Allahabad High Court
Manas India Projects Pvt. Ltd. Thru. Its ... vs Smt. Meena And 5 Others on 15 February, 2023
Author: Abdul Moin
Bench: Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 7 Case :- FIRST APPEAL FROM ORDER No. - 40 of 2023 Appellant :- Manas India Projects Pvt. Ltd. Thru. Its Director Sri Brijkishore Mishra Lko. Respondent :- Smt. Meena And 5 Others Counsel for Appellant :- Lalta Prasad Misra,Deepanshu Dass Counsel for Respondent :- Ravindra Kumar Yadav Hon'ble Abdul Moin,J.
1. Heard Dr. L.P.Mishra, Advocate assisted by Sri Deepanshu Dass, learned counsels appearing for the appellant and Sri Sudeep Seth, learned Senior Advocate assisted by Sri Sandeep Srivastava and Sri Anoop Kumar, learned counsels appearing for the respondents no. 2 to 4.
2. Instant First Appeal From Order has been filed praying for the following main reliefs:-
"(a) Wherefore, it is most respectfully prayed that this Hon'ble Court may graciously be pleased to set aside the impugned order dated 22.12.2022 passed by the learned Civil Judge (Senior Division), Lucknow in Regular Suit No. 2148 of 2021- Manas India Projects Pvt. Ltd Vs. Meena and Ors and allow the present appeal in the interest of justice."
3. Shorn of unnecessary details, the brief facts of the case set forth by the appellant is that an unregistered agreement for sale was executed on 01.07.2018, a copy of which is annexure 2 to the appeal with one Sri Jagjeewan, the husband of respondent no. 1 and father of respondents no. 2 to 4. The agreement for sale pertained to Khasra No. 388 Sa and part of Khasra No. 202. The agreement for sale also passed on the possession of the said plots to the appellant as was indicated in paragraph 4 of the said agreement. Various payments both in cash and through cheques towards the said agreement for sale are claimed to have been made initially to Sri Jagjeewan and after his death to the respondent no. 1 the details of which have been given in paragraphs 6 & 9 of the affidavit in support of application for interim relief. It is also contended that there was a second plot adjacent to the aforesaid plots which was recorded in the name of the father of Sri Jagjeewan from whom the said plot was purchased through a registered sale deed. It is contended that as the respondents along with certain other persons started interfering in the peaceful possession of the aforesaid plots it compelled the appellant to file a suit for permanent injunction in the year 2021 which was registered as Regular Suit No. 214 of 2021 Inre; Manas India Projects Pvt. Ltd Vs. Smt. Meena & Ors before the learned Civil Judge (Senior Division), Lucknow. A temporary injunction application was also filed by the appellant and the learned Trial Court vide order dated 10.12.2021, a copy of which is annexure 6 to the appeal passed an order of status quo. It is contended that an application under Order 7 Rule 11 of the Code of Civil Procedure (hereinafter referred to as "CPC") was filed by the respondents contending that as the suit had only been filed seeking relief for permanent injunction and without seeking the relief of specific performance as such, the said suit was liable to be dismissed. However, the learned Trial Court, vide order dated 02.04.2022, a copy of which is annexure 11 to the appeal rejected the said application on the ground that the plaintiff/appellant herein, is a master of his suit.
4. It is contended that the commission report had also been called for which was submitted on 18.01.2022, a copy of which is annexure 13 to the appeal a perusal of which would indicate that the report specifically indicates the possession of the appellant over the plots in dispute.
5. It is also contended that an application filed under Order 39 Rule 4 of the CPC by the respondents was also rejected by the learned Trial Court vide order dated 03.09.2022. Subsequent thereto, the temporary injunction application of the appellant has been finally decided and by means of impugned order dated 22.12.2022, a copy of which is annexure 1 to the appeal, the said application has been rejected.
