Patna High Court - Orders
Bindhyachal Prasad And Ors vs Sitaram Patwa And Ors on 19 September, 2022
Author: Partha Sarthy
Bench: Partha Sarthy
IN THE HIGH COURT OF JUDICATURE AT PATNA
FIRST APPEAL No.563 of 1986
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BINDHYACHAL PRASAD AND ORS
... ... Appellant/s
Versus
SITARAM PATWA and ORS
... ... Respondent/s
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Appearance :
For the Appellant/s : M/s Nagendra Rai,
Satyapal Singh, Advocates
For the Respondent/s : M/s Chandra Kant
Brij Mohan Singh, Advocates
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CORAM: HONOURABLE MR. JUSTICE PARTHA SARTHY
ORAL ORDER
21 19-09-2022Re.: I.A. no. 4 of 2022 Heard learned counsel for the appellants and learned counsel for the respondents.
The instant application has been filed under Order XXXIX Rules 1 and 2 and section 151 of the Code of Civil Procedure praying therein to restrain the substituted respondents 1(a)(i) to 1(a)(x) from making any new construction in the suit land during pendency of this appeal. Further prayer is made to restrain the respondents from demolishing the suit house and making any new construction and to maintain status quo during pendency of the appeal.
The plaintiff -appellant filed title suit for specific performance of contract which was registered in the learned trial court as Title Suit no. 55 of 1967 / 102 of 1984. This suit Patna High Court FA No.563 of 1986(21) dt.19-09-2022 2/14 along with two others having been dismissed by common judgment dated 23.9.1986 passed by the learned 2nd Additional Sub Judge, Bhojpur, Buxar, the instant appeal has been preferred.
The plaintiff's case is that an agreement for sale was entered into on 27.2.1967 between Raghunath Prasad Patwa and the plaintiff for sale of the suit property for a total consideration of Rs. 13,500/- out of which Rs. 1500/- was given in advance as earnest amount. It is further case of the plaintiff that Raghunath Prasad Patwa had executed a mortgage deed in favour of the plaintiff's husband Bindhyachal Prasad on 8.2.1967 for Rs. 10,000/- and this amount of Rs. 10,000/- was also included in the agreement for sale. It was agreed between the parties that the sale deed would be executed after receiving the balance amount of Rs. 2000/- with respect to the land described in schedule I of the plaint. It is the case of the plaintiff that inspite of several reminders, he refused to execute the sale deed. An Advocate notice was sent to Raghunath Prasad Patwa on 6.7.1967. On coming to know about one Kamata Prasad also being interested in the same area she got an Advocates notice sent to him also. Both Raghunath Prasad Patwa and Kamata Prasad filed their written statement and contested the suit. Patna High Court FA No.563 of 1986(21) dt.19-09-2022 3/14 It may be mentioned here that the other suit ie Title Suit no. 108 of 1968 was filed by one Kamata Prasad Saraf wherein his case was that the defendant no. 1 Raghunath Prasad Patwa had executed an agreement for sale in his favour on 11.2.1967, had received an advance of Rs. 700/- and the said Raghunath Prasad Patwa had agreed to execute the sale deed for Rs. 21,500/- within a period of six months. The third case ie Title Suit no. 52 of 1969 was filed by Ramrup Sonar against Raghunath Prasad Patwa to the effect that Raghunath Prasad Patwa had executed an agreement for sale for a piece of land (2 ½ feet in width from north to south and 54 feet in length east to west). This agreement to sale was executed on 22.10.1966 for which Raghunath Prasad Patwa had taken an advance of Rs. 600/- out of the total consideration amount settled at Rs. 2500/- and had agreed to execute the sale deed within six months.
