RAKESH KUMAR JAIN J.

This judgment shall dispose of two appeals, namely, RSA No.243 of 2009 titled as Sh. Gurbachan Singh Vs. Sh. Raghubir Singh arising out of the Civil Suit No.47-C of 2004 filed by the plaintiff/respondent seeking decree for specific performance of contract and RSA No. No.244 of 2009 titled as Sh. Gurbachan Singh Vs. Sh. Raghubir Singh, arising out of the Civil Suit No. 1122-C of 2004 filed by the plaintiff/appellant seeking decree for permanent injunction.

The facts of Civil Suit No.47-C of 2004 are that on 25.4.2003, defendant/appellant (Gurbachan Singh), who is the seller entered into an agreement to sell dated 25.4.2003 of land measuring 34 Kanals 8 Marlas situated in village Bhavdeen, Tehsil and District Sirsa with Raghubir Singh (Purchaser) at the rate of Rs.1,35,000/- per acre for a total sale consideration of Rs.5,80,500/- and received a sum of Rs.3,00,000/- as earnest money. The date for registration of the sale deed was fixed as 26.4.2004. The actual physical possession of the suit land was handed over, at the spot, to the plaintiff/respondent at the time of agreement. It is provided in the agreement to sell that in case the seller fails in executing the sale deed then the purchaser would get it executed through the process of Court and in case the purchaser fail in execution of the sale deed then earnest money shall be forfeited. It was also agreed that for some portion of the land in question mortgaged with Punjab National Bank, Bhavdeen Distt. Sirsa for a sum of Rs.2,15,000/-, the seller shall pay the outstanding dues prior to the execution and registration of the sale deed. It is alleged by the plaintiff that on 26.4.2004, he reached the office of Sub Registrar, Sirsa along with balance sale consideration and expenses for stamp etc. for registration of the sale deed but despite waiting, the defendant did not turn up, which forced him to mark his presence by filing an affidavit, attested by the Executive Magistrate/Sub Registrar, Sirsa. On 27.4.2004, a legal notice was sent to the defendant to perform his part of the agreement but the notice was received back with a report of refusal. At last, the plaintiff had to file the present suit.

On notice, defendant in his written statement, had negated the allegations of the plaintiff and pleaded that the agreement is an act of fraud as the defendant was in need of Rs.2 lacs for the marriage of his daughter for which he had requested the plaintiff, who had agreed to give money to him on interest at the rate of 1.5% per month and asked him to execute some document towards security. It is alleged that he had thumb marked some documents , which have been converted into an agreement to sell. The rate of interest was agreed in the presence of Baaz Singh, Ex-Sarpanch son of Harvel Singh and Gurdial Singh son of Chand Singh, residents of Village Bhavdeen, Tehsil and District Sirsa. It is also averred that defendant is ready to make the payment of Rs.2 lacs along with agreed interest.

In Civil Suit No. 1122-C of 2004, the plaintiff had prayed for relief of permanent injunction for restraining the defendant from interfering in his ownership and physical possession over the land measuring 60 Kanals 8 Marlas, being 1208/2432 share of the total land measuring 121 Kanals 2 Marlas and also for restraining the respondent herein from ousting him from the land in question.

Both the suits were clubbed together by the learned Court below and issues were framed on 1.10.2005, which are as follows:

1. Whether the plaintiff is entitled to the decree for specific performance of contract for sale agreement dated 25.4.2003 of the land measuring 34 kanals 8 marlas, as alleged OPP.

2. Whether plaintiff is entitled to injunction, if any OPP.

3. Whether suit of the plaintiff is not maintainable in its present form OPD.

4. Whether plaint has not been properly valued for the purposes of court fee and jurisdiction OPD

5. Whether the plaintiff has got no cause of action and locus standi to file the present suit OPD

6. Relief.

Both the parties led oral as well as documentary evidence. Defendant/respondent, who is the plaintiff in Civil Suit No. 1122-C of 2004, in order to prove his case, examined Ashwani Kumar Deed Writer as PW-1, Gurjeet Singh, attesting witness as PW-2, he himself appeared as PW-3, Balbir Singh, Clerk to Sh. Ricchpal singh Randhawa, Advocate as PW-4 and towards documentary evidence tendered agreement to sell Ex.P-1, affidavit Ex.P-2, receipt issued by the Punjab National Bank for Rs.4,68,853/- as Ex.P-3, copy of legal notice Ex.P-4, postal receipt Ex.P-5, registered letter Ex.P-6, copy of jamabandi 1997-98 Ex.P-7, copies of khasra girdawari from Kharif 2004 to Kharif 2005 Ex.P-8, Ex.P-9 and Ex.P-10, slip of Mall dated 16.3.2006 Ex.P-11 and certificate issued by the Gram Panchayat as Mark A.

