Byregowda B vs H Suresh

-1- NC: 2024:KHC:28554 MFA No. 2604 of 2024

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF JULY, 2024 BEFORE THE HON'BLE MR JUSTICE RAVI V HOSMANI MISCELLANEOUS FIRST APPEAL NO. 2604 OF 2024 (CPC) BETWEEN: BYREGOWDA B., AGED ABOUT 48 YEARS, S/O BYRAHANUMAIAH, R/A NO.1325, BEHIND ROCKLINE STUDIO, HMT LAYOUT, NAGASANDRA, BENGALURU - 560073

...APPELLANT [BY SRI R. SUBRAMANYA, ADVOCATE FOR SRI. VINAYAKA S PANDIT, ADVOCATE (PH)] AND: 1. H. SURESH, AGED ABOUT 52 YEARS, S/O HANUMANTHAPPA, R/A NO.42, 1ST MAIN ROAD, CHIKKABOMMASANDRA, GKVK POST, BENGALURU - 560 065.

2. CHANDRAPPA, Digitally signed by S/O LATE MUNEERAPPA, GEETHAKUMARI AGED ABOUT 46 YEARS, PARLATTAYA S R/A NO.58, 6TH MAIN ROAD, Location: High ATTURU LAYOUT, YELAHANKA, Court of Karnataka BENGALURU - 560064.

...RESPONDENTS (BY SRI T. SESHAGIRI RAO, ADVOCATE FOR R1 (PH); SRI S.R. HEGDE HUDALMANE, ADVOCATE FOR SRI PRASIDDARAJ & SRI MANJU BYRAL R., ADVS., FOR C/R2 (PH)] THIS MFA IS FILED U/O.43 RULE 1(r) OF THE CPC, AGAINST THE ORDER DATED 05.04.2024 PASSED ON IA NO.1 AND 2 IN O.S.NO.189/2024 ON THE FILE OF THE VIII ADDITIONAL SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT, REJECTING IA NOS.1 AND 2 FILED BY THE PLAINTIFF U/O.39 RULES 1 AND 2 OF CPC. -2- NC: 2024:KHC:28554 MFA No. 2604 of 2024

THIS APPEAL, COMING ON FOR DICTATING JUDGMENT, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

CORAM: THE HON'BLE MR JUSTICE RAVI V HOSMANI

ORAL JUDGMENT

(PER: THE HON'BLE MR JUSTICE RAVI V HOSMANI)

Challenging order dated 05.04.2024 passed by VII Addl.

Senior Civil Judge, Bengaluru Rural District, in

O.S.no.189/2024 on IAs no.1 and 2 filed under Order XXXIX

Rules 1 and 2 of CPC, this appeal is filed.

2. Sri Subramanaya and Vinayak S. Pandit, learned

counsel for appellant submitted, appellant was plaintiff in suit

filed for specific performance of agreement of sale dated

17.08.2019. In said suit, plaintiff had filed I.A.no.1 for

temporary injunction restraining defendant no.2 from creating

third party rights over suit schedule property. Plaintiff had also

filed I.A.no.2 for temporary injunction restraining defendant

no.2 from changing nature of suit schedule property. It was

submitted though, plaintiff had made specific assertion in plaint

as well as affidavit filed in support of applications to

substantiate his interest/possession in suit property under

registered agreement of sale dated 17.08.2019, and produced

relevant documents, trial Court under impugned order rejected -3- NC: 2024:KHC:28554 MFA No. 2604 of 2024

applications on wholly untenable grounds. Hence, this appeal

was filed.

3. It was submitted, defendant no.1 had executed

registered agreement of sale in favour of plaintiff on

17.08.2019, agreeing to sell suit property for total sale

consideration of Rs.1,35,00,000/-. By receiving entire sale

consideration, it was submitted, possession was also handed

over. On same day, he had also executed a registered General

Power of Attorney (GPA).

4. Since terms of agreement did not stipulate any

time, defendant was required to come forward and execute

registered sale deed as and when called upon. On 28.09.2020,

defendant no.1 got issued legal notice informing plaintiff about

cancellation of GPA and also published notice in 'Kannada

Prabha' and 'Times of India' daily newspapers on 27.09.2020.

