Radhesyam Agrawal vs Narendrapal Singh

B.M. Lal, J.—A Civil Suit No. 155-A/72 was instituted by the appellants in the capacity of landlord of the suit property bearing Corpn. No. 12/62 situated in Colbazar, Malviya Road, Raipur, against Sardar Kartar Singh, respondent No. 2 for eviction from the said suit premises (i.e. House No. 12/ 62, Colbazar, Malviya Road, Raipur). The decree dated 23.9.1975 passed in this Civil Suit was upheld in First Appeal as well as in second Appeal decided by this Court.

When execution of the said decree was set in motion, numerous objections were taken by respondent No. 2 invoking the provisions of S. 47 of the CPC. After the said objections were overruled by the Executing Court, a close relation of respondent No. 2, viz. Santosh Singh with a view to hinder the execution of the decree filed a Civil Suit No. 35-A/77 which is still pending, alongwith an application for injunction restraining the decree holder from executing the decree. This injunction application was rejected. Thereafter, when the decree was being executed the possession was resisted by another close relation of respondent No. 2, viz. Sardar Sohendra Singh. Not only that, he even assaulted the court-bailiff who had gone to execute the decree. As such, said Sohendra Singh is subjected to Criminal Prosecution vide Criminal Case No. 340/82 which is pending before the Chief Judicial Magistrate, Udaipur. At this stage, the Executing Court directed delivery of possession to the decree holder with the assistance of Police.

In between, son of Sohendra Singh viz. Narendrapal Singh, respondent No. 1 in this appeal, filed a suit for declaration and permanent injunction to the effect that he be declared owner of the suit house bearing registration No. 12/62 Colbazar, Malviya Road, Raipur total area admeasuring 209 sq. ft. inclusive of carpet area and appurtenant land and further the appellants/ decree holders in Civil Suit No. 155-A/72 be restrained from executing the decree.

Shri Narendrapal Singh respondent No. 1, has set up his case on the ground inter alia, that he has purchased the suit property on 22.3.1982 from Bhagwan Mahavir Swami and as such he has been put in possession. However, this fact is not a registered document.

The recital of this unregistered Sale-deed shows that the suit property belongs to Bhagwan Mahavir Swami, and Pt. Pratap Narayan is the alleged Sarvarahkar of the deity Bhagwan Mahavir Swami. It is also averred in the plaint that till December, 1979 the said Sarvarahkar Pt. Pratap Narayan was ignorant about the fact that the suit property belonged to Bhagwan Mahavir Swami. Therefore, he gave a notice in the Hindi Daily newspaper published from Raipur (Deshbandhu) dated 4.1.1980 inviting claim of any person, if any, over the suit land. It is also alleged that originally the Khasra No. of this house was 800, but it was subsequently changed to different denominations. In this way when respondent No. 2 (the judgment-debtor) came to know this fact, handed over the possessions of the suit property on 21.3.1982 to respondent No. 3, Pt. Pratap Narayan who in his turn sold the suit house immediately on the next day i.e. 22.3.1982 in favour of respondent No. 1, Narendrapal Singh.

With this background the application for injunction for restraining the appellant-decree holder from executing the decree in hand has been considered by the trial court and by the impugned order dated 4.4.1983 injunction was granted restraining the appellant from executing the decree in hand, against which the present appeal has been filed.

Learned Counsel Shri N.S. Kale appearing for the appellants argued that under the present set of facts no case for grant of injunction is made out in favour of the respondent No. 1, Narendrapal Singh. According to him, no prima facie case is established and as such no balance of convenience title in favour of Narendrapal Singh for grant of injunction and further, no irreparable injury could be caused in any manner, as the unregistered sale deed speaks for itself in volumes. On the other hand, Learned Counsel Shri Ravish Agarwal appearing for the respondents supported the order impugned.

Having heard the rival contentions of the Learned Counsel, I have reached the conclusion that this appeal must be allowed.

While holding that the respondent No. 1, Narendrapal Singh has established the requisite ingredients of Order 39 Rule 1 and 2 of the CPC, the lower court reached the conclusion that for valid sale registration is not a must and on this proposition he granted injunction, whereas, he failed to consider the legal aspect of S. 54 of the Transfer of Property Act, 1882 which postulates "registration is a must" and, "transfer of an immovable property valued at Rs. 100 and upwards could only be recognized in law by a registered instrument along." This aspect has been completely lost sight of by the trial court.

The learned Lower Court, however, made reference to Jagri Bai v. Ram Khilawan Ors. 1976 JLJ 77, wherein dealing with the provision of S. 165 of the M.P. Land Revenue Code, 1959, it has been held that import of transfer is that of delivery of possession in consideration of price constitute transfer-registration not a necessary ingredient. It is procedural matter and is not a necessary ingredient of sale. This decision is based on Sayyad Ibne Hussain v. Mehtab 1960 JLJ 222, which was in the context of erstwhile Gwalior State based on Gwalior State Circular No. 5 of Samvat 1957 and where Section 54 of the Transfer of Property Act has no application. Therefore, taking aid of Circular No. 5 of Samvat 1957 issued by the then Legislative Assembly of the State, it was held in Sayyad Ibne Hussain''s case (supra) that:

Registration is not a must if two other ingredients sale i.e. Sale consideration is passed on and possession is delivered to the purchaser.

Considering the facts of Sayyad Ibne Hussain''s case (supra) and the ratio laid down therein relating to the registration of sale deed, it has no application where S. 54 of the Transfer of Property Act applies. Notwithstanding the fact that the unregistered sale deed is admissible for collateral purpose, but it does not pass any title and, therefore, this Jagribai''s case (supra) and Sayyad Ibne Hussain''s case (supra) are of no avail to the respondent No. 1.

Reference of Mahabir Prasad v. Samaroo 1960 JLJ 260, (Full Bench) which finds place in Jagri Bai''s case (supra) is also of no avail to respondent No. 1, Narendrapal Singh inasmuch as, where the