Bombay High Court
Hussain Khan S/O. Sawarkhan Pathan vs Shaikh Ahmed S/O. Shaikh Lal on 21 September, 1987
Equivalent citations: 1988(4)BOMCR60
JUDGMENT B.N. Deshmukh, J.
1. This Second Appeal by original defendant against whom suit was filed by the plaintiff for claiming perpetual injunction restraining him from causing obstruction in the possession of the plaintiff over the suit property---gate numbers 440 and 443 of village Dongaon, Taluka Jafrabad. The facts which are not in dispute are as follows :
That the defendant-appellant in this Appeal is the owner of the suit land. On 30 August, 1974, he executed an Issar Parvati i.e. agreement of sale in favour of the plaintiff. The agreement of sale recites that on the date of the document, defendant received Rs. 5,000/- and agreed to receive the balance on the date of the sale-deed. Further it recites that the possession of both the lands in dispute was delivered to the plaintiff on that date. These facts are not in dispute, and were not disputed before me.
2. The plaintiffs filed a suit for injunction simpliciter on the ground that he was put in possession on the agreement of sale and defendant is causing obstruction to his possession.
3. The trial Court, as well as the lower Appellate court held in favour of the plaintiff and the suit of the plaintiff was decreed.
4. Learned Counsel Shri Bora appearing for the defendants appellants did not challenge the findings of facts arrived at by both the Courts, but what he contended is that such suit for injunction is not maintainable because the cause of action in this case is founded on the claim of the plaintiff under section 53-A and as such, the suit is not maintainable. Learned Counsel further argued that in view of provision of section 41(h) of the Specific Relief Act, the injunction should have been refused when equally efficacious relief can be obtained by usual mode of proceedings. As the usual mode of proceedings by filing the suit for specific relief is not filed, the Courts below should have refused the grant of injunction, as prayed by the defendants.
5. The contention of the learned Counsel Shri Bora will have to be accepted in view of the fact that the plaintiff is admittedly claiming the possession under an agreement of sale. The cause of action for the suit is founded on the basis of possession under an agreement of sale. This, the plaintiff is claiming under section 53-A.
6. Learned Counsel Shri Bora invited my attention to several authorities. In A.I.R. 1940 P.C. 1. Probodh Kumar Das and others v. Dantmara and Company Limited and others, what was observed in that judgment is that a right conferred by section 53-A is a right available to the defendant only to protect his possession. The section is so framed as to impose a statutory bar on the transferrer it confers no active title on the transferee. In A.I.R. 1940 Nagpur 113 Kashiprasad Sukhiram v. Bedprasad Parmeshwar, also, it is held that section 53-A does no entitle a person to it enables him to defend his right to possession. In 1966 Mh.L.J. 24 Maruti Gurappa and another v. Krishna Bala and another, in this Judgment what is observed while considering the provisions of section 53-A and Order XXI, Rule 103 is that, although it is a settled law that section 53-A is available by way of defence only, that principle is not applicable to a suit brought by a vendee under Order XXI, Rule 103 because the vendee in substance is merely seeking to protect the rights to which he is entitled under section 53-A. In , Delhi Motor Company and other v. U.A. Basrurkar (dead) by L.R. and others, what the Supreme Court held in that case is that section 53-A is only meant to bring about a bar against enforcement of rights by a lessor in respect of property which the lessee had already taken in possession, but does not give any right to the lessee to claim possession or to claim any other rights on the basis of an unregistered lease. Section 53-A of the Transfer of Property Act has only offered a right on the basis of which the lessee can claim right against the lessor. The Supreme Court had also relied on the authorities which are already quoted in . Learned Counsel Shri Bora also relied upon two recent authorities , Satish Bahadur v. Hans Raj and others. In a suit filed for permanent injunction by the plaintiff to restain defendants-owners from alienating the land to other defendants or to any one except the plaintiff, because the defendant had entered into an agreement to sell the land to the plaintiff which was required to be registered at a future date, it was argued that such a suit has become infructuous in view of section 41(h) of the Specific, Relief Act. It was held by the Court that since the plaintiff was entitled to another equally efficacious relief to file a suit for specific performance of contract, the suit for permanent injunction cannot be proceeded because an injunction could not be granted when an equally efficacious relief could be obtained by any other usual mode of proceedings. The second recent authority relied upon by the learned Counsel Shri Bora is , U.N. Sharma v. Puttegowda and another, where, in that case the applicability of section 53-A is considered, and it has been held that it is well established that section 53-A of the Transfer of Property Act