The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK RSA No. 329 of 2019 [In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908. --------------- Girija Sankar Satpathy & Anr ...… Appellants -Versus- Dr. Abhaya Charan Mishra Respondent ….. Advocate(s) appeared in this case :- _________________________________________________________ For Appellants : Mr. S. K. Dash, Advocate For Respondent: Mr. B. Routray, Senior Advocate, J. Biswal, Advocate ________________________________________________________ CORAM JUSTICE SASHIKANTA MISHRA JUDGMENT 21stFebruary, 2025 SASHIKANTA MISHRA, J. The plaintiffs have filed this appeal against a confirming judgment. 2. The judgment passed by the learned Additional District Judge-cum-Special Judge, CBI (Court No. III), Bhubaneswar on 16.11.2019 followed by decree is impugned whereby, the judgment passed Page 1 of 25 by learned 2nd Additional Senior Civil Judge, Bhubaneswar on 27.08.2019 followed by decree in CS No. 780 of 2008 was confirmed. 3. For convenience, the parties are referred to as per their respective status in the Court below. 4. The plaintiffs filed the suit for permanent injunction. It was their case that intending to purchase the suit property they entered into an agreement with
Legal Reasoning
the defendant through his brother and power of attorney holder on 10.02.1996. The defendant had obtained the suit land by lease for commercial purpose from the Government vide registered lease deed No. 4175/1975 on 07.04.1975. He expressed his desire to sell the land in order to meet the expenses of construction of his house at the village and other household expenses. The plaintiffs agreed and the consideration amount was fixed at Rs. 2,00,000/-. Since permission from the Government in P & S Department was required for execution and registration of the sale deed, the defendant applied for Page 2 of 25 the same through his power of attorney holder. There being delay in grant of permission by the P & S department and defendant being in urgent need of money, his power of attorney holder executed the agreement for sale on 10.02.1996 on the condition of obtaining permission for sale and to execute and register the sale deed. The power of attorney holder delivered physical possession of the land and handed over the original documents including the registered power of attorney executed by the defendant to the plaintiff. The suit land consisted of rooms given on rent to different persons which the plaintiff, in terms of the agreement, collected. The defendant had sought for permission from the Director of Estates, P & S Department/ G.A Department of the Government through his power of Attorney Holder on 06.05.1995. Thereafter, on the plea of delay in grant of permission, he went on deferring the execution and registration of the sale deed. The plaintiffs continued to be in actual possession of the suit land by paying holding tax. On Page 3 of 25 10.07.2008, it came to the knowledge of the plaintiff that the defendant, through his power of attorney holder, was negotiating with some mischief mongers to sell the suit property to dispossess him. 5. The defendant contested the suit by filling written statement. He challenged the suit on the ground of maintainability and absence of cause of action. It was the case of the defendant that neither he and nor his power of attorney holder had ever executed any agreement for sale on 10.02.1996. He further claimed he has right, title, interest and possession over the suit land and that there was no discussion either between him or his power of attorney holder with the plaintiff regarding sale of suit land. Further, neither he nor his power of attorney holder ever applied for permission seeking transfer of the suit land. The alleged agreement dated 10.02.1996 is a forged one and the defendant never delivered possession of the suit land to the plaintiff. It is also his case that when the power of attorney holder was transferred from Page 4 of 25 Cuttack to Berhampur, the mother of the plaintiffs, being his younger sister, was entrusted to collect the rent from the suit premises on his behalf for which the papers were handed over to her. Said papers were utilised by the plaintiffs for their wrongful gain. The plaintiffs are his nephews for which they were also allowed to collect rent on his behalf. When he was serving in New Delhi in the year 1985, he executed a power of attorney in favour of his elder brother who was serving in SCB Medical College, Cuttack to manage the suit property. When his elder brother was transferred in the year 1990, he entrusted his younger sister, mother of the plaintiffs, to collect rent from the tenants. Further, he has no intention to sell the suit land. 6. Basing on the rival pleadings, the trial court framed the following issues for determination: (i) Whether the suit is maintainable? (ii) Whether there is any cause of action to file the suit? the defendant and his agents can be (iii) Whether permanently restrained from interfering with the peaceful possession of the plaintiff over the suit land? (iv) To what any other relief, the plaintiff is entitled? Page 5 of 25 7. Issue No. 3, being the main issue, was taken up for consideration at the outset by the