Thereafter, plaintiff got issued legal notice demanding

withdrawal of cancellation of GPA. On 25.05.2021, defendant

no.1 got issued notice of cancellation of agreement of sale and

called upon plaintiff to register cancellation deed by receiving

back advance money.

5. Plaintiff replied stating that delay in performing his

part of contract was due to failure by defendant no.1 to -4- NC: 2024:KHC:28554 MFA No. 2604 of 2024

produce 11-E sketch. Immediately thereafter defendant no.1

executed registered GPA in favour of defendant no.2 and on

20.09.2023, executed sale deed in respect of suit property for

total sale consideration of Rs.1,63,35,000/-. Said sale was

contrary to agreement of sale in favour of plaintiff. But he was

unaware of same until he noticed efforts by defendants to

change nature of suit property, constraining to file suit.

6. On other hand, Sri T. Seshagiri Rao, learned

counsel for defendant no.1 and Sri S.R. Hegde Hudalmane,

learned counsel appearing for Sri Prasiddaraj and Sri Manju

Byral R, learned counsel for defendant no.2 sought to oppose

appeal. At outset, it was submitted, suit filed on 31.01.2024,

for enforcement of agreement of sale dated 17.08.2019, which

was cancelled by defendant no.1 by issuing legal notice on

25.05.2021 and paper publication, would be barred by time.

Relying on decision in case of M/s. Patel Enterprises v. M.P.

Ahuja, reported in ILR 1992 KAR. 3772, it was contended,

prima facie for temporary injunction would include nature of

suit and its maintainability. If, suit was prima facie not

maintainable, temporary injunction could not be issued.

-5- NC: 2024:KHC:28554 MFA No. 2604 of 2024

7. Further, after cancellation of Agreement of sale, suit

property was purchased by defendant no.2 on 20.09.2023 by

paying Rs.1,65,35,000/-. As per sale, possession was delivered

and khata was also issued to him. On contrary, though plaintiff

asserted to be in possession over suit property, he failed to

produce any material to establish possession. Under

circumstances, trial Court considered order of conversion dated

15.11.2023 and khata standing in name of defendant no.2, to

conclude that plaintiff was not in possession. Thus, findings of

trial Court were based on material on record and could not be

characterized as perverse or untenable. It was pointed out that

as plaintiff had sought alternative relief for repayment of sale

consideration, it could not be contended that he would suffer

irreparable loss or injury which cannot be compensated in

terms of money. Relying on decision in case of

Smt.Lalithakshi Annadanagouda v. Sadashivappa

Basappa Patil and Anr, reported in AIR 1984 KAR. 74, it

was contended that insofar as discretionary orders passed by

trial Court, Appellate Court had no jurisdiction to interfere

merely on ground that another view was possible. On above

grounds, they sought for dismissal of appeal.

-6- NC: 2024:KHC:28554 MFA No. 2604 of 2024

8. Heard learned counsel and perused order

impugned.

9. From above as main ground of challenge was

perversity of findings of trial Court, point that would arise

for consideration is:

"Whether impugned order suffers from untenability or perversity and calls for interference?"

10. Perusal of impugned order reveals that after

referring to rival contentions of parties, trial Court framed

proper points for consideration and passed reasoned order.

Referring to contention of defendant no.1 that agreement of

sale was time barred, trial Court prima facie concluded that

execution of agreement of sale was not disputed and since

question of limitation would be mixed question of law and fact

and even issue whether time was essence of contract required

trial. Thus, it held plaintiff had established prima facie case.

