Madras High Court
V.A. Padmanabhan And Ors. vs M.A. Narasimhan And Ors. on 7 January, 1993
Equivalent citations: (1993)1MLJ576
JUDGMENT Mishra, J.
1. The impugned order, according to us, has no infirmity and the appeal deserves to be dismissed in limine. However, since learned Counsel for the appellants has persuaded us to consider the appellants' case for injunction, in particular, on the plea of possession as an independent relief of injunction, we have heard him at length and we record our opinion in some detail.
2. According to the plaintiff-appellants, the respondents executed an agreement on 12.3.1981 to sell the suit properly for a total consideration of Rs. 6,00,0.00 and received an advance of Rs. 1,50,000 from the plaintiffs/appellants by way of part performance of the agreement by the plaintiffs and put them in possession of a portion of the Schedule mentioned property, which was vacant, and further authorised the plaintiffs/appellants to recover vacant possession of the remaining portions occupied by third parties. It was agreed that the sale would be completed within three months after possession of the entire suit property was obtained or within six months from the date of execution of the agreement whichever was later. The plaintiffs who got possession over a portion of the suit property from the defendants-respondents also recovered possession of some more portions, but some portions are still in the occupation of the third parties. In order to evict those persons, the plaintiffs needed authority and money and accordingly they demanded, in writing, execution and registration of the sale deed from the respondents, but the respondents in their reply, without, denying the execution of the agreement, raised a demand to a sum of Rs. 9,00,000 instead of Rs. 4,50,000. The plaintiffs thus moved the Court alleging that the cause of action for the suit arose at Madras on 12.3.1981 where and when the suit agreement was executed, where the suit property is situate and on which date the plaintiffs paid a sum of Rs. 1,50,000 to the defendants under the said agreement, and on which date the defendants put the plaintiffs in possession of the vacant portion of the suit property in part performance of the suit agreement, besides other facts.
3. The plaintiffs/appellants then filed an application for an interim injunction seeking to restrain the respondents from intermeddling with in any manner with the corpus of the property mentioned in the schedule to the Judge's summons and from interfering with the appellants' possession and enjoyment of the suit property.
4. The trial court first granted an interim injunction as prayed for on 29-4-1991. After notice and after hearing the respondents the trial court, however, dismissed the application for injunction.
5. The defendants-respondents have accepted the agreement for sale of the suit property for a consideration of Rs. 6,00,000 and also admitted that they have received a sum of Rs. 1,50,000 as advance from the appellants. They have, however, disputed the appellants' case that they were put in possession of certain portion of the suit land by the respondents. They have stated that the entire property is under the occupation of slum-dwellers. There are more than 50 huts over the suit land. They tried to remove the encroachment, but they could not do so. They then decided to sell the suit land for a consideration of Rs. 6,00,000 in the year 1981 to the appellants. After the agreement, the appellants made some attempt to vacate the slum-dwellers by directly dealing with them. This gave rise to civil litigations. Many of them are still pending. The respondents were willing to provide all legal assistance for vacating the slum-dwellers from the suit land provided it was at the cost of the appellants. The appellants could not obtain possession from any of the third parties and they were unable to vacate the persons who were in possession of the suit land. They (appellants) orally said to the respondents that they were not interested in purchasing the suit land. They prevented several prospective purchasers from purchasing the suit property and even instigated the slum-dwellers to deny the title of the respondents and attempted to create a cloud over their title. They have alleged, "even though the agreement was entered into on 12.3.1981, the applicants never performed their part of the contract till now".
6. Learned single Judge has, however, stated in the order:
According to the plaintiffs, by way of part performance of the contract, they were put lit possession by the defendants and, therefore, the defendants should not be permitted to disturb their possession.
But, learned Counsel for the appellants has chosen to shift the stand before us and urged oh the basis of the pleadings and on the admitted facts as mentioned in the agreement that possession of certain portion of the suit land was delivered by the respondents to the appellants and they obtained possession of some other parts of the suit land from the slum-dwellers, the Court should consider whether there is a prima facie case and balance of convenience for granting injunction.