It is submitted by learned counsel appearing for the appellants that from perusal of the judgment impugned and specially paragraph no. 1 thereof it would transpire that the learned trial court has committed an error in its judgment in dismissing the suit on the grounds of the plaint suffering from non joinder of necessary party, failure of the plaintiff to prove her readiness to perform her part of the contract which Patna High Court FA No.563 of 1986(21) dt.19-09-2022 4/14 tantamounts to non compliance of section 16(c) of the Specific Relief Act, 1963 and the expert witness not supporting the genuineness of the agreement for sale. It was submitted by learned counsel for the appellants that all the points decided by the learned trial court has been challenged by the plaintiff - appellant in the instant appeal. Learned counsel for the appellant in support of his contention has relied on the judgments in the case of Brajendra Nath Ghosh and others v. Sm Kashi Bai and others [AIR 1946 Patna 177], Dharam Nath Ojha & ors. vs. Raghunath Ojha [2001(2) PLJR 268] and Maharwal Khewaji Trust (Regd.) vs. Baldev Dass [2005(1) PLJR94 (SC)].
The application filed by the appellants is opposed by learned counsel appearing for the respondents. It was submitted by learned counsel for the respondents that the three title suits including the suit of the plaintiff - appellants were tried analogous and dismissed on contest by common judgment and decree dated 23.9.1986. On the death of the original plaintiff, she has been substituted by her husband and children in the appeal. It was submitted that the learned trial court by a detailed judgment considered all the oral and documentary evidence and by a well reasoned judgment dismissed the suit. On merits, also Patna High Court FA No.563 of 1986(21) dt.19-09-2022 5/14 referring to paragraph no. 21 of the judgment, it was submitted by learned counsel for the respondents that inspite of Ram Rup being a prior contractee party with the defendant no. 1, he was not made a party in the instant suit and thus the suit was bad for non joinder of necessary party. Further the plaintiff with whom the defendant is said to have entered into an agreement for sale was not examined as a witness nor did she prove her readiness on her part to perform her part of the contract which tantamounts to non compliance of section 16(c) of the Specific Relief Act. It was stressed that even the expert witness did not support the genuineness of the agreement for sale. Besides making his submissions on merits of his case, learned counsel for the respondents in support of his contention relied on the judgment in the case of Ramashish Rai vs. Baijnath Mishra & anr [1998(3) PLJR 862] and judgment in the case of Fool Kumari Devi vs. Krishna Deo Upadhya & anr [1998(1) PLJR 262].
Heard learned counsel for the appellants and learned counsel for the respondents. Perused the material on record as also the judgments cited by learned counsel for the respective parties.
The relevant facts for the purpose of the instant Patna High Court FA No.563 of 1986(21) dt.19-09-2022 6/14 application is that the original plaintiff filed a suit for specific performance of contract for enforcement of the agreement to sale dated 27.2.1967 entered between the defendant no. 1 and the plaintiff with respect to the suit property for a total consideration of Rs. 13,500/-. On perusal of the judgment impugned it transpires that inspite of Ramrup Sonar being a prior contractee party and thus necessary party with the defendant no. 1 Raghunath Prasad Patwa, he was not made party in the suit by the plaintiff. Further the plaintiff who was the most important witness in so far as she was herself party to the agreement to sale with the defendant no. 1 did not get herself examined as a witness in the suit, as a result of which she did not prove her readiness to perform her part of the contract and which resulted in non compliance of section 16(c) of the Specific Relief Act. Most vital of all, even the expert witness of the plaintiff did not support the genuineness of the agreement for sale.
So far as the judgments relied-on on behalf of the appellant is concerned, the same are not of much assistance to the appellants in the facts of the instant case. The judgment in the case of Brajendra Nath Ghosh (supra) related to dispute with respect to boundary lines between the coal mines and did Patna High Court FA No.563 of 1986(21) dt.19-09-2022 7/14 not arise out of a suit for specific performance of contract.
