Gauhati High Court
Page No.# 1/35 vs Ashit Ranjan Bhuiya on 30 May, 2025
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/35
GAHC010038392025
2025:GAU-AS:6990
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : FAO/9/2025
PRANAB RANJAN BHUIYA
S/O- LATE NIRANJAN BHUIYA, R/O- 40 PEYARABAGAN KOLKATA- 700093
2: SMTI MAYA RANI SAHA
W/O LATE PROMOD RANJAN SAHA
RESIDENT OF T47
RAJARHAT ROAD TAPOBAN APARTMENT
1ST FLOOR
TYPE C
PS RAJARHAT/BAGUIHATI
PO DESHBANDHUNAGAR
KOLKATA 700059
3: SRI PRADIP SAHA
S/O LATE PROMOD RANJAN SAHA
RESIDENT OF T47
RAJARHAT ROAD TAPOBAN APARTMENT
1ST FLOOR
TYPE C
PS RAJARHAT/BAGUIHATI
PO DESHBANDHUNAGAR
KOLKATA 700059
4: SRI SUDIP SAHA
S/O LATE PROMOD RANJAN SAHA
RESIDENT OF T47
RAJARHAT ROAD TAPOBAN APARTMENT
1ST FLOOR
TYPE C
PS RAJARHAT/BAGUIHATI
PO DESHBANDHUNAGAR
Page No.# 2/35
KOLKATA 70005
VERSUS
ASHIT RANJAN BHUIYA
S/O- LATE NIKHIL RANJAN BHUIYA, R/O- WEST NORSING ROAD,
AMBICAPATTY, SILCHAR TOWN, PO AND PS- SILCHAR, DIST- CACHAR,
ASSAM 788001
BEFORE
HON'BLE MR. JUSTICE DEVASHIS BARUAH
Advocate for the appellant(s) : Mr. Bhaskar Dutta,
Senior Advocate
Mr. S Deka
Advocate for the respondent(s) : Mr. DK Mishra
Senior Advocate Mr. B Prasad Date of hearing : 15.05.2025 Date of Judgment : 30.05.2025 JUDGMENT & ORDER (CAV) Heard Mr. Bhaskar Dutta, the learned senior counsel assisted by Mr. S Deka, the learned counsel appearing on behalf of the appellants. Also heard Mr. DK Mishra, the learned Senior Counsel assisted by Mr. B Prasad, the learned counsel appearing on behalf of the respondent.
Page No.# 3/35
2. This is an appeal under Section 104 read with Order XLI, Rule 1(r) of the Code of Civil Procedure 1908 (for short, 'the Code') challenging the order dated 09.01.2025 passed in Misc.(J) Case No.280/2024 arising out of Title Suit No.177/2024 by the Court of the learned Civil Judge, (Senior Division) No.1, Cachar at Silchar (for short, 'the learned Trial Court') whereby the Appellants herein have been restrained from alienating the title or transferring the possession of the Schedule -A property i.e. 60% of the share of the Appellants to any third party or from changing the nature and feature of the same, till the disposal of the main suit.
3. For the sake of convenience, the Appellants herein are referred to as the Principal Defendants and the respondent is referred to as the plaintiff as were their status before the learned Trial Court.
SCOPE OF THE APPELLATE JURISDICTION
4. At the outset, it is relevant to the take note of the judgment of the Supreme Court in the case of Wander Ltd. and Anr. vs Antox India P. Ltd. reported in 1990 Suppl. SCC 727 wherein the Supreme Court dealt with the scope of the jurisdiction of the Appellate Court against an order of injunction passed by the Court of the first instance. The Supreme Court in the said judgment opined that an appeal against the exercise of discretion by the Court of the first instance cannot be interfered with unless the discretion so exercised is arbitrary, capricious, perverse or where the court of the first instance had ignored the settled principles of law regulating grant or refusal of interlocutory injunction. Paragraph 14 of the said judgment being relevant is reproduced Page No.# 4/35 hereinunder:
"The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan Joseph: (SCR 721) "...These principles are well established, but as has been observed by Viscount Simon in Charles Osenton & Co. v. Jhanaton '...the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case'."
The appellate judgment does not seem to defer to this principle."
THE PROPERTY IN DISPUTE
5. The materials on record show that the suit property, in question, was a part of a joint estate in the name and style of Estate " Harish Chandra Ramkanai Bhuiya" and popularly known as "Estate H K Bhuiyan". In the year 1966, a partition suit was filed being Title Suit No.10/1966 before the learned High Court of Calcutta. A preliminary decree was passed on 03.12.1971 declaring the shares of the parties. Subsequent thereto, a partition Commissioner was appointed on 20.12.1985 and the Commissioner of Partition filed his report on 21.08.2007 i.e. after 22 years of his appointment. However, as the report of partition was not 100% feasible or workable or valid, initiative was taken for Page No.# 5/35 settlement for partition of the suit properties and draw/make a proposal of partition of all the properties involved in the said suit for all of the parties according to their respective shares and to negotiate the proposal with all of the parties for finalization of the partition amicably. Subsequent thereto, the parties to the said partition suit had formulated a settlement on the basis of the preliminary decree made on 03.12.1971. It is relevant, however, to mention that out of the 76 parties in the said partition suit, a total of 72 Nos. of parties which included all the plaintiffs and 65 numbers of defendants therein having a total of 97.5% shares had arrived at the settlement. On the basis of the said terms of settlement, a compromise decree was passed by the learned High Court of Calcutta on 02.02.2015.
6. It is relevant herein to mention that the plaintiff along with his mother and brother, who were defendant Nos. 27(a), 27(b) and 27(c) along with one Sri Bidhan Bhuiya, who was arrayed as defendant No.11(a)(v) in the said partition suit, were not parties to the terms of the settlement.
