Delhi District Court
Sudhir Kalra vs Mohd. Danish on 31 July, 2025
INDEX
Sl. Heading Page No.
No.
1. Memo of parties 2
2. Brief Facts - Plaintiff's case 3-5
3. Defendant's case 6-8
Written statement of defendant no. 2
4. Replication to the written statement 8
5. Issues 8-9
6. Plaintiff's Evidence 9-10
7. Defendant Evidence 10-11
8. Arguments by Ld. Counsel for parties 11-12
9. Issues 12-15
Issue no. 1
Judgments and Section relied upon :
(i) Section 3 (1) of the Limitation Act
(ii) V.M. Salgaocar and Bros. Vs Board of Trustees of
Port of Mormugao and Another, (2005) 4 SCC 613
10. Issue no. 2 15-17
Judgments and Section relied upon :
(i) R.Hemalatha VS Kashthuri, SLP No.-014884/2022
(ii) Muruganandam Vs Muniyandi (Died) through LRs
SCC Online 1067
11. Issue no. 3 17-21
Judgments and Section relied upon :
(i) Aliji Momonji & Co. Vs Lalji Mavji & Ors. (1996)
5 SCC 379
12. Issue no. 4 21-22
13. Issue no. 6 and 7 22-44
Judgments and Section relied upon :
(i) Katta Sujatha Reddy Vs Siddamsetty Infra Projects
(P) Ltd. & Ors., (2023) 1SCC 355
(ii) Section 10,14, 16, 20 of Specific Relief Act
(iii) Kamal Kumar Vs Prem Lata AIR 2019 Supreme
Court 459
(iv) Vinod Infra Developers Ltd. Vs Mahaveer Lunia
& Ors., 2025 INSC 772
(v) Babasaheb Dhondiba Kute Vs Radhu Vithoba
Barde, 2024 INSC 122
14. Issue no. 5 44-47
Judgments and Section relied upon :
(i) Section 50 of the Registration Act
15. Relief 47-48
CS DJ No. 611249/16 CNR No. : DLCT01-000679-2014 Sudhir Kalra VS Mohd. Danish & Anr. Page No. 1 of 48
SANDEEP Digitally
by SANDEEP
signed
KUMAR KUMAR SHARMA
Date: 2025.07.31
SHARMA 17:05:14 +0530
IN THE COURT OF DISTRICT JUDGE- 02,
CENTRAL DISTRICT: TIS HAZARI COURTS, NEW DELHI
Presided by - Sh. Sandeep Kumar Sharma, DHJS
In the matter of-
CS DJ No. 611249/16
CNR No. : DLCT01-000679-2014
Sudhir Kalra
S/o Sh. Ram Prakash Kalra
R/o D-6/16, Second Floor,
Rana Pratap Bagh,
Delhi - 110007
............... Plaintiff
VERSUS
1. Mohd. Danish
S/o Sh. Abdul Matin,
R/o 9963, Khalil Wali,
Nawab Ganj, Azad Market,
Delhi - 110006
2. Sh. Rajan Bhasin
S/o Sh. Radhey Shyam Bhasin,
R/o 176, First Floor, Gali No. 1,
Padam Nagar, Near Sarai Rohilla,
Delhi
............... Defendants
Date of Institution of suit : 16.04.2014
Date of Reservation of judgment : 03.07.2025
Date of Pronouncement of judgment : 31.07.2025
CS DJ No. 611249/16 CNR No. : DLCT01-000679-2014 Sudhir Kalra VS Mohd. Danish & Anr. Page No. 2 of 48
SANDEEP Digitally
by SANDEEP
signed
KUMAR KUMAR SHARMA
Date: 2025.07.31
SHARMA 17:05:23 +0530
SUIT FOR SPECIFIC PERFORMANCE AND PERMANENT
INJUNCTION
JUDGMENT
1. This court is rendering the present judgment to adjudicate the suit filed by Sh. Sudhir Kalra (hereinafter to be referred to as the 'plaintiff') on 16.04.2014 against the defendant Mohd. Danish ('hereinafter to be referred to as 'defendant') for specific performance and permanent injunction.
Case of the plaintiff (In brief)
2. The plaintiff has filed this suit in order to obtain a decree of specific performance of the agreement to sell dated 19.04.2008 and agreement dated 15.04.2011 entered into between the parties and calling upon the defendant to receive the balance consideration from the plaintiff and to execute and register the Sale Deed in respect of the property bearing entire roof above the second floor with further roof rights of property bearing no. D-6/16, Rana Pratap Bagh, Delhi-110007 admeasuring 138 sq. yds. (henceforth referred to as 'the suit property') or in alternative directing the defendant to pay double the amount of earnest/advance sum of ₹.6 lacs alongwith interest @ 18% p.a. in terms of agreement to sell dated 19.04.2008 and to pass a decree for permanent injunction in favour of the plaintiff and against the defendant.
CS DJ No. 611249/16 CNR No. : DLCT01-000679-2014 Sudhir Kalra VS Mohd. Danish & Anr. Page No. 3 of 48 SANDEEP Digitally by SANDEEP signed KUMAR KUMAR SHARMA Date: 2025.07.31 SHARMA 17:05:30 +0530
3. It is averred by the plaintiff that the defendant represented and assured the plaintiff that the defendant is the absolute owner-occupier of the entire roof above the second floor with further roof rights of the suit property, along with the freehold ownership rights of the land beneath the same, along with common rights of entrance, passage, and stairs in the property as shown in the site plan. The defendant offered to sell the roof above the second floor with further rights in the suit property.
4. Upon representation and assurance, the plaintiff entered into an agreement to sell dated 19.04.2008 for a total sale consideration amount of ₹.16,84,000/-. Further, in pursuance of the agreement to sell dated 19.04.2008, the plaintiff paid a sum of ₹.6,00,000/- to the defendant, and the defendant undertook to register a Sale Deed in faovur of the plaintiff on or before 19.05.2008.
5. Further, the physical vacant possession of the suit property was given to the plaintiff by the defendant. The plaintiff, along with the balance sale consideration, approached the defendant on 13.05.2008; however, the defendant showed his inability to register the sale deed/sale documents on or before the 19.05.2008 in favour of the plaintiff, and at the request of the defendant, the date of registration of the sale deed was extended up to 30.07.2008.
CS DJ No. 611249/16 CNR No. : DLCT01-000679-2014 Sudhir Kalra VS Mohd. Danish & Anr. Page No. 4 of 48 Digitally signed SANDEEP by SANDEEP KUMAR KUMAR SHARMA SHARMA Date: 2025.07.31 17:05:41 +0530
6. It has also been averred that the plaintiff, along with the balance sale consideration, approached the defendant for registration of the sale deed/sale documents on various dates; however, the same was extended to 30.03.2011. Instead of executing a sale deed in pursuance of the agreement to sell, the defendant again executed a fresh agreement to sell on 15.04.2011, and the defendant undertook and promised the plaintiff to complete the sale transaction on or before 18.04.2012 in respect of the suit property in favour of the plaintiff. The defendant also allowed a concession of ₹.50,000/- in sale price on account of the inordinate delay on the part of the defendant to execute the sale deed in favour of the plaintiff, thereby leaving a balance sale consideration of ₹.10,34,000/- to be paid by the plaintiff to the defendant on execution of the sale deed.
7. When the defendant had failed to execute the necessary sale document in favour of the plaintiff on 18.04.2012, then at the request of the defendant, the time for execution of the sale documents was extended to 30.12.2012, 30.06.2013, and 31.12.2013. The defendant, however, has failed to execute the sale documents in favour of the plaintiff. Keeping in view the inaction of the defendant, the plaintiff had issued a legal notice on 24.03.2014 to the defendant calling upon him to execute the sale deed as per agreements dated 19.04.2008 and 15.04.2011, and since no response was received from the defendant, the plaintiff has filed the present suit.
CS DJ No. 611249/16 CNR No. : DLCT01-000679-2014 Sudhir Kalra VS Mohd. Danish & Anr. Page No. 5 of 48 Digitally signed SANDEEP by SANDEEP KUMAR KUMAR SHARMA SHARMA Date: 2025.07.31 17:05:48 +0530 Proceedings of the case
8. It is pertinent to mention over here that despite being duly served, the defendant no. 1 did not file the written statement, and therefore the Ld. Predecessor of this Court vide order dated 18.05.2015 struck off his defence. Though, further, an application under Order I Rule 10 CPC was filed by Sh. Rajan Bhasin on 04.07.2014 for his impleadment in the present suit, which was allowed vide order dated 21.05.2015, and the defendant was directed to file the written statement.
Facts pleaded in written statement of defendant no. 2 (In brief)
9. In the written statement, the defendant no. 2 refuted all the allegations and claims of the plaintiff and contended that the suit property belonged to Sh. Ajit Kumar S/o Late Sh. Dule Chand R/o C-1/11, Rana Pratap Bagh, Delhi-7, prop of M/s Ajit Kumar Dheeraj Kumar at 4052/8, Naya Bazaar, Delhi-6, who had purchased the same from one Sh. Raj Baboo Nischal through a registered sale deed dated 21.06.2006, registered with the Sub-Registrar, Sub Distt. no. 6(A), with the sale deed bearing registration no. 8914 in addl. Book No. 1, Vol. 448 on Pg. No. 37-44. Defendant no. 2 purchased the suit property from Sh. Ajit Kumar through a registered sale deed dated 24.04.2014, and Sh. Ajit Kumar delivered vacant, peaceful, and physical possession of the suit property to defendant no.
