suit of the appellant being based upon an unregistered document, is not maintainable. The plaintiff has no prima facie case and accordingly not entitled for interim injunction. The order of the trial court does not suffer from any illegality. The appeal has no merit and is accordingly dismissed.
23.However, it is made clear that the various observations and findings in this order were made only for deciding the application for interim injunction. The trial court will not be prejudiced while deciding the suit on merit by the findings and observations made by this court or in the impugned order.
Order dt: 1/05/2012 Jaideep/-