7. It is further relevant to take note of that the suit property involved in the present proceedings is mentioned at Lot C of Schedule IV of the compromise decree passed by the learned High Court of Calcutta. Taking into account its relevance, Lot C of Schedule - IV is reproduced hereinunder:
"Lot C Allotted jointly to Sri Pranab Bhuiya, Defendant No. 12a, son of Late Niranjan Bhuiya, Sri Labanya Kumar Bhuiya, Defendant No. 15b, Sri Laxmi Narayan Bhuiya, Defendant No. 15c both sons of Late Lal Mohan Bhuiya, Sri Pradip Saha, Defendant No. 4a(ii), Sri Sudip Saha, Defendant No. 4a(iii), Smt Mayarani Saha, Defendant No. 4a(i), sons and widow of Late Pramod Saha. Aforesaid all the parties shall own said LOT C jointly undivided proportionate Page No.# 6/35 share in the Schedule mentioned as follows:
Sri Pranab Bhuiya = 40% Sri Labanya Bhuiya = 20% Sri Laxmi Narayan Bhuiya = 20% Pradip Saha, Sudip Saha, Smt Maya Rani Saha jointly = 20% Said parties hereby agreed to accept the said LOT C as jointly in accordance with above mentioned share and shall dispose/sell or develop the said lot. Receivable consideration area as consideration shall be distributed among the parties according to the proportionate share mentioned hereinabove. It is to be cleared the said lot shall not be parted or partition further. The parties are bound to sell or dispose or develop the said allotment.
Area and description : All that piece and parcel of land measuring area about 7344 sq.ft. i.e. 10.2 Cotthas vacant land specifically shown in PARTITION PLAN NO. III of Property Schedule IV, Shillongpatty is annexed herewith as Annexure - D. Measurement_and dimension : 48' - 0" wide frontage on N.N Dutta Road and 153' - 0" depth east to west.
Butted and bounded as follows:
By North : Premises of N. Chakraborty.
By South : Premises of Sri Chakraborty.
By East: N.N Dutta Road.
By West: Portion of suit properties marked as Lot A & B and alloted to Subhash Bhuiya & Shyamal Bhuiya respectively."
AGREEMENT FOR SALE DATED 01.11.2018
8. In the backdrop of the above prelude, it is relevant to take note of that the respondent herein i.e. the plaintiff had entered into a Deed of Agreement for Sale on 01.11.2018 with the Appellants herein i.e. the Principal Defendants. A perusal of the said Agreement for Sale would show that the Principal Defendants had agreed to sell their 60% of the share in Lot C, which is quoted hereinabove at a consideration of Rs.1,20,00,000/- (Rupees One Crore, Twenty Lakhs) only and the plaintiff had agreed to purchase the same provided the Page No.# 7/35 following terms and conditions stipulated in the Agreement for Sale were fulfilled and complied. Clauses 1 to 6 of the Agreement for Sale were the terms and conditions which being relevant are reproduced hereinunder:
"1. That the vendee is satisfied that the vendors are having 60% share in Schedule-A land etc. and he is ready, willing and agreed to purchase the same provided the vendors share is separated from Labanya Bhuiya and Lakshmi Narayan Bhuiyas' 40% share. The vendors have agreed to get it separated and than convey the same to the vendee.
2. That the total value of the vendors' 60% share is fixed at Rs.1,20,00,000/-(One Crore and Twenty Lakhs) only and the vendors undertake to convey the same to the second party after partitioning the share within 2 (Two) months from this date. The vendee is also agreed to purchase the same at the above price provided the contacted share is separated and conveyed thereafter free from all encumbrances etc.
3. That the second party has paid Rs.15,00,000/-(Fifteen Lakhs) only as an advance to the first party today against the contract vide Demand Drafts as follows:
Date Name Demand Amount Bank
Draft No.
01/11/2018 Pranab 980665 5,00,000/- Allahabad Bank,
Ranjan Silchar
Bhuiya 980666 5,00,000/-
01/11/2018 Pradip Saha 980662 1,66,667/- Allahabad Bank,
Silchar
01/11/2018 Sudip Saha 980663 1,66,666/- Allahabad Bank,
Silchar
01/11/2018 Maya Rani 980664 1,66,667/- Allahabad Bank,
Saha Silchar
the receipt of which the first party hereby acknowledges and it is agreed that the second party shall pay the balance of Rs.1,05,00,000/-(One Crore and Five Lakhs) only to the first party at the time of execution and registration of Sale Deed.
Page No.# 8/35
4. That it is agreed by and between the parties that the vendors shall first separate their 60% share in Schedule-A property from the share of Labanya Bhuiya and Lakshmi Narayan Bhuiya and than apply for obtaining NOC for transfer of the same to the vendee and within 1 (One) month of obtaining NOC and on due information of the same to the vendee, the vendee shall have to pay the balance consideration money to the vendor at the time of execution of Sale Deed.
5. That it is also agreed by and between the parties that in case the vendor/first party is not able to get the partition done within the time stipulated than the period of this agreement shall be extended by them till another 2 (Two) months or as may be mutually decided by the parties. However, in case of inordinate delay or non-extension of period of Agreement by the first party as aforesaid, the second party shall have option to get back his advance money paid to the first party by coming out from the contract or to seek the extension as the second party shall decide and the first party shall be bound by the same.
6. That it is further agreed upon that if after separation of the vendors' 60% share the vendor fails to execute and register Sale Deed on obtaining NOC as agreed upon the vendee shall have liberty/right to get the Sale Deed executed and registered and recover possession of the contacted property by deposit of balance consideration money in the court through the process of law at the peril of the vendors. In such case the vendors shall also not be entitled to sell the property without refunding advance or delivering up of the Agreement as per law."
9. From a perusal of the above quoted clauses, it would be seen that the plaintiff, who is the vendee being satisfied that the Principal Defendants, who are the vendors were having 60% share in the Schedule-I land to the Agreement for Sale was ready, willing and agreed to purchase the same, provided the vendors (Principal Defendants) share is separated from the 40% share of Labanya Bhuiya and Lakshmi Narayan Bhuiya. The Principal Defendants have also agreed to get it separated and then convey the same to the Plaintiff/Vendee. In terms with Clause-2, the total consideration of the 60% share which was specifically described in Schedule-A to the Agreement for Sale was fixed at Rs.1,20,00,000/- and the Principal Defendants undertook to convey the same to the Plaintiff after partitioning the share within 2(two) months from the date of the agreement. It was further stipulated that the Plaintiff had agreed Page No.# 9/35 to purchase the same at the said price of Rs.1,20,00,000/- provided the share is separated and conveyed thereafter free from all encumbrances.
