Madras High Court
Balaraja And Another vs Syed Masood Rowther And Another on 28 July, 1998
Equivalent citations: 1998(2)CTC505, (1998)IIIMLJ398, 1999 A I H C 112, (1998) 3 MAD LJ 398 (1999) 1 MAD LW 484, (1999) 1 MAD LW 484
ORDER
1. This civil miscellaneous appeal has arisen out of the order dated 19.12.1997 in I.A.No.1199 of 1997 in O.S.No.244 of 1997 on the file of the Principal Subordinate Judge, Srivilliputtur, granting an order of injunction against the appellants from interfering with the peaceful possession and enjoyment of the schedule mentioned property.
2. The short facts of the case are as follows: The first respondent/plaintiff filed the suit against the appellants and the second respondent, for specific performance of the sale agreement and to execute the sale deed in respect of the suit property and for injunction.
3. According to the first respondent/plaintiff, there was an agreement on 4.4.1996 between him and the second respondent herein, for the sale of the schedule mentioned property for a sum of Rs.6 lakhs and an advance of Rs.2,000 was paid on that date. The second respondent attempted to sell the suit property after it was conveyed back to him by the Spices Board. The first respondent continued to pay the sale consideration to the second respondent. In all, he paid Rs.6,83,985, as per the account maintained by him. After the sale agreement, he has also paid to the Spices Board Rs.1 lakh on 21.1.1997. That amount was paid for reconveyance of the suit property by the Spices Board to the second respondent, as requested by the Spices Board. After the agreement, possession was also handed over to the first respondent. But after the Spices Board informed the second respondent to take the sale deed, the second respondent was delaying the execution of the sale in favour of the first respondent. There was a mediation by the Rajapalayam Jamayath. But the second respondent failed to attend the Jamayath. The jamayath passed a resolution on 12.5.1997 and 16.6.1997 against the second respondent. On 30.6.1997, notice was sent, calling upon the second respondent to execute the sale deed. On 11.7.1997 a reply was sent. In the reply dated 11.7.1997, the second respondent admitted the receipt of the amount, execution of the agreement and the handing over of possession. On 18.10.1997, there was another notice by the first respondent/plaintiff, for which on 22.10.1997 there was a reply. Inspite of the exchange of notices, the second respondent attempted to sell the suit property. Hence, the suit was filed.
4. Alongwith the suit, the first respondent/plaintiff filed I.A.No.1199 of 1997 for injunction restraining the appellants and the second respondent herein from interfering with his peaceful possession and enjoyment of the suit property. As alleged in the affidavit filed in support of the said application that after the filing of the suit, the second respondent herein executed and registered a sale deed in respect of the suit property in favour of the appellants on 24.10.1997 and registered it on 27.10.1997. The execution of the sale deed was with alterior motive and fraudulent intention. After the sale, the appellants and the second respondent tried to interfere with the possession of the first respondent. Hence, the application for injunction.
5. The Second respondent herein filed his counter denying the existence of a sale agreement. The agreement dated 4.4.1996 was not a concluded one. He also denied the consideration of Rs.2 lakhs and the receipt of Rs.2,000 as advance. It is also stated that the payment of Rs.6,83,985 was not towards the sale consideration. Again it was alleged that there was no handing over of possession on 26.10.1996. It was admitted that the Spices Board executed the sale deed in favour of the second respondent on 22.10.1997 and on 24.10.1997 he executed the sale deed in favour of the appellants. As the second respondent was not the owner of the property on 4.4.1996, the document dated 4.4.1996 was not valid.
6. The first appellant herein also has filed a counter. In the counter, he has stated that they are the owners of the property by virtue of the sale deed in their favour in 1997 and hence no injunction can be granted against them. He has denied the agreement dated 4.4.1996, the payment of Rs.6 lakhs. It is also stated that possession was not handed over to the first respondent and the possession is with him and his wife. Hence, as the first respondent/plaintiff is not in possession, injunction cannot be granted in his favour. According to the first appellant, they were bona fide purchasers for value. The agreement is said to have been created for the purpose of the case. It is also alleged that mere agreement of sale will not create any interest in the property. In a suit for specific performance, injunction cannot be granted in favour of the agreement holder.
7. The learned Principal Subordinate Judge, Srivilliputtur considered the case in detail and after perusing the documents produced on both sides, has granted injunction in favour of the first respondent. It has held that there was a prima facie case in favour of the first respondent. It has also found that the petitioner has a prima facie case and also possession in his favour.
