Punjab-Haryana High Court
Rani Sambhi And Ors. vs Lt. Col. (Retd.) R.L. Vashisht on 20 May, 2003
Equivalent citations: (2003)135PLR490
Author: Viney Mittal
Bench: Viney Mittal
JUDGMENT Viney Mittal, J.
1. The defendants are in revision before this Court.
2. A suit for permanent injunction was filed by the plaintiff claiming that he was in possession of the house in question on the basis of an agreement dated April 6, 1989 entered into by Surender Singh, the predecessor-in-interest of the defendants. In pursuance to the aforesaid agreement and other documents, namely, the General Power of Attorney, Will etc., the house in question was in fact sold by aforesaid Surender Singh to the plaintiff and the total consideration of Rs. 1,95,000/- was received by the aforesaid Surender Singh. After receiving the said consideration, the possession of house in question was also delivered. The plaintiff claimed that after the purchase, he raised construction in the said house. Since now the defendants taking the technical shelter of they being recorded as owner were trying to sell the said property to somebody else, therefore, the suit for permanent injunction was filed. During the pendency of the suit, the plaintiff also claimed ad interim injunction against the defendants not to interfere in possession of the house in question and also not to alienate the property during the pendency of the suit. The plaintiff claimed that in fact he was protected under the provisions of Section 53-A of the Transfer of the Property Act and, therefore, he could not have been dispossessed from the house in question in any manner. The defendants denied the execution of any such document by aforesaid Surender Singh. They claimed that they remained the owner of the house.
3. The learned trial Court allowed the application for ad interim injunction filed by the plaintiff and held that the plaintiff was in possession of the house in part performance of the agreement and as such he was protected. Even an appeal filed by the defendants failed before the learned first appellate Court. The findings recorded by the learned trial Court were affirmed.
4. Shri Sandeep Vermani, the learned counsel for the defendant-petitioners has submitted that in fact no suit for specific performance was field by the plaintiff and, therefore, the suit for permanent injunction filed by him was not maintainable.
5. I am afraid, the said contention raised by the learned counsel for the defendant-petitioners is not tenable in law. Protection under Section 53-A of the Transfer of Property Act is an independent right and a person in part performance of the agreement, if shown that he was always ready and willing to perform his part of agreement and had been delivered the possession in performance of the agreement, was entitled to the said protection. It was not required that he should have filed a suit for specific performance within limitation. This view of mine finds support from a judgment of the Hon'ble Supreme Court of India of the case of Shrimant Shamrao Suryavanshi v. Pralhad Bhairoba Suryavanshi, 2002(1) Rent Law Reporter 494.
6. Faced with this difficulty, the learned counsel for the petitioners had submitted that an earlier suit for permanent injunction was field by the plaintiff and, therefore, the present suit for the same cause of action was not maintainable,
7. I have given my thoughtful consideration to the said plea of the learned counsel as well. In my considered opinion, even the said plea is without any merit. When the plaintiff had filed the earlier suit, at the that point of time, it was his apprehension existing at that time which had led him to file the suit. However, now present suit has been filed only because of the fact that defendant Smt. Rani Sambhi acting as the guardian of the minors had already applied seeking permission of the Guardian Court for selling the property of minors. It is this action of Smt. Rani Sambhi that has given a fresh cause of action to the plaintiff.
No merit, Dismissed.