10. Clause 3 of the Agreement for Sale refers to the payment of the advance money and when the balance consideration would be paid i.e. at the time of execution and registration of the Sale Deed. Clause 4 specifically and categorically stipulates that the Principal Defendants shall first separate their 60% share in the Schedule-I property from the share of Labanya Bhuiya and Lakshmi Narayan Bhuiya and then apply for obtaining the NOC for transferring the same to the plaintiff and within one month of obtaining the NOC and on due information of the same to the plaintiff, the balance consideration money would be paid by the to the Principal Defendants at the time of execution of the Sale Deed. Clause 5, specifically stipulates that in the circumstance, the Principal Defendants were not able to get the partition done within the time period i.e. within the period stipulated in the Agreement for Sale which is two months from the date of the Agreement for Sale, the period shall be extended by the parties to the Agreement by another 2(two) months or as may be mutually decided by the parties. At this stage, it is relevant to take note of that it is an admitted case on behalf of both the Principal Defendants and the plaintiff that the period of the agreement was not extended mutually by the parties in writing. It was also provided in Clause No.5 of the Agreement for Sale that in case of inordinate delay or non-extension of the period of agreement by the Principal Defendants, the plaintiff shall have the option to either get back his advance money paid to the Principal Defendants by coming out from the contract or to seek an extension as the Plaintiff shall decide and the Principal Defendants shall be bound by the same.
Page No.# 10/35
11. Clause-6 of the Agreement for Sale further stipulates that in the circumstance where after separation of the 60% share, if the Principal Defendants failed to execute and register a Sale Deed on obtaining a NOC as agreed upon, the Plaintiff shall have the liberty/legal right to get the sale deed executed and registered and recover possession of the contracted property by deposit of the balance consideration amount in the Court through the process of law at the peril of the Principal Defendants. It was also mentioned that in such circumstances, the Principal Defendants shall also not be entitled to sell the property elsewhere without refunding advance or delivering up of the agreement as per law.
THE SUIT
12. A perusal of the plaint filed by the plaintiff which was registered and numbered as Title Suit number 177/2024, would transpire that the plaintiff alleged the Principal Defendants did not take steps for partition of the 60% of the share, inspite of various requests being made by the plaintiff. It is alleged in the plaint that the Principal Defendants on one pretext or the other delayed the said partition and only gave assurance. It was further alleged that on 14.06.2023, a letter was sent by the Principal Defendants to the Plaintiff wherein it was stated that as 3(three) years had completed and the plaintiff has failed to perform his part of the contract, for which, Principal Defendants would not execute the Deed anymore and further intended to return the advance money paid by the plaintiff herein on 01.11.2018. In other words, the Principal Defendants cancelled the Agreement for Sale. The plaintiff replied vide the communication dated 04.07.2023 and stated that he was ever ready and willing Page No.# 11/35 to perform his part of the contract. It was also mentioned that the plaintiff had come to learn from reliable sources that the Principal Defendants were negotiating with others for sale of the contracted land in breach of the terms of the contract and also on suppression of the existence of the contract. The plaintiff also averred in the plaint that he asked the Principal Defendants to take the balance consideration and execute and register the Sale Deed by observing all other formalities within 1(one) month. It was also alleged that at paragraph 7 of the plaint that the Principal Defendants neither took any steps for physical partition of the land nor applied for the NOC for transfer of the land. At paragraph No.9 of the plaint, it was stated that the cause of action arose on and from 01.11.2018 i.e. the date of the Agreement, breach of the promise to make partition of the Schedule A land and lastly on 14.06.2023, the date of refusal to perform the contract.
13. It is under such circumstances, the plaintiff had filed a suit seeking specific performance of the Agreement dated 01.11.2018 between the plaintiff and the Principal Defendants and to get the Sale Deed executed and registered and handover the possession of the contracted land on partition of 60% land of the Schedule-I in favour of the plaintiff by deposit of the balance consideration amount of Rs.1,05,00,000/- (Rupees One Crore, Five Lakhs) only. The plaintiff also sought for a relief, thereby directing the defendants to partition the Schedule-A land as 60% of the Principal Defendants on the southern side and 40% of the proforma defendants on the northern side of the Schedule-A plot as per their mutual partition. The plaintiff sought for a decree for permanent, temporary and ad interim order of injunction, thereby restraining the Principal Defendants, their men and agents from anyway, alienating the title or Page No.# 12/35 transferring the possession of the Schedule-A property, i.e. 60% share of the Principal Defendants to any third party or from changing the nature and feature of the same. In the alternative, the plaintiff also sought for recovery of an amount of Rs.29,25,000/- along with interest pendente lite and future, till realization of the amount, if the plaintiff was not found entitled to the relief of Specific Performance of the Contract. The suit was filed on 29.10.2024 after almost one year four months from the date of cancellation of the Agreement for Sale by the Principal Defendants vide their letter dated 14.06.2023.
INJUNCTION PROCEEDINGS
14. The plaintiff along with the suit also filed an injunction application seeking ad interim temporary injunction restraining the Principal Defendants from any way alienating or transferring the right, title and interest and possession of the property described in Schedule -A to the said injunction application i.e. 60% share of the Principal Defendants to any third party or from changing the nature and feature of the same. The injunction application was registered as Misc.(J) Case No.280/2024.
15. The learned Trial Court passed an ex-parte ad-interim injunction on 29.10.2024, thereby restraining the Principal Defendants, their men and agents from any way alienating the title or transferring the possession of the Schedule- A property i.e. 60% share of the Principal Defendants to any third party or from changing the nature and feature of the same, until the Principal Defendants were heard and order is passed upon hearing both the sides.
Page No.# 13/35
16. The Principal Defendants filed their written statement in the suit as well as their written objection to the injunction application. In the written objection, various preliminary objections were taken as regards the maintainability of the injunction application. One of the preliminary objections so taken inter alia was that the affidavit supporting the injunction application was not in terms with Rule 31 and Rule 38 of the Civil Court Rules and Orders as framed by the Gauhati High Court which stipulates that every affidavit should clearly express how much is the statement of the declarant's knowledge and how much is the statement made on his information or belief and also state the source and or the grounds of information or belief with sufficient particularity.
17. In the said written objection though the Principal Defendants admitted the execution of the Deed of Agreement for Sale dated 01.11.2018 and the receipt of the advance amount on the said date by demand drafts, but taking into account that the shares could not be partitioned within two months from the date of the said agreement, it was stated that the agreement had become infructuous and inoperative due to efflux of time and due to non-performance of the part of the contract. It was also stated that the suit was barred by limitation, inasmuch as, in terms with Clauses 2 and 5 of the Agreement, as the partition was required to be done within a period of two months from the date of the Agreement for Sale i.e. 01.11.2018 and the agreement was never extended for further period by the parties to the agreement and the suit having been filed on 29.10.2024, the suit was barred by limitation. It was further mentioned that after the execution of the agreement dated 01.11.2018, the plaintiff neither communicated with the Principal Defendants showing or indicating his willingness and readiness and, as such, the plaintiff was only Page No.# 14/35 entitled to get refund of the advance amount of Rs.15,00,000/- as stipulated in the agreement. It was further stated in the written objection that the agreement in question being conditional and without the performance of the condition that too, within the time stipulated, the question of the said contract being enforceable did not arise. It was, therefore, stated that the Agreement for Sale dated 01.11.2018 in all practical and legal view was void, unenforceable and, therefore, the suit was not maintainable.
