BHAGWATI PRASAD Vs. SHAKUR

JUDGEMENT

(1.) THIS misc. appeal has been preferred by the appellant plaintiff against the order dated 4. 5. 2000 whereby the application for temporary injunction has been dismissed by the District Judge, Dholpur in a suit for specific performance.

(2.) AN agreement to sell the suit land in favour of the appellant plaintiff was entered into between the parties on 21. 1. 1993 on the terms and conditions mentioned therein, but the vendor sold the land to defendant No. 2 on 29. 6. 1995, resulting in filing of the suit for specific performance of contract. According to the defendant, the possession had already been delivered to the defendant No. 2. Along with the suit the application under Order 39 Rule 1 and 2 was also filed for granting an interim injunction. The trial court had come to the conclusion that in view of the facts narrated in the impugned order, the prima facie case and balance of convenience are not existing in favour of the plaintiff. It was prayed that vide interim injunction, the defendants be directed not to alienate or transfer the property any further or to make any construction thereon. The interim injunction was not granted. Certified copy of the sale-deed has been produced for perusal of the court wherein the parties have alleged to agree for selling of the land at the rate mentioned therein and earnest money was also paid by the plaintiff.

(3.) COUNSEL for the appellant relies on Kalavakurti Venkata Subbaiah vs. Bala Gurappagari Guruvi Reddy (1), wherein it was held that where the sale deed is stated to have been executed by the vendor but the document had not been presented by the vendee at all for registration, as the vendor refused to cooperate by appearing before the Sub-Registrar, the situation contemplated under Section 17 of the Act would arise. It is only on presentation of a document that the other circumstances would arise. Under section 49 of the Act the sale agreement could be received in evidence to prove the agreement between the parties though it may not itself constitute a contract to transfer the property. Section 17 would apply only if a matter is pertaining to registration of a document and not for a comprehensive suit as in the present case where the relief prayed for is directing the defendant to register the sale deed in favour of the plaintiff in respect of the plaint schedule property and if he so fails to get a registration in favour of the plaintiff for permanent injunction or in the alternative for delivery of possession of the plaint schedule mentioned property. In the said case, there was an agreement to transfer the immovable property in the suit by the defendant to the plaintiff on the terms stated in the sale deed. It was held that such an agreement to sell the immovable property in suit could be specifically enforced under the provisions of the Specific Relief Act and the plaintiff was alternatively entitled to base his claim of specific performance on the pleaded oral agreement to sell and for the reason it was a comprehensive suit including a relief for specific performance of a contract contained in the sale deed executed, but not registered and, therefore, such relief for specific performance can be granted.