2. CS DJ No. 611249/16 CNR No. : DLCT01-000679-2014 Sudhir Kalra VS Mohd. Danish & Anr. Page No. 6 of 48 Digitally signed SANDEEP by SANDEEP KUMAR KUMAR SHARMA SHARMA Date: 2025.07.31 17:05:54 +0530
10. The defendant no. 2 further contended that when the defendant no. 2 went to the suit property on 12.05.2014, he found that on the entry gate to the roof of the 2nd floor there was some other lock. The plaintiff quarrelled with the defendant no. 2, and a complaint was filed by him in the PS Bharat Nagar vide diary no. 17 PP dated 12.05.2014. It is contended that the defendant no. 2 filed a suit bearing no. 158 of 2014 for permanent and mandatory injunction, which was subsequently amended as a suit for possession, permanent and mandatory injunction seeking relief of possession of the suit property, and other reliefs.
11. It is also contended that Sh. Ajit Kumar entered into an agreement to sell dated 11.05.2007 with defendant no. 1, whereby defendant no. 1 was to build the ground, first, and second floors, and after completion of the building, the defendant no. 1 was to hand over the ground floor (except the shops on the ground floor). Defendant no. 1 was also to give ₹. 80,00,000/- to Sh. Ajit Kumar minus ₹. 25,00,000/-, which had been valued as the cost of the ground floor.
12. It has further been contended that when the disputes and differences arose between Sh. Ajit Kumar and defendant no. 1, defendant no. 1 filed suit for permanent and mandatory injunction wherein, in the amended plaint, defendant no. 1 prayed for permanent injunction against Sh. Ajit Kumar from selling, transferring, and creating third-party interest in the CS DJ No. 611249/16 CNR No. : DLCT01-000679-2014 Sudhir Kalra VS Mohd. Danish & Anr. Page No. 7 of 48 SANDEEP Digitally by SANDEEP signed KUMAR KUMAR SHARMA Date: 2025.07.31 SHARMA 17:06:01 +0530 suit premises, i.e., six shops on the ground floor and the roof of the second floor of the suit property.
13. It has further been asserted by the defendant no. 2 that Sh. Ajit Kumar filed a written statement in the said suit and had taken objection that out of ₹.80,00,000/-, a sum of ₹.24,50,000/- was still to be received by him. Further, vide order dated 22.07.2013, the suit of the defendant no. 1 was dismissed for non-prosecution. When no appeal was preferred by the defendant no. 1/Mohd Danish, it was only thereafter that Sh. Ajit Kumar executed a sale deed dated 24.04.2014 in favour of defendant no. 2, therefore, defendant no. 1 has no rights to offer the sale of the suit property to the plaintiff. Hence, it is prayed that the suit of the plaintiff may be dismissed.
Replication
14. The plaintiff has not filed replication to the written statement filed by the defendant no. 2 Issues
15. After completion of pleadings, the Ld. Predecessor of this Court vide order dated 01.08.2015, framed the following issues for adjudication in the present suit:
1. Whether the suit is barred by limitation?
OPD CS DJ No. 611249/16 CNR No. : DLCT01-000679-2014 Sudhir Kalra VS Mohd. Danish & Anr. Page No. 8 of 48 SANDEEP Digitally by SANDEEP signed KUMAR KUMAR SHARMA SHARMA Date: 2025.07.31 17:06:09 +0530
2. Whether the suit is liable to be dismissed because it is based upon unregistered & improperly stamped documents? OPD
3. Whether the suit is bad for non-joinder of necessary parties and is accordingly liable to be dismissed under Order I Rule 9 CPC?
OPD
4. Whether the suit of the plaintiff has not been properly valued for the purpose of court fee & jurisdiction and on that account the same is liable to be dismissed ? OPP
5. Which party is having the ownership rights of roof of second floor of the premises? OP Parties.
6. Whether the plaintiff is entitled for decree of specific performance of the contract dated 19.04.2008 with defendant no. 1 or the alternative relief as claimed in the plaint? OPP
7. Whether the plaintiff is entitled to a decree of permanent injunction, as prayed in the plaint? OPP
8. Relief.
9. Costs.
Plaintiff's Evidence
16. In PE, plaintiff has examined himself as PW1, who entered into witness box and tendered his evidence affidavit as Ex. P-1 and relied upon the following documents-
CS DJ No. 611249/16 CNR No. : DLCT01-000679-2014 Sudhir Kalra VS Mohd. Danish & Anr. Page No. 9 of 48 Digitally signed SANDEEP by SANDEEP KUMAR KUMAR SHARMA SHARMA Date:
2025.07.31 17:06:15 +0530 S.No Exhibit/ Mark No. Description of Documents
1. Ex. PW-1/1 Site Plan
2. Ex. PW-1/2 (Colly) Photocopy of agreement to sell (OSR) dated 19.04.2008
3. Ex. PW-1/3 (OSR) Photocopy of receipt
4. Ex. PW-1/4 (Colly) Photocopy of agreement dated (OSR) 15.04.2011
5. Ex. PW-1/5 Legal notice dated 24.03.2014
6. Ex. PW-1/6 Postal receipt
7. Ex. PW-1/7 Envelope
17. PW1 was cross-examined by the Ld. Counsel for the defendant on the aspects of the execution of the alleged agreement dated 12/14/2008, where PW1 has deposed in sync with the contents of the pleadings and asserted that the present suit was filed on the basis of the agreement dated 12/14/2008 and not on the basis of oral agreement, and no oral agreement was made between him and defendant no. 1.
18. Thereafter, Sh. Kamal Bajaj was examined as PW2, who tendered his evidence affidavit as Ex. P-2 and submitted that the documents Ex. PW1/2 and Ex. PW1/3 were executed in his presence. Thereafter, PE was closed on 07.08.2018.
Defendant's Evidence
19. It is pertinent to mention over here that the defendant no.
CS DJ No. 611249/16 CNR No. : DLCT01-000679-2014 Sudhir Kalra VS Mohd. Danish & Anr. Page No. 10 of 48 SANDEEP Digitally by SANDEEP signed KUMAR KUMAR SHARMA Date: 2025.07.31 SHARMA 17:06:21 +0530 2 did not lead separate evidence in the present matter. He opted the evidence as led in the suit no. 611350/2016 titled as "Rajan Bhasin VS Sudhir Kalra". The documents as mentioned and tendered in the affidavit of the Defendant no. 2 are mentioned as under :
S.No Exhibit/ Mark No. Description of Documents
1. Ex. PW1/A (OSR) Certified copy of the sale deed dated 24.04.2014 registered on 26.04.2014
2. Ex. PW1/B Site plan
3. Ex. PW1/C (OSR) Certified copy of the sale deed dated 21.06.2006
4. Ex. PW1/D Copy of the complaint dated 12.05.2014.
Final arguments addressed by the Ld. Counsel for the parties
20. This Court has heard the final arguments of the Ld. Counsel for the parties at length and perused the record carefully. The Ld. Counsel for the plaintiff has argued that by the virtue of the agreement to sell, he had purchased the property in question from the defendant no. 1; therefore, the defendant no. 2 has no right in the suit property; hence, the relief of specific performance ought to be granted to the plaintiff, or in the alternative, the amount of ₹.6 Lacs, which was paid as an earnest money to the defendant no. 1, should be returned to the plaintiff with interest.
CS DJ No. 611249/16 CNR No. : DLCT01-000679-2014 Sudhir Kalra VS Mohd. Danish & Anr. Page No. 11 of 48 Digitally signed SANDEEP by SANDEEP KUMAR KUMAR SHARMA SHARMA Date: 2025.07.31 17:06:28 +0530
21. Per-contra Ld. Counsel for the defendant no. 2 has argued that the defendant no. 1 had no right in the suit property, as the owner of the same is Sh. Ajit Kumar; therefore, he could not sell it further to the plaintiff; therefore, the suit should be dismissed as being without cause of action. It has also been argued that the suit of the plaintiff is barred by the law of limitation; therefore, it may simply be dismissed on this ground only, without examining the merits of the case.
Analysis and Conclusion Issue no.1
1. Whether the suit is barred by limitation? OPD
22. The onus to prove this issue was upon the defendants. It is argued by the Ld. Counsel for the defendants that since it is evident from the averments of the plaint, the claim of the plaintiff is barred by the law of limitation, as the suit was filed on 16.04.2014 for which the cause of action was started on 19.04.2008 when the first alleged agreement to sell was executed between the plaintiff Ex.PW1/2 (colly) (OSR) and the defendant no.1, and a fresh agreement to sell was also executed on 15.04.2011 Ex.PW1/4 (colly) (OSR).
