RAMAPPA RAMALINGAPPA PADEPPANAVAR Vs. TAYAVVA

JUDGEMENT

(1.) The architect of this litigation is a disingegeneous defendant 1 who executed two agreements of sale in favour of two different persons. One of them was an agreement in favour of the plaintiff and the other was in favour of defendant 2. But before he executed a sale deed in favour of defendant 2, he delivered possession to the plaintiff. Then the plaintiff brought the suit out of which this appeal arises for a permanent injunction restraining defendant 1 from disturbing his possession, and during the pendency of the suit he obtained temporary injunction. It is alleged that after service of the temporary injunction on defendant 1,she executed a sale deed in favour of defendant 2. Then defendant 2 was impleaded as a supplemental defendant.

(2.) The Court of first instance recorded a finding that possession was delivered to the plaintiff when an agreement of sale was executed in his favour, and that finding was affirmed by the appellate court. But the decree for permanent injunction made by the court of first instance was reversed by the lower appellate court on the ground that the agreement of sale in favour of defendant 2 was an earlier agreement. Mr Savannur appearing for the plaintiff contends that so long as the plaintiff is concurrently found to be in possession of the suit property, the question whether the agreement of sale to defendant 2 was earlier has little relevance and that the plaintiff should be protected against disturbance of possession by the two defendants.

(3.) It is clear from the findings of the courts below that when defendant 1 executed an agreement of sale in favour of the plaintiff, she delivered possession of the suit property to him. So, the plaintiff was, when he brought the suit, in lawful possession of the suit property since by then the agreement of sale in favour of defendant 2 had not ripened into a sale. The sale deed was executed only during the pendency of the suit, and by then the plaintiff was already in possession having been delivered possession by defendant 1 who was then the owner of the suit property. Since both the courts have found that that was how the plaintiff acquired possession, it is clear that even if the agreement to sell in favour of defendant 2 was the earlier agreement, he could not, on the basis of the sale deed subsequently executed in his favour, take the law into his own hands and secure possession from the plaintiff. The proper remedy available to defendant 2 is to institute a suit for possession on the foundation of the earlier agreement of sale which culminated in the execution of a sale deed in his favour.