VIJAY LALCHAND HUF Vs. K M LULLS HUF

JUDGEMENT

(1.) THESE four appeals are directed against the common order passed by a single Judge of this Court sitting on the Original side on four applications filed during the pendency of a suit. For the sake of convenience, the appellants will be referred to as the plaintiffs and the respondent will be referred to as the defendant.

(2.) THE suit is for specific performance of an agreement for sale said to have been entered orally by the defendant with the plaintiffs in or around August 1991. THE sale price was Rs. 9,75,000 for each plot. THE parties have agreed that the sale consideration should be paid at the time of execution of the sale deed. THE plaintiff and his wife agreed to purchase the plots because they intended to build a temple for Sri Shiridi Sai Baba and the entire extent of 7. 37 acres was needed for such construction in a fit manner. THE defendant delivered the original title deeds relating to the suit property to the first plaintiff and also put the plaintiffs in possession. THE plaintiffs prepared a draft sale deed and handed over the same to the defendant. THE defendant applied for Income Tax Clearance Certificate under section 230-A of the Income Tax Act and the same was issued by the concerned authority on 30. 8. 1991. In the draft sale deed, filed along with application for Income Tax Clearance Certificate all the terms of the contract have been clearly set out. Immediately thereafter the plaintiffs tendered the sale consideration to the defendant and requested for execution of the sale deed. THE defendant, without receiving the consideration, was postponing the fulfillment of the contract for some reason or other. THE plaintiffs constructed a wall encircling the total area of 7. 37 acres and fixed a gate on the northern side of the entire extent of land. THE gate is provided at the entrance of the land, which is owned by the plaintiffs themselves. Anyone can have access to the entire extent of the land only through that gate and there was no other access. THE plaintiffs employed their own security to protect the land. THE construction of the temple began in July 1993 and the plaintiffs constructed the same in the northern part of the land which belonged to themselves. THE building materials are stored in the southern part of the land which belonged to the defendant. Two huts were put up in that part of the land for use of the labourers and watchman. THE defendant, who was postponing the execution of the sale deed, kept the plaintiffs in the dark by making false promises and prevented the plaintiffs from taking effective steps to complete the specific performance. THE only intention of the plaintiffs was to build a temple along with facilities like prayer hall, nandavanam etc. But for the agreement and delivery of possession, the plaintiffs would not have indulged in constructing a temple. THE plaintiffs are ready and willing to pay the sale consideration to the defendant and they have necessary funds therefor. In June 1994, a member of the defendant's family trespassed into the suit property and also gave a complaint against the plaintiffs. THE plaintiffs had to give a counter complaint to the police. THE plaintiffs have come up with a prayer for specific performance and for injunction restraining the defendant from interfering with their possession of the suit property. With the above case set out above in the plaint, the plaintiffs applied in O. A. No. 55/94 for an injunction restraining the defendant during the pendency of the suit from interfering with the possession of the plaintiffs. In O. A No. 54/94, the plaintiffs prayed for an injunction restraining the defendant from alienating or encumbering the suit property in any manner pending disposal of the suit. By o. A. No. 53/94, the plaintiffs prayed for an injunction restraining the defendant from putting up any construction on the suit property. In the affidavit filed in support of the applications, it is also alleged that the temple constructed by the plaintiffs is being managed and administered by the second plaintiff trust and the trust has appointed a number of employees who stay in the suit property to take care of the affairs of the temple.