8. As against the fair and decretal order, the appellants preferred the appeal in this court. They have also filed a petition C.M.P.No. 1538 of 1998 for interim stay of the order passed in I.A.No. 1199 of 1997. As the point involved in the said petition is the same as involved in the main appeal itself, both the counsels requested the Court to hear and pass orders in the appeal itself. Therefore, the Civil Miscellaneous Appeal was taken up for enquiry.
9. While the case was part-heard, the appellants filed C.M.P.Nos.8070 and 8071 of 1998. One for receipt of additional document under Order 41 Rule 27 of Civil Procedure Code and another one for appointment of Advocate Commissioner to note down the physical features of the property in Survey No.479 Seithur Village, Rajapalayam Town, Kamarajar District.
10. The question involved in the appeal is: Whether the first respondent has prima facie case and possession in his favour.
11. The learned counsel for the appellants Thiru V. Raghavachari, contended that possession was not handed over to the first respondent pursuant to the agreement of sale dated 4.4.1996 in his favour. Further, the plaintiff in a suit for specific performance is not entitled to an injunction in his favour. He also contended that the rights conferred under Section 53A of the Transfer of Property Act only defence in nature and the person put in possession even in part performance of the agreement is not entitled to ask for injunction against the owners of the property.
12. The learned counsel for the respondents Thiru V. Selvaraj, appearing for Thiru S.F. Mohamed Yousuf, contended that there is a prima facie case in favour of the first respondent in as much as there is a valid agreement of sale in his favour and possession was also with him.
13. To show the prima facie case and possession in favour of the first respondent, Exs.P.9, P.10, P.11 and P.13 in addition to Ex.P.l are marked. Ex.P.1 dated 4.4.1996 states that the land in Survey No.479 in Sethur village, measuring an extent of 29.1 acre with residential bungalow and vacant site was agreed to be sold for Rs.6 lakhs by the second respondent. It is also stated that the terms and conditions were accepted in the presence of mediators. The parties to the said document are the first and second respondent herein. There is also a clause in the said document, which states that in this regard with other particulars, another agreement would be entered into within a week. Another document is Ex.P.12. Under the said document, on 4.4.1996, the first respondent has paid Rs.2,000. The said document contain payments from 4.4.1996 to 13.6.1997. Under the said document, a total sum of Rs.6,83,985 has been paid as on 12.2.1997. The account is stated to be as P.A. Estate Sale Agreement Account.
14. The definite case of the first respondent is that these amounts were paid pursuant to the sale agreement dated 4.4.1996. But the case of the second respondent is that they were not towards the sale consideration, but they were loans. Then, we have the resolutions passed by the Rajapalayam Muslim Parimala Rowther Jamath i.e., Ex.P.9. In the said document, it is stated that on a complaint from the first respondent regarding the sale agreement dated 4.4.1996, the second respondent was summoned, but his elder son alone attended the Jamath. The second respondent evaded to attend the Jamath inspite of a committee was sent to his residence twice. Thereafter, the Jamath, passed a resolution as regards the sale of the Cardamam Estate in favour of the first respondent by the second respondent and action may be taken through Court. Further, as the second respondent failed to attend the meeting of the Jamath inspite of its request, he was fined a sum of Rs.5,000 and by way of donation to the Arabi Mathrasa Building Fund of Rajapalayam.
15. The next document is Ex.P.10 dated 30.6.1997. In Ex.P.10 notice, there is a statement with reference to the payment of Rs.6,83,985 on 13.3.1997 by the first respondent to the second respondent. In paragraph 5 of the said notice, it is stated that physical possession was handed over to the first respondent on 22.10.1996 by handing over the keys of the bungalow, watchman and the building key etc. It is also stated that thereafter Rs.1 lakh was spent towards reclamation of the Cardamam Estate and repairing of the building. In the reply i.e., Ex.P.11 dated 11.7.1997, the second respondent states that the amounts were received as loans and the second respondent was ready to settle the account. As regards possession what is stated is that the second respondent was told by his watchman that the first respondent trespassed into the property and occupied the schedule mentioned property. The payments are mentioned in Ex.P.12. Ex.P.13 dated 18.10.1997 is a notice to the second respondent as well as the first appellant. In the said notice also the first respondent asserts the existence of agreement dated 4.4.1996 and the payment of Rs.6,83,985. It is also stated that physical possession was handed over to him. Ex.P.14 is the acknowledgement from the second respondent. Ex.P.15 is the returned cover addressed to K. Balaraja. From the aforesaid documents, one has to necessarily come to the conclusion that there was an agreement on 4.4.1996 and subsequent to the agreement, more than Rs.6 lakhs have been paid to the second respondent and possession is also with the first respondent.