11. However, trial Court answered points no.2 and 3

regarding balance of convenience and irreparable loss and

injury in negative. Referring to Section 54 of Transfer of

Property Act, 1872 ('TP Act' for short), it held agreement of

sale did not create any interest in immovable property. It -7- NC: 2024:KHC:28554 MFA No. 2604 of 2024

merely created a right to sue. Thereafter, referring to decision

in Millenia Realtors Pvt. Ltd., Bengaluru v. SJR

Infrastructure (Pvt.) Ltd., Bengaluru, reported in 2005

SCC OnLine Kar. 433, it held once property was alienated and

converted, defendants could not be restrained from changing

nature of property. It observes order of conversion of suit

property at instance of defendant no.2 had rendered prayer for

injunction against changing nature of suit property, infructuous.

It also observed since suit was for specific performance, even in

case plaintiff were to succeed, he could be compensated in

terms of money. But, if temporary injunction were granted,

defendant no.2, who had purchased suit property would suffer

irreparable loss and injury.

12. At outset, plaintiff being put in possession in

pursuance of agreement of sale as per recital in agreement of

sale dated 17.08.2019 has not been taken into account by trial

Court. Perusal of plaint as well as affidavit filed in support of

applications would reveal specific assertion about plaintiff being

put in possession. While there cannot be any dispute about

legal position under Section 54 of TP Act, said position would

not avail in case of delivery of possession, in part performance

of agreement of sale.

-8- NC: 2024:KHC:28554 MFA No. 2604 of 2024

13. In his written statement, defendant no.1 alleges

while denying delivery of possession in part performance of

agreement of sale that execution of registered agreement to

sell and GPA by him was under compelling necessities as he

needed hand-loan of Rs.1,35,00,000/- from plaintiff. It is also

stated that he was prompt in payment of interest on hand-loan

and upon realizing unlawful efforts by plaintiff to defraud him,

he got issued legal notice on 28.09.2020 for cancellation of GPA

and another notice on 25.05.2021 for cancellation of agreement

of sale. These assertions prima facie admit of execution of

registered agreement of sale and GPA by defendant no.1 in

favour of plaintiff as well as about receipt of Rs.1,35,00,000/-

by defendant no.1 from plaintiff. Whether said receipt was as

sale consideration or as part of loan transaction would require

evidence.

14. Further, in notice for cancellation of agreement of

sale, defendant no.1 denies plaintiff being in possession in

furtherance of agreement of sale. Though plaintiff is called

upon to come forward and execute registered deed for

cancellation of agreement, there is no demand for redelivery of

possession. Thus, whether there was actual delivery of

possession would also require trial.

-9- NC: 2024:KHC:28554 MFA No. 2604 of 2024

15. Hon'ble Supreme Court in case of Ghanshyam v.

Yogendra Rathi, reported in 2023 (7) SCC 361, has held:

"15. In this regard, reference may be had to two other decisions of the Delhi High Court in Imtiaz Ali v. Nasim Ahmed [Imtiaz Ali v. Nasim Ahmed, 1986 SCC OnLine Del 269 : AIR 1987 Del 36] and G. Ram v. DDA [G. Ram v. DDA, 2002 SCC OnLine Del 405 : AIR 2003 Del 120] which inter alia observe that an agreement to sell or the power of attorney are not documents of transfer and as such the right, title and interest of an immovable property do not stand transferred by mere execution of the same unless any document as contemplated under Section 54 of the Transfer of Property Act, 1882, is executed and is got registered under Section 17 of the Registration Act, 1908. The decision of the Supreme Court in Suraj Lamp & Industries (P) Ltd. v. State of Haryana [Suraj Lamp & Industries (P) Ltd. v. State of Haryana, (2009) 7 SCC 363 : (2009) 3 SCC (Civ) 126] also deprecates the transfer of immovable property through sale agreement, general power of attorney and will instead of registered conveyance deed.

