Punjab-Haryana High Court
Hanuman And Others vs Rajesh Kumar And Others on 4 December, 2012
Author: L. N. Mittal
Bench: L. N. Mittal
R. S. A. No. 4260 of 2011 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Case No. : R. S. A. No. 4260 of 2011
Date of Decision : December 04, 2012
Hanuman and others .... Appellants
Vs.
Rajesh Kumar and others .... Respondents
CORAM : HON'BLE MR. JUSTICE L. N. MITTAL
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Present : Mr. Sanjay Mittal, Advocate
for the appellants.
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L. N. MITTAL, J. (Oral) :
This is second appeal by some of the defendants.
Suit was filed by respondent no.1 - plaintiff against appellants and proforma respondents, who include legal representatives of some of the deceased defendants. Suit was based on agreement to sell dated 06/07.05.1997 executed by Shanti Devi regarding the suit land in favour of the plaintiff. The plaintiff also claimed that possession of the suit land was delivered to him at the time of agreement and accordingly, he is in possession thereof.
Defendants claimed themselves to be successors-in-interest of R. S. A. No. 4260 of 2011 2 Shanti Devi, which fact was disputed by the plaintiff. The plaintiff sought permanent injunction restraining the defendants from interfering in possession of the plaintiff over the suit plot. In the alternative, decree for specific performance of the agreement was also sought, if defendants were proved to be legal heirs of Shanti Devi. Alternative relief of recovery of money was also claimed.
Defendants resisted the suit and controverted the plaint averments. They also claimed to be successors-in-interest of Shanti Devi. Impugned agreement was denied. It was also pleaded that plaintiff was not ready and willing to perform his part of the contract.
Both the courts below have partly decreed the plaintiff's suit for permanent injunction only restraining the defendants from interfering in possession of the plaintiff over the suit plot except in due course of law. However, suit regarding relief of specific performance of the agreement to sell has been dismissed. Feeling aggrieved, some of the defendants have filed this second appeal.
I have heard counsel for the appellants and perused the case file.
Learned counsel for the appellants contended that plaintiff has been found to be not ready and willing to perform his part of the contract and for this reason, relief of specific performance of the agreement has been R. S. A. No. 4260 of 2011 3 declined to him by the courts below, and therefore, even injunction could not be granted to the plaintiff in view of Section 53-A of the Transfer of Property Act, 1882 (in short - the Act). Reliance in support of his contention has been placed on judgment of this Court in the case of Lalit Mohan Bhalla vs. Prem Chand reported as 2011 (6) R.C.R. (Civil) 361.
I have carefully considered the aforesaid contention, but the same cannot be accepted. Protection under Section 53-A of the Act is claimed by prospective vendee as defendant. In the instant case, however, the plaintiff himself filed the suit and claimed permanent injunction, and therefore, question of applicability of Section 53-A of the Act does not arise. On the other hand, plaintiff's possession over the suit plot has been protected only to a limited extent that he should not be dispossessed therefrom except in due course of law. Defendants, even as legal heirs of Shanti Devi, who was owner of the suit plot, cannot dispossess the plaintiff from the suit plot except in due course of law. Possession of the plaintiff is duly proved, as also recited in the impugned agreement, execution whereof has been proved by the plaintiff.
It is worth mentioning that protection under Section 53-A of the Act completely bars the remedy of vendor or his successors-in-interest to claim any right whatsoever in the property agreed to be sold. Said protection has not been afforded to the plaintiff in the instant case. R. S. A. No. 4260 of 2011 4 Defendants have not been barred from asserting their right in the suit plot or from taking possession thereof from the plaintiff, but they have to do so in due course of law only. If protection under Section 53-A of the Act had been extended to the plaintiff, then there would have been complete bar to the defendants from seeking any relief qua the suit plot. However, courts below have not granted absolute permanent injunction against the defendants. On the other hand, only limited injunction has been granted that the plaintiff should not be dispossessed from the suit plot except in due course of law. There is nothing wrong with the judgments of the courts below in this regard because defendants have no right to take the law in their own hands and to dispossess the plaintiff forcibly and illegally from the suit plot. Defendants have been given liberty to take the possession of the suit plot in due course of law. Thus, protection of Section 53-A of the Act has not been given to the plaintiff by the courts below. Therefore, judgment in the case of Lalit Mohan Bhalla (supra) has no applicability to the instant case.
For the reasons aforesaid, I find no merit in this second appeal. Concurrent finding recorded by the courts below that plaintiff is in possession of the suit plot and is therefore entitled to limited protection, as granted by the lower courts, is not shown to be perverse or illegal or based on misreading or misappreciation of evidence on record. There is, R. S. A. No. 4260 of 2011 5 therefore, no ground to interfere with the said finding. No question of law, much less substantial question of law, arises for adjudication in this second appeal. The appeal lacks any merit and is accordingly dismissed in limine.
December 04, 2012 ( L. N. MITTAL ) monika JUDGE