6. Learned counsel for the appellant while seeking to challenge the order impugned dated 22.12.2022 argues that a perusal of the order impugned dated 22.12.2022 would indicate that the application has been rejected primarily on the grounds that (a) there is dispute pertaining to the unregistered agreement for sale having been executed with respect to the part of Khasra No. 202 (b) in a suit filed for permanent injunction, injunction cannot be granted when an equally efficacious relief can be obtained by other usual mode or proceeding and in the instant case, the usual mode of proceeding is a suit for specific performance of contract which relief not having been claimed by the appellant, no relief can be granted and (c) the suit has been filed on the basis of an unregistered agreement.
7. Learned counsel for the appellant also contends that he has filed an application for amendment by which he has sought a relief for specific performance which is still pending and as such, the learned Trial Court patently erred in rejecting the temporary injunction application.
8. In this regard, reliance has been placed on the judgments of the Apex Court in the case of Aloka Bose Vs. Parmatma Devi and Ors reported in (2009) 2 SCC 582, The Municipal Corporation of Delhi Vs. Shri Suresh Chandra Jaipuria and Anr reported in (1976) 4 SCC 719 as well as the judgment of Andhra Pradesh High Court in the case of Gone Rajamma Vs. Chennamaneni Mohan Rao reported in 2010 (3) ALD 175.
9. The argument on the basis of Aloka Bose (supra) is that the learned Trial Court has patently erred in rejecting the temporary injunction application on the ground that the suit itself is based on an unregistered agreement while the Apex Court in the said case has held that an agreement can also be oral.
10. Placing reliance on the judgment of the Andhra Pradesh High Court in the case of Gone Rajamma (supra), the argument is that even a trespasser has got rights and he can only be dispossessed in accordance with law.
11. Placing reliance on the judgment of the Apex Court in the case of Suresh Chandra Jaipuria (supra) the argument is that the suit filed by the appellant was maintainable and the injunction application should have been allowed more particularly when it is a discretionary equitable relief based on the breach of trust committed by the respondent no. 1 where, despite having received the amount as sale consideration in pursuance to the unregistered agreement of sale, the respondents are trying to encroach upon the land of the appellant.
12. On the basis of the said argument and the judgments as referred to above it is argued that the learned Trial Court has patently erred in law in rejecting the application for temporary injunction and as such, the order merits to be set aside.
13. Responding to the arguments of learned counsel for the appellant, Sri Sudeep Seth, learned Senior Advocate argues that it is settled proposition of law, more recently reiterated by the Apex Court in the case of Balram Singh Vs. Kelo Devi reported in MANU/SC/1241/2022 that if a suit for permanent injunction is based on an unregistered agreement for sale and that an unregistered document could be used or considered for collateral purpose but at the same time, the plaintiff cannot get the relief indirectly which otherwise he could not get in a suit for substantive relief namely in a relief for specific performance.
14. Placing reliance on the aforesaid judgment, the argument of learned Senior Advocate is that the learned Trial Court while passing the order impugned has correctly observed that the suit filed by the appellant seeking relief of permanent injunction would not be maintainable in the absence of any relief for specific performance inasmuch as what could not be got by the appellant directly could not be got by him indirectly.
15. The other argument of learned Senior Advocate is that the respondents herein have clearly denied the execution of the unregistered agreement for sale as stated by them in paragraph 3 of the written statement, a copy of which is annexure 7 to the appeal. It is also argued that the unregistered agreement for sale, though appears to have been executed by Sri Jagjeewan, but for both the Khasras, the name recorded in the land records was that of his father, the mutation of which has only been done on 14.11.2019 and as such, the said unregistered agreement of sale has no value in the eyes of law more particularly when Late Jagjeewan was not even the recorded tenure holder of the aforesaid plots.
16. Placing reliance on Section 54 of the Transfer of Property Act, 1947 (hereinafter referred to as Act, 1882") and Section 17 of the Registration Act, 1908 it is contended that by U.P Act No. 57 of 1976 which is effective from 01.01.1977, all documents including an agreement to sale which relates to an immovable property is liable to be registered. Placing reliance on the amendments made in Section 49 of the Act, 1908 by the same amendment Act, 57 of 1976 it is argued that an unregistered agreement to sell could not be enforced in a suit for a specific performance of contract. It is thus contended that even if the suit for specific performance was filed by the appellant on the basis of unregistered agreement for sale consequently, the suit itself would not be maintainable and thus the learned Trial Court has not committed any error in rejecting the application for temporary injunction filed by the appellant in the suit for permanent injunction.