18. Pursuant to the filing of the written objection, the learned Trial Court heard the learned counsels appearing on behalf of the parties and passed the impugned order dated 09.01.2025 thereby restraining the Principal Defendants herein their men, agents from any way alienating the title or transferring the possession of the Schedule-A, property i.e. 60% share of the Principal Defendants to any third party or from changing the nature and feature of the same till the disposal of the main suit. It is under such circumstances, the present appeal has been filed.
SUBMISSIONS MADE BY THE LEARNED COUNSELS FOR THE PARTIES
19. Mr. B Dutta, the learned Senior Counsel appearing on behalf of the Principal Defendants drew the attention of this Court to the Deed of Agreement of Sale dated 01.11.2018 and submitted that a perusal of the said agreement would show that the sale of the land as described in Schedule-A to the Agreement was subject to the Principal Defendants share is separated from Labanya Bhuiya and Lakshmi Narayan Bhuiya's 40% share. This is expressly stated in Clause-1 of the Agreement for Sale. The learned Senior counsel, therefore, submitted that the Page No.# 15/35 contract in question is a contingent contract depending upon the share being separated from Labanya Bhuiya and Lakshmi Narayan Bhuiya's 40% share. Referring to Section 32 of the Indian Contract Act, 1872 (for short, 'the Act of 1872'), the learned Senior Counsel submitted that the contingent contract cannot be enforced by law unless and until the event had happened. He, further, submitted that if the event becomes impossible, such contract becomes void. The learned Senior Counsel further referred to Clauses 2 and 5 of the Agreement for Sale dated 01.11.2018 and submitted that the Principal Defendants have undertaken to convey their 60% share in the property described in Schedule-A to the agreement, subject to partitioning their share within 2(two) months from the date of the said Agreement. He, further, submitted that these two months' period could have been extended by another 2(two) months by the parties or as may be mutually decided by the parties. The learned Senior Counsel submitted that it is an admitted fact that there was no extension of the period by another 2(two) months or any other period by the parties mutually. There are no pleadings in that regard in the plaint or in the Injunction Application.
20. Referring to Section 35 of the Act of 1872, the learned Senior Counsel submitted that a contingent contract to do or not to do anything if a specified uncertain event does not happen within a fixed time it becomes void. He, therefore, submitted that in view of the fact that within the period of 2(two) months, the partition had not taken place and even the said period was not extended by another 2(two) months or any other period as mutually decided by the parties, the Agreement for Sale dated 01.11.2018 had become void and cannot, therefore, be enforced.
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21. The learned Senior Counsel further submitted by drawing reference to the decree passed by the learned High Court of Calcutta in G.A No.3899/2014, E.O. Suit No.04/2014 dated 02.02.2015 and more particularly to Lot C (the details of Lot C having been quoted already hereinabove) and submitted that in terms with the said compromise decree, Lot C is the Schedule-I land mentioned in the Agreement for Sale and in terms with the said decree, the entire Lot C has to be disposed/sold or developed as a Lot and the said Lot cannot be parted or partitioned any further. He, therefore, submitted that though the Principal Defendants have entered into an Agreement for Sale dated 01.11.2018, thereby agreeing to take steps for partitioning their 60% share from the Schedule-I property described in the Agreement for Sale, but in view of the compromise decree dated 02.02.2015, partition is not permissible and the said Schedule-I property as described in the Agreement for Sale has to be sold or developed or disposed off as a Lot. Under such circumstances, the Agreement for Sale dated 01.11.2018 was not at all enforceable in law.
22. The learned Senior Counsel for the Principal Defendants further submitted that the suit in question was also barred by limitation, taking into consideration Article 54 of the Schedule to the Limitation Act, 1963 (for short, the Act of 1963) which stipulates that the period for filing a suit for specific performance is 3(three) years when the date is fixed for performance and if no date is fixed from the date the plaintiff had notice that performance is refused. The learned Senior counsel submitted that from a perusal of Clause 2 of the Agreement dated 01.11.2018, it would be seen that the Principal Defendants were required to convey their 60% of the share after partitioning the share Page No.# 17/35 within 2(two) months from the date of the Agreement i.e. 01.11.2018. Furthermore, this period could have been extended by another 2(two) months or such period as may have been mutually decided by the parties. The learned Senior Counsel submitted that from a perusal of the plaint, it would be seen that there is not a single statement being made that the period of 2(two) months was extended mutually amongst the parties. The learned Senior Counsel submitted that not only the time was the essence of the contract, but the date was also fixed for performance i.e. the partition has to be completed within 2(two) months from the date of the Agreement for Sale dated 01.11.2018. Filing of the suit in the month of October, 2024 was beyond the period of limitation as prescribed under Article 54 of the Schedule to the Act of 1963, for which, the plaintiff cannot be said to have a prima facie case for going for trial.
23. The learned Senior Counsel further submitted by referring to Clause 5 of the Agreement for Sale dated 01.11.2018 and submitted that if there is a case of inordinate delay in partition or non-extension of the period of agreement by the Principal Defendants, the plaintiff shall have the option either to get back his advance money paid to the Principal Defendants by coming out of the contract or to seek extension and the plaintiff shall decide and the Principal Defendants shall be bound by the same. He, therefore, submitted that the only relief which the plaintiff would be entitled to is refund of the amount paid in advance which the Principal Defendants had duly tendered to the plaintiff as far back as on 14.06.2023 itself.
24. The learned Senior Counsel further submitted that the cause of action for the suit as would be seen from Clause 6 of the Agreement for Sale dated Page No.# 18/35 01.11.2018 would arise if after separation of the Principal Defendants' share of 60%, the Principal Defendants failed to execute and register the Sale Deed. As in the instant case, there is no partition till date, the question of having a cause of action for filing of a suit does not arise.