(3.) HENCE, the question arises whether the plaintiffs are entitled to have an injunction restraining the defendant from interfering with their possession on the basis of the agreement. The learned Judge has referred to the judgment in Krishnamoorthy v. Paramasiva (AIR 1981 Madras 310) and the judgment in Parameshwari, T. and four others v. S. S. Investments Private Ltd. (1993 (1)Law Weekly 109) and taken the view that the two judgments have laid down the law that in case of a suit for specific performance of an oral agreement, the plaintiff is not entitled to get any interim relief on the basis of the alleged possession as the plaintiffs have to prove possession only at the trial and further that the right under Section 53-A of the Transfer of Property Act can be used only as a shield and not as a sword and therefore a person relying on that Section can get relief only as defendant and not as a plaintiff. We are unable to accept the view taken by the learned Judge as regards the proposition laid down in the two judgments referred to by him. In fact the observations contained in the judgments are really obiter. In Krishnamoorthy v. Paramasiva (AIR 1981 Madras 310), the case arises out of an interlocutory order. It was found as a fact that the plaintiff had not proved possession prima facie and was not entitled to claim injunction. It was also found in that case that the genuineness of the agreement was itself questioned by the defendant and in the face of such a challenge and in the absence of prima facie evidence to prove possession under the agreement, the plaintiff could not get injunction. After giving such a finding on the facts, the Division Bench proceeded to observe that even assuming that the plaintiff was put in possession under the agreement and that he was entitled to the benefits of Section 53-A of the Transfer of property Act, he was not entitled to maintain a suit as plaintiff and seek an injunction as that would amount to his using the provision of Section as a sword and not as a shield. Those observations contained in that judgment are obiter. Similarly, in the later judgment in Parameshwari T. and four others v. S. S. Investments Pvt. Ltd. (1993 (1) Law Weekly 109), there was no averments that the plaintiff was in possession pursuant to the agreement. The only injunction granted by the trial court was restraining the defendant from alienating the property in any manner. It was that order which was challenged before the Bench and the Bench went on to consider the rights of parties under Section 53-A of the Transfer of Property Act. With all respect to the Bench, we are of the opinion that the entire discussion was unnecessary and the observations are obiter. 7. The question whether a plaintiff in a suit for specific performance can claim relief of injunction during the pendency of the suit on the basis of his possession, has been considered by this Court in Munuswamy Gounder v. (1974 (1) M. L. J 499), it was held that the plaintiff could, in such cases, ask for protection of the right envisaged by Section 53-A of the Transfer of Property Act as a shield by debarring, in other words, by getting an injunction against the defendant the transferor and those claiming under him, from interfering with his possession. The same view was expressed by a single Judge earlier in Mahalingam v. Ayyathurai (1972 (I) M. L. J 9 ). The judgment of the Division Bench in Krishnamoorthy v. Paramasiva (AIR 1981 Madras 310) was dissented from by a single Judge of the Bombay High Court in Venkat dharmaji v. Vishwanath (AIR 1983 Bombay 413 ). One of us had occasion to consider the two judgments of the Division Bench in Krishnamoorthy's Case (AIR 1981 Madras 310) and Munusamy Gounder v. Erusa Gounder (1974 (1) M. L. J. 499)and point out that the observations in Krishnamoorthy's case were obiter and the law laid down in Munusamy's case would hold good. That is rendered in Mohamed Ali others v. Nagaraja Mannair (1988 (1) Law Weekly 563 ). The Division Bench which decided Parameswari v. S. S. Investments Private Ltd. (1993 (1) Law Weekly 109) had occasion to consider the question once again in detail in Padmanabhan V. A. v. M. A. Narasimhan (1993 (1) Law Weekly 169 ). After referring to the earlier judgments on this question, the Bench said, '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 S. 53-A of the 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 person claiming through him to dispossess him. That the transferee can do either as plaintiff or a defendant. Ordinarily, the issue as to possession or any other right under S. 53-A of the act shall be consequential or a dependent issue upon the issue of the existence of the contract itself and with a decree for the enforcement of the contract, there can be an order for maintaining the possession of the agreement holder/transferee. In considering, however, whether injunction should be granted on the plea of possession and the allegation of threat of dispossession to a person holding the agreement for sale, the rule will be as one reiterated almost in every case that to plaintiff claiming only an equitable right the court would not ordinarily grant temporary injunction pending the suit on the basis of S. 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 S. 53-A of the act shall be available as 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 Sec. 52 of the Act and similar other doctrines will take care of all pendents 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. Parameshwari v. S. S. Investments Private Ltd (1993 (1)Law Weekly 109) which has been affirmed by the Supreme Court in S. L. P. Nos. 17926 & 17927/91, 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'. (emphasis supplied) For the purpose of this case, it is not necessary for us to discuss whether the proposition laid down by the Division Bench in that case is fully in accord with law we prefer, on the facts of this case, to apply the principle laid down by the Division Bench in that case. In the passage extracted above, the Division Bench has laid down two propositions, 1) a transferee can get relief either as a plaintiff or a defendant under Section 53-A of T. P. Act and 2) the passive equity as provided under Section 53-A of the Transfer of Property 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. (Emphasis supplied ).