23. At the time of the tendering of the evidence, Ld. Counsel for the defendant no. 1 raised an objection to the mode of proof of Ex. PW1/2 and Ex. PW1/4. The objection is liable to be dismissed as both the documents were produced in court in CS DJ No. 611249/16 CNR No. : DLCT01-000679-2014 Sudhir Kalra VS Mohd. Danish & Anr. Page No. 12 of 48 SANDEEP Digitally SANDEEP signed by KUMAR KUMAR SHARMA Date: 2025.07.31 SHARMA 17:06:35 +0530 original at the time of the tendering of them in evidence, and PW1, being one of the parties to the same, deposed regarding the execution of the same. Therefore, objection as to mode o proof doesn't have any substance.
24. Further, though, the onus to prove the issue was on the defendant, and no evidence has been led by the defendant, but this Court cannot overlook Section 3(1) of the Limitation Act, which mandates that the court is bound to examine the issue of limitation even though the same has not been taken by the defendant. The Section 3 (1) of the Limitation Act is reproduced here as under, "3. Bar of limitation.--(1) Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence."
xxx.
25. It is lucidly manifest from the bare perusal of the abovementioned provision that it is imperative upon the court to verify as to whether the suit has been filed within the period of limitation, notwithstanding the fact as to whether the limitation has been set up as a defence or not, and if it is found that the suit has been filed beyond the period of limitation, then the only option available to the court is to dismiss the suit, solely on the ground that the suit is barred by limitation.
26. To support the abovementioned view, reliance may be placed on the judgment of the Hon'ble Supreme Court, titled CS DJ No. 611249/16 CNR No. : DLCT01-000679-2014 Sudhir Kalra VS Mohd. Danish & Anr. Page No. 13 of 48 SANDEEP Digitally by SANDEEP signed KUMAR KUMAR SHARMA SHARMA Date: 2025.07.31 17:06:41 +0530 as 'V.M. Salgaocar and Bros. vs Board of Trustees of Port of Mormugao and Another, (2005) 4 SCC 613' (para-20 and 21) , where in it has been held that, "20. The mandate of Section 3 of the Limitation Act is that it is the duty of the court to dismiss any suit instituted after the prescribed period of limitation irrespective of the fact that limitation has not been set up as a defence. If a suit is ex facie barred by the law of limitation, a court has no choice but to dismiss the same even if the defendant intentionally has not raised the plea of limitation.
21. This Court in Manindra Land & Building Corpn. Ltd. v. Bhutnath Banerjee [(1964) 3 SCR 495 : AIR 1964 SC 1336] held (AIR para 9):
"Section 3 of the Limitation Act enjoins a court to dismiss any suit instituted, appeal preferred and application made, after the period of limitation prescribed therefore by Schedule I irrespective of the fact whether the opponent had set up the plea of limitation or not. It is the duty of the court not to proceed with the application if it is made beyond the period of limitation prescribed. The Court had no choice and if in construing the necessary provision of the Limitation Act or in determining which provision of the Limitation Act applies, the subordinate court comes to an erroneous decision, it is open to the court in revision to interfere with that conclusion as that conclusion led the court to assume or not to assume the jurisdiction to proceed with the determination of that matter.
(Emphasis Supplied)
27. From the above-cited judgment it is evident that even if the plea of limitation is not set up as a defence, the Court has to dismiss the suit if it is barred by limitation. In the present case the defendant has failed to lead any cogent evidence to prove the issue; however, perusal of the record of the case lucidly manifest shows that the agreements to sell Ex. PW1/2 and Ex. PW1/4, respectively, were executed on 19.04.2008 CS DJ No. 611249/16 CNR No. : DLCT01-000679-2014 Sudhir Kalra VS Mohd. Danish & Anr. Page No. 14 of 48 SANDEEP Digitally by SANDEEP signed KUMAR KUMAR SHARMA Date: 2025.07.31 SHARMA 17:06:47 +0530 and 15.04.2011, and the suit was filed on 15.04.2014, which is sufficient to hold that the suit has been filed within the period of limitation and hence is not barred by the law of limitation.
28. The limitation period for seeking specific performance on the basis of the agreement to sell is three years, which means the plaintiff could have sought the specific performance on the basis of Ex. PW1/2 till 19.04.2008, though, prior to the expiry of the said period, a fresh agreement to sell was executed (Ex. PW1/4) between the parties on 15.04.2011, and the suit was filed on 15.4.2011, which is within three years of the limitation period; hence, the suit is within the limitation period, and accordingly, the issue is decided against the defendants and in favour of the plaintiff.
Issue no. 2
2. Whether the suit is liable to be dismissed because it is based upon unregistered & improperly stamped documents? OPD
29. The onus to prove this issue was also upon the defendant. Though no evidence has been led by the defendant for proving the issue, the issue is also liable to be adjudicated in favour of the plaintiff, as there is no requirement in law to register the agreement to sell in the case of specific performance. The plaintiff in the present case is not claiming its possession on the basis of the doctrine of part performance under Section 53A of the Transfer of Property Act, but the plaintiff is merely seeking the performance of the agreement to sell Ex. PW1/2 CS DJ No. 611249/16 CNR No. : DLCT01-000679-2014 Sudhir Kalra VS Mohd. Danish & Anr. Page No. 15 of 48 Digitally signed SANDEEP by SANDEEP KUMAR KUMAR SHARMA SHARMA Date: 2025.07.31 17:06:54 +0530 and Ex. PW1/4; therefore, the question of the registration of both the agreements to sell does not arise. The reliance may be placed on the judgment of the Hon'ble titled as 'R. Hemalatha vs Kashthuri, SLP(C) No.-014884 / 2022, (para-13)' wherein, it has been held that "Under the circumstances, as per proviso to Section 49 of the Registration Act, an unregistered document affecting immovable property and required by Registration Act or the Transfer of Property Act to be registered, may be received as evidence of a contract in a suit for specific performance under Chapter-II of the Specific Relief Act, 1877, or as evidence of any collateral transaction not required to be effected by registered instrument, however, subject to Section 17(1A) of the Registration Act. It is not the case on behalf of either of the parties that the document/ Agreement to Sell in question would fall under the category of document as per Section 17(1A) of the Registration Act. Therefore, in the facts and circumstances of the case, the High Court has rightly observed and held relying upon proviso to Section 49 of the Registration Act that the unregistered document in question namely unregistered Agreement to Sell in question shall be admissible in evidence in a suit for specific performance and the proviso is exception to the first part of Section 49."
30. Further, reliance may be placed on the judgment of the Hon'ble Supreme Court 'Muruganandam vs Muniyandi (Died) through LRs 2025 SCC OnLine SC 1067 (para-9 and
10)' where it has been held that, "9. Having considered the matter in detail, we are of the opinion that the prayer of the appellant in the interlocutory application falls under proviso to Section 49 of the Registration Act which provides that an unregistered document affecting immovable property may be received as evidence of a contract in a suit for specific performance. The proviso also enables the said document to be received in CS DJ No. 611249/16 CNR No. : DLCT01-000679-2014 Sudhir Kalra VS Mohd. Danish & Anr. Page No. 16 of 48 SANDEEP Digitally SANDEEP signed by KUMAR KUMAR SHARMA Date: 2025.07.31 SHARMA 17:07:02 +0530 evidence of a collateral transaction. Section 49 reads as follows:
"49. Effect of non-registration of documents required to be registered.- No document required by section 17 [or by any provision of the Transfer of Property Act, 1882, to be registered shall -
(a)affect any immovable property comprised therein, or
(b)confer any power to adopt, or
(c)be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:
Provided that an unregistered
document affecting immovable
property and required by this Act or the Transfer of Property Act, 1882 to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 or as evidence of any collateral transaction not required to be effected by registered instrument."
10. In Kaladevi (supra), this Court has held that an unregistered document may be received as evidence of a contract in a suit seeking specific performance. ..."
31. On the basis of the discussion above and the mandate of the judgment referred to above and the proviso to Section 49 of the Registration Act in view, this Court is of the considered opinion that there is no requirement for the plaintiff to register the agreement to sell prior to seeking the specific performance of Ex. PW1/2 and Ex. PW1/4; hence, this issue is decided in favour of the plaintiff and against the defendant.
Issue no. 3 Whether the suit is bad for non-joinder of CS DJ No. 611249/16 CNR No. : DLCT01-000679-2014 Sudhir Kalra VS Mohd. Danish & Anr. Page No. 17 of 48 Digitally signed SANDEEP by SANDEEP KUMAR KUMAR SHARMA SHARMA Date: 2025.07.31 17:07:09 +0530 necessary parties and is accordingly liable to be dismissed under Order I Rule 9 CPC?
OPD
32. The onus to prove this issue was upon the defendant. It is the stand of the defendant no. 2 that the suit is bad for the non- joinder of Sh. Ajit Kumar as a defendant in the suit, as he is admittedly the previous owner of the property, and in the absence of Sh. Ajit Kumar, the suit cannot effectively be decided. Per contra, the Ld. Counsel for the plaintiff has argued that his presence is not necessary, as the agreement to sell was executed between the plaintiff and defendant no. 1, and hence, in the suit for specific performance, his impleadment as a defendant is not necessary.