7. We shall for the reason of the above shift in the contention of the learned Counsel for the appellants, proceed first to consider whether as to what may be in a suit for specific performance of a contract of money in which by way of part performance possession is delivered by the defendants to the plaintiffs, a plea to maintain status quo to preserve possession of the agreement-holder and when can such a plea be allowed and then whether independent of a claim of possession in terms of Section 53-A of the Transfer of Property Act, possession can be taken notice of as good and conclusive for determination of the question as to a prima facie case and balance of convenience. Before we do so, we may take notice of the law on the subject. The Act relating to transfer of property (Transfer of Property Act) has defined 'transfer of property' to mean an act by which a living person conveys property in present or in future, to one or more other living persons, or to himself, or to himself and one or more other living persons, and 'to transfer property' is to perform such act. The word 'living person's in this section, it is explained, includes a company or association or body of individuals, whether in corporate or not. It then says in Section 6 thereof that the property of any kind may be transferred, except as otherwise provided by this Act or by any other law for the time being in force and enlisted in this such items of property which cannot be transferred. This comprehensive enactment is in Group B and in this group lies the provision as to part performance of a contract to transfer for consideration any immovable property. It is Section 53-A which reads as follows:
53-A. Part performance: Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being? already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract:
Provided that nothing in this section shall affect the rights of a transferee for consideration who, has no notice of the contractor of the part performance thereof.
8. To raise thus a plea based on possession taken in part performance of the contract against the transferor or any person claiming under him, it is necessary that, the possession, of the property or any part thereof is taken in part performance of the contract or the transferee, being already in possession, continues in possession in part performance of the contract and the transferee has done samp, act in furtherance of the contract. This plea will be available against the transferor or any person claiming under him any right in respect of the property of which the transferee has taken or continued in possession other than a right expressly provided by the terms of the contract, a plea which is available to defend or protect the possession obtained or continued in part performance of the contract.
9. Section 54 of the Transfer of Property Act defines 'sales of immovable property' and also defines 'contract for sale' in these words; 'a contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property". Considering these two provisions in the Act, a Bench of this Court, to which one of us was a member, in the, case of T. Parameshwari and Ors. v. S.S. Investments Private Ltd. and Anr. O.S.A. Nos. 122 and 123 of 1991 judgment dated 24.10.1991, has stated as follows:
These two provisions together thus leave no manner of doubt that there is no right under a contract for sale, except to see for its enforcement and that possession in part performance of the contract in the hands of the transferee shall also not defeat any transfer to a third party who had no notice of the contract or of the part performance thereof.
Courts in India, have been repeatedly asked to examine the extent of the right under Section 53-A of the Transfer of Property Act, They have almost on every time reiterated that in legal parlance, this provision cannot be used as a sword, It can be only used as a shield. It cannot be used as weapon of offence. It can be used only as a shelter of defence under jaw.
10. A Bench of the Patna High Court in H.P. Thirupathi v. Dayananthi Devi has observed thus:
The claim of the petitioner in this application is that after the execution of the deed of agreement, he continued to remain in possession not qua tenant but de hors the tenancy in his own right as a transferee. To put it in legal parlance, Section 53-A of Transfer of Property Act was sought to be used as a sword and not a shield as a weapon of offence rather than a shelter of defence under the law. That is entirely not permissible under the statutory and salutary provisions of Section 53-A of Transfer of Property Act, which does not envisage eviction under the Rent Control Act to be inhibited by filing of a prior suit by the adversary claiming a title on the basis of an alleged deed of agreement of sale and desirous of getting a decree for specific performance of contract therein. It is well-settled that Section 53-A of Transfer of Property Act can be used only as a shield and not as a sword.