16. Legally an agreement to sell may not be regarded as a transaction of sale or a document transferring the proprietary rights [Ed. :The Supreme Court in V.K. Sreedharan v. Chandramaath Balakrishnan, (1990) 3 SCC 291, on a harmonious construction of Section 40 Part II and Section 54 TPA and Section 91 of the Trusts Act, 1882, held that the buyer under an antecedent agreement to sell gets a good title in equity despite subsequent attachment of the seller's property, and this equitable proprietary interest created by the antecedent agreement to sell can be enforced in priority over the rights of a subsequent judgment-creditor of the seller. The ruling in V.K. Sreedharan case has been followed by the Supreme Court in Rajender Singh v. Ramdhar Singh, (2001) 6 SCC 213.The equitable property rights created by an agreement to sell bind the seller and other third persons, except bona fide transferees without notice of the agreement to sell. This principle

- 10 -

NC: 2024:KHC:28554 MFA No. 2604 of 2024

is statutorily recognised in Section 19(b) of the Specific Relief Act, 1963. In respect of an agreement to sell, Section 91 of the Trusts Act, 1882 read with the definition of "trust" in Section 2(c) of the Specific Relief Act, 1963, appears to create a constructive trust in respect of the immovable property which is the subject-matter of the agreement to sell, with the seller/subsequent transferees as constructive trustee holding the legal estate in the sale property on trust for the buyer who is the cestui que trust of such trust. The buyer is the holder of the beneficial estate in equity in the sale property under such trust.When it is stated that "an agreement to sell immovable property, generally creates a right in personam in favour of the seller", it would appear that this pertains to the nature of obligations owed by the trustee holding the legal title to the property, to the beneficiary who holds the beneficial estate in equity. It is often said that "equity acts in personam" : this probably is with reference to the nature of the obligations owed by the trustee to the beneficiary. However, the beneficial estate created by an agreement to sell, as explained in V.K. Sreedharan v. Chandramaath Balakrishnan, (1990) 3 SCC 291 and Rajender Singh v. Ramdhar Singh, (2001) 6 SCC 213, does exhibit a proprietary character, though in equity, as it does bind strangers and third parties such as a subsequent judgment- creditor of the owner-seller. The key ruling in V.K. Sreedharan and Rajender Singh cases is that the property in question no longer remained the "absolute property" of the judgment-debtor seller once the judgment-debtor seller had entered into a prior agreement for sale in respect of such property, and the "attachment cannot be free from the obligations incurred under the contract for sale" as "the attaching creditor is entitled to attach only the right, title and interest of the judgment-debtor". This suggests that some part of the property rights of the judgment- debtor in the property in question stood subtracted and transferred to the buyer under such prior agreement to sell. This is only possible if the obligations or the rights which are created by an agreement to sell also have proprietary character, as mere contractual rights bind only the parties thereto (vide the doctrine of privity of contract) and not any third party : contractual rights cannot subtract from property rights. It is only property rights which can

- 11 -

NC: 2024:KHC:28554 MFA No. 2604 of 2024

subtract from property rights. It is only property rights which are in rem in nature and bind third parties (with or without an exception). In the facts of V.K. Sreedharan and Rajender Singh cases, clearly a third party: the attaching creditor, a complete stranger thereto, is being bound by a prior contract for sale. In the present case also, it has been held in paras 9 and 16 that "no doubt, agreement to sell is not a document of title or a deed of transfer of property by sale and as such, may not confer absolute title upon the [buyer] over the suit property in view of Section 54 TPA", yet once the buyer is put possession by the seller in part-performance of the agreement to sell, the seller "does not continue to occupy [the subject property] in the capacity of owner", as the buyer in possession acquires "possessory title". Thus, even in the present case, there is some subtraction from the property rights of the seller, when possession is transferred to the buyer under an agreement to sell, even prior to the execution of any registered sale. Furthermore, transfer of possession to the buyer under an agreement to sell is not the only case in which the buyer has been held to acquire "some species of property". In fact, in Hill Properties v. Union Bank of India, (2014) 1 SCC 635, a share certificate in a housing company being the equivalent of a contract for sale, was held to create a "species of property" or "species of interest", which was further held to be a mortgageable interest. In Lakshmi v. E. Jayaram, (2013) 9 SCC 311, the lessee of the buyer under a contract for sale, thus in fact a lessee in equity with no legal title, was held to have the right to maintain an action for a perpetual injunction against the transferor/legal title holder of the property from interfering with the possession of the lessee in equity. In Podar Cement, (1997) 5 SCC 482, it was held that a buyer under an agreement to sell was liable to pay capital gains tax on his interest as the same was proprietary in nature. In Saraswati Devi v. DDA, (2013) 3 SCC 571, the interest of the highest bidder in auction of immovable property but before sale had been executed i.e. at the stage of a contract for sale, was held to be an interest in property susceptible to acquisition by the State. There are a large number of judgments of the Supreme Court, Privy Council, Federal Court and High Courts that deal with the issue of the duality of the property law regime in India of