Defenant/appellant examined Baaz Singh, Ex. Sarpanch as DW-1 and Gurbachan Singh as DW-2 and also furnished documents Ex.D3/A copy of jamabandi for the year 2002-03 and Ex.D3/B copy of Khasra Girdawari.

In rebuttal, plaintiff has tendered documents Ex.P-12 receipt regarding payment of Rs.204/- and 314/- for Kharif and Rabi crops, Ex.P-14 to Ex.P-16, copies of Khasra Girdawaries Ex.P-17 report of Tehsildar, Ex.P- 18 order dated 8.10.2005.

Issues Nos.1 and 2 are the relevant issues because in issue No.1, the Court had to decide as to whether the decree for specific performance of contract can be granted as prayed and in issue No.2 it is to be decided as to whether injunction should be granted or not. Learned trial Court, while disposing of Civil Suit No.47-C of 2004 returned the finding on issue No.1 in favour of purchaser/respondent No.1 to the effect that agreement to sell was executed between the parties and purchaser was always ready and willing to perform his part of the contract but the seller did not come forward, therefore, the decree was granted. It was also observed in para No.27 of the judgment of the trial Court that Besides this, to prove his possession over the land, the plaintiff has placed on record Ex.P-12 to Ex.P-17, which are the receipts and khasra girdawaris of Rabi and Kharif 2005-06, from the perusal of which, it is revealed that the plaintiff is in cultivating possession of the suit land while the defendant has not produced any document to prove himself still in cultivating possession of the suit land.

Since, the purchaser was found to be in actual physical possession over the suit land, therefore, the finding on the issue No.2 was returned against the seller and it was held that injunction cannot be granted. Hence, the Trial Court decreed the suit to the effect that the plaintiff is entitled to get the sale deed of the suit property registered in his favour. It is relevant to mention here that the plaintiff Raghubir Singh has deposited the whole remaining amount of the sale consideration with the bank vide Ex.P3. The defendant is directed to get the sale deed of the suit property registered in favour of the plaintiff, within a period of three months, from the date of this judgment.

The seller, thereafter, filed two appeals, namely, Civil Appeal No.85 of 2007 titled as Sh. Gurbachan Singh Vs. Sh. Raghubir Singh arising out of the Civil Suit No.47-C of 2004 and Civil Appeal No.86 of 2007 titled as Sh. Gurbachan Singh Vs. Sh. Raghubir Singh, arising out of the Civil Suit No. 1122-C of 2004.

Learned District Judge, Sirsa vide its judgment and decree dated 4.12.2008 upheld the judgment and decree of the learned trial Court and dismissed both the appeals. Mr.Bhag Singh, learned counsel for the appellant has, inter alia, contended that according to the finding of the Courts below, the possession of the land in question was delivered to the purchaser at the time of the execution of the agreement to sell. Therefore, the purchaser was in possession in part performance of the agreement to sell. He further submits that if the purchaser is in possession in part performance of the agreement to sell, then his case would fall within the purview of Section 53-A of the Transfer of the Property Act, 1882 ( for short ` the of 1882) and in that eventuality by virtue of the latest amendment in the Indian Registration Act, 1908 (for short the), under the provisions of Section 17(1A), the documents containing contracts to transfer immoveable property much less the agreement to sell has to be registered. It is also submitted by learned counsel for the appellant that this plea was taken in the grounds of appeal before the Lower Appellate Court but somehow the same has not been dealt with. It is further contended that if document was unregistered, which is otherwise required under the law to be registered, then it could not be looked into and received in evidence in view of Section 49 of theand the same has to be rejected. Therefore, the agreement to sell, which is the very basis of the suit is taken out of the consideration being a document which is required to be compulsory registered and is admittedly not registered, the present suit could not have been decreed and was to be dismissed.