provides for a passive equity and not for an active equity. Therefore, the plaintiff cannot seek his relief of injunction in a Court of law based on section 53-A of the Transfer of Property Act though he can use section 53-A to debar the transferror who has agreed to sell the property for claiming any right in respect of that property. It is well established that the right conferred by section 53-A is a right available to the defendant only to protect his possession and on the basis of that section the defendant cannot claim any title and it merely operates as a bar to the plaintiff to ascertain his title. Relying on these observations, by different High Courts and also by the Supreme Court, the learned Counsel Shri Bora contended that the suit filed by plaintiff simpliciter for injunction on the basis of possession for an agreement of sale is not maintainable. Learned Counsel Shri Deshpande on the contrary invited my attention to the decision reported in 1984 Mh.L.J. 915 (Nandkumar Gangadhar Agarmore v. Laxmibai Ganpat Khade and another), what is observed in that case is that so long as the transferee relies on the provisions of section 53-A not for founding any cause of action, but only as a shield and a protection he would be entitled to do so, no matter whether he appears as a plaintiff or a defendant in an action. Basing his arguments on these observations, learned Counsel contended that where protection is claimed under section 53-A on the basis of filing of suit or by way of defence is immaterial and in view of the fact that the plaintiffs were put of possession under an agreement of sale, and therefore, possession was threatened by defendant, the plaintiffs are entitled to file a suit under section 53-A for injunction simpliciter. I am unable to appreciate the contention of learned Counsel because in that judgment what is basically mentioned is that on reliance on the provision of section 53-A should be placed for founding any cause of action on the basis of provision of section 53-A. Thus, in a suit which is founded on the provision of section 53-A by way of cause of action, then such a suit is not maintainable, but if there is any other suit founded independently on other cause of action, then certainly in such a suit, the protection is available under the provision of section 53-A. That is also evident from the fact that the suit was filed there was for specific relief of contract, and in that suit, the protection of provision of section 53-A was sought. The present suit is filed not for specific performance of contract, nor founded on any other cause of action apart from the cause of action arising out of the provision of section 53-A.
7. Learned Counsel Shri Deshpande also relied upon the decision of this court in Nanasaheb Gujaba Banker v. Appa Ganu Bankar and others, what is held in that case is that section 53-A seeks to protect the possession of defendant even where the defendant's right to obtain specific performance of agreement has been barred by time. This, according to the learned Counsel, even if the remedy by way of specific reliefs lost by way of limitation the right to protect his possession given under section 53-A continues, and if the right continues, then a suit can also be founded on that cause of action. I am unable to appreciate this contention also. What is held by this Court in that case is that the availability of provision of section 53-A by way of defence does not cease, merely because right to obtain specific performance of agreement is barred by time. The learned Counsel further pointed out two more authorities of two other High Courts; one reported in A.I.R. 1957 AP 854, Yanug Achayya and another v. Ernaki Ventata Subba Rao and others, and another Durga Prasad and others v. Kanhiyalal and others. In my opinion, both these authorities do not support the contention of the learned Counsel. So also, the case cited before me reported in 1986(2) Civil Law Judgments at page 425, Paily v. Philip. In that case before the Kerala High Court, the applicability of section 53-A of the Transfer of Property Act did not arise and was not, therefore, considered in that case.
8. There is a decision of our High Court (Division Bench) reported in 19086(2) Civil Law Judgments at page 88. In that judgment, the Court has taken a view that equitable relief under section 53-A of the Transfer of Property Act the plaintiff is entitled to claim the specific relief of injunction, but such a relief is in the discretion of the Court and is not granted as of course. This Court has also held in that decision that principle underlying section 41(h) of the Specific Relief Act could be invoked so as to refuse the relief of injunction infavour of such a suitor who does not seek relief of specific relief for enforcement of the agreement and merely seeks the injunction preventing breach of contract from the Court. In the light of these decisions, I am of the opinion that the suit filed simpliciter for injunction where the claim is funded purely to claim to protection under section 53-A is not maintainable, and such a suitor is not entitled to claim relief in view of the provision of section 41(h) of the Specific Relief Act. Such a suitor should not be usually granted injunction. In the result, Appeal is allowed with costs.