33. Insofar as the plea relating to the proposition of law that a suit can be dismissed for non-joinder of necessary parties is concerned, there cannot be any dispute with regard to the same since Order 1 Rule 9 CPC provides that a suit can be dismissed if the same is bad for non-joinder of necessary parties; however, before applying the said provision, it has to be scrutinised that the parties, which are claimed to be the necessary parties, are actually necessary or not for the adjudication of the disputes raised between the parties in the present case.
34. The Hon'ble Supreme Court in the case titled 'Aliji Momonji & Co. vs Lalji Mavji & Ors. (1996) 5 SCC 379' has laid down the test to ascertain whether a party is a necessary CS DJ No. 611249/16 CNR No. : DLCT01-000679-2014 Sudhir Kalra VS Mohd. Danish & Anr. Page No. 18 of 48 SANDEEP Digitally SANDEEP signed by KUMAR KUMAR SHARMA Date: 2025.07.31 SHARMA 17:07:17 +0530 party to a suit or not. The test of whether a party is a necessary party or not is twofold, i.e., (1) where the presence of a party is necessary for complete and effectual adjudication of the disputes, though no relief is sought, he is a proper party, and (2) if, in the absence of the said party, no effective and complete adjudication of the dispute could be made and no relief could be granted, then the said party is a necessary party.
35. Having discussed the scope, ambit, and principles that are to be kept in mind while dealing with the issue of Order I Rule 9 CPC, now the facts of this case need to be examined. It is an admitted position of fact that the suit property initially belonged to Sh. Ajit Kumar, and he had executed an agreement to sell with defendant no. 1, dated 11.05.2007, Mark X. In para 06 of the Mark X, it has been mentioned that the first party, i.e., Sh. Ajit Kumar, is in favour of defendant no. 1.
36. It is also an admitted position of facts that on the day of execution of Ex.PW1/2 and Ex.PW1/4, no registered sale deed was executed in favour of the defendant no.1 by the owner, Sh. Ajit Kumar, which means the date on which the alleged cause of action arose in favour of the plaintiff, Sh. Ajit Kumar, was the owner of the suit property, and the plaintiff is seeking the specific performance of the agreement to sell Ex.PW1/2 and Ex.PW1/4, which were executed on the basis CS DJ No. 611249/16 CNR No. : DLCT01-000679-2014 Sudhir Kalra VS Mohd. Danish & Anr. Page No. 19 of 48 Digitally signed SANDEEP by SANDEEP KUMAR KUMAR SHARMA SHARMA Date: 2025.07.31 17:07:25 +0530 of the agreement to sell Mark X, to which Sh. Ajit Kumar was the party and through whom the defendant no.1 was claiming his right in the suit property. Sh. Ajit Kumar is the necessary party in the suit for the reason that to adjudicate whether he actually gave any authority to defendant no. 1 to transfer the suit property on his behalf through the Mark X.
37. It is beyond comprehension how the real owner of the suit property is not a necessary party in the suit for specific performance because the ownership may only be transferred by the person who has the competency, and the title to the suit property may further be conferred on someone else. Therefore, it is lucid that in the absence of Sh. Ajit Kumar, no effective judgment may be passed; therefore, the presence of Sh. Ajit Kumar in the suit is inevitable, and the failure of the plaintiff to implead him as a defendant goes to the root of the case and is hence fatal for his case.
38. Furthermore, it is pertinent to mention that during the cross-examination dated 03.08.2017, the PW1 admitted that defendant no.1 had shown the agreement to sell dated 11.05.2007 Mark X to him at the time of execution of the agreement to sell dated 19.04.2008, Ex. PW1/2; therefore, it is evident that the plaintiff had the knowledge that defendant no.1 did not have the absolute title to the suit property and his right is contingent on fulfilling the condition of the entire CS DJ No. 611249/16 CNR No. : DLCT01-000679-2014 Sudhir Kalra VS Mohd. Danish & Anr. Page No. 20 of 48 Digitally signed SANDEEP by SANDEEP KUMAR KUMAR SHARMA SHARMA Date: 2025.07.31 17:07:32 +0530 payment prior to the execution of the sale deed by Sh. Ajit Kumar in favour of defendant no.1.
39. When it is admitted by the PW1 that no other documents were shown by the defendant no.1 at the time of the execution of Ex.PW1/2 except Mark X, then even a person with a simple understanding, on seeing such a condition, would definitely ask the defendant about the payment of the entire sale consideration and also about whether the original owner has executed a registered sale deed in favour of the defendant no.1 because without it, it is written in Mark X that defendant no.1 could not have done the sale deed in favour of the plaintiff. In view of the above, this Court is of the view that the suit of the plaintiff is bad for non-joinder of Sh. Ajit Kumar and therefore liable to be dismissed on this ground only; accordingly, the issue is decided in favour of the defendant and against the plaintiff.
Issue No. 4Whether the suit of the plaintiff has not been properly valued for the purpose of court fee & jurisdiction and on that account the same is liable to be dismissed ? OPD
40. The defendant has alleged the same in the written statement that the plaintiffs have not properly valued the suit for the purposes of court fees and jurisdiction; hence, they were obliged to prove the same. However, it is a settled law CS DJ No. 611249/16 CNR No. : DLCT01-000679-2014 Sudhir Kalra VS Mohd. Danish & Anr. Page No. 21 of 48 Digitally signed SANDEEP by SANDEEP KUMAR KUMAR SHARMA SHARMA Date:
2025.07.31 17:07:40 +0530 that the plaintiff is the master of his case, and he is free to value the suit property at his will; however, such a valuation should not be arbitrary and illegal or against the rules.
41. In the present case, instead of making bald averments in the written statement, nothing has been brought on record by the defendant that may counter the valuation as done by the plaintiff in the plaint. Even in para 30 of the reply on the merits of the written statement, defendant no. 2 merely stated that the suit has not been valued correctly for the purposes of the court fees and jurisdiction, nor were proper court fees annexed; however, the defendant has failed to prove what should be the correct valuation of the suit and how much court fees were to be paid by the plaintiff.
42. Since the defendant has failed to lead any cogent evidence regarding the contention that the suit is being undervalued. Accordingly, in the absence of evidence to the contrary, this court has no reason to doubt the valuation given by the plaintiffs as wrong or undervalued. Hence, the issue is decided in favour of the plaintiff and against the defendant.
Issue no. 6 and 7
6. Whether the plaintiff is entitled for decree of specific performance of the contract dated 19.04.2008 with defendant no. 1 or the alternative relief as claimed in the plaint? OPP
7. Whether the plaintiff is entitled to a CS DJ No. 611249/16 CNR No. : DLCT01-000679-2014 Sudhir Kalra VS Mohd. Danish & Anr. Page No. 22 of 48 Digitally signed SANDEEP by SANDEEP KUMAR KUMAR SHARMA SHARMA Date: 2025.07.31 17:07:47 +0530 decree of permanent injunction, as prayed in the plaint? OPP
43. The onus to prove these issues was upon the plaintiff. As both of the issues are interconnected and may be decided with the common findings, therefore, this Court is taking up both of the issues together for adjudication. Though this Court already held while deciding issue no. 3 that the suit of the plaintiff is bad for the non-joinder of the necessary party, i.e., the owner of the suit property, Sh. Ajit Kumar, the issue of specific performance is the central issue upon which the entire controversy is based; therefore, this Court deems it appropriate to adjudicate it on merits.
44. Before delving into the broader issue of whether the plaintiff has been able to prove the said issue, it is apposite to briefly deal with the necessary ingredients that are required to be pleaded and proved before the discretionary relief of the specific performance may be granted in favour of the plaintiff.
45. At the outset, it requires to be clarified and made clear that in the instant case the amendment brought about in the Specific Relief Act, 1963 (hereinafter to be referred to as 'SRA') in the year 2018, would be inapplicable. The amendments are prospective in nature and cannot be applied to those transactions that took place prior to the said amendments. It is necessary to note this fact inasmuch as, by way of amendment in the SRA, the relief of specific CS DJ No. 611249/16 CNR No. : DLCT01-000679-2014 Sudhir Kalra VS Mohd. Danish & Anr. Page No. 23 of 48 SANDEEP Digitally by SANDEEP signed KUMAR KUMAR SHARMA SHARMA Date: 2025.07.31 17:07:54 +0530 performance remains no more discretionary, and once the concluded contract and the other ingredients are found to be established, the courts are bound to grant the requisite relief.
46. To substantiate the above finding this court may draw support for this proposition from the decision of the Hon'ble Supreme Court in the case of 'Katta Sujatha Reddy vs Siddamsetty Infra Projects (P) Ltd. & Ors., (2023) 1 SCC 355 (para- 48 to 51), wherein the Hon'ble Supreme Court undertook a detailed examination of the nature and effect of the 2018 amendments to the SRA particularly in relation to the remedy of specific performance. The relevant paras of the said decision are reproduced herein for ready reference "48. In any case, the amendment carried out in 2018 was enacted to further bolster adherence to the sanctity of contracts. This approach was radical and created new rights and obligations which did not exist prior to such an amendment. Section 10, after amendment, reads as under,
10. Specific performance in respect of contracts.--The specific performance of a contract shall be enforced by the court subject to the provisions contained in subsection (2) of section 11, section 14 and section 16.