trial Court. After analysing the oral documentary evidence and the settled position of law, the trial Court found that admittedly the defendant was granted lease of the suit land by the Government vide lease No. 4175/1975 on 07.04.1975 and the premises consisted of shop rooms let out to persons on rent. The trial Court took note of the position of law that a person in wrongful possession is not entitled to an order of injunction against the rightful owner. The plaintiffs sought decree of permanent injunction against the defendant whose right, title or interest is admitted by them. The Trial Court thereafter, considered the provision under Section 41 (h) of the Specific Relief Act read with Section 38 to hold that permanent injunction cannot be granted as equal and efficacious relief can be obtained by any other usual mode of proceedings. According to the trial Court, the usual mode of proceeding in the instant case would be to bring a suit Page 6 of 25 for specific performance of contract under Section 19 of the Specific Relief Act. The trial Court also referred to Section 53-A of the T.P. Act to decide the question whether a lawful owner of a property can be injuncted permanently on the basis of an agreement for sale. Examining Sections 54 and 53-A of T.P. Act, it was held that it is permissible to transfer ownership without transferring possession and vice-versa. The trial Court then referred to Section 17 of the Registration Act and held that in view of the provision under Section 17 (1A) of the said Act, documents containing contracts to transfer for consideration any immovable property shall be registered. Since the agreement in question was not registered, it was held that the same would not transfer right, title or interest. It was clearly held that as the plaintiff has alternative efficacious remedy available, injunction cannot be granted as he failed to prove that he is the owner of the property having right, title or interest in the same. On such findings, the suit was dismissed. Page 7 of 25 8. The plaintiffs carried the matter in appeal. The First Appellate Court scanned the oral and documentary evidence independently and found that plaintiff No. 1 (P.W.1) could not depose properly about the agreement marked Ext. 4 as regards how it came to be executed and how it was prepared by the scribe. His mother, being examined as P.W. 3, was not a witness to the execution of the document. Neither the scribe nor any other witness was examined. In any case, the agreement was executed in the year 1996 but the suit was filed in the year 2008 that is, after 12 years. Clauses 8 and 9 of the agreement show that the remedy of filing a suit for specific performance of contract was available along with the right of the plaintiffs to take refund of the consideration money. The First Appellate Court thus found that the plaintiffs did not take recourse to any of the clauses of the agreement but simply filed the suit for permanent injunction. According to it, the plaintiffs had come up with contradictory pleas inasmuch as on one hand, he Page 8 of 25 claimed that the cause of action for filing a suit for specific performance of contract had not matured since the defendant had not obtained permission to execute the sale deed yet, on the other hand, they alleged that the defendants were attempting to sell the suit land which compelled them to file the suit for injunction. Since permission had not been obtained, the defendant could not have attempted to sell away the suit land to any other person. The First Appellate Court thus, held that the plaintiffs should have sought for relief of specific performance of contract by invoking Clauses 8 and 9 of the agreement along with relief of declaration regarding validity of the agreement. In such event, the relief of injunction would have been consequential. Relying on the provision under Order-II Rule-2 of CPC, the First Appellate Court held that a suit is to include the whole claim. In a suit for injunction simpliciter, title or right cannot be gone into. On such findings, the appeal was dismissed and the judgment of the First Appellate Court was confirmed. Page 9 of 25 9. Being further aggrieved, the plaintiffs have filed this Second Appeal which has been admitted on the following substantial questions of law; (i) Whether the plaintiffs-appellants were obliged to bring a suit for specific performance of contract or sought for a declaration with regard to validity of such agreement for sale, in order to seek the statutory protection available under Section 53-A of the Transfer of Property Act, 1882? (ii) Whether in the given circumstance, the bar under Section 41(h) is applicable to a suit for permanent injunction based on Section 53-A of the Transfer of Property Act, 1882? (iii) Whether the delivery of possession by attornment of tenancy in respect of the tenanted shop rooms over the land agreed to be sold under Ext.4, in favour of the plaintiffs is sufficient to seek for protection under Section 53-A of the Transfer of Property Act, 1882? (iv) Whether the defendant was capable of executing Ext.4 and whether the same confers a right on the plaintiffs to seek for protection under Section 53-A of the Transfer of Property Act, 1882.