16. The challenge is that Ex.P.l is not a concluded contract of sale. The case of the first respondent is that at the time of execution of the agreement on 4.4.1996 it was orally agreed that after the Spice Board reconveyed the suit property to the second respondent, the second respondent must execute the sale deed in favour of the first respondent. Only with that agreement and understanding more than Rs.6 lakhs were paid to the second respondent. Even though the receipt of this huge amount is admitted, the character of payment alone is denied. Similarly, the possession is also admitted to be with the first respondent, but here again the manner of taking possession is disputed. So, all the three aspects namely, the contract, consideration and possession are admitted, but the interpretation given by the second respondent is that the contract is not a concluded one. The payment is for something else and the possession was by way of trespass. The truth and validity of these statements have to be found out only in the trial. Till then, the first respondent, who is having an agreement and possession, on payment of the amount is definitely entitled to protect his possession.
17. At this stage, the learned counsel for the appellants vehemently contended that the first respondent is not entitled to protection contemplated under section 53A of the Transfer of Property Act. According to him, Ex.P.1 is not a concluded contract. Further, the first respondent has not done anything in furtherance of the contract. Therefore, he is not entitled to enforce his rights as a transferee in possession as against the transferor and persons claiming under him namely, the appellants, who have purchased the property from the second respondent under Section 53A of the Transfer of Property Act.
18. We have seen that under Ex.P.l, a specified property has been agreed to be sold for a specified consideration to a specified person. The terms have been agreed in the presence of mediators. The mere contemplation of execution of another document with some more terms cannot invalidate the terms already agreed. In substance, what the parties contemplated under Ex.P.1 is some more terms, which might be agreed between them. But, certainly, the terms to be agreed cannot be in contravention of the terms already agreed. If the terms already agreed are sufficient to constitute an agreement of sale that will definitely constitute an agreement of sale notwithstanding the fact that some more terms have to be agreed upon in future.
19. As regards possession with the first respondent, we have the support of the past events also. Originally, the suit property belonged to the second respondent. A court auction sale has taken place on 18.1.1989. The sale was in favour of the Spices Board. Even after the purchase by the Spices Board, it has not taken possession of the suit property. As per Ex.P.21, the Spices Board has given a complaint to the Police against the second respondent and one Peer Mohamed, his son. The complaint was registered as C.C.No.153 of 1995 on the file of the III Judicial Magistrate Court, Srivilliputtur for trespass etc. In the judgment dated 21.3.1996, the Magistrate has found that after the sale and the alleged delivery of possession the Spices Board had not taken steps to recover the property from the accused persons. From the said judgment, it is seen that possession continued with the second respondent and at no point of time the Spices Board took possession of the property. In the counter of the second respondent/first defendant in the application for injunction, it is alleged that the Spices Board was in possession. Similarly, in the counter of the first appellant in I.A.No.1199 of 1997, it is stated that the properties were in the possession of the first respondent, then in the possession of the Spices Board and later on transferred to him and his wife. These statements are not only contradictory to the order of the Magistrate contained in Ex.P.16, but also against the statements contained in the reply notice Ex.P.13, wherein there is a categorical assertion that the first respondent trespassed into the property and occupied the schedule mentioned property. From these statements also it can be inferred that the allegation of possession of the appellant is not believable prima facie.
20. As we have already stated that there is an agreement in writing, possession is with the agreement holder. Therefore, prima facie, it has to be concluded that the possession of the first respondent pursuant to an agreement of sale and in part performance of the agreement of sale. There is also an allegation by the first respondent that he has spent about a lakh of rupees for reclamation of the estate and repairing the building i.e., in furtherance of the contract. So, prima facie all the ingredients required under Section 53A of the Transfer of Property Act are found in the transaction. Therefore, the first respondent is entitled to enforce the rights given under Section 53A of the Transfer Property Act.