On the other hand, learned counsel for the respondent has argued that neither this plea has been taken by the learned counsel for the appellant nor any question of law has been framed in this regard in the memo of appeal. He has further submitted that even for the sake of arguments though not admitted, the suit cannot be decreed in the absence of a registered agreement to sell, the respondent being in settled possession of the property in dispute could not be dispossessed otherwise in due course of law. In this regard, reliance has been placed upon a decision of this Court in the case of Balraj Singh Vs. Pritam Singh 2007 (2) PLR 655 and a decision of Delhi High Court in the case of Arvindra Kumar Singh Vs. Smt. Hardayal Kaur and others 2005 (2) PLR 16, in which it has been held that if the respondent is in settled possession, he cannot be dispossessed otherwise than due process of law.

At this stage, learned counsel for the appellant has submitted that he would return the entire amount of sale consideration including the amount, which has been deposited in the Bank along with interest at the rate of 18% and damages provided the possession of the land is delivered to him by the respondent.

It was argued by learned counsel for the respondent that appellant has also filed suit for the permanent injunction on the ground of his possession, therefore, he can not approbate and reprobate in the same breath. In this regard, learned counsel for the appellant has submitted that there is no estoppel against the law because if the law provides that documents has to be compulsorily registered and if it is not registered then it has to be thrown as a waste paper. He further submits that RSA No.244 of 2009 arising out of the suit for permanent injunction be dismissed as not pressed.

Thus, the substantial question of law involved in this appeal is as to whether a suit for specific performance can be decreed on the basis of an unregistered agreement to sell in view of Section 17(IA) of the Indian Registration Act, 1908 (for short the `Act of 1908) if the plaintiff claims himself to be in possession in part performance of the agreement.

Although this question has not been framed by learned counsel for the appellant in the memo of appeal and has been framed by this Court, yet the same was put to the counsel for the respondent and after he has given the concurrence in respect of his preparation to argue on the substantial question framed, the case has been heard.

In order to appreciate the respective contentions of the learned counsel for the parties, certain relevant provisions of law are required to be highlighted: Section 53A of Transfer of Property Act, 1882. 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 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 this contract, then, notwithstanding that 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.]

Section 17 (1A) of Indian Registration Act, 1908 The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A.

Section 49 of Indian Registration Act, 1908 Effect of non-registration of documents required to be registered No document required by section 17 [or by any provision of the Transfer of Property Act, 1882 (4 of 1882), to be registered shall -

(a) affect any immovable property comprised therein, or

(b) confer any power to adopt, or

(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered :

[Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877) or as evidence of any collateral transaction not required to be effected by registered instrument.]

The facts are not much in dispute. The plaintiff is in possession of the property in dispute in part performance of the agreement to sell which has been made the basis of the suit for specific performance and is unregistered. Section 53-A of theof 1882 empowers the transferee to resist any attempt on the part of the transferor to disturb transferees lawful possession under the contract of sale in case of a suit having been filed for seeking decree for specific performance on the basis of an agreement to sell in which the plaintiff is already in possession in part performance of the contract but according to Section 17(1A) of theof 1908, the agreement shall have to be registered if it is executed on or after the commencement of the Registration and Other related laws (Amendment) Act, 2001 and if such documents are not registered, on or after such commencement, then the agreement shall have no effect for the purposes of the said Section. In the present case, since the agreement to sell is unregistered, therefore, in view of Section 49 of theof 1908 such an agreement would not be received as an evidence of any transaction affecting the property in question. Thus, the substantial question that has been raised by the learned counsel for the appellant is answered in his favour in affirmative and it is held that the agreement to sell being unregistered does not confer any right or title upon the plaintiff as the same cannot be received in evidence in view of Sections 17 (1A) and 49 of the of 1908. Insofar as the decision in the case of Balraj Singh (supra) is concerned that arises of a Civil Revision wherein application under Order 39 Rules 1 and 2 CPC filed by the petitioner was rejected in terms of the agreement to sell. It was argued by the learned counsel for the petitioner that as per the latest Khasra Girdawaris he is in possession of the property in dispute and that recital in the agreement is very weak type of evidence on which no prima facie reliance can be placed. In that background, this Court had held that the agreement to sell was executed and handing over the possession was mentioned in the document then even if the agreement to sell was not registered, it would not debar the purchaser from protection under Section 53-A of theof 1882. It was further observed that in view of the provisions of Section 49 of theof 1908 the same can be used as evidence of possession once the document is not in dispute. I am afraid that aforesaid case of Balraj Singh (supra) is of no help to the respondent because in that case there was no reference to Section 17(1A) of theof 1908 which specifically provides that in case of protection of Section 53-A of theof 1882, agreement to sell has to be registered. Learned counsel for the respondent has also relied upon the decision in Arvindra Kumar Singhs case (supra) in which though it has been held that plaintiff cannot sue under the agreement to sell in question for the simple reason that the said document having been executed after the amendment to the Registration Act, 1908 by Act No.48 of 2001 as it required registration and the document being not registered the plaintiff cannot rely upon Section 53-A of the Transfer of Property Act, 1882 yet it was also held that plaintiff being in actual physical possession of the property cannot be dispossessed and the seller has to take recourse to procedure established by law to regain possession. It was also observed that though the position of such a purchaser would not be better than that of a trespasser who comes into settled possession yet he cannot be dispossessed by use of force and in this regard, reliance has been placed upon the decision of the Supreme Court in the case of Rame Gowda (D) LRs Versus Mr.Varadappa Naidu (D) by LRs and another 2004(1) RCR (Civil) 519. Even the aforesaid judgment is not applicable to the facts of the present case because agreement to sell was executed on 25.4.2003 and the plaintiff who has not come to the Court on the basis of his title cannot claim injunction against a true owner. This view has been taken by this Court in RSA No.3800 of 2004 titled as Sukhwant Singh Vs. Divisional Forest Officer and another decided on 2.4.2009 in which it has been held as under :