25. The learned Senior Counsel, submitted that in terms with Section 16(c) of the Specific Relief Act, 1963, there is a requirement that the person seeking enforcement of the contract has to be ready and willing to perform essentially the terms of the contract. The learned Senior Counsel submitted that these two terms 'readiness and willingness' have different connotations, inasmuch as, 'readiness' means the capacity of the plaintiff to perform the contract which would include his financial position and 'willingness' relates to the conduct of the plaintiff. The learned Senior Counsel submitted that the plaintiff did not have readiness and willingness, taking into account his very conduct, inasmuch as, even assuming that the plaintiff had the knowledge of refusal on 14.06.2023, the suit was filed in the month of October, 2024. Referring to the judgment of the Supreme Court in the case of Rajesh Kumar Vs. Anand Kumar & Ors. reported in 2024 SCC Online SC 981, the learned Senior Counsel submitted that even if a suit is filed within the period of limitation, but not immediately upon notice of the refusal of the performance of the contract, specific performance of the contract cannot be granted in view of the conduct of the plaintiff of not approaching the Court at the earliest.
26. The learned Senior counsel for the Principal Defendants submitted that the above aspects touches on the very maintainability of the suit which is a facet of the prima facie case for going for trial and this very aspect of the matter was Page No.# 19/35 not taken into consideration in the proper perspective by the learned Trial Court. In that regard, he referred to the judgment of the Supreme Court in the case of Shiv Kumar Chadha Vs. Municipal Corporation of Delhi reported in (1993) 3 SCC 161.
27. The learned Senior Counsel for the Principal Defendants further submitted that the learned Trial Court had erred in law in applying Section 22 of the Specific Relief Act, 1963 to the present facts without taking into consideration that there cannot be a decree for partition on the basis of the Agreement for Sale dated 01.11.2018 as the co-owners of the land in question were not party to the said Agreement for Sale. Therefore, he submitted that under no circumstances, the Agreement for Sale could have been specifically enforced by the learned Trial Court inasmuch as, the execution of the Sale Deed can only happen after the partition happens.
28. Mr. D.K. Mishra, the learned Senior Counsel appearing on behalf of the respondent, who is the plaintiff, submitted that the learned Trial Court by its detailed order dated 09.01.2025 and by applying the settled principles of law for grant of an injunction in exercise of its equitable and discretionary jurisdiction had granted the injunction in favour of the plaintiff. He, therefore, submitted that as the discretion has been exercised by the Court of the first instance, the scope of interference by this Court, i.e. the Appellate Court, is very limited. He, therefore, submitted that without there being any unreasonableness, irrationality, perversity or the order being passed in violation of the three golden principles for grant of an injunction, the question of this court interfering with the impugned order dated 09.01.2025 did not arise.
Page No.# 20/35
29. The learned Senior Counsel further drew the attention of this Court to the compromise decree so passed by the learned High Court at Calcutta and submitted that what has been mentioned in Lot C has to be understood upon a reading of the terms of settlement which has been agreed to by all the parties, except the plaintiff herein, his brother and his mother and one Bidhan Bhuiya. Referring to the terms of the settlement, the learned Senior Counsel laid emphasis on Clause 9 of the compromise decree and submitted that the stipulation contained in Lot C that Lot C cannot be parted or partitioned has to be understood to be a temporary measure adopted by the parties until the parties have actual possession.
30. The learned Senior Counsel further drawing the attention of this Court to the Agreement dated 01.11.2018 submitted how the partition happened is apparent from the recital of the said Agreement. He submitted that the Principal Defendants have initially offered to sell their shares of land to Labanya Bhuiya and Lakshmi Narayan Bhuiya as they needed fund for their personal necessities. However, the said Labanya Bhuiya and Lakshmi Narayan Bhuiya declined to purchase the same for want of money. It is also stated in the very Agreement that the Principal Defendants shall take 60% share from the southern side of the plot and Labanya Bhuiya and Lakshmi Narayan Bhuiya would take 40% share from the northern side of the Schedule-I plot and accordingly partition would be made. The learned Senior Counsel further laid emphasis on the word "khas possession" used in the said recital, wherein it is mentioned that " the vendors and Labanya Bhuiya and Lakshmi Narayan Bhuiya are in khas possession of the Schedule-A". It is the submission of the learned Senior Page No.# 21/35 Counsel that the Principal Defendants and Proforma Defendants after their mutual partition have been in possession of their respective shares in the land, and, as such, there was no necessity of any further physical partition. In this regard, the learned Senior Counsel further referred to paragraph number 11 of the written objection filed by the Principal Defendants in the injunction proceedings wherein the Principal Defendants have duly admitted that it was mutually decided between the Principal Defendants and Labanya Bhuiya and Lakshmi Narayan Bhuiya that the Principal Defendants shall take their 60% share of Schedule-A land from the southern side of the plot while Labanya Bhuiya and Lakshmi Narayan Bhuiya would take their 40% share from the northern side of the Schedule-A land.
31. The learned Senior Counsel further submitted that though at paragraph 11 of the written objection, it is written that there was no written covenants or written conveyance or written instruments that were entered into, but the Principal Defendants have duly admitted of oral partition which is permissible as per law. The learned Senior Counsel, therefore, submitted that the Principal Defendants and the proforma defendants are in actual possession of their entitlement in respect to the Schedule-I land and what is essentially required is a revenue partition inasmuch as, pursuant to the terms of settlement which has been decreed by the learned High Court of Calcutta stipulating the respective shares, the land in Lot C which is the Schedule-I land in the Agreement for Sale was jointly mutated in favour of the Principal Defendants as well as the proforma defendants. Therefore, there is a requirement for partition by the Revenue Authorities pursuant to the said mutation.
Page No.# 22/35
32. The learned Senior Counsel for the plaintiff further submitted that what is mentioned in the Lot C cannot be given an interpretation that there is restraint to sell a part of the land, inasmuch as, the same would be hit by Section 10 of the Transfer of Property Act, 1882, which stipulates that a condition or limitation absolutely restraining the transferee or any person claiming under him from parting with or disposing of his interest in the property, the condition or limitation is void.
33. The learned Senior Counsel, therefore, submitted that although it is now being the case of the Principal Defendants that they cannot transfer by partitioning their share in terms with the compromise decree, but what in effect is that they are taking steps to sell/dispose of their share in Schedule-I land i.e. the Schedule A land inspite of there being an Agreement to Sale which specifically prohibits the Principal Defendants to sell their share of the Schedule- I property which is the injunction passed by the learned Trial Court. Therefore, this Court may not interfere with the injunction order.
ANALYSIS AND DETERMINATION
34. I have heard the learned Senior Counsels appearing on behalf of the parties and have taken into consideration their respective submissions as noted hereinabove.