21. The learned counsel for the appellants cited the following authorities and contended that the agreement holder in a suit for specific performance is not entitled for injunction.
(1) M. Pocham v. Agent, State Government, Adilabad. ; (2) Krishnamoorthy v. Paramasiva, ; (3) Govindrao Mahadik v. Devi Sahai, ; (4) N.P. Tripathi v. Dayamanti Devi, ; (5) Parameshwari, T. and 4 Ors. V. S.S. Investments P. Ltd., 1993 (I) L.W. 109; (6) Vijay Lalchand, HUF etc. And another. v. K.M. Lulla, HUF etc. 1994 (2) L.W. 80; (7) Kamalabai Laxman Pathak v. Onkar Parshram Patil, ; (8) Vasundara Bhalla v. Haridas Bhagat and Company Pvt. Ltd., .
22. In M. Pocham v. Agent, State Government, Adilabad, , a Division Bench of the A.P. High Court has held that if possession was taken in an unlawful manner, Section 53A of the Transfer of Property Act does not protect such possession. In the said case, the agreement of sale was entered into by a non-tribal with a tribal without the sanction. Therefore, the transaction was contrary to A.P. Schedule Areas Land Transfer Regulation. Therefore, the said case is not at all helpful to the appellants. More allegation that the possession was taken by trespass cannot be taken for granted without any proof whatsoever.
23. In Krishnamoorthy v. Paramasiva, , a Division Bench of this court has held as follows:
Even assuming that the plaintiff was given possession of the suit properties on the date of the agreement of sale by the first defendant the question still is whether the plaintiff could claim the relief of injunction based on Section 53-A of the Transfer of Property Act. Admittedly in this case the plaintiff has not yet got title to the properties. He can get title to the properties only if he succeeds in the suit and obtains sale deed in respect of the properties. It is well established that an agreement of sale does not create any interest in the property which is subject matter of the agreement. Therefore, the plaintiff if at all can claim only an equitable right based on S. 53-A of the Transfer of Property Act. Therefore, the relief of temporary injunction claimed by the plaintiff pending the suit can be taken to have been claimed by the plaintiff only on the basis of S. 53-A of the Transfer of Property Act as mere possession of the plaintiff of the suit properties on the date of the suit cannot be taken to enable him to obtain injunction from the court. If that will be the case even a trespasser in possession can approach the court and ask for an injunction to protect his possession. Therefore, we have to treat the plaintiff's application for temporary injunction pending the suit as an application for claiming equitable relief under S. 53-A of the Transfer of Property Act. If the application for injunction is so treated then the plaintiff cannot be granted the relief for the reason that S. 53-A can be used to resist the defendant when he seeks to dispossess the plaintiff. It is well established that Section 53-A of the Transfer of Property Act provides for a passive equity and not for an active equity. Therefore, the plaintiff cannot seek his relief of injunction in a court of law based on S. 53-A of the Transfer of Property Act though he can use S. 53-A to debar the transferor who has agreed to sell the property from claiming any right in respect of that property. It is well established that the right conferred by S. 53-A is a right available to the defendant only to protect his possession and on the basis of that section the defendant cannot claim any title and it merely operates as a bar to the plaintiff to ascertain his title. Though in English law the equity of part performance is an active equity which the plaintiff in possession may enforce in an independent suit or proceeding, such as a suit for specific performance or for an injunction to restrain dispossession, such equity is not available after the amendment of the Transfer of Property Act in the year 1929. In this case the plaintiff used his right under S. 53-A not as a shield but as a sword. Hence the plaintiff is not entitled to the injunction sought for by him. In the result the order of the lower court is set aside and this civil miscellaneous appeal is allowed.
However, the learned Judges have specifically found in the said case as follows:
We are of the view that in the circumstances of this case unless the plaintiff establishes the actual delivery of possession of the properties on the date of agreement of sale, he cannot merely rely on the terms of the agreement which is denied by the first defendant and the truth of which the plaintiff has to establish at the stage of the trial. Unless the plaintiff establishes prima facie that the possession was given to the plaintiff by the first defendant in person on the date of the agreement of sale, the plaintiff is not entitled to an injunction merely basing on the terms of the agreement and the truth of which is yet to be established at the trial. only with that background the learned Judges have proceeded to consider further as to what would happen even if it was to assume that possession was given on the date of agreement of sale. We will come to this case again after considering the other cases cited by the learned counsel for the appellants.
