Mohinder Singh vs Baljit Singh

R.L. Anand, J.

This is a civil revision and has been directed against the order dated 10.8.2000, passed by the learned Distt. Judge, Sangrur, who modified the order of the trial court and declared that during the pendency of the suit, the plaintiffrespondents shall not be dispossessed.

Some facts can be noticed in the following manner :

Baljit Singh, Lal Singh and Avtar Singh, sons of Puran Singh, filed a suit for possession by way of specific performance on the basis of the agreement of sale dated 5.6.1997 and in the alternative with a prayer for recovery of Rs. 1,50,000/, on the plea that the defendant Mohinder Singh had agreed to sell his land vide agreement of sale dated 5.6.1997. A sum of Rs. 75,000/ was paid as earnest money at the time of the registration. The defendant did not execute the sale deed on the date fixed. The possession was delivered to the plaintiffrespondents at the time of execution of the agreement.

The suit was contested by the defendant on the plea that no agreement was executed between the parties and that the alleged agreement is a forged and fabricated document and he never delivered the possession to the plaintiffs. It further appears that during the pendency of the suit, Mohinder Singh sold the property in favour of his soninlaw for a consideration of Rs. 1,85,000/.

The learned trial court dismissed the application of the plaintiffs under O. 39 Rules 1 and 2, CPC, mainly on the ground that the agreement of sale does not convey any right, title or interest to the plaintiffs and, therefore, they are not entitled to protection of their possession.

Aggrieved by the order of the trial court, the plaintiffs filed an appeal under order 43, CPC, in the court of the ld. Distt. judge, who for the reasons given in para7, which is quoted hereinbelow, partly allowed the appeal and declared that during the pendency of the suit, the possession of the plaintiffs will not be disturbed as the plaintiffs had got the possession under the agreement :

"The learned counsel for the appellants does not press the injunction regarding alienation of the suit land as the land in dispute has already been sold and the sale has been assailed that defendant fabricated an agreement of sale in favour of his soninlaw and got a suit filed from him. The plaintiffs have applied under Order 1 rule 10 of the CPC for impleading them as a party in that suit, but the same was dismissed. Later on sale deed was executed in favour of his soninlaw to frustrate the decree which may be passed. The transferees are going to be made a party for which an application is pending in the trial Court. I find force in the contention of the learned counsel for the appellant that even if the alienation of the property in dispute cannot be restrained, the possession of the plaintiff is delivered at the time of agreement, has to be protected by issuance of an injunction. No doubt entries regarding possession are not in favour of the plaintiffs, but khasra girdawari were got corrected by the defendant in the name of his soninlaw during the pendency of the suit on the basis of the sale deed which was executed by the defendant in favour of his soninlaw. The conduct of the defendant cannot be said to be bona fide and he is taking every step to frustrate the decree which may be passed. Therefore, the impugned order so far as injunction regarding dispossession of the plaintiffs is concerned cannot be sustained. Therefore, the impugned order is modified to the extent that the defendant or the alleged transferees are restrained from dispossessing the plaintiffs from the suit land during the pendency of the suit. The impugned order to that extent is set aside and the appeal stands allowed partly. With this modification in the impugned order, the appeal is accepted partly with costs. ........."

I have heard the counsel for the petitioner and with his assistance have gone through the record of this case.

I am inclined to dismiss this revision in limine not only for the reasons given in para7 of the impugned judgment, which I have just quoted above, but also for the reason that the learned trial court has not rightly appreciated the legal position of law. It is true that the mere agreement of sale does not convey any right, title or interest but the things in this case are different. It is the case of the plaintiffs that under the agreement, they had taken the possession. Otherwise also, it sounds to reason that out of a total consideration of Rs. 1.50 lacs, no sound person will give Rs. 75,000/ to the defendant (vendor) as earnest money unless he gets the possession. The alleged sale by the defendant is in favour of his soninlaw and it has been rightly observed by the first appellate court that this sale has been executed with a view to frustrate the decree for specific performance which may be passed against the petitioner. The moment the possession of the plaintiffs is under an agreement, it has to be protected under section 53A of the Transfer of Property Act. At this juncture, we have to prima facie see the case and not the merits of the case.

Resultantly, I do not see any merit in this revision, which is dismissed with no order as to costs.

Nothing stated above shall amount to expression of my opinion on the merits of the case.

Revision dismissed.