- 12 -

NC: 2024:KHC:28554 MFA No. 2604 of 2024

legal and equitable estates; the proprietary nature of the interest of a cestui que trust in general under express trusts, and under resulting and constructive trusts; and the nature of rights created by a contract for sale of immovable property, and many related issues. As clearly held in the present case though, absolute title or legal property rights or estates or interests in immovable property at law, can only be transferred when the purported transfers are strictly in compliance with "specific provisions of law which require execution of a document of title or transfer and its registration so as to confer right and title in an immovable property of over Rs 100 in value."There is one key difference between absolute title or legal property rights, estates or interests and equitable property rights, estates or interests. Legal property rights exhibit a complete or total in rem character without exception i.e. they bind the whole world or third parties or subsequent transferees without exception regardless of notice, knowledge or consent. Equitable property rights mirror legal property rights, but exhibit a near complete in rem character i.e. with an exception : equitable property rights bind the whole world or third parties or subsequent transferees except bona fide transferees for consideration without notice of the prior equitable proprietary interests or the prior transaction(s) or instrument(s) resulting in such equitable proprietary interests. For a more detailed analysis see the Editorial note in Venigalla Koteswaramma v. Malampati Suryamba, (2021) 4 SCC 246, at pp. 252 to 256 and the Editorial note based on deeper research prompted by publication in SCC of the landmark decision on this issue in Lala Durga Prasad v. Lala Deep Chand, (1953) 2 SCC 509, at pp. 512 to 519.] in an immovable property but the prospective purchaser having performed his part of the contract and lawfully in possession acquires possessory title which is liable to be protected in view of Section 53-A of the Transfer of Property Act, 1882. The said possessory rights of the prospective purchaser cannot be invaded by the transferor or any person claiming under him."

- 13 -

NC: 2024:KHC:28554 MFA No. 2604 of 2024

16. Resultant position would be that purchaser put in

possession in part performance of agreement of sale can seek

protection of his possessory title against seller and also third

parties who had knowledge of prior agreement of sale. But,

plaintiff's claim of being put in possession in part performance

of agreement of sale is denied by defendant no.1. Suit is

admittedly at stage of consideration of interim application. This

Court in case of Sharma v. Puttegowda, 1985 SCC OnLine Kar

239, held as follows:

"8. Learned Counsel Srinivasan submitted that the Court is not barred from granting temporary injunction under Order 39 Rules 1 and 2 C.P.C. even in a suit filed for specific performance on the strength of the agreement of sale. He relied on Yenkanna v. Yellanna [1975 (1) KLJ S.N. Item 35 page 8.] R.S.A. 230/1973 disposed of on 11-7-19741. It is observed:

"If plaintiffs acquire substantial rights under an agreement of sale, they are entitled to be protected against the transferor who is trying to deprive the plaintiffs of their possession contrary to the terms of Section 53A T.P. Act. Plaintiffs must be held to be defending their rights under Section 53A and the suit for injunction cannot be construed as one to enforce rights conferred by Section 53A. AIR 1939 All 611 rel on AIR 1968 SC 794 ref. to.

"If the plaintiffs prove that the commencement of their possession is lawful under the agreement they are entitled to an injunction. The commencement of possession being under the agreement of sale, continuance of possession by the plaintiffs cannot be deemed to be adverse, unless there has been denial of defendant's title and assertion of hostile title. ILR (1965) 1 Mad. 254 rel. on."