Legal Reasoning
10. Heard Mr. S.K.Dash, learned Senior counsel with Mr. S.Das, Advocates for the plaintiffs-appellant and Mr. B.Routray, learned Senior counsel with Mr. J.Biswal for the defendant respondent. 11. Learned Senior counsel, Mr. Dash would assail the impugned judgments by arguing that the trial Court did not accept the agreement for sale on the ground that it had not been registered by relying upon Section 17 (1A) of the Registration Act but failed to appreciate that the said provision was inserted by way of amendment in the year 2001 whereas, the agreement Page 10 of 25 was executed on 10.02.1996. Similarly, the bar under Section 53-A of the T. P. Act would also not be applicable for the same reason. Mr. Dash would further argue that both the Courts below committed error as to the scope and purport of the agreement as per which permission of the Government was necessary to execute the sale deed but no permission was required to file the suit. Mr. Dash also argued that both the Courts below proceeded on the misconceived notion that the plaintiffs are claiming title in the garb of injunction, which is absolutely not the case. 12. Mr. Dash, in support of his contentions, has relied upon the following judgments of the Supreme Court:- 1. Khursida Begum & Ors. Vs. Mohammad Farooq & Ors.1 2. Jahangirkhan Mahebubkhan Patha Vs. Sharaben D/O Mangaji Shanaji2 3. Giriyappa & Anr. V. Kamallama &Ors.3 1 AIR 2016 SC 694 Page 11 of 25 4. Chandnee Widya Vati Madden Vs. C.L. Katilal & Ors.4 Mr. Dash also relies upon the following judgments of some high courts:- 1. Sadashiv Chander Bhamgare V. Eknath Pandharinath Nanagude5, High Court of Bombay 2. Chetak constructions Ltd. Indore Vs. Om Prakash6, High Court of Madhya pradesh 3. Rohtash Singh Vs. Sanwal Ram7, High Court of Punjab and Haryana 13. Per contra, learned Senior counsel Mr. Routray invites attention of this Court to the clauses of the agreement vide Ext. 4, particularly to Clauses 8 and 9 thereof. He also refers to a document (Ext.5) by which application was submitted seeking permission by the defendant from the Government on 06.05.1995 but 2 RFA No. 2493 of 2020 3 2024 INSC 1043 4 AIR 1964 SC 978 5 AIR 2004 Bombay 378 6 AIR 2003 MP 145 Page 12 of 25 such letter was withdrawn vide letter dated 30.08.2008 (Ext. 9). According to Mr. Routray, any contract without obtaining prior permission makes it voidable as per Section 23 of the Contract Act. Moreover, it was open to the plaintiffs to bring a suit for Specific Performance of Contract in view of the Clause-8 or to recover the consideration amount invoking due process of law. Therefore, Section 41 (h) of the Specific Relief Act comes into the picture by prohibiting a simple suit for injunction in such circumstances. Mr. Routray further argues that even otherwise the suit is barred by limitation in view of the admission of P.W.3 that they were aware of the defendants’ intention of not selling the suit land 5 years prior to the institution of the suit by styling it as suit for injunction on an imaginary cause of action. Furthermore, the agreement itself was unlawful as the respondent had never any valid permission to sell the land. 7 RSA No. 2473 of 1994 Page 13 of 25 14. Having considered the rival submissions noted above and having gone through the materials on record carefully, this Court would first take note of the admitted fact that the defendant has a better and valid right over the property in question, having been granted lease by the Government in P & S department vide lease deed No. 4175/1975. It is the further admitted position that the defendant has the power to alienate the property but only after obtaining permission of the lessor that is, the Government in P & S Department. It has been argued that in the absence of permission no agreement for sale could have been validly executed. In this regard Mr. Routray, learned Senior counsel has cited a judgment passed by this Court in the case of Panchu Das vrs. Bhaskar Swain and Others (RSA No. 369 of 2014). Referring to the observations made in said judgment under paragraphs 15 to 18, Mr. Routray would argue that the case at hand involves a similar situation as the very validity of the so-called agreement is questionable. Reading of the Page 14 of 25 cited judgment discloses that in the said case the agreement in question for sale of the property was considered unlawful as it involved sale of land by a scheduled caste person to a non-scheduled caste person without obtaining permission under Section 22 of the OLR Act. It was held in the said context that enforceability of the contract depends on its validity. 