17. Heard the learned counsels appearing for the contesting parties and perused the records.
18. From the argument as raised by the learned counsel appearing for the contesting parties and perusal of records it emerges that an unregistered agreement for sale is said to have been executed by the husband of the respondent no. 1 and father of the respondents no. 2 to 4 on 01.07.2018 with the appellant. Incidentally, the unregistered agreement for sale having been executed is disputed by the respondents herein. The agreement for sale provided that the possession of the plots contained therein were being delivered to the appellant. The appellant claims to have made various payments to the husband to Sri Jagjeewan the person who executed the unregistered agreement for sale and after his death, to his wife namely the respondent no. 1 as per details already indicated above. When the appellant noticed that the respondents and their agents/persons at their behest were trying to disturb the peaceful possession of the appellant he was constrained to file a suit for permanent injunction in the year 2021 before the competent Court of law. Initially, the learned Trial Court granted an order of status quo on 10.12.2021 on the temporary injunction application filed by the appellant. The application under Order 7 Rule 11 of the CPC as well as an application under Order 39 Rule 4 of the CPC filed by the respondents was rejected by the learned Trial Court vide orders dated 02.04.2022 and 03.09.2022 respectively. Subsequent thereto, the learned Trial Court vide order dated 22.12.2022 has rejected the temporary injunction application on the grounds as indicated above.
19. The thrust of the argument of the learned counsel for the appellant is that subsequent to the execution of the unregistered agreement for sale by Sri Jagjeewan, a substantial amount has been paid both in cash and though cheques to Sri Jagjeewan and thereafter to the respondent no. 1 which they received. Thus, even if a suit on the basis of an unregistered agreement for sale was not maintainable and even where no relief for specific performance was prayed for keeping in view the law laid down by the Apex Court in the case of Suresh Chandra Jaipuria (supra) and there being breach of trust on the part of the respondents in having received the money and thereafter resiled from the agreement, as such, the suit was maintainable. It has also been argued that keeping in view the law laid down by the Apex Court in the case of Aloka Bose (supra) even an oral agreement would suffice for the filing of the suit and that even if the appellant is said to be trespasser he cannot be forcibly evicted from the plots in dispute.
20. Whether a suit solely seeking relief of permanent injunction could be filed on the basis of unregistered agreement for sale without seeking any relief for specific performance would be an issue which would have to be considered first by this Court ?
21. This issue is no longer res integra keeping in view the recent judgment of the Apex Court in the case Balram Singh (supra) wherein the Apex Court has held as under:-
"3. Learned counsel appearing on behalf of the appellant - original defendant has vehemently submitted that the original plaintiff filed a suit for permanent injunction solely on the basis of the agreement to sell dated 23.03.1996, which, as such, was unregistered.
3.1 It is submitted that such an unregistered agreement to sell is not admissible in evidence. It is submitted that therefore both, the learned first appellate Court as well as the High Court have committed a grave error in passing a decree for permanent injunction and dismissing the counter-claim.
3.2 It is further submitted that both, the learned first appellate Court as well as the High Court have not properly appreciated the fact that the suit filed by the original plaintiff was only for permanent injunction and she by adopting a clever drafting did not seek the relief for specific performance of agreement to sell as she was well aware that she would not succeed in the suit for specific performance on the basis of an unregistered agreement to sell. It is submitted that when the original plaintiff cannot get the substantive relief of specific performance of the unregistered agreement to sell dated 23.03.1996, she would not be entitled to a decree for permanent injunction on the basis of such an unregistered document.
3.3 Making the above submissions, it is prayed to allow the present appeal.
4. The present appeal is vehemently opposed by the learned counsel appearing on behalf of the respondent - original plaintiff. 4.1 It is vehemently submitted that as per the settled position of law, an unregistered document can be used for collateral purpose and therefore both, the first appellate Court as well as the High Court have rightly passed a decree for permanent injunction restraining the defendant from interfering with her possession, considering the agreement to sell dated 23.03.1996 for collateral purpose of grant of permanent injunction.