The said decision came to be rendered after the matter was disposed of after full fledged trial and after

- 14 -

NC: 2024:KHC:28554 MFA No. 2604 of 2024

the evidence was adduced by both the parties. It has not considered the case falling under Order 39 Rules 1 and 2, Therefore, the considerations that will have to be taken into consideration by the Court while disposing of the suit for permanent injunction are entirely different from the consideration, that will have to be considered while disposing of the application under Order 39 Rules 1 and 2. Further Section 53A is meant to protect the possession of a transferee. Therefore, the said decision will not help the Learned Counsel. He then relied on Eramma v. Parwatamma [1971 (2) Mys. L.J. 179.].

The facts of the said case were:

"The suit was filed for possession of lands, S. Nos.150, 151 and 156 of Modalapur, Manvi Taluk, and for consequential reliefs. The plaintiff's case was that she was dispossessed by defendant and her husband in the year 1954 and the revenue records were manipulated in their favour. The defendant pleaded that there was an agreement of sale dated 27-6-51 between the plaintiff and the defendant, that the plaintiff had thereunder agreed to sell the suit properties and two other properties for a sum of Rs. 6,000/- that a sum of Rs. 5,000 was paid to the plaintiff that the defendant got possession of the properties in pursuance to the said agreement and continues in possession as owner. The defendant relies on Section 53A of the Transfer of Property Act to defeat the claim of the plaintiff in the suit."

Therefore, the said ruling, in my opinion, will not come to the rescue of the Learned Counsel Sri Srinivasan. The facts in the said case also show that the suit for permanent injunction was disposed of on taking into consideration the evidence produced by the parties. As already stated by me, the considerations which will have to be taken into consideration by the Court for grant of a permanent injunction at the final disposal, are different from the ones which the Court will have to take into consideration while disposing of the application filed under Order 39 Rules 1 and 2. Therefore, the said ruling will not be of any help to him. He then relied on M. Kallappa Setty v. Lakshminarayana Rao [(1973) 2 SCC 358: AIR 1972 SC 2299.] . It was a case where the plaintiff claims to have purchased the property from B and whereas the defendant claims to have purchased the

- 15 -

NC: 2024:KHC:28554 MFA No. 2604 of 2024

property from C. Therefore, it was a case between two rival purchasers and between two different persons. The question of agreement to sell did not arise arise at all in the Supreme Court's case. Therefore, the Trial Court rightly held that the principle laid down in the Supreme Court's case will not be of any help to dispose of the controversy in dispute between the parties.

The principle underlying Section 53A is that, 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 therefore 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. Therefore, Section 53A applies as a bar against the transferor. It debars the transferor from enforcing against the transferee any right in respect of the property of which the transferee has continued in possession. In the present case, the transferor has not been claim in any right in respect of the property; on the other band, the transferee is claiming right against the transferor. Therefore the plaintiff cannot rely on Section 53A of the Act in the present case.

9. The Learned Author Sri Mulla, in Transfer of Property Act, Sixth Edition, at page 288, has observed:

"The Section has been described by the Privy Council (Main Pir Bux v. Sardar Mahomed Tahar(1934) 61 Indian Appeals-388) and the Supreme Court (Maneklal Mansukhabai v. Hormusji Jamshedji1950 SCC 83 :

(1950) SCR 75), as a partial importation of the English equitable doctrine of part performance. By virtue of this section, part performance does not give rise to an equity, as in England, but to a statutory right (Amrao v. Baburao(1950) Nag. 25). This right is more restricted than the English equity in two respects, (1) there must be a written contract, and (2) it is only available as a defence."

- 16 -

NC: 2024:KHC:28554 MFA No. 2604 of 2024

Therefore, the plaintiff, who has filed the suit mostly basing his claim on Section 53A of the T.P. Act will not be entitled either in law or in equity to claim a relief especially when his claim itself appears to be based on Section 53A of the Act.