49. This provision, which remained in the realm of the Courts' discretion, was converted into a mandatory provision, prescribing a power the Courts had to exercise when the ingredients were fulfilled. This was a significant step in the growth of commercial law as the sanctity of contracts was reinforced with parties having to comply with contracts and thereby reducing efficient breaches.
50. Under the pre amended Specific Relief Act , one of the major considerations for grant of specific performance was the adequacy of damages under Section 14(1)(a) . However, this consideration has now been completely done away with, in order to CS DJ No. 611249/16 CNR No. : DLCT01-000679-2014 Sudhir Kalra VS Mohd. Danish & Anr. Page No. 24 of 48 Digitally signed SANDEEP by SANDEEP KUMAR KUMAR SHARMA SHARMA Date:
2025.07.31 17:08:01 +0530 provide better compensation to the aggrieved party in the form of specific performance.
51. Having come to the conclusion that the 2018 amendment was not a mere procedural enactment, rather it had substantive principles built into its working, this Court cannot hold that such amendments would apply retrospectively."
(Emphasis Supplied)
47. From the perusal of the highlighted portion, it is quite clear that the Hon'ble Supreme Court categorically held that the amendments brought about a substantial change in the character of the relief of specific performance. Prior to the amendment, this relief was discretionary in nature, meaning the courts could decide whether to grant it based on equitable considerations, such as the availability of damages and a few other conditions, as a sufficient remedy.
48. However, post-amendment, the position of law underwent a significant shift. Once the statutory prerequisites or essential ingredients for specific performance are met, the court is now obligated to grant the relief, thus converting what was previously a discretionary remedy into a mandatory one.
49. The judgment also addressed the temporal applicability, i.e., whether it can be applied to past actions or events, of the amendments. The Hon'ble Supreme Court made it clear that since the changes introduced by the 2018 amendment were substantive in nature, affecting the legal rights and obligations of the parties, they could not be applied retrospectively. As a result, these amendments apply only to contracts and CS DJ No. 611249/16 CNR No. : DLCT01-000679-2014 Sudhir Kalra VS Mohd. Danish & Anr. Page No. 25 of 48 Digitally signed SANDEEP by SANDEEP KUMAR KUMAR SHARMA SHARMA Date: 2025.07.31 17:08:08 +0530 transactions executed after the commencement of the amendment and not to those that were already in existence or to legal proceedings that were pending before the amendment came into force.
50. This decision serves as a binding clarification that the 2018 amendments to the SRA cannot affect past or pending cases and firmly establishes that specific performance has become a legal right, not merely an equitable remedy, in all future cases where the statutory conditions are fulfilled.
51. Thus, in the present matter, since the suit was already pending at the time when the 2018 amendments to the SRA came into force, the legal regime as it existed prior to the amendment shall govern the case. In other words, the Court is not bound by the mandatory framework introduced by the amended Act but is rather guided by the pre-amendment provisions of the SRA, which treated specific performance as a discretionary equitable remedy.
52. Accordingly, while adjudicating upon the claim for specific performance, this Court is well within its authority to exercise judicial discretion, as permitted under the unamended law. This includes a holistic assessment of whether granting such relief would be just and equitable in the facts and circumstances of the case and whether monetary compensation would serve as an adequate alternative remedy.
CS DJ No. 611249/16 CNR No. : DLCT01-000679-2014 Sudhir Kalra VS Mohd. Danish & Anr. Page No. 26 of 48 SANDEEP Digitally by SANDEEP signed KUMAR KUMAR SHARMA Date: 2025.07.31 SHARMA 17:08:14 +0530
53. Having taken note of the temporal applicability and the substantive changes introduced by the 2018 amendments to the SRA and their corresponding legal effect, this Court now proceeds to examine the essential requisites that the plaintiff is required to plead and establish in order to be entitled to the relief of specific performance under the legal framework that existed prior to the said amendments. In this context, it becomes imperative to analyse the conditions and legal standards that governed the grant of specific performance under the unamended provisions of the Specific SRA. At this stage, it will be apposite to reproduce the relevant sections applicable to the issue at hand. The same are as follows:
10.Cases in which specific performance of contract enforceable.--
Except as otherwise provided in this Chapter, the specific performance of any contract may, in the discretion of the court, be enforced--
(a)when there exists no standard for ascertaining actual damage caused by the non performance of the act agreed to be done; or(b)when the act agreed to be done is such that compensation in money for its non performance would not afford adequate relief. Explanation.--Unless and until the contrary is proved, the court shall presume--
(i)that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money; and(ii)that the breach of a contract to transfer movable property can be so relieved except in the following cases:
(a)where the property is not an ordinary article of commerce, or is of special value or interest to the plaintiff, or consists of goods which are not easily obtainable in the market;
CS DJ No. 611249/16 CNR No. : DLCT01-000679-2014 Sudhir Kalra VS Mohd. Danish & Anr. Page No. 27 of 48 Digitally signed SANDEEP by SANDEEP KUMAR KUMAR SHARMA SHARMA Date: 2025.07.31 17:08:20 +0530
(b)where the property is held by the defendant as the agent or trustee of the plaintiff.
14. Contracts not specifically enforceable.-- (1)The following contracts cannot be specifically enforced, namely:--
(a) a contract for the non-performance of which compensation in money is an adequate relief;
(b)a contract which runs into such minute or numerous details or which is so dependent on the personal qualifications or volition of the parties, or otherwise from its nature is such, that the court cannot enforce specific performance of its material terms;
(c)a contract which is in its nature determinable;
(d)a contract the performance of which involves the performance of a continuous duty which the court cannot supervise.
(2)Save as provided by the Arbitration Act, 1940 (10 of 1940), no contract to refer present or future differences to arbitration shall be specifically enforced; but if any person who has made such a contract (other than an arbitration agreement to which the provisions of the said Act apply) and has refused to perform it, sues in respect of any subject which he has contracted to refer, the existence of such contract shall bar the suit.
(3)Notwithstanding anything contained in clause (a) or clause (c) or clause (d) of sub section (1), the court may enforce specific performance in the following cases:--
(a)where the suit is for the enforcement of a contract,--(i)to execute a mortgage or furnish any other security for securing the repayment of any loan which the borrower is not willing to repay at once:Provided that where only a part of the loan has been advanced the lendor is willing to advance the remaining part of the loan in terms of CS DJ No. 611249/16 CNR No. : DLCT01-000679-2014 Sudhir Kalra VS Mohd. Danish & Anr. Page No. 28 of 48 Digitally signed SANDEEP by SANDEEP KUMAR KUMAR SHARMA SHARMA Date: 2025.07.31 17:08:28 +0530 the contract; or(ii)to take up and pay for any debentures of a company;
(b) where the suit is for,--(i)the execution of a formal deed of partnership, the parties having commenced to carry on the business of the partnership; or(ii)the purchase of a share of a partner in a firm;
(c) where the suit is for the enforcement of a contract for the construction of any building or the execution of any other work on land:
Provided that the following conditions are fulfilled, namely:--
(i)the building or other work is described in the contract in terms sufficiently precise to enable the court to determine the exact nature of the building or work;
(ii) the plaintiff has a substantial interest in the performance of the contract and the interest is of such a nature that compensation in money for non performance of the contract is not an adequate relief; and
(iii)the defendant has, in pursuance of the contract, obtained possession of the whole or any part of the land on which the building is to be constructed or other work is to be executed.
16. Personal bars to relief- Specific performance of a contract cannot be enforced in favour of a person-
(a) who would not be entitled to recover compensation for its breach; or
(b) who has become incapable of performing, or violates any essential term of, the contract that on his part remains to be performed, or acts in fraud of the contract, or wilfully acts at variance with, or in subversion of, CS DJ No. 611249/16 CNR No. : DLCT01-000679-2014 Sudhir Kalra VS Mohd. Danish & Anr. Page No. 29 of 48 SANDEEP Digitally by SANDEEP signed KUMAR KUMAR SHARMA Date: 2025.07.31 SHARMA 17:08:36 +0530 the relation intended to be established by the contract; or
(c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms of the performance of which has been prevented or waived by the defendant.
Explanation- For the purpose of clause (c), (i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court; (ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction."
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20.Discretion as to decreeing specific performance (1)The jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal.
(2)The following are cases in which the court may properly exercise discretion not to decree specific performance:--
(a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or (b)where the performance of the contract CS DJ No. 611249/16 CNR No. : DLCT01-000679-2014 Sudhir Kalra VS Mohd. Danish & Anr. Page No. 30 of 48 Digitally signed SANDEEP by SANDEEP KUMAR KUMAR SHARMA SHARMA Date: 2025.07.31 17:08:43 +0530 would involve some hardship on the defendant which he did not foresee, whereas its non-
performance would involve no such hardship on the plaintiff; or
(c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance.
Explanation1.-- Mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b).
Explanation 2.--The question whether the performance of a contract would involve hardship on the defendant within the meaning of clause (b) shall, except in cases where the hardship has resulted from any act of the plaintiff subsequent to the contract, be determined with reference to the circumstances existing at the time of the contract.
(3)The court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance.
(4)The court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the party.