24. In Govindrao Mahadik v. Devi Sahai, , the Apex Court has only laid down the pre-requisites to invoke the equitable doctrine of part-performance. In Paragraph 31, the Apex Court has set down the principle in the following manner:
To qualify for the protection of the doctrine of part- performance it must be shown that there is a contract to transfer for consideration immovable property and the contract is evidenced by a writing signed by the person sought to be bound by it and from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty. These are prerequisites to invoke the equitable doctrine of part performance.
This decision of the Apex Court is not at all helpful to the appellants.
25. N.P. Tripathi v. Dayamanti Devi, . The facts of the said case is not helpful to the appellants. In a suit for eviction of a tenant under the Rent Control Statute, the tenant sought to stay the said proceedings under Section 10 of Civil Procedure Code, in a suit filed by him for specific performance, holding that it was well settled that section 53-A of the Transfer of Property Act could be used as only a shield and not as a sword. Further, the Lordships have also held that the matters directly and substantially in issue in the earlier suit were not directly and substantially in issue in the subsequent suit. There is no discussion with reference to the grant of injunction in the said decision.
26. Parameshwari, T. and 4 Ors. v. S.S. Investments Pvt. Ltd., 1993 (1) L.W. 109. Even in this Bench decision the learned Judges have stated as follows:
On the principles of law, as we have noticed above, it is not possible to hold in favour of the plaintiff that the balance of convenience lies jn its favour and that unless injunction is granted, it is likely to suffer irreparable or serious injury. There are no such facts disclosed in the plaint or in the application, for temporary injunction, upon which we should depart from the ordinary rule that until specific performance decree is granted, no interest of the plaintiff should be recognised in the Suit property.
Therefore, even though the learned Judges were of the view that injunction cannot be granted in a suit for specific performance in favour of the plaintiff, they refused the injunction on the ground that in the particular case, the facts as disclosed in the plaint or in the application were not such as to depart from the ordinary Rule. Therefore, the learned Judges by implication held that there is a possibility for grant of injunction even in a suit for specific performance.
27. In Vijay Lalchand, HUF etc. and Anr v. K.M. Lulla, HUF etc. 1994 (2) L.W. 80, a learned single Judge of this Court has also referred to the decision reported in Krishnamoorthy v. Paramasiva, . In paragraph 24 of His Judgment, it is observed as follows:
In my opinion, the judgment of the Division Bench of this court in Krishnamoorthy v. Paramasiva, , squarely applies to the facts and circumstances of the case on hand. The principles laid down therein can be applied to the case on hand. The Bench has allowed the appeal thereby vacating the injunction granted by the lower Court, even though there Was a written agreement and also payment of advance of some money. In the said case also it was claimed by the plaintiff that possession was handed over to him on the date of the agreement and such possession has to be protected till the disposal of the suit. In the instant case, admittedly, there is no written agreement between the parties and that the agreement is oral, which is subsequently repudiated by the respondent. Admittedly, no consideration has been paid to the respondent by the 1st applicant. In this case also, the 1st applicant alleges that he was put in possession of the property on the date of the agreement and such possession has to be protected till the disposal of the suit. I am unable to agree with the contention of Mr. M.A. Sadanand since, as rightly observed by the Division Bench of this court in the above cited case, unless the plaintiffs/applicants establish the actual delivery of possession of the property on the date of agreement of sale, they cannot merely rely on the oral agreement, though it was admitted, which was repudiated later the truth of which the plaintiffs/applicants establish prima facie that possession was given to the 1st applicant by the respondent on the date of the oral agreement, the 1st applicant is not entitled to an injunction merely basing on the oral agreement the truth of which is yet to be established at the trial.
But this judgment of a learned Single Judge of this Court has been the subject matter of the Division Bench of this Court reported in Vijay Lalchand HUF Rep. by its Kartha Vijay L. Bulchandani and Anr v. K.M. Lulla HUF Rep. by its Kartha Kiron Kumar M. Lulla, 1995 T.L.N.J. 152. The Bench has over-ruled the decision of the learned Single Judge:
28. Kamalabai Laxman Pathak v. Onkar Parashram Patil, . The said case is not helpful to the appellants, since it only states that the court should be in a position to judge the exact nature of the transaction i.e., the subject matter of the document. In the absence of a document, a learned Single Judge of the Bombay High Court has taken the view that Section 53-A of the Transfer of Property Act would apply only when all the ingredients are satisfied, the said case is not helpful to the appellants. Therefore, the said case does not advance the case of the appellants.