10. Learned Counsel placed before me the decision in Krishnamoorthy Koundar v. Paramasiva Koundar [AIR 1981 Madras 310.] . It was a suit for specific performance of an agreement of sale by prospective vendee. In the said case also, the transferee claiming that he was put in possession of the properly under an agreement of sale, has sought for injunction under Order 39 Rules 1 and 2 C.P.C. It was a case where the defendants denied the execution of the agreement, denied the receipt of consideration and dented the handing over of the possession. The Madras High Court held:

"The plaintiff's assertion that the possession of the suit properties was given on the date of the agreement was also denied by the first defendant. According to him, the plaintiff had trespassed into the possession of the properties and with a view to sustain the possession of the trespassed properties he has come forward with a false claim for specific performance. The Trial Court having held that the truth and genuineness of the alleged agreement of sale has to be established in the suit at the stage of the Trial chose to grant an injunction/in favour of the plaintiff pending disposal of the suit. The Said order has been questioned by the first defendant in this appeal. The Court below having posed the question as to whether the plaintiff took possession of the suit properties on the date of the agreement, viz., 16-8- 1977 held that the plaintiff took possession in pursuance of the agreement mainly relying on the recital in the agreement. We are of the view that in the circumstances of this case unless the plaintiff establishes the actual delivery of possession of the properties on the date of agreement of sale, he cannot merely rely on the terms of the agreement which is denied by the first defendant and the truth of which the plaintiff has to establish at the stage of the trial."

In this view of the matter, the Trial Court is not justified an granting injunction as prayed for by the plaintiff.

- 17 -

NC: 2024:KHC:28554 MFA No. 2604 of 2024

The Madras High Court further in para-3 held:

"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 53A 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 subject matter of the agreement. Therefore, the plaintiff if at all can claim only an equitable right based on Section 53A of the Transfer of Property Act. 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 53A 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 pending the suit as an application for claiming equitable relief under Section 53A 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 53A can be used to resist the defendant when he seeks to dispossess the plaintiff. It is well established that Section 53A 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 53A of the Transfer of Property Act though he can use Section 53A 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 53A 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."

Therefore, the facts in the said Madras case appears to be on all fours with the present case. Farther, lam of the opinion that the plaintiff, who appears to have filed the suit basing his relief under Section 53A of the

- 18 -

NC: 2024:KHC:28554 MFA No. 2604 of 2024

Act, is not entitled to the relief of a temporary injunction under Order 39 Rules I and 2 C.P.C. Therefore, under these circumstances, the Court below, in my opinion, both on facts and in law was justified in dismissing I.A.V. Accordingly, the appeal is dismissed. No costs. I.A.I. filed by the plaintiff- appellant in this appeal is dismissed. It is not necessary to pass any orders on I.A. III filed by the defendants-respondents in this appeal."

17. There is dispute about plaintiff being in actual

possession. There is no assertion by plaintiff about anything

done by him after being put in possession, whereas, defendant

no.2 has specifically asserted that he had approached

authorities for change of land use, obtained conversion and

begun developmental activities. Said assertion coincides with

paragraph no.6 of plaint and document no.6 - photographs

which show construction of compound wall, formation of roads,

culverts etc. by defendant no.2. In absence of pleading or

contention about plaintiff having been dispossessed illegally,

conclusion of trial Court cannot be stated to be either contrary

to record, untenable or perverse. Despite error by learned Trial

Judge in overlooking claim based on part performance of

agreement of sale, it is settled law that mere establishment of

prima facie case does not entitle applicant for temporary

injunction. It would be needless to state that all further

- 19 -

NC: 2024:KHC:28554 MFA No. 2604 of 2024

development taken place after filing of suit would be subject to

final outcome of suit.

18. Hon'ble Supreme Court in Mohd. Mehtab

Ibrahim Khan v. Khushnuma Ibrahim Khan, reported in

2013 (9) SCC 221, has held scope for interference in appeal

against discretionary orders would be limited. High Courts

under Article 227 of Constitution of India cannot exercise

powers as appellate Court and unless order passed by trial

Court were untenable or suffered from perversity, and even if

view taken by trial Court on available material were one of

possible views, there could be no interference. Point for

consideration is therefore answered in negative.

Consequently, appeal is dismissed.

Sd/-

(RAVI V. HOSMANI) JUDGE GRD List No.: 1 Sl No.: 65