35. From a perusal of the Agreement for Sale of the land dated 01.11.2018, it appears that the plaintiff would purchase the Schedule-A land as described in the said agreement, provided that the terms and conditions mentioned in the Page No.# 23/35 Agreement for Sale are fulfilled and complied with in terms with Clause 1. It also appears that the plaintiff was ready, willing and agreed to purchase the land described in Schedule-A to the Agreement provided the principal defendant's share of 60% is separated from the proforma defendant's 40% share. In that regard, the Principal Defendants had also agreed to get it separated and then convey it to the plaintiff. Therefore, from the very perusal of Clause 1, it would be seen that the plaintiff would only purchase after there is a separation of the shares between the Principal Defendants and the proforma defendants.
36. It is relevant to take note of that on the basis of the compromise decree passed by the learned High Court of Calcutta on 02.02.2015, the names of the Principal Defendants and the proforma defendants were mutated in the record of rights vide the order dated 10.11.2016. The submissions made by the learned Senior Counsel appearing on the behalf of the plaintiff/ respondent herein is that what is conceived of in the Agreement for Sale is that there has to be a partition of the land described in Schedule-I to the Agreement for Sale dated 01.11.2018 by the Revenue authorities. Therefore, from the very submission, it is clear that the land described in Schedule-I to the Agreement for Sale dated 01.11.2018 has not been partitioned by the Revenue authorities and without the said partition being carried out in terms with the Agreement for Sale, the plaintiff would not be ready, willing and agreeable to purchase the suit land as described in Schedule-A to the Agreement for Sale.
37. This Court at this stage finds it relevant to take note of the contradictory stand taken by the plaintiff in the plaint and the submission so made by the learned Senior counsel representing the plaintiff before this Court. At paragraph Page No.# 24/35 4 of the plaint, it was categorically mentioned that though the Principal Defendants and the proforma defendants have mutually partitioned their land, but that was not physically separated by putting any fence or wall nor was reduced in writing and as such, the entire plot remained physically un-separated between the Principal Defendants and the proforma defendants. It is further mentioned in the said paragraph by the plaintiff that the Principal Defendants promised to make physical partition of the Schedule-A land within 2(two) months and thereafter to execute and register the Sale Deed after obtaining NOC within another one month. It was specifically stated in the said paragraph that the partition was necessary before execution of the Sale Deed. Additionally, nowhere in the plaint, there is a mention that there was any partition between the Principal Defendants and the proforma defendants after the agreement was entered into on 01.11.2018 and till the date of filing of the suit. On the other hand, the learned Senior Counsel appearing on behalf of the plaintiff before this Court submitted that there is already a physical partition done, but what is actually required is the Revenue partition in view of a joint mutation order dated 10.11.2016 made in favour of both the proforma respondents as well as the Principal Defendants in respect to the Schedule-I land.
38. Be that as it may, one aspect is very clear that there was no partition amongst the Principal Defendants and the proforma defendants since the date of the Agreement dated 01.11.2018 till the date of filing of the suit which appears from a reading of the plaint. Therefore, the question arises as to whether the plaintiff could have at all filed the suit seeking specific performance for execution and registration of the Sale Deed in respect to the contracted land, inasmuch as the plaintiff was only ready, willing and agreeable to purchase after Page No.# 25/35 the shares between the Principal Defendants and the proforma defendants are partitioned. The answer to the said question has to be an empathic ' No'.
39. The next question arises as to whether there can be a decree for partition which can be passed in the suit, more particularly, taking into account the covenants contained in the Agreement for Sale dated 01.11.2018 which stipulates that the plaintiff would purchase the Schedule-A land only after partition. It is a well settled proposition of law that where any property is held jointly and a party to the contract had agreed to sell such joint property by agreement, then even if the other co-sharers have not joined the agreement, the party who had executed the agreement can be bound to execute the Sale Deed, inasofar as his share. However, in absence of the other co-sharers, there cannot be any decree of any specified part of the property to be partitioned and possession be given. The decree that could at best be passed in such situation would be to the extent of transferring the share of the party in such property to the other contracting party.
40. A question, therefore, arises as to whether in the present case the said proposition can be applied taking into account the specific covenants contained in the Agreement for Sale dated 01.11.2018, inasmuch as, the partition has to precede the Deed of Sale between the parties. It is the opinion of this Court that though the Principal defendants have agreed to get the land partitioned but in absence of the proforma defendants being parties to the Agreement for Sale, the Court would not have the power to effect partition of the suit property at the behest of the plaintiff. At this stage, it is very apposite to observe that in terms with Section 54 of the Transfer of Property Act, 1882 a contract for sale of Page No.# 26/35 an immovable property is a contract that a sale of such property shall take place on the terms settled between the parties. The terms settled between the parties herein is that the Principal Defendants shall first partition their 60% share from the Proforma Defendants and then to execute the Deed of Sale. Therefore, the question of taking benefit of Section 22 of the Specific Relief Act, 1963 does not arise in the present case. For the sake of clarity, it is observed that the plaintiff's right to get the Agreement for Sale enforced insofar as, the execution and registration of the Deed of Sale would arise only after partition as per the terms of the Contract for Sale, but the plaintiff on the basis of the Contract for Sale cannot seek partition on his own. Further the Proforma Defendants being not a party to the Agreement for Sale, the plaintiff cannot seek a decree for partition against them. Under such circumstances, it prima facie appears that the plaintiff would not have a prima facie case for going for trial seeking a decree for Specific Performance of the Agreement for Sale dated 01.11.2018 for execution and registration of the Deed of Sale in the present facts.
41. This Court further finds it relevant to take note of the compromise decree so passed by the learned High Court of Calcutta dated 02.02.2015. The learned Senior Counsel appearing on behalf of the plaintiff referred to Clause 9 of the said terms of settlement, and submitted that the bar contained in Lot C was temporary and would not effect the right of partitioning the shares amongst the Proforma Defendants and Principal Defendants. Clause 9 of the terms of Settlement is reproduced hereinbelow:
"9. All parties of the instant settlement hereby agreed that in terms of the Terms of Settlement each of the parties will shift their individual establishment whether family household, business to their specific allocated Page No.# 27/35 area by vacating their existing occupied area if that/ those/ is/are not allotted for him/them and shall also liable to hand over peaceful Khas possession of that/those area to particular specific allottee/allottees for particular Lot/Schedule within 180 days from the date of finalisation of this settlement by Hon'ble Court with valid notice for possession and/or mutual themselves in regards to their physical possession. Until that period of actual possession the parties have agreed to obtain joint allotment of their individual combined share in the suit premises either by themselves or through their authorised representatives."