In Rame Gowda (D) LRss case (supra), the plaintiff filed a suit alleging his title as also his possession over the disputed piece of land. The trial Court found the plaintiff as having failed in proving his title. Nevertheless he was found to be in settled possession of the property. Even the defendant failed in proving his title over the disputed land so as to substantiate his entitlement to evict the plaintiff. The trial Court, therefore, left the question of title open and proceeded to determine the suit on the basis of possession protecting the established possession and restraining the attempted interference therewith. On the appeal of the defendant, the Honble Supreme Court held that the trial Court and the High Court have rightly decided the suit as it was still open to the defendant-appellant to file a suit based on his title against the plaintiff and evict the latter and the former establishing his better right to possess the property. Thus, in Rame Gowda(D) L Rss case(supra), the title of the parties was in dispute and the Honble Apex Court reiterated its earlier view observing as under:

In Fakirbhai Bhagwandas v. Maganlal Haribhai AIR 1951 Bombay 380, a Division Bench spoke through Bhagwati, J.(as his Lordship then was) and held that it is not necessary for the person claiming injunction to prove his title to the suit land. It would suffice if he proves that he was in lawful possession of the same and that his possession was invaded or threatened to be invaded by a person who has no title thereof. We respectfully agree with the view so taken. The High Court has kept the question of title open. Each of the two contending parties would be at liberty to plead all relevant facts directed towards establishing their titles, as respectively claimed, and proving the same in duly constituted legal proceedings. By way of abundant caution, we clarify that the impugned judgment shall not be taken to have decided the question of title to the suit property for or against any of the contending parties.

From the above discussion , it is also clear that there is no conflict with regard to ratio of law as settled in Rame Gowda(D) LRss case(supra) and the other judgments supporting the view taken in aforesaid case and the view taken in Premji Ratansey Shah and otherss case (supra) and other judgments supporting the same view.

In the cases in hand, there is no dispute with regard to the title of the defendants in the suit property. Therefore, in view of the above discussion only one conclusion can be drawn that an injunction cannot be granted in favour of the plaintiffs who are trespassers and against the defendants who are the true owners of the suit land.

Thus, an unregistered agreement does not give a right to seek decree for specific performance and as a necessary corollary the plaintiff is not entitled to retain possession under the garb of such an agreement. Keeping in view the facts and circumstances of the case, I am of the view that the present appeal bearing RSA No.243 of 2009 deserves to succeed. Hence, the same is allowed with costs throughout. However, the appellant is directed to return earnest money received from the respondent and also the amount deposited by the respondent with the Bank on his behalf with 18% interest to be calculated from the date of payment till the date of realization along with Rs.50,000/- towards damages. The respondent is also directed to hand over the vacant possession of the land in question to the appellant within 15 days of the receipt of the aforesaid amount. The other appeal RSA No.244 of 2009 is dismissed as not pressed.