29. In Vasudara Bhalla v. Haridas Bhagat and Company Ltd., , after considering the various decisions, including the decisions reported in Krishnamoorthy v. Paramasiva, ; Parameshwari, T. and 4 Ors. v. S.S. Investments Private Ltd., 1993 (I) L.W. 109 and the decisions of the Bombay High Court in Venkat Dharmaji v. Viswanath, and also the decision of the Calcutta High Court in Muktaesi Dawan v. Haripada Mazumdar, and the decision of the Patna High Court in Kayanpur Lime Works v. State of Bihar, , the Division Bench of this court has taken note of the fact that in that case, the single Judge held that there was only an alleged oral agreement and the draft agreement of sale was not concluded among the parties therein. Then they held that the alleged oral agreement by itself did not create any interest or charge in the suit property. In the aforesaid circumstances, they chose to vacate the injunction granted in favour of the plaintiff in the said suit.
30. As against the above decisions, the learned counsel for the respondent cited the decision reported in Vijay Lalchand HUF Rep. by its Kartha Vijay L. Bulchandani and Anr v. K.M. Lulla HUF Rep. by its Kartha Kiron Kumar M. Lulla, 1995 T.L.N.J. 152. This Bench decision is the latest pronouncement with reference to the grant of injunction in a suit for specific performance. As we have seen above, the Bench Decisions of our High Court, namely, (1) Krishnamoorthy v. Paramasiva, ; (2) Parameshwari, T. and 4 Ors, v. S.S Investments P. Ltd., 1993 (I) L.W. 109; and (3) Vasudara Bhalla v. Haridas Bhagat and Company Pvt. Ltd., have held that the protection given under Section 53-A of the Transfer of Property Act is available as defence in equity as a shield and not as a sword and therefore, injunction could not be granted. Further in Krishnamoorthy v. Paramasiva, itself the learned Judges of the Division Bench have held that unless the plaintiff established prima facie that possession was given to him on the date of agreement of sale, the plaintiff was not entitled for injunction, merely basing on the terms of the agreement, and the truth of which yet to be established at the trial. This view has been expressed in paragraph 2 of the judgment, wherein the learned Judges have discussed the scope of Section 53-A of the Transfer of Property Act and only there the learned Judges have said that the right granted under Section 53-A is to be used as a shield and not as a sword. In Parameshwari, T. v. S.S. Investments Private Ltd., 1993 (I) L.W. 109 also the learned Judges at the beginning of the judgment stated that the trial judge applied the three cardinal principles and found that the plaintiff got a prima facie case, the balance of convenience was in its favour and that, the hardship which could not be compensated in money. They also stated that they were not proposing to traverse the findings. Thereafter, the learned Judges came to discuss the principle of Section 53-A of the Transfer of Property Act i.e., equitable right granted to a prospective vendee under an agreement of sale. Before going into that question, the learned Judges have referred to the following decisions:
(1) Venkat Dharmaji v. Viswanath, ; (2) Muktakesi Dawan v. Haripada Mazumdar, and (3) Kayanpur Lime Works v. State of Bihar, . They also referred to the decision reported in N.P. Tripathi v. Dayamanti Devi, .
31. In Venkat Dharmaji v. Viswanath, and Krishnamoorthy v. Paramasiva, it has been held that injunction can be granted in a suit for specific performance. In , also it has been held that temporary injunction can be granted in a suit for specific performance. While considering the decision in Venkat Dharmaji v. Viswanath, the learned Judges observed that Bombay High Court was concerned with the scope of the Civil Procedure Code for grant of injunction under order 39 Rule 1 of the Code. The Calcutta High Court also in Muktakesi Dawan v. Haripada Mazumdar, has held that under order 39 Rule 1 of Civil Procedure Code injunction can be granted even in a suit for specific performance, notwithstanding the doctrine of lis pendens contained in Section 52 of the Transfer of Property Act. In Kayanpur Lime Works v. State of Bihar, also, the possession was not with the plaintiff. The plaintiff wanted to restrain the defendant from operating the quarry during the pendency of the suit. So, after considering the aforesaid cases and nothing the fact that injunction can be granted under order 39 of Civil Procedure Code the Bench in Parameshwari, T. v, S.S. Investments Private Ltd., 1993 (1) L.W. 109 has taken the view that such an injunction cannot be granted when a person based his right only under the doctrine of part-performance contained in Section 53 of the Transfer of Property Act.