42. In the foregoing paragraphs of the instant judgment, this Court had already quoted Lot C. From a perusal of the Lot C, it is seen that the parties who were allotted the said Lot C i.e. the Principal Defendants and the proforma defendants have agreed to accept the said property jointly in accordance with their shares mentioned i.e. 60% for the Principal Defendants and 40% to the proforma defendants and the stipulation contained therein mentioned that the Principal Defendants and the proforma defendants have to dispose/sale or develop the said Lot. It further stipulates that the share so assigned is in respect of the receivable consideration area which is required to be distributed amongst the parties.
43. It further stipulates that the said Lot shall not be parted or partitioned further and the parties are bound to sell or dispose or develop the said allotment. The stipulations thus contained is absolutely clear that the said Lot C cannot be parted or partitioned any further and it has to be sold or disposed or developed as a Lot by all the parties jointly and the distribution of the shares of Page No.# 28/35 60% and 40% is only for the purpose of distribution of the consideration amongst the parties upon the said Lot C being disposed or sold or developed as a Lot.
44. Now the question arises as to whether any other meaning can be assigned to the stipulations contained in Lot C in view of Clause 9 as quoted hereinabove. A reading of Clause 9 would show that the parties to the settlement have agreed that in terms of the settlement each of the parties would shift their individual establishment, whether family, household, business to their specified allocated area by vacating their existing occupied area and if that/those is/are not allotted to him/them and shall also be liable to hand over the peaceful khas possession of that/those area to the particular specific allotee/allottees for the particular Lot/Schedule within 180 days from the date of finalization of the settlement by the Court with valid notice for possession and or mutual themselves in regard to their physical possession. It further stipulates that until that period of actual possession, the parties have agreed to obtain joint allotment of their individual combined share in the suit premises either by themselves or through the authorized representatives.
45. The stipulations contained in Clause 9 as mentioned above refers to the interim arrangement to be made amongst the parties to the terms of the settlement approved by the learned High Court of Calcutta till actual possession is received as per the settlement. In the opinion of this Court, the reference made to Clause 9 of the Terms of Settlement is completely misconceived, inasmuch as, in the present facts on the basis of the compromise decree dated 02.02.2015, the Principal Defendants and the Proforma Defendants have got Page No.# 29/35 their names mutated on 10.11.2016 which is post the compromise decree and prior to the Agreement for Sale. It is so also seen from the recitals of the Agreement for Sale that the Principal Defendants and the Proforma Defendants are in khas possession of the land mentioned in Lot C, which is Schedule-I to the Agreement for Sale. Therefore, the submission that a further partition of the Lot C land (Schedule I Land) is permissible is misconceived and not tenable. In the opinion of this Court, it would be contrary to the terms of the compromise decree passed by the learned High Court of Calcutta.
46. This Court further finds it relevant to take note of Section 10 of the Transfer of Property Act 1882, to which the learned Senior Counsel, appearing on behalf of the plaintiff, had referred to and had submitted that if an interpretation is given to Lot C that it has to be sold, disposed or developed jointly, it would amount to restraining the power of alienation and would render the stipulations contained in Lot C to be void.
47. This Court is of the opinion that the said submission is not tenable inasmuch as a perusal of Section 10 of the Transfer of Property Act, 1882 would show that when the condition or limitation absolutely restrains the transferee or any person claiming under him from partitioning or disposing of his interest in the property, the condition or limitation would be void. But in the instant case, there is no absolute prohibition, but what is prohibited is disposing, developing or selling partly and not as a lot. Further to that, it is also the opinion of this Court that the plaintiff cannot agitate the issue of Section 10 as his right is only limited to get a conveyance in his favour on the basis of the Agreement for Sale and nothing more.
Page No.# 30/35
48. This Court further finds it relevant to take note of Clause 2 and Clause 5 of the Agreement for Sale dated 01.11.2018, which stipulates that the Principal Defendants had undertaken to convey the Schedule-A land to the plaintiff after partitioning their share within two months from the said date i.e. 01.11.2018. It is further seen from Clause-5 that if the partition cannot be done within the time stipulated i.e. 2(two) months from the date of the agreement then the period of the agreement can be extended by the parties by another 2(two) months or as may be mutually decided by the parties. At this stage, this Court finds it relevant to recapitulate the submissions of the learned Senior Counsel for the Appellants. The learned Senior Counsel appearing on behalf of the Principal Defendants submitted that there was no extension beyond the period of two months as stipulated in Clause 2 of the Agreement dated 01.11.2018. He further submitted that the perusal of the plaint nowhere would show that there was an extension of the Agreement insofar as extending the period for partition. He therefore, submitted that the date was duly fixed for performance. Taking into account that there was no extension beyond the period of two months, the cause of action for filing of the suit first arose on 01.01.2019 which is two months from the Agreement for Sale dated 01.11.2018 and in terms with Article 54 of the Schedule to the Act of 1963, the period of limitation would end on 31.12.2021. However, the suit was filed on 29.10.2024 and as such, the suit was barred by limitation.
49. It is relevant to observe that a perusal of the Agreement for Sale dated 01.11.2018 makes it clear that the Deed of Sale would be executed after partition of the shares amongst the Principal Defendants and the Proforma Page No.# 31/35 Defendants which was required to be done within two months from the date of the Agreement for Sale dated 01.11.2018 and thereupon the NOC would be obtained and the Deed of Sale would be executed and registered. As stated above, there is no mention in the plaint that the period of two months to carry out the partition was extended by two further months or any other further period mutually. It is relevant herein to observe that as the Agreement for Sale dated 01.11.2018 was a conditional contract, the non-compliance to the conditions gives rise to a cause of action. It cannot be said that the enforcement of the Agreement for Sale dated 01.11.2018 is only in respect to the execution and registration of the Deed for Sale, but it also includes all such steps which are required to be completed by the parties before execution and registration of the Deed of Sale. Getting the shares partitioned is one of the major conditions for the plaintiff 'readiness' and 'willingness' to purchase the Schedule-A land. As the shares were required to be partitioned within two months from the date of the Agreement for Sale and there being nothing on record to show that the said period was extended mutually by two months or for any further period, it is the opinion of this Court that the cause of action for the present suit arose on 01.01.2019 i.e. two months from the date of the Agreement for Sale. In this regard, this Court finds it relevant to take note of the judgment of the Supreme Court in the case of Fatehji & Company & Anr. Vs. L.M. Nagpal and Others reported in (2015) 8 SCC 390, wherein the Supreme Court observed that the mere fact that the defendants therein have not obtained the permission would not lead to an inference that no cause of action for filing of the suit would arise. Paragraphs 5 to 8 of the said judgment are quoted hereinbelow:
"5. We considered the rival submissions. The specific performance is claimed of a written agreement of sale dated 2-7-1973 and as per the terms the performance of the contract was fixed till 2-12-1973. The defendants by subsequent letters dated 7-4-1975, Page No.# 32/35 1-10-1975 and 1-8-1976 sought for extension of time to enable them to obtain permission of the lessor and the last extension of six months expired on 1-2-1977. In view of Order 7 Rules 11(a) and 11(d) CPC the Court has to satisfy that the plaint discloses a cause of action and does not appear to be barred by any law. Article 54 of the Limitation Act stipulates that the limitation for filing the suit for specific performance of the contract is three years from the date fixed for the performance or if no such date is fixed, when the plaintiff has notice that performance is refused.