11. Yet another Bench decision of the Patna High Court has been referred to by the learned Judges of this Court in the case T. Parameshwari and Ors. v. S.S. Investments Private Ltd. and Anr. O.S.A. Nos. 122 and 123 of 1991 Judgment - dated 24.10.1991, in which relying upon Kalyanpur Lime Works v. State of Bihar , it is stated:
I do not think that an order of injunction should be granted in order to disturb the status quo. There cannot be any doubt that the appellant has no right to immediate possession, and the appellant's title would accrue after the contract has been specifically performed. In referring to English decisions on the subject, one must bear in mind that the English doctrine of an equitable estate, on a contract for sale does not apply in India, and the law of India does not recognise such equitable estates.... I think that the learned Advocate-General is putting his case too high when he contends that where a prima facie case has been made out by showing that there is a fair Question for trial, a temporary injunction must follow restraining the contracting defendant from dealing with the property. Where an order of injunction should or should not issue will, in my opinion, depend on the facts of the case, and the court must also consider the questions of irreparable or serious injury and balance of convenience. I do not think that there is any such irreparable or serious injury from which the appellant is required to be saved by an order of injunction in the present case". "We have also been addressed on the question whether the appellant can be sufficiently compensated by money in respect of any loss suffered before specific performance of the contract. The learned Advocate General has drawn our attention to Section 12, Explanation and Sections 54 and 56, Specific Relief Act (old Act) Court's comment); He has also drawn our attention to Section 19, Specific Relief Act, which says that any person suing for the performance of a contract may also ask for compensation for its breach, either in addition to or in substitution for such performance. Personally, I do not see any reason why the appellant cannot be compensated by money for any loss he may suffer, provided the appellant is entitled to compensation in addition to specific performance, under the law, as to which I express no opinion at this stage. If, as I have already stated, there is no question of stopping the quarrying operations during the pendency of the suit for specific performance, the question of compensation will remain whether an order of injunction is or is not passed. It cannot surely be urged that in a suit for specific performance the plaintiff is entitled to ask, during the pendency of litigation, that the defendant in whom the legal title still vests should be restrained from using the property. If the plaintiff were so entitled, then in a suit for specific performance, the defendant would be required to vacate the property which he had contracted to sell or lease. That surely cannot be the law.
This decision of the Patna High Court in the words of the Division Bench of this Court in the case of T. Parameshwari and Ors. v. S.S. Investments Private Ltd., and Anr. O.S.A. Nos. 122 and 123 of 1991 Judgment dated 24.10,1901, is worthy companion of a Bench decision of this Court in Krishnamurthy v. Paramasiva . In that case, the law has been stated rather elaborately and for us it is particularly relevant because one question argued by the learned Counsel for the appellants has been answered therein. This Court in Krishnamurthy v. Paramasiva , has stated:
Apart from this factual aspect there is one other impediment in the way of the respondent from getting the relief of temporary injunction in his suit for specific performance. Even assuming that the plaintiff was given possession of the suit properties on the date of the agreement of sale by the first defendant, the question still is whether the plaintiff could claim the relief of injunction based on Section 53-A of the Transfer of Property Act. Admittedly, in this case the plaintiff has not yet got title to the properties. He can get title to the properties only if he succeeds in the suit and obtains sale deed in respect of the properties. It is well-established that an agreement of sale does not create any interest in the property which is the subject matter of the agreement. Therefore, the plaintiff if at all can claim only an equitable right based on Section 53-A of the Transfer of Property A: ...Therefore, the relief of temporary injunction claimed by the plaintiff pending the suit can be taken to have been claimed by the plaintiff only on the basis of Section 53-A of the Transfer of Property Act as mere possession of the plaintiff of the suit properties on the date of the suit cannot be taken to enable him to obtain injunction from the Court. If that will be the case even a trespasser in possession can approach the court and ask for an injunction to protect his possession. Therefore, we have to treat the plaintiffs application for temporary injunction pending the suit as an application for claiming equitable relief under Section 53-A of the Transfer of Property Act. If the application for injunction is so treated, then the plaintiff cannot be granted the relief for the reason that Section 53-A can be used to resist the defendant when he seeks to dispossess the plaintiff. 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 transferor who has agreed to sell the property from 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. .Though in English Law the equity of part performance is an active equity which the plaintiff in possession may enforce in an independent suit or proceeding, such as a suit for specific performance or for an injunction to restrain dispossession, such equity is not available after the amendment of the Transfer of Property Act in the year 1929. In this case, the plaintiff used his right under Section 53-A not as a shield but as a sword. Hence, the plaintiff is not entitled to the injunction sought for by him.
12. The principle of law in the case of Krishnamurthy v. Paramasiva , is a complete answer to the plea of injunction of the appellants and the learned single Judge has made no mistake in this behalf in following the rule that a plea based on possession in part performance of a contract cannot be permitted to be used as a sword to assert a right against the owner of the property as the contract or possession as above in itself creates no interest in or charge on the property.
