Banwari Lal Jalan vs Murari Lal Jalan

Prashant Kumar, J.—By the Court.--This application has been filed for quashing the order dated 1.8.2008 whereby the application of petitioner for rejection of plaint has been rejected by the learned Court below.

It is submitted by Sri A.K. Choudhary, learned counsel for the petitioner that the plaintiff/respondent has filed the suit for specific performance of contract for enforcing the agreement executed between the petitioner and respondent on 18.2.2005. It is submitted that there is agreement that petitioner will sell suit property to respondent within three months from the date of agreement and on the date of agreement itself petitioner will hand over delivery of possession of the suit property. It is submitted that as per Section 17(1)(a) of the Registration Act, the said agreement required to be registered. It is then submitted that since the aforesaid agreement is not registered, therefore, it cannot be enforced for the purpose of Section 53(A) of the Transfer of Property Act. Accordingly, it is submitted that the suit is not maintainable for enforcing an unregistered agreement.

Sri Rohit Roy learned counsel appearing for respondent submits that in the instant case petitioner and respondent are brothers. Admittedly the suit property is joint family property and by the agreement dated 18.2.2005 there was family arrangement between both the brothers according to that property situated at Deoghar will be given absolutely to plaintiff/respondent and the property situated at Kolkata will be given to defendant/ petitioner. Thus, the said agreement is not an agreement in terms of Section 53(A) of the Transfer of Property Act. It is submitted delivery of possession never handed over rather plaintiff/respondent is already in possession of suit property being its joint owner. In that circumstance also Section 53(A) have no application. It is submitted that even if present case covered by Section 17(1)(a) of Registration Act and 53(A) of Transfer of Property Act then also there is nothing either in Registration Act or in the Transfer of Property Act which put an embargo on the plainnif/respondent from filing suit for specific performance of contract. Under the said circumstance order VII Rule 11(1)(d) of the CPC has no application.

Having heard the submission, I have gone through the record of the Case. From perusal of Specific Relief Act, Registration Act and Transfer of Property Act, I find that there is no provision in it which put an embargo on plaintiff from filing the suit for specific performance of contract of a unregistered agreement. Moreover, the fact as to whether in part performance of contract, possession was delivered or not is a question to be decided after considering the evidence and if ultimately petitioner/defendant succeeds in doing so then only he can say that agreement is not enforceable and thus no relief can be granted to the plaintiff.

In view of the aforesaid facts and circumstance, I find no illegality in the impugned order. Thus the present writ application is hereby dismissed.