4.2 Making the above submissions, it is prayed to dismiss the present appeal.
5. We have heard the learned counsel for the respective parties at length.
At the outset, it is required to be noted that the original plaintiff instituted a suit praying for a decree of permanent injunction only, which was claimed on the basis of the agreement to sell dated 23.03.1996. However, it is required to be noted that the agreement to sell dated 23.03.1996 was an unregistered document/agreement to sell on ten rupees stamp paper. Therefore, as such, such an unregistered document/agreement to sell shall not be admissible in evidence.
6. Having conscious of the fact that the plaintiff might not succeed in getting the relief of specific performance of such agreement to sell as the same was unregistered, the plaintiff filed a suit simplicitor for permanent injunction only. It may be true that in a given case, an unregistered document can be used and/or considered for collateral purpose. However, at the same time, the plaintiff cannot get the relief indirectly which otherwise he/she cannot get in a suit for substantive relief, namely, in the present case the relief for specific performance.
Therefore, the plaintiff cannot get the relief even for permanent injunction on the basis of such an unregistered document/agreement to sell, more particularly when the defendant specifically filed the counter-claim for getting back the possession which was allowed by the learned trial Court. The plaintiff cleverly prayed for a relief of permanent injunction only and did not seek for the substantive relief of specific performance of the agreement to sell as the agreement to sell was an unregistered document and therefore on such unregistered document/agreement to sell, no decree for specific performance could have been passed. The plaintiff cannot get the relief by clever drafting.
7. In view of the above and for the reasons stated above, both, the learned first appellate Court and the High Court have committed a grave error in passing a decree for permanent injunction in favour of the plaintiff as against the defendant and dismissing the counter-claim filed by the original defendant. The impugned judgment and order passed by the High Court, confirming the judgment and decree passed by the first appellate Court and the judgment and decree passed by the first appellate Court decreeing the suit for permanent injunction and dismissing the counter-claim of the defendant are unsustainable and the same deserve to be quashed and set aside and the judgment and decree passed by the learned trial Court dismissing the suit filed by the plaintiff for permanent injunction and allowing the counter-claim of the defendant deserves to be restored.
8. Accordingly, the present appeal is allowed. The impugned judgment and order dated 10.12.2019 passed by the High Court dismissing Second Appeal No. 330/2001, confirming the judgment and decree passed by the first appellate Court and the judgment and decree dated 29.01.2001 passed by the first appellate Court decreeing the suit for permanent injunction in favour of the original plaintiff and dismissing the counter-claim of the defendant are hereby quashed and set aside. Consequently, the suit instituted by the original plaintiff for permanent injunction on the basis of an unregistered agreement to sell is hereby dismissed and the counter-claim filed by the original defendant is hereby allowed. The judgment and decree passed by the learned trial Court dismissing the suit and allowing the counter-claim is hereby restored. There shall be no order as to costs. "
22. Accordingly, considering the aforesaid enunciation of law by the Apex Court it is apparent that the suit filed by the appellant seeking only a relief for permanent injunction and that too based on an unregistered agreement for sale (execution of which is disputed by the respondents herein) was itself not maintainable and as such, there was no question of the learned Trial Court to have granted any temporary injunction and consequently, there is no illegality in the learned Trial Court having rejected the application for temporary injunction vide order impugned dated 22.12.2022.
23. Keeping in view the aforesaid discussion as well as the recent judgment of the Apex Court in the case of Balram Singh (supra) this Court does not deem it necessary to enter into the other arguments as have been raised by the learned counsel for the appellant.
24. The appeal is dismissed.
25. However, dismissal of the appeal would not preclude the learned Trial Court from deciding the application for amendment filed by the appellant on its own merits in accordance with law after hearing all the parties concerned provided there is no legal impediment.
Order Date :- 15.2.2023 Pachhere/-