13. In the case of T. Parameshwari and Ors. v. S.S. Investments Private Ltd. and Anr. O.S.A. Nos. 122 and 123 of 1991 Judgment dated 24.10.1991, however, this Court has taken notice of the dissent to the view expressed by this Court in Krishnamurthy v. Paramasiva A.I.R. 1981 Mad. 310, by a learned single Judge of the Bombay High Court in Venkat Dharmaji v. Vtshwanatha and Muhtalakeshi Dawan v. Haripada Mazumdar . The Bombay decision only says that there is no bar under the Civil Procedure Code which can be invoked in support of the proposition that a plaintiff suing for specific performance, cannot obtain any injunction whatsoever and that if there is no bar in the Civil Procedure Code and if the application for temporary injunction is solely governed either by Order 39, Rules 1 and 2 or in the alternative by invoking the inherent powers of the Court under Section 151, C.P.C. there is no justification to treat such an application as an application for relief of injunction as provided by Section 53-A of the Transfer of Property Act. Having stated so, the learned single Judge of the (Bombay High Court has chosen to record his dissent from the view taken by this Court in the case of Krishnamurthy v. Paramasiva A.I.R. 1981 Mad. 310. But the Bench in deciding the case of T. Parameshwari and Ors. v. S.S. Investments Private Ltd and Anr. O.S.A. Nos. 122 and 123 of 1991 Judgment dated 24.10.1991, has commented upon the Bombay High Court's judgment thus:
But, then there is absolutely no reason stated why the learned Judge thought that he should dissent from the view taken by the Madras High Court. No one can question the jurisdiction of this Court to grant temporary injunction even in a suit for specific performance of a contract for sale. While applying to exercise the discretions, it would necessarily take the , Court to the various provisions governing the suit for specific performance of a contract for sale of immoveable property. Presence of power alone is not enough to exercise it. It is the exercise which is controlled by judicial discipline. Courts who always advise that all adjudications must conform to the rules of equity and discretions must always be exercised within the bounds of law, cannot merely because there is no power to do a thing would do that thing. The decision in Kalyanpur Lime Works v. State of Bihar and the decision in Krishnamurthy v. Paramasiva would appear to take a principled stand to be applied in determining as to whether there is any balance of convenience in favour of the plaintiff or it is in favour of the defendant. There is no reason why we constituting a co-ordinating Bench do not follow the law stated by this Court in Krishnamurthy v. Paramasiva . The Calcutta High Court's view is not essentially in conflict with the view taken by the High Court of Patna and the High Court of Madras. In Muktalakeshi Dawan v. Haripada Mazumdar , all that is stated is:
It is true that the doctrine of Its pendens as enunciated in Section 52 of the Transfer of Property Act takes care of all pendente lite transfers; but it may not always be good enough to take fullest care of the plaintiffs interest vis-a-vis such a transfer. Where a suit is one for specific performance of sale in respect of the suit property and if the defendant is not restrained from selling the property to a third party and accordingly a third party purchases the same bona fide for value without any notice of the pending litigation and spends a huge sum on the improvement thereof or for construction thereon, the equity in his favour may intervene to persuade the court to decline, in the exercise of its discretion, the equitable relief of specific performance to the plaintiff at the trial and to award damages only in favour of the plaintiff.
This is fully in tune with what this Court has said in the case of T. Parameshwari and Ors. v. S.S. Investment Private Ltd. and Anr. O.S.A. Nos. 122 and 123 of 1991 Judgment dated 24.10.1991, referred supra, that no one can question the jurisdiction of this Court to grant temporary injunction even in a suit for specific performance of a contract for sale. But while applying to exercise the discretions, it would necessarily take the court to the various provisions governing the suit for specific performance of a contract for salt of immoveable property. Presence of power alone is not enough to exercise it. It is the exercise which is controlled by judicial discipline. We, however regard it to the credit of the learned Counsel for the appellants that he has drawn Our attention to Bench decision of this Court in S.F. Munuswami v. Erusa Goundar . That case related to immovable properties belonging to one of the parties who entered into a contract with another as the guardian of the plaintiff in the suit and another who were minors for sale of the properties for consideration within two years. Base on the agreement which the plaintiffs father had with the owner, he was put in possession in part performance. The owner, however, transferred the properties to another. The plaintiff then filed a suit for declaration of title and for an injunction from interference. The Trial Court found that there was an agreement of sale and the plaintiff , had been put in possession and on that basis granted the prayers asked for in the plaint. The first appellate Court proceeded upon the view that Section 53-A of the Transfer of Property Act by itself did not confer title on the plaintiff and that, therefore, he cannot raise the claim on the basis of part performance of title. As to possession, it considered that the finding of the trial Court was unnecessary and discharged the finding. When the matter came up in second appeal, a learned single Judge of this Court stated:
After going through the documentary and oral evidence in the case, I am Of opinion that the appellant continued to Be in possession of the suit properties in spite of the sale in favour of defendants 2 and 3 by the 1st defendant.