32. In Vasudara Bhalla v. Haridas Bhagat and Company Pvt. Ltd., the learned Judges have stated as follows:
In considering, however, whether injunction should be granted on the plea of possession and allegation of threat of dispossession to a person holding the agreement for sale, the rule will be as one reiterated almost in every case that to a plaintiff claiming only an equitable right the Court would not ordinarily grant temporary injunction pending the suit on the basis of S. 53-A of the Act, as mere possession of the plaintiff of the suit property on the date of the suit cannot be taken to enable him to obtain injunction from the court. The passive equity as provided under S. 53-A of the Act is available as a shield against any interference by the defendant who is either the transferor himself or any other person claiming through the transferor but would not become active equity without there being something more.
From the aforesaid Bench decision, two principles emerge. (1) Even in a suit for specific performance injunction can be granted if the plaintiffs satisfies the requirements under Order 39, Rule 1 of Civil Procedure Code; and (2) If a person claims injunction only on the basis of equitable right available under Section 53 of the Transfer of Property Act, is not entitled to such an injunction. It may also be added even in stating the second principle, the addition of words "without there being something more" by the Judges indicate that there is possibility of grant of injunction even in the case where the claim is only based on the equitable principle provided under Section 53 of the Transfer of Property Act, if something more has been done.
33. In Padmanabhan, V.A., and 3 Ors. v. M.A. Narasimhan and 5 Ors., 1993 (I) L.W. 169 the very same learned Judges of the Bench constituted in Vasudara Bhalla v. Haridas Bhagat and Company Pvt. Ltd., have taken the view that the passive equity as provided under section 53A of the Transfer of Property Act shall be available as a shield against any interference by the defendant, who is either the transferor himself or any other person claiming through him, not an active equity without there being something more. Applying the said principle in the said case, the learned Judges have also found that the plaintiff was not given possession at all. Hence, the injunction was refused in that case.
34. In the decision cited by the learned counsel for the respondent i.e., Vijay Lalchand Huf Rep. by its Kartha Vijay L. Bulchandani and Anr. v. K.M. Lulla Huf Rep. by its Kartha Kiron Kumar M. Lulla, 1995 T.L.N.J. 152, the learned Judges on finding that there was an oral agreement, handing over the title deeds, applying for income tax clearance certificate and the vendee putting up huts and storing building materials and the compound wall constructed found that the possession was with the plaintiff in the suit. Even though this specific performance was claimed purely on the basis of an oral agreement, after taking note of the aforesaid circumstances, the learned Judges have granted injunction in favour of the plaintiff restraining the defendant from interfering with his possession. The learned Judges have elaborately discussed the case laws from Munuswamy Gounder v. Erusa Gounder, 1974(1) MLJ, 499 upto Parameshwari, T. and others v. S.S. Investments Private Ltd., 1993 (I) L.W. 109. The above said latest Bench decision has clearly held that " on the facts of the case, we find there is much more than something which will entitle the plaintiff to get an interim relief during the pendency of the suit for specific performance. They are also in possession of the land and therefore, the plaintiff is entitled to the relief of temporary injunction during the pendency of the suit". These principles are laid down by the Division Bench of this court in Padmanabhan, V.A., and 3 Ors. v. M.A. Narasimhan and 5 Ors., 1993 (I) L.W. 169.
35. On a consideration of the relevant facts and the law, I am of the view that the plaintiff has established his possession and he has also spent about lakh of rupees for improvement and reclamation of the estate and renovation of the building, forming part of the suit property. Therefore, the first respondent/plaintiff is entitled for an injunction as indicated by the aforesaid line of cases i.e., (1) As a person in possession complied with the requirements under Order 39, Rule 1 and 2 of Civil Procedure Code; and (2) As a person having done something more when entitled to the rights conferred under the doctrine of part-performance under section 53-A of the Transfer of Property Act. The findings and observations given in this case are only for the purpose of the disposal of the Civil Miscellaneous Appeal and they need not be taken as binding on the trial Court when the trial is taken up in the suit.
36. As a result of the above discussions, the appeal is dismissed. However, there will be no order as to costs.