15. There is no second thought with regard to the above proposition. However, in the instant case, there is no such statutory bar for sale of the land by the lessee, save and except the condition of obtaining prior permission of the lessor. This condition cannot be stretched so far as to say that the lessee would be incompetent to contract for sale awaiting permission of the lessor. At best, the contract can be treated as a contingent contract, more so as it provides the consequences for its breach in the form of empowering the proposed transferee to bring a suit for specific performance. This Court is therefore, of the view that Page 15 of 25 the ratio decided in the cited judgment would have no application in facts of the present case. 16. Coming to the case laws cited by learned Senior counsel Mr. Dash, as held in hereinbefore, there being absence of clear and cogent evidence that the plaintiffs were put in possession on the basis of the agreement dated 10.02.1996, the protection available under Section 53-A of the T.P. Act cannot be applied to them. Therefore, the judgments rendered in Sadashiv (supra), Chetak (supra), Jahangir (supra) and Rohtash Singh (supra) are not applicable. The judgment in Chandnee (supra) would also not apply since admittedly the plaintiffs have not sought for a decree of specific performance of contract based on the terms of contract (Clause-8). Had such a suit been filed by the plaintiff question of performance of plaintiffs’ part of the contract would have been considered. 17. Be that as it may, the decision in the present case would turn on the interpretation of the clauses of the agreement, viz. Clauses 8 and 9. Before that however, Page 16 of 25 it would be proper to refer to the lease deed bearing No. 4175 dated 07.04.1975 (Ext.1) of which Clause XIV reads as follows: “That he shall not without the consent in writing of the lessor use or permit the use of the said land for any purpose other than that for which it is leased or shall not transfer the said plot without such consent provided that no such consent to transfer the leasehold by way of sale or gift shall be given by the lessor unless the lessee pays such amount as may be decided by the Government from time to time as consent fee.” Coming to the agreement dated 10.12.1996 (Ext.4) Clauses 8 and 9 being relevant are quoted herein below: “8. That in the event of the 1st party/seller fails to execute and register the sale deed even after the 2nd party /purchaser expresses his willingness to purchase the schedule land it will be open for the 2nd party to sue the 1st party/seller in appropriate court of law having jurisdiction of Bhubaneswar town for enforcement of Agreement and for specific performance contract. 9. That in the event at any point of time it is found that the 1st party/Seller in respect of the suit land if fails to obtain permission from the Govt., due to legal infirmities or for any other reason, the 2nd party/purchaser is entitled to the refund of the entire consideration amount of Rs 2,00,000/-(Rupees Two Lakhs only) with interest as admissible at the interest of Bank rate.” Thus, the agreement itself provides the consequences for its breach. Clause 3 of the agreement makes it obligatory for the first party seller to apply for permission to sell the land from the appropriate authority after paying the required fee. In the instant case, permission was apparently sought for by the Page 17 of 25 defendant through his power of attorney holder on 06.05.1995 (Ext.5) which is obviously prior to the date of execution of the agreement. Therefore, as on the date of the agreement, the permission of the appropriate authority had already been sought for. This makes the contract a contingent contract. In other words, without grant of permission of the Government no sale could be affected. As already stated, the contract also provides the consequences for its breach in the form of Clause-8. So, if it was the case of the plaintiffs that the defendant failed to honour the contract by obtaining permission of the Government and thereby did not execute and register the sale deed, it was always open to them to file a suit for specific performance of contract. Instead, claiming to be in possession, the plaintiffs simply prayed for injunction against the rightful owner of the property purportedly on the strength of Section-53-A of the T.P. Act. Section 41(h) of the Specific Relief Act obviously, bars such a suit as held by both the Courts below. Page 18 of 25 Further, the defendant having specifically disputed the agreement it was also incumbent upon the plaintiff to have sought the relief of declaration regarding its validity but what the plaintiffs have done is to pray for injunction simpliciter on the alleged cause of action that the defendant was trying to sell away the land to some other persons and to dispossess the plaintiffs. As held by the First Appellate Court, and rightly so, this claim of the plaintiffs is not worthy of consideration firstly, for the reason that no acceptable evidence was laid in this regard and secondly, the defendant obviously could not have attempted to sell away the land without obtaining permission of the Government. Thus, on the face of alternative efficacious remedy being available in the form of suit for specific performance, a mere suit for injunction would not be maintainable against the rightful owner. 18. Coming to the provision under 53-A of the T.P. Act, this Court, on reading the judgment passed by the Trial Court would agree with the contentions advanced Page 19 of 25 on behalf of the plaintiff-appellants that the amendment affected in the year 2001 to the Registration Act has not considered in its proper perspective inasmuch as the agreement in question was executed prior to the amendment. Therefore, finding that the agreement not being registered shall have no effect for the purposes of Section 53-A cannot be accepted. Nonetheless, the question is, whether said provision can otherwise come to the aid of the plaintiffs. It would be worthwhile to quote the provision under Section 53-A: the to constitute “53A. Part performance.-- Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary 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 is willing to perform his part of the performed or contract,then, notwithstanding that 2***, 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 contract or of the part performance thereof.” Page 20 of 25 From the language employed in the provision, it is abundantly clear that it is basically a question of fact to be determined on the basis of the evidence in a case. Here, the defendant has disputed the existence of the agreement dated 10.02.1996 and in addition has taken a specific plea that the mother of the plaintiffs was entrusted to look after the shop rooms in the premises and to collect monthly rent from the tenants. Under such circumstances, when the possession of the plaintiffs itself is disputed, it was for the plaintiff to adduce cogent evidence to prove the same. It is needless to mention, the plaintiffs utterly failed to do so. Therefore, in the absence of clear and cogent evidence that the plaintiffs were put in possession on the basis of the agreement dated 10.02.1996, this Court fails to understand as to how the protection under Section 53-A could be invoked. As already stated, in such event, the plaintiff ought to have sought for declaration of validity of the contract and for confirmation of possession. Even if it is accepted that Page 21 of 25 the mother of the plaintiffs as well as the plaintiffs themselves were entrusted to collect rents from the tenants, that by itself will not bring the case within the ambit of Section 53-A because such possession, if at all may be treated as constructive in nature and can only be permissive in nature and not on the basis of any contract much less the agreement dated 10.02.1996. The fact that the plaintiffs are the nephews of the defendant assumes much significance in this context. 19. The circumstances under which a mere suit for injunction without claiming title would lie is no longer res integra having been long settled in several judgments of the Supreme Court notable among which is the one rendered in the case of Anathula Sudhakar v. P. Buchi Reddy (Dead) by L.Rs 8. The following observations of the Supreme Court are noteworthy. “11. The general principles as to when a mere suit for permanent Injunction will lie, and when it is necessary to for declaration and/or possession with file a suit injunction as a consequential relief, are well settled. We may refer to them briefly. 8 AIR 2008 SC 2033 Page 22 of 25 11.1. Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner. 11.2. Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.” in addition, It was held that a person in unlawful possession is not entitled to an injunction against the rightful owner. Reference also can be made in this regard to the judgment of Premji Ratansey Vrs. Union of India 9wherein the following was held; “Issuance of an order of injunction is absolutely a discretionary and equitable relief. In a given set of facts, injunction may be given to protect the possession. It is not mandatory that mere asking such relief should be given. Injunction is a personal right under section 41(j) of the Specific Relief Act 1963; the plaintiff must have personal interest in the matter. The interest of right not shown to be in existence, cannot be protected by injunction. It is equally settled law that injunction would not be issued against the true owner. Pretext of dispute of identity of the land should not be an excuse to claim injunction against true owner" Thus, in the absence of any proof that the plaintiffs have any manner of right or title over the suit property, a mere suit for injunction against the defendant, who 9 1994 5 SCC 547 Page 23 of 25 is the lawful owner having valid title, would not be maintainable. 20. To sum up, this Court holds that in view of the provision under Section 41(h) of the Specific Relief Act the suit brought by the plaintiffs was not maintainable. Secondly, in the absence of clear-cut evidence of the plaintiffs being put in possession over the suit property by the defendant on the basis of the contract, the protection under Section 53-A cannot be invoked. Even the attornment of tenancy in respect of the shop rooms over the suit land will have no effect unless the foundational fact of existence of a valid contract with proof of delivery of possession is available. The question whether the defendant was capable of executing the agreement becomes redundant because even accepting that he was capable, the same will only underscore the effect of Clauses 8 and 9 of the agreement, the effect of which has already been discussed hereinbefore. Thus, this Court is not persuaded to interfere with the impugned judgments Page 24 of 25 as both the Courts below cannot be said to have committed any illegality in refusing the relief sought for by the plaintiffs. The substantial questions of law framed are answered accordingly. 21. In the result, the appeal fails and is therefore, dismissed. …………….……………. Judge Deepak Sashikanta Mishra, Signature Not Verified Digitally Signed Signed by: DEEPAK PARIDA Reason: Authentication Location: OHC,Cuttack Date: 25-Feb-2025 12:43:21 Page 25 of 25