Relying upon a Judgment of the Andhra Pradesh High Court in Yenugu Achayya v. Venkatasubba Rao A.I.R. 1957 A.P. 854, the learned single Judge held that the appeal should be allowed and the trial court's decree should be restored. The Bench in the Letters Patent Appeal said that it seems to us that the judgment in second appeal cannot be supported. There can be no doubt, therefore, as to the ratio of the judgment of the Court that the judgment of the first appellate court correctly decided that a person cannot base, his claim on a contract for specific performance or possession delivered in part performance thereof. But there are certain observations in the said judgment which need a little examination. After stating that the judgment in second appeal cannot be supported, the learned Judges have in deciding S.F. Munuswami v. Erusa Goundar have said, Subba Rao, C.J. (as he then was) observed:
It is settled law that under Section 53-A of the Transfer of Property Act, no title passes to a transferee. He cannot file a suit for declaration of his title to the property or seek to recover possession of the same on the basis of any title conferred on him".
"Venkatadri, J., was, therefore, not right in allowing the appeal which would mean that he was giving declaration of title sought for. As pointed out in Yenugu Achayya v. Venkatasubba Rao A.I.R. 1957 A.P. 854, which is representative of a large volume of judicial opinion, Section 53-A of the Transfer of Property Act does confer some right on the transferee, if the conditions of that section are fully satisfied, and what is that right is also clear from the ¦ provisions of Section 53-A. The right is to have the transferor or any person claiming under him debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession. This right can be enforced by the transferee always as a shield and not as an independent claim either in the capacity of plaintiff or defendants, that is to say, he cannot ask for title basing his claim on the fact that he has fulfilled the conditions of Section 53-A. But he can, as a shield, ask for protection of the right envisaged by Section 53-A by debarring, in other words, by getting an injunction against the transferor and those claiming under him from interfering with his possession.
There is a more categorical statement than the one in the case of S.F. Munuswami v. Erusa Goundar in the judgment of the Karnataka High Court in Mahadevdmma v. B.S. Linga Raju and Ors. (1981) 2 Karn. L. J. 388 and another of the Sikkim High Court in Tshering Wongdi v. Sonam Pintso A.I.R. 198l Sikkim 1. Like the Judgment in the case of S.F. Munuswami v. Erusa Goundar , a Division Bench Judgment of this Court, no exception is taken in either of these two judgments to the rule that the equity of part performance under Section 53-A of the Transfer of Property Act is a passive equity, figuratively expressed as a shield, and not a sword and the person claiming its benefit thus cannot use it as an action to assert a right. What is pointed out in the Karnataka judgment is that the doctrine of part performance in England was an innovation to relieve the hardship of the provisions of the Statute of Frauds which by its 4th section provided that no action could be brought upon a contract for the sale of land unless the contract was in writing and signed by the party to be charged. Answering, however, the question whether a transferee as plaintiff is entitled to invoke Section 53 of the Transfer of Property Act for the purpose of protecting his possession, the Karnataka High Court has said that a suit by a transferee in possession as part performance under Section 53-A for the possessory remedy of injunction protecting his possession is a mere defence suit in which the plaintiff is merely using the shield of passive equity and referred to a large number of judgments of different Courts. In the words of the learned Judges, We are in respectful agreement with the reasoning of Chief Justice Subba Rao (as he then was) in Yenugu Achayya v. Venkatasubba Rao A.I.R. 1957A.P. 854 and of the other decisions which take that view. An action for the possessory remedy of an injunction, by the transferee against the transferor, in protection of the possession, had in part performance of the agreement, is essentially a defensive action in which the transferee merely wields the shield of passive equity. The opposite view taken in Shankargoud's case and in Muniyamma's case in our opinion, cannot be considered to have laid down the correct law.