CS DJ No. 611249/16 CNR No. : DLCT01-000679-2014 Sudhir Kalra VS Mohd. Danish & Anr. Page No. 31 of 48 Digitally signed SANDEEP by SANDEEP KUMAR KUMAR SHARMA SHARMA Date: 2025.07.31 17:08:49 +0530
54. This court may also refer to the recent decision of the Hon'ble Supreme court in 'Kamal Kumar vs Prem Lata AIR 2019 SUPREME COURT 459' wherein the Hon'ble Supreme Court, while having considered the above referred pre amendment statutory regime and in particular sections 16 (c), 20, 21, 22, 23 of the SRA and the forms 47/48 of Appendix A to C of the Code of Civil Procedure)., which are also applicable in present case, observed as under:
"10. It is a settled principle of law that the grant of relief of specific performance is a discretionary and equitable relief. The material questions, which are required to be gone into for grant of the relief of specific performance, are First, whether there exists a valid and concluded contract between the parties for sale/purchase of the suit property; Second, whether the plaintiff has been ready and willing to perform his part of contract and whether he is still ready and willing to perform his part as mentioned in the contract; Third, whether the plaintiff has, in fact, performed his part of the contract and, if so, how and to what extent and in what manner he has performed and whether such performance was in conformity with the terms of the contract;
Fourth, whether it will be equitable to grant the relief of specific performance to the plaintiff against the defendant in relation to suit property or it will cause any kind of hardship to the defendant and, if so, how and in what manner and the extent if such relief is eventually granted to the plaintiff; and Lastly, whether the plaintiff is entitled for grant of any other alternative relief, namely, refund of earnest money etc. and, if so, on what grounds. (Emphasis Supplied)
55. As such, the above-referred-to issues are to be pleaded and proved by the plaintiff with the aid of evidence in accordance CS DJ No. 611249/16 CNR No. : DLCT01-000679-2014 Sudhir Kalra VS Mohd. Danish & Anr. Page No. 32 of 48 Digitally signed SANDEEP by SANDEEP KUMAR KUMAR SHARMA SHARMA Date:
2025.07.31 17:08:57 +0530 with law. It is only then that the Court is entitled to exercise its discretion and accordingly grant or refuse the relief of specific performance depending upon the case made out by the parties on facts.
56. Having discussed the basics, principles, and applicable statutory provisions, now adverting to the present case, it is noted that it is the specific case of the plaintiff that defendant no. 1 had entered into an agreement to sell dated 19.04.2008 (Ex. PW1/2) with the plaintiff for selling the suit property for the total consideration of ₹.16,84,000/- and an amount of ₹.6,00,000/- was given to the defendant as an earnest money.
57. The entire premise of the plaintiff's case is that the defendant no. 1 had executed an agreement to sell Ex. PW1/2 and Ex. PW1/4, where he agreed to sell the suit property to the plaintiff. However, the claim of the plaintiff is straight away liable to be rejected for the reason that it is a settled principle of law that no one may pass a better title than he himself has. Sh. Ajit Singh did not sell the property to the defendant no. 1 by way of execution of Mark A, but it was simply an agreement to sell wherein clause 6 specifically mentioned that the sale deed will only be executed after the payment of the entire sale consideration, which was never paid, and in the absence of a registered sale deed, defendant no. 1 did not have a valid title to convey the suit property to the plaintiff, and hence, any right over the immovable CS DJ No. 611249/16 CNR No. : DLCT01-000679-2014 Sudhir Kalra VS Mohd. Danish & Anr. Page No. 33 of 48 SANDEEP Digitally by SANDEEP signed KUMAR KUMAR SHARMA Date: 2025.07.31 SHARMA 17:09:04 +0530 property on the basis of an agreement to sell is not sufficient and legally not tenable.
58. It is beyond anyone's ken to fathom how a person may become an owner of an immovable property merely by the execution of the agreement to sell because it ipso facto doesn't create any right in the property but only gives a right to execute a sale deed in his favour or to file a suit for seeking specific performance. To substantiate the above mentioned view it is apposite to mention the judgment of the Hon'ble Supreme Court titled as 'Vinod Infra Developers Ltd. vs Mahaveer Lunia & Ors, 2025 INSC 772 (para-9.2, 9.3 and 9.4)' wherein it has been held that in the absence of a suit for specific performance of a contract, an agreement to sell cannot be relied upon for claiming ownership or title over the property. The relevant para is reproduced here as under, 9.2....Moreover, Respondent No. 1 has not filed any suit for specific performance of the alleged agreement to sell, which further renders his claim untenable. In the absence of a suit for specific performance, the agreement to sell cannot be relied upon to claim ownership or to assert any transferable interest in the property. This legal position has been conclusively laid down by this Court in Suraj Lamp & Industries (P) Ltd. v. State of Haryana, wherein, it was held that unregistered agreements to sell, even if coupled with possession, do not convey title or create any interest in the immovable property. It was further clarified that such documents are insufficient to complete a sale unless duly registered and followed by appropriate conveyance. The relevant paragraphs of the said judgment are extracted below:
"16. Section 54 of TP Act makes it clear that a contract of sale, that is, an agreement of CS DJ No. 611249/16 CNR No. : DLCT01-000679-2014 Sudhir Kalra VS Mohd. Danish & Anr. Page No. 34 of 48 Digitally signed SANDEEP by SANDEEP KUMAR KUMAR SHARMA SHARMA Date: 2025.07.31 17:09:12 +0530 sale does not, of itself, create any interest in or charge on such property. This Court in Narandas Karsondas v. S.A. Kamtam and Anr. (1977) 3 SCC 247, observed: (SCC pp.254-55, paras 32-33 & 37) "32. A contract of sale does not of itself create any interest in, or charge on, the property. This is expressly declared in Section 54 of the Transfer of Property Act. See Rambaran Prasad v. Ram Mohit Hazra [1967]1 SCR 293. The fiduciary character of the personal obligation created by a contract for sale is recognised in Section 3 of the Specific Relief Act, 1963, and in Section 91 of the Trusts Act. The personal obligation created by a contract of sale is described in Section 40 of the Transfer of Property Act as an obligation arising out of contract and annexed to the ownership of property, but not amounting to an interest or easement therein.
33. In India, the word `transfer' is defined with reference to the word `convey'. The word `conveys' in Section 5 of Transfer of Property Act is used in the wider sense of conveying ownership...
37....that only on execution of conveyance, ownership passes from one party to another...."
17. In Rambhau Namdeo Gajre v. Narayan Bapuji Dhotra [2004 (8) SCC 614] this Court held:
"10. Protection provided under Section 53-A of the Act to the proposed transferee is a shield only against the transferor. It disentitles the transferor from disturbing the possession of the proposed transferee who is put in possession in pursuance to such an agreement. It has nothing to do with the ownership of the proposed transferor who remains full owner of the property till it is legally conveyed by executing a registered sale deed in favour of the transferee. Such a right to protect possession against the CS DJ No. 611249/16 CNR No. : DLCT01-000679-2014 Sudhir Kalra VS Mohd. Danish & Anr. Page No. 35 of 48 Digitally signed SANDEEP by SANDEEP KUMAR KUMAR SHARMA SHARMA Date: 2025.07.31 17:09:19 +0530 proposed vendor cannot be pressed in service against a third party."
18. It is thus clear that a transfer of immovable property by way of sale can only be by a deed of conveyance (sale deed). In the absence of a deed of conveyance (duly stamped and registered as required by law), no right, title or interest in an immovable property can be transferred.
19. Any contract of sale (agreement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of Sections 54 and 55 of the TP Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under Section 53-A of the TP Act). According to the TP Act, an agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 of the TP Act enacts that sale of immovable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subject- matter."
9.3. This Court reaffirmed the same position in Cosmos Co. Operative Bank Ltd v. Central Bank of India & Ors , where it was reiterated that title and ownership of immovable property can only be conveyed by a registered deed of sale. The following observations are significant:
"25. The observations made by this Court in Suraj Lamp (supra) in paras 16 and 19 are also relevant .....
26. Suraj Lamp (supra) later came to be referred to and relied upon by this Court in Shakeel Ahmed v. Syed Akhlaq Hussain, 2023 SCC OnLine SC 1526 wherein the Court after referring to its earlier judgment held that the person relying upon the customary documents cannot claim to be the owner of the immovable property and consequently not maintain any claims against a third-party. The relevant paras read as under:--
"10. Having considered the submissions at the outset, it is to be emphasized that irrespective of what was decided in the case of Suraj Lamps and Industries (supra) the fact remains that no CS DJ No. 611249/16 CNR No. : DLCT01-000679-2014 Sudhir Kalra VS Mohd. Danish & Anr. Page No. 36 of 48 SANDEEP Digitally by SANDEEP signed KUMAR KUMAR SHARMA Date: 2025.07.31 SHARMA 17:09:26 +0530 title could be transferred with respect to immovable properties on the basis of an unregistered Agreement to Sell or on the basis of an unregistered General Power of Attorney. The Registration Act, 1908 clearly provides that a document which requires compulsory registration under the Act, would not confer any right, much less a legally enforceable right to approach a Court of Law on its basis. Even if these documents i.e. the Agreement to Sell and the Power of Attorney were registered, still it could not be said that the respondent would have acquired title over the property in question. At best, on the basis of the registered agreement to sell, he could have claimed relief of specific performance in appropriate proceedings. In this regard, reference may be made to sections 17 and 49 of the Registration Act and section 54 of the Transfer of Property Act, 1882.