6. The fact that the plaintiffs were put in possession of the property agreed to be sold on the date of agreement itself would not make any difference with regard to the limitation of filing the suit for specific performance. In fact both the courts below have rightly held that Article 54 of the Limitation Act does not make any difference between a case where possession of the property has been delivered in part-performance of the agreement or otherwise. In the same way the courts below have also concurrently held even if any permission is to be obtained prior to the performance/completion of the contract, the mere fact that the defendants have not obtained the said permission would not lead to inference that no cause of action for filing the suit for specific performance would arise. Further it is also not the case for postponing the performance to a future date without fixing any further date for performance. The last extension for a period of six months w.e.f. 1-8-1976 sought for by the defendants expired on 1-2- 1977. The present suit seeking for specific performance was filed by the plaintiffs on 29- 4-1994, much beyond the period of three years.
7. Yet another circumstance was pointed out to prove the laches on the part of the plaintiffs. The sons of the second defendant filed a suit in July 1985 against Defendants 2, 3 and the plaintiffs seeking for declaration that the present suit property is their ancestral joint family property and the sale made by the defendants in favour of the plaintiffs be declared as null and void. The plaintiffs herein contested the said suit and it came to be dismissed on 5-4-1989. The suit for specific performance was not filed within three years from the said date also.
8. The plaintiffs averred in the plaint that the last and final cause of action accrued and arose to them after August 1991 when the defendants succeeded in hiding themselves and started avoiding the plaintiffs and the cause of action being recurring and continuous one, they filed the suit on 29-4-1994. As already seen the original cause of action became available to the plaintiffs on 2-12-1973, the date fixed for the performance of the contract and thereafter the same stood extended till 1-2-1977 as requested by the defendants. Though the plaintiffs claimed that oral extension of time was given, no particulars as to when and how long, were not mentioned in the plaint. On the other hand even after knowing the dishonest intention of the sons of the second defendant with regard to the suit property in the year 1985, the plaintiffs did not file the suit immediately. The suit having been filed in the year 1994 is barred by limitation under Article 54 of the Limitation Act."
Therefore, it prima facie, appears that the suit was barred by limitation under Section 54 of the Schedule to the Act of 1963, insofar as specific performance of Page No.# 33/35 the contract is concerned. Under such circumstances, the question of granting an injunction when a belated right is sought to be enforced goes against the mandate of the settled principles of law.
50. This Court further takes note of that the Agreement for Sale apparently is a contingent contract and the execution and registration of the Deed of Sale can only happen after the partition is made and NOC is obtained. As already opined above, the plaintiff cannot seek for a partition till he attains the status of a co- owner which can only happen in the present facts of the case, only after partition. Under such circumstances, as the execution and registration of the Sale Deed is dependent upon the partition and in terms with Section 32 of the Act of 1872, the said contract cannot be enforced unless and until the partition had taken place. It is pertinent to observe that Section 41 (e) of the Specific Relief Act, 1963 specifically bars granting an injunction when a performance of a contract is not specifically enforceable. Accordingly, the granting of the injunction in the present case is contrary to Section 32 of the Act of 1872 and Section 41(e) of the Specific Relief Act, 1963.
51. This Court also in the previous segments of the judgment had opined that the property which has been described in Lot C of the compromise decree passed on 02.02.2015 of the learned High Court of Calcutta cannot be parted or partitioned any further. Therefore, till the compromise decree remains as it is, in respect to Lot C, the partition cannot happen and, as such, the suit for specific performance of an agreement for execution and registration of a Deed of Sale cannot be enforced by virtue of Sections 35 and 36 of the Act of 1872, for which, the question of granting the injunction did not arise.
Page No.# 34/35
52. In the backdrop of above observations and analysis, it would, therefore, be seen the plaintiff did not have a prima facie case for going for trial seeking specific performance of the Agreement for Sale, insofar as, seeking execution and registration of Deed of Sale as well as for partition of the Schedule-I property. As the plaintiff did not have a prima facie case, the question of granting of an injunction in favour of the plaintiff did not arise, inasmuch as, prima facie case for going for trial is one of the factors which has to exist for grant of an injunction.
53. Now let this Court take note of the aspect pertaining to the balance of convenience. From the discussions made hereinabove, it would be seen that the Agreement for Sale dated 01.11.2018, could not have been specifically enforced at the instance of the Plaintiff. Consequently, the balance of convenience cannot be said to be in favour of the plaintiff. On the other hand, if the injunction is allowed to remain the 60% share of the Principal Defendants cannot be put to use. Under such circumstances, the balance of convenience was not in favour of the grant of injunction.
54. This Court further takes note of that the plaintiff's herein entitlement prima facie appears to be only for recovery of the amount paid by the plaintiff in advance along with certain compensation (subject to proof in terms with Section 73 the Act of 1872) and, therefore, the loss in question cannot be irreparable as Page No.# 35/35 the plaintiff can very well be compensated by way of money. In that view of the matter, it is, therefore, the opinion of this Court that the plaintiff would not suffer irreparable loss, harm and injury.
55. Considering the above, this Court is of the opinion that the learned Trial Court erred in law and on facts in passing the impugned order dated 09.01.2025 inasmuch as, the discussions made above would show that the order dated 09.01.2025 is unreasonable, unfair, irrational as well as had violated the settled principles of law for grant of an injunction.
56. Accordingly, the impugned order dated 09.01.2025 is set aside and quashed.
57. With the above, the instant appeal stands allowed.
JUDGE Comparing Assistant