The Sikkim High Court has in its judgment also proceeded with almost the same reasoning to say "that it is not also correct to say that in a civil suit it is the plaintiff who is the aggressor and has attacked or is trying to attack the defendant and , has, therefore, used a "sword" and it is the defendant who only seeks to protect himself against such aggression and attack and, therefore, has used "shield" only. More often than not, a plaintiff comes to the Court for the protection of his rights and not for enforcement, unless, as I sometime feel, every protection of right involves, in some way or other, an enforcement of that right. If a transferee under Section 53-A of the Transfer of Property Act cannot rely on his rights under that section as a plaintiff, then, as pointed out by Subba Rao, C.J., all that a transferor is required to do in order to get rid of such a transferee is to dispossess him forcefully and forcibly as in such a case the transferee would not be able to enter the portals of the Court as a plaintiff to seek protection of his rights."
14. The judgment of this Court in the case of S.F. Munuswami v. Erusa Goundar the Karnataka High Court's decision in the case of Mahadevamma v. B.S. Linga Raju and Ors. (1981)2 Karn. 388 as well as the Sikkim Court in Tshering Wongdi v. Sonant Pintso A.I.R. 1981 Sikkim 1 are all inspired by the judgment of Subba Rao, C.J., in the case of Yenugu Achayya v. Venkata Subba Rao A.I.R. 1957 A.P. 854. This Andhra Pradesh judgment is categorical on the necessary conditions for the application of Section 53-A of the Act and says the necessary conditions for the application of the section are: (i) there is a contract to transfer immovable property for consideration, (ii) the contract is signed by or on behalf of the transferor, (iii) the terms can be ascertained with reasonable certainty from the document, (iv) the transferee is put in possession or if he has been already in possession continues in possession, (v) he has done some act in furtherance of the contract, and (vi) the transferee has performed or is willing to perform his part of the contract. If .the aforesaid conditions are fulfilled the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of that property.
15. It has been categorically pointed out in this judgment that Section 53-A does not even if the conditions laid down therein are complied with, convey title to the transferee, Notwithstanding the section, title can be transferred only after the registration of the document. This provision prevents a transferor from enforcing his rights In respect of the property against the transferee bet enables him to sue the transferee upon the covenants contained in the document. In short, the mutual covenants will be operative, though title does not pass under the document''. After laying down the" law as above it is stated in this judgment that the section does not either expressly or by necessary implication indicate that the rights conferred on the transferee thereunder can only be invoked as a defendant and not as a plaintiff. Under the terms of the section the transferor is debarred from enforcing against the transferee only rights in respect of the property and this bar does not depend upon the array of the parties. The transferee can resist any attempt on the part of the transferor to enforce his rights in respect of the property whatever position he may occupy in the field of litigation. In One sense, it is a statutory recognition of the defensive equity. It enables the transferee to use it as a shield against any attempt on the part of the transferor to enforce his rights against the property. Whether the transferee occupies the position of a plaintiff or a defendant, he can resist the transferor's claim against the property. Conversely, whether the transferor is the plaintiff or the defendant, he cannot enforce his rights in respect of the property under Section 53-A against the transferee. The utility of the section and of the rights conferred thereunder should not be made to depend on the maneuvering for positions in a Court of Law, otherwise a powerful transferor can always defeat the salutary provisions of the section by dispossessing the transferee by force and compelling him to go to a Court as plaintiff. Doubtless, the right conveyed under the section can be relied upon only as a shield and not as a sword but the protection is available to the transferee both as a plaintiff and as a defendant so long as he uses it as a shield.