11. Law is well settled that no right, title or interest in immovable property can be conferred without a registered document. Even the judgment of this Court in the case of Suraj Lamps & Industries (supra) lays down the same proposition. Reference may also be made to the following judgments of this Court:
(i). Ameer Minhaj v. Deirdre Elizabeth (Wright) Issar (2018) 7 SCC 639 (ii). Balram Singh v. Kelo Devi Civil Appeal No. 6733 of 2022
(iii). Paul Rubber Industries Private Limited v.
Amit Chand Mitra, SLP(C) No. 15774 of 2022.
12. The embargo put on registration of documents would not override the statutory provision so as to confer title on the basis of unregistered documents with respect to immovable property. Once this is the settled position, the respondent could not have maintained the suit for possession and mesne profits against the appellant, who was admittedly in possession of the property in question whether as an owner or a licensee.
13. The argument advanced on behalf of the respondent that the judgment in Suraj Lamps & Industries (supra) would be prospective is also misplaced. The requirement of compulsory registration and effect on non-registration emanates from the statutes, in particular the CS DJ No. 611249/16 CNR No. : DLCT01-000679-2014 Sudhir Kalra VS Mohd. Danish & Anr. Page No. 37 of 48 SANDEEP Digitally SANDEEP signed by KUMAR KUMAR SHARMA Date: 2025.07.31 SHARMA 17:09:33 +0530 Registration Act and the Transfer of Property Act. The ratio in Suraj Lamps & Industries (supra) only approves the provisions in the two enactments. Earlier judgments of this Court have taken the same view."
9.4. Furthermore, in M.S. Ananthamurthy v. J. Manjula, this Court undertook a comprehensive analysis of the statutory provisions and precedents, and reaffirmed that an unregistered agreement to sell does not and cannot by itself create or transfer any right, title, or interest in immovable property. The following paragraphs are pertinent in this regard "47. It is a settled law that a transfer of immovable property by way of sale can only be by a deed of conveyance. An agreement to sell is not a conveyance. It is not a document of title or a deed of transfer of deed of transfer of property and does not confer ownership right or title. In Suraj Lamp (supra) this Court had reiterated that an agreement to sell does not meet the requirements of Sections 54 and 55 of the TPA to effectuate a 'transfer'.
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51. Section 17(1)(b) prescribes that any document which purports or intends to create, declare, assign, limit or extinguish any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards to or in immovable property is compulsorily registerable. Whereas, section 49 prescribes that the documents which are required to be registered under Section 17 will not affect any immovable property unless it has been registered.
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53. Even from the combined reading of the POA and the agreement to sell, the submission of the appellants fails as combined reading of the two documents would mean that by executing the POA along with agreement to sell, the holder had an interest in the immovable property. If interest had been transferred by way of a written document, it had to be compulsorily registered as per Section 17(1)(b) of the Registration Act. The law recognizes two modes of transfer by sale, first, through a registered instrument, and CS DJ No. 611249/16 CNR No. : DLCT01-000679-2014 Sudhir Kalra VS Mohd. Danish & Anr. Page No. 38 of 48 SANDEEP Digitally by SANDEEP signed KUMAR KUMAR SHARMA SHARMA Date: 2025.07.31 17:09:40 +0530 second, by delivery of property if its value is less than Rs. 100/-."
59. From the above-referred-to judgments and the discussion above, it is lucid that by an agreement to sell, no right or title in the property may be conveyed to another person; therefore, merely on the basis of Ex. PW1/2 or Ex. PW1/4, no right could have been transferred to the plaintiff by the defendant no. 1. Furthermore, Ex.PW1/2 contains that the defendant no.1 claimed himself as the owner of the property, which is not correct. Not only this, but on page 02 of the Ex.PW1/2, the defendant no.1 has assured that the title of the property is clear and there are no encumbrances on it whatsoever. The same is reproduced here as under, in verbatim "That the first party has assured the second party that the property which is the subject matter of this agreement is free from all sorts of encumbrances, such as sale, gift, mortgage, transfer, lien, charges, burden, decree, disputes, litigation, injunction, notice, legal flaws, legal complications etc., in the said property and there is no other legal defect in the ownership and title of the First party in respect of the said property and the first party is fully empowered and competent to sell, convey and transfer the same unto the second party...."
60. Moreover, perusal of the agreement to sell dated 11.05.2007, Mark X, though conveyed an authority to defendant no.1 for entering into the agreement to sell, the sale deed in favour of defendant no.1 was only to be executed after the full payment of the remaining consideration. Neither is it pleaded nor has it come on record that the defendant no. 1 had made the entire remaining consideration for the purchase of CS DJ No. 611249/16 CNR No. : DLCT01-000679-2014 Sudhir Kalra VS Mohd. Danish & Anr. Page No. 39 of 48 Digitally signed SANDEEP by SANDEEP KUMAR KUMAR SHARMA SHARMA Date:
2025.07.31 17:09:46 +0530 the property of which the suit property is a part of. Therefore, it is absolutely clear that defendant no. 1 did not have any right, title, or interest in the property.
61. The testimony of the PW1 also makes it clear that the plaintiff was fully aware of the defect in the title of the defendant no. 1 in the suit property from the very inception of the transaction, as he himself has seen the agreement to sell dated 11.05.2007, Mark X, executed between the defendant no. 1 and Sh. Ajit Kumar, which specifically mentioned that the owner of the suit property is Sh. Ajit Kumar and the sale deed in favour of Mohd. Danish, i.e., defendant no. 1, shall only be executed only after the full payment of sale consideration. PW1 during the cross-examination dated 31.01.2018 (page 2) admitted that defendant no. 1 told me that Sh. Ajit Kumar was the owner of the suit property. The relevant portion of the same is reproduced here as under, in verbatim "Danish had told me and from the agreement also it was clear that Mr. Ajeet Kumar is the owner of the suit property."
62. Further, on 03.08.2017, during cross-examination, PW1 admitted that prior to entering into the agreement to sell dated 19.04.2008, he saw the ownership documents of the suit property, and he only made the payment of the earnest money after it. The relevant portion of the same is reproduced here as under, in verbatim CS DJ No. 611249/16 CNR No. : DLCT01-000679-2014 Sudhir Kalra VS Mohd. Danish & Anr. Page No. 40 of 48 Digitally signed SANDEEP by SANDEEP KUMAR KUMAR SHARMA SHARMA Date: 2025.07.31 17:09:54 +0530 "I have seen the document of the ownership of the defendant No.1 and after being satisfied of the document, I paid the amount."
"Mohd. Danish had shown me the title documents of the suit property to me prior to entering the document dated 19.04.2008. Mohd. Danish had shown me an agreement which he had entered into with one Mr. Ajeet Kumar."
63. Moreover, during the cross-examination on 14.11.2017 the PW1 also admitted that in Mark X it has specifically been mentioned that the owner of the property is Sh. Ajit Kumar. The relevant portion of the same is reproduced here as under, in verbatim "It is correct that it is mentioned in the agreement dated 11.05.2007 that firm Ajeet Kumar Dhiraj Kumar is the absolute owner of the property bearing number D-6/60, Rana Pratap Bagh, Delhi- 110007."
64. The testimony of the PW1 makes it amply clear that the plaintiff entered into the agreements to sell Ex.PW1/2 and Ex.PW1/4 with full knowledge of the fact that defendant no. 1 did not have the absolute title to the suit property, as admittedly the owner of the suit property was Sh. Ajit Kumar, and hence, defendant no. 1 did not have any right or title to the suit property that made him entitled to convey the same to the plaintiff.
65. It is well-established that by an agreement to sell no right or title may be conveyed in the immovable property to someone else. 19. The Hon'ble Supreme Court in the judgment tilted as 'Babasaheb Dhondiba Kute vs Radhu Vithoba Barde, 2024 INSC 122' held that the conveyance by CS DJ No. 611249/16 CNR No. : DLCT01-000679-2014 Sudhir Kalra VS Mohd. Danish & Anr. Page No. 41 of 48 Digitally signed SANDEEP by SANDEEP KUMAR KUMAR SHARMA SHARMA Date: 2025.07.31 17:10:02 +0530 way of sale would take place only at the time of registration of a sale deed in accordance with Section 17 of the Registration Act, 1908. Till the time of such registration, no conveyance could be said to have taken place. Therefore, it is abundantly clear that the unregistered agreement to sell dated 19.04.2008 and 15.04.2011, Ex. PW1/2 and Ex.PW1/4 cannot, under any circumstance, create or convey any right, title or interest in favour of the plaintiff.
66. When Mohd Danish did not have a registered sale deed of the suit property in his name and accordingly lacked any right or interest in the suit property, then he could not have transferred any interest to the plaintiff. Therefore, the relief of specific performance cannot be granted to the plaintiff because defendant no. 1 does not have any right or interest in the property, as he merely has the agreement to sell the suit property, which does not convey any right in the immovable property; therefore, the law cannot mandate doing the impossible. A person who himself doesn't have any right or interest in the immovable property cannot be asked to perform the agreement to sell the property.