So far as the judgment in the case of Maharwal Khewaji Trust (Regd.) (supra) is concerned, the same arose out of a suit for possession of the scheduled property and prayer for injunction restraining the respondents therein from alienating the suit property. The judgment in the case of Dharam Nath Ojha (supra) arose out of a partition suit, during pendency of which the State Government had issued a notification under section 3 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956. Thus from reading of these two judgments also ie in the case of Maharwal Khewaji Trust (Regd.) (supra) and Dharam Nath Ojha (supra) also, relied on on behalf of the appellants, it is clear that none of the three judgments arise out of the suit for specific performance of contract and thus in the opinion of the Court are not applicable in the facts and circumstances of the case.
So far as the judgment in the case of Fool Kumari Devi (supra) is concerned, the same arises out from the suit for specific performance of contract and wherein this Court held as follows:-
"6. In his celebrated Treatise on Specific Performance of Contract (Sixth Edition) Fry states Patna High Court FA No.563 of 1986(21) dt.19-09-2022 8/14 that the jurisdiction of the Court in issuing injunction in an action for specific performance of contract arises in three ways (i) as an instrument to specifically enforce the contract itself or some Part of it, (ii) as incidental or ancillary to the performance of the contract, and (iii) for giving effect to rights resulting from the non-performance of contract. Dealing with the jurisdiction of the Court in cases falling in the first category he states that where the contract contains express negative as well as positive terms, and the positive terms are capable of Specific Performance by the Court, the Court may enforce by injunction the observance of the negative term; for by so doing it promotes the complete performance of the contract as a whole. Cases where the Court grants injunction restraining the breach of any implied term of contract come in his category. In the second category of cases the Court issues injunction to prevent the defendant from doing some thing which may be inconsistent with the equity claimed by the plaintiff or embarrassing to the plaintiff by dealing with the property during the pendency of the action or obstructing the performance of some act incidental to the execution of the contract. Where the defendant intends to create legal right in favour of third party, inconsistent with the right or equity claimed by the plaintiff, by executing transfer deed or otherwise, so as to obstruct the performance of the contract, it is open to the Court to restrain him from doing so. In Patna High Court FA No.563 of 1986(21) dt.19-09-2022 9/14 the third category of cases where the right accrues to the plaintiff prior to the institution of the suit under decree or otherwise, he is entitled to an injunction to restrain the defendant from continuing with acts as may be inconsistent with those rights.
7. An order of injunction restraining the defendant in a suit for specific performance of contract from making repairs or construction on the suit premises, as may be necessary, does not fall in any of the three categories. It is well established that an agreement to sale does not create any interest in the property. It only provides a cause of action to him to bring a suit claiming an equitable right or purchase based on Section 53A of the Transfer of Property Act. The order of injunction, therefore, cannot travel beyond the scope of Section 53A of the said Act. It is well settled that the right conferred by Section 53A is a right available to the defendant to protect his position. The defendant cannot claim any title on the basis of the provisions contained therein. As is said sometimes, the right under Section 53A is to be used as a shield but not as a sword.