16. What has been culled out by us leaves no manner of doubt that possession in part performance of a contract is a right falling under Section 53-A of the Transfer of Property Act and the transferee in possession of the property in part performance of the contract can defend his possession in case there is any attempt by the transferor or any per-son claiming through him to dispossess him. That the transferee cart do either as a plaintiff or a defendant. Ordinarily, the issue as to possession or any other right under Section 53-A of the Act shall be consequential or a dependent issue upon the issue of the existence of the contract itself and with the decree for the enforcement of the contact there can be an order for maintaining use possession of the agreement-holder/transferee. In considering, however, whether injunction should be granted on the plea of possession and allegation of threat to dispossession to a person holding the agreement for sale, the rule will be as one reiterated almost in every case that to a plaintiff claiming only an equitable right, the court would not ordinarily grant temporary injunction pending the suit on the basis of Section 53-A of the Act as mere possession of the plaintiff of the suit property on the date of the suit cannot be taken to enable him to obtain injunction from the Court. The passive equity as provided under Section 53-A of the Act shall be available as a shield against any interference by the defendant who is either the transferor himself or any other person claiming through the transferor but would not become active equity without there being something more. The doctrine of lis pendens as enunciated in Section 52 of the Act and similar other doctrines will take care of all penderue lite transfers. But there may be exceptional cases where the other rules of equity as are noticed in the cardinal principles for grant of injunction will intervene and injunction may be the proper and equitable order. The Bench decision of this Court in the case of T. Pammeshwari and Ors. v. S.S. Investments Private Ltd., and Anr. O.S.A. Nos. 122 and 123 of 1991 Judgment dated 24.10.1991, which has been affirmed by the Supreme Court in S.LP. Nos. 17926 and 17927 of 1991, has clearly said that no one can question the jurisdiction of the Court to grant temporary injunction even in a suit for specific performance of a contract for sale. But, while applying to exercise the discretion it would necessarily take the court to the various provisions governing the suit for specific performance of a contract for sale of immovable property as well as other equitable doctrines.
17. When we come to the facts of the instant case, however, there is a vague assertion in the plaint that pursuant to the agreement the defendants delivered possession of a certain portion of the land under the conveyance and that the plaintiffs have come in possession of certain other portions after getting third parties evicted. There is no specific mention on the portions of which the plaintiffs are exercising possession. The agreement is dated 12.3.1981. The suit has been filed in the year 1992. The alleged part performance is of the year 1982, in so far as possession of certain portion delivered by the defendants is concerned and it is not known when and how the plaintiffs obtained possession of the other part of the suit property and what portion is still remaining in the possession of the third parties or in the possession of the defendants. A Court shall allow a passive equity only to a limit and not beyond. It will be necessary in all cases to see if the property is not preserved in a status quo who will suffer greater injury, the plaintiff or the defendant? Learned single Judge has adverted to this aspect of the matter also and said as follows:
The fact remains that according to sale agreement the defendants put the purchasers/plaintiffs in possession of a portion of the suit land and the possession of the rest of the portions are in the hands of the third parties. Neither the plaintiffs nor the defendants can so far able to evict them. Unless the possession of the entire suit land is obtained the plaintiffs would not come forward to complete their part of the contract. The plaintiffs stated that they have already taken steps to vacate the third parties from the suit land. The defendants who entered into a contract for sale of the suit land with the plaintiffs are also unable to proceed any further. The defendants being the owners of the suit property, they are also having their right over the suit property. The plaintiffs claim their right to be in possession on the basis of part performance of the contract under Section 53-A of the Transfer of Property Act, and if there is any threat to their possession, their possession would be safeguarded. Considering all these points, I am of the opinion that the prima facie case and the balance of convenience are not in favour of the plaintiffs/applicants.
18. Learned Counsel for the appellants has tried to persuade us to imagine that the transferor and/or others claiming through him have intended to dispossess the plaintiffs. He has also tried to persuade us to hold that even though there are no specific specifications of the land in possession of the plaintiffs available, the defendants know about it and the third parties in possession also are fully aware of it. The Court should order maintenance of status quo which, according to learned Counsel for the appellants, would serve the ends of justice. We are, however, unable to accept this extreme contention. We have no material before us to hold that plaintiffs are in possession of any portion of the suit property. Learned Counsel for the appellants/plaintiffs has tried to show to us the mention of possession of a certain portion delivered to the plaintiffs by the defendants as part performance of the contract. But the defendants have denied any such possession by the plaintiffs, in the written statement that they have filed in the suit. It is not a fit case, in our opinion, for any interference with the impugned order. The appeal is dismissed. No costs.