67. The defendant no. 1 could not have passed any right in favour of the plaintiff qua suit property; it may also be corroborated from the fact that the defendant no. 1 himself has filed a suit against the admitted owner, Sh. Ajit Kumar, for the specific performance of the agreement to sell dated CS DJ No. 611249/16 CNR No. : DLCT01-000679-2014 Sudhir Kalra VS Mohd. Danish & Anr. Page No. 42 of 48 Digitally signed SANDEEP by SANDEEP KUMAR KUMAR SHARMA SHARMA Date: 2025.07.31 17:10:08 +0530 11.05.2007. Mark A was dismissed by the court, and defendant no. 1 did not file any appeal against the judgment of dismissal of his suit; hence, it had attained finality. The filing of suit by defendant no. 1 is sufficient to provide a basis to hold that he did not have any right in the suit property, and his attempt to obtain the same did not materialise; consequently, defendant no. 1 remained as a person without right in the suit property.
68. Keeping in view the discussion and above-referred-to judgments this Court is of the considered opinion that the agreement to sell doesn't convey any right in the immovable property, and therefore, the plaintiff cannot be given a right to seek specific performance against a person who himself doesn't have any right in the suit property. Hence, Ex. PW1/2 and Ex. PW1/4 cannot be said legally enforceable documents as the incompetency of Mohd. Danish goes to the root of the subject matter of the litigation.
69. It is evident from the records of the case that the plaintiff was well aware of the defect in the title of the defendant no. 1, so he cannot pray for the applicability of the penalty clause of returning the double amount in case the defendant no. 1 fails to perform the obligations of the agreement to sell Ex. PW1/2. It is not a case where the plaintiff wasn't aware of the ownership of Sh. Ajit Kumar of the suit property, and despite that, he entered into the agreement to sell with Mohd. Danish, CS DJ No. 611249/16 CNR No. : DLCT01-000679-2014 Sudhir Kalra VS Mohd. Danish & Anr. Page No. 43 of 48 SANDEEP Digitally by SANDEEP signed KUMAR KUMAR SHARMA Date: 2025.07.31 SHARMA 17:10:14 +0530 which clearly makes him disentitled to invoke the penalty clause, as no one may benefit from the wrong in which he is also a party.
70. Therefore, specific performance cannot be granted to the plaintiff, though the plaintiff has proved the payment of ₹.6,00,000/- as earnest money to the defendant no.1 by Ex.PW1/3; therefore, the plaintiff is entitled to the same with 6% interest from the day of filing of the suit till the actual payment of the same. The interest claimed is 18%, though the plaintiff has failed to explain on what basis the interest of 18% has been claimed. Therefore, in order to meet the ends of justice, this Court is exercising its discretion and allowing 6% pendente-lite and future interest. Moreover, when relief of specific performance is denied to the plaintiff, then the relief of permanent injunction also stands defeated. Accordingly, both the issues are decided against the plaintiff and in favour of the defendants.
Issue no-5
5. Which party is having the ownership rights of roof of second floor of the premises? OP Parties.
71. The onus to prove the present issue was upon the parties. In the preceding paras it has already been held that the defendant no. 1 did not have any right or title that may be conveyed to the plaintiff by the Ex. PW1/2 and Ex. PW1/4, as admittedly the owner of the suit property was Sh. Ajit Kumar, CS DJ No. 611249/16 CNR No. : DLCT01-000679-2014 Sudhir Kalra VS Mohd. Danish & Anr. Page No. 44 of 48 Digitally signed SANDEEP by SANDEEP KUMAR KUMAR SHARMA SHARMA Date: 2025.07.31 17:10:20 +0530 and no sale deed was executed neither in favour of defendant no.1 nor in favour of the plaintiff by the original owner; therefore, in the absence of any registered conveyance or sale deed, no right of the suit property may be conferred to the plaintiff.
72. To prove the issue, the defendant no. 2 has relied upon the Ex. PW1/A registered sale deed dated 24.04.2014, registered on 26.04.2014, executed between the defendant no. 2 and admitted owner Sh. Ajit Kumar, and Ex. PW1/C, the registered sale deed executed on 21.06.2006 between Sh. Raj Baboo Nischal, through whom the suit property was purchased by Sh. Ajit Kumar. In the preceding paras the testimony of the PW1 has been reiterated, which lucidly reveals that PW1 has admitted that Sh. Ajit Kumar was the owner of the suit property when defendant no.1 had entered the agreements to sell Ex. PW1/2 and Ex. PW1/4; therefore, there is no dispute on the ownership of Sh. Ajit Kumar over the suit property, and only Sh. Ajit Kumar had the right and authority to convey the same to another person.
73. It is also well-established that any right in the suit property may only be transferred by the registered sale deed or conveyance deed; therefore, in the absence of any registered deed, the plaintiff cannot claim any right, title, or interest in the suit property. Though, there is a registered sale deed (Ex. PW1/A) in favour of the defendant no. 2 executed CS DJ No. 611249/16 CNR No. : DLCT01-000679-2014 Sudhir Kalra VS Mohd. Danish & Anr. Page No. 45 of 48 Digitally signed SANDEEP by SANDEEP KUMAR KUMAR SHARMA SHARMA Date: 2025.07.31 17:10:27 +0530 by the admitted owner of the suit property; therefore, Section 50 of the Registration Act provides that registered documents relating to land shall have priority over the unregistered documents. The same is reproduced here as under, "50. Certain registered documents relating to land to take effect against unregistered documents.-- (1) Every document of the kinds mentioned in clauses (a), (b), (c) and (d) of section 17, sub-section (1), and clauses (a) and (b) of section 18, shall, if duly registered, take effect as regards the property comprised therein, against every unregistered document relating to the same property, and not being a decree or order, whether such unregistered document be of the same nature as the registered document or not.
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74. The agreement to sell Mark X could not have passed any title to the defendant no. 1, and therefore, defendant no. 1 also could not have conferred any right in the suit property to the plaintiff, even otherwise, as per the mandate of Section 50 of the Registration Act, sale deed Ex. PW1/A, being a registered document, shall have priority over all the other unregistered documents pertaining to the suit property. Thus, the sale deed Ex.PW1/A was executed by the owner of the suit property in favour of the defendant no. 2, and nothing has come on record to prove that the sale deed Ex.PW1/A is not a genuine document and was not registered as per the prescribed procedure or law.
75. Thus, defendant no. 2 is having a registered sale deed in his favour executed by a competent person before a competent CS DJ No. 611249/16 CNR No. : DLCT01-000679-2014 Sudhir Kalra VS Mohd. Danish & Anr. Page No. 46 of 48 Digitally signed SANDEEP by SANDEEP KUMAR KUMAR SHARMA SHARMA Date: 2025.07.31 17:10:34 +0530 officer, and the same is still in existence, which has not been cancelled by any court of competent jurisdiction. Therefore, there is no iota of doubt that defendant no. 2 is the registered owner of the suit property and has priority over the right of any other person in the same.
76. Keeping in view the discussion above and the principle of the preponderance of probabilities, where the defendant no. 2 has a registered sale deed in his favour and the plaintiff has nothing except two agreements to sell, Ex. PW1/2 and Ex. PW1/4, which were executed by an incompetent person, i.e., defendant no. 1, in favour of the plaintiff, which have no substance or validity in the eyes of the law for the purpose of the conveyance of the right in the suit property, thus this Court is deciding the above issue in favour of the defendant no.2 and against the plaintiff.
Relief
77. On the basis of the finding of the issue no. 5, 6, and 7, this Court is adjudicating the suit with the findings that the plaintiff is not entitled to the relief of specific performance or injunction, though he is entitled to the alternative prayer of recovery of ₹.600,000/- along with 6% pendent-lite and future interest against the defendant no. 1. Further, the defendant no. 2 is declared the owner of the roof rights of the second floor. Hence, the suit of the plaintiff is partly dismissed and partly decreed only to the extent of the recovery of ₹.6,00,000/- with CS DJ No. 611249/16 CNR No. : DLCT01-000679-2014 Sudhir Kalra VS Mohd. Danish & Anr. Page No. 47 of 48 Digitally signed SANDEEP by SANDEEP KUMAR KUMAR SHARMA SHARMA Date: 2025.07.31 17:10:41 +0530 6% pendente-lite and future interest from the date of institution of the suit till the realisation of the entire decreetal amount only against the defendant no. 1.
78. No order as to costs as the parties shall bear their own respective costs of the suit.
79. Decree sheet be prepared accordingly, after the payment of deficient court fees (if any).
80. File be consigned to record room after due compliances.
SANDEEP Digitally by SANDEEP signed KUMAR KUMAR SHARMA Date: 2025.07.31 SHARMA 17:10:47 +0530 Pronounced in the open Court (Sandeep Kumar Sharma) on July 31st , 2025 DJ-02/CENTRAL/THC/DELHI CS DJ No. 611249/16 CNR No. : DLCT01-000679-2014 Sudhir Kalra VS Mohd. Danish & Anr. Page No. 48 of 48