9. The application filed in the Court below was intended to restrain the defendant from executing any transfer deed and also from changing the physical features of the property. While an order restraining the defendant from transferring the suit property to a third party can Patna High Court FA No.563 of 1986(21) dt.19-09-2022 10/14 be passed in an appropriate case in a suit for specific performance, as falling in the second category referred to above. I do not think that the defendant cannot be restrained from making repairs or construction or changing physical features of the property, as may be necessary in the case, which is not likely to obstruct performance of the contract. In any view, construction of a wall would not come in that category. If such a right is conceded to the plaintiff of a suit for specific performance, an unscrupulous person may on the basis of forged and fabricated document bring such a suit and harass a bona fide defendant from making even any necessary repair, renovation or construction. As observed above, the agreement does not create any interest in favour of the person until his claims is adjudicated upon and a decree is passed, and, it would be too much to restrain the defendant without any adjudication from making any construction etc. Needless to point out that even where the plaintiff has been able to prove his case, he may not be granted the decree of specific performance, instead, he may be allowed only damages." (emphasis supplied) In the case of Ramashish Rai (supra) this Court proceeded to hold as follows:-
5. Be that as it may, admittedly, the plaintiffs case is that there was an oral agreement to sell of the suit land and on payment of Patna High Court FA No.563 of 1986(21) dt.19-09-2022 11/14 consideration money the plaintiff was put in possession. There is no dispute that a suit for Specific Performance of Contract can be filed on the basis of oral agreement. The question for consideration in this case is whether the plaintiff has a legal right to restrain the defendant from alienating the suit land by obtaining an order of temporary injunction. It is well settled that an agreement to sell creates a right in personam and it does not create any right in the property. An agreement to sell gives a right to the proposed purchaser to bring a suit for specific performance of contract to sell but he cannot claim any interest in the property till his suit for specific performance is decreed. Learned Counsel appearing for the petitioner placed reliance on a judgment delivered by me which is reported in 1998 (2) PLJR 120 (Lallan Prasad v. Parmeshwar Singh). The ratio decided by me in that judgment does not help the petitioner rather it totally goes against the petitioner. In the said judgment this Court observed:-
"I have heard learned Counsel for the parties and have gone through the orders passed by both the Courts below. In my opinion, both the Courts below have committed serious illegality and material irregularity in granting temporary injunction in the facts and circumstances of the case. The Courts below have over-looked the Patna High Court FA No.563 of 1986(21) dt.19-09-2022 12/14 settled principles of law that an agreement to sell creates right in personam and It does not create any right in property. An agreement to sell gives a right to the proposed purchaser to bring a suit for specific performance of contract to sell but he cannot claim any interest in the property till his suit for specific performance is decreed. In the case of Jiwan Dass v. Narain Dass (AIR 1981 Delhi, 291) it has been held by a Division Bench that an agreement to sell creates a right in personam and not in the estate such right created against a vendor to obtain specific performance can ultimately bind any subsequent transferee till, therefore, a decree of specific performance is obtained the vendor or a purchaser from his not entitled to full enjoyment of the property even if a decree for specific performance of contract is obtained and no sale-deed is actually executed. It cannot be that any interest in the property is passed. Consequently, temporary injunction cannot be granted till sale-deed is executed on the basis of decree of specific performance of contract to prevent the transferee under the sale-deed from enjoying possession."
6. As noticed above, in the facts of the instant case the appellate Court has rightly come Patna High Court FA No.563 of 1986(21) dt.19-09-2022 13/14 to the conclusion that the plaintiff petitioner has no prima facie case for the grant of temporary injunction. I fully agree with the view taken by the learned Court of appeal below."
Thus from reading of the two judgments quoted hereinabove it is not in dispute that so far as the agreement to sale is concerned, it does not create any right in the property. It only gives right to the proposed purchaser to bring a suit for specific performance of contract to sell but he cannot claim any interest in the property till his suit for specific performance of contract is decreed. It goes without saying that appropriate orders can be passed restraining the defendants from transferring the suit property to third parties. However, the defendant cannot be restrained from making repairs in the property which is not going to have effect in the suit or as in the present case, in the appeal arise out of the suit for specific performance of contract.
On perusal of the contents of the interlocutory application (I.A. no. 4 of 2022) filed on behalf of the appellants it would transpire that the prayer made therein is limited to restrain the substituted respondents from making any new construction in the suit land during pendency of the appeal. There is no averment in the petition to the effect that there is any Patna High Court FA No.563 of 1986(21) dt.19-09-2022 14/14 apprehension of the suit land being transferred to any third party. In fact, so far as making of new construction is concerned, or repairing the suit property as has been put by learned counsel for the respondents, it is also not in dispute that whatever repairs was being carried out by the respondents has already been completed.
In the facts of the case, the Court finds that the plaintiff-appellants do not have prima facie case in their favour for grant of injunction. There being no merit in the application praying for injunction filed on behalf of the appellants, the same is dismissed.
I.A. no. 4 of 2022 stands disposed of.
(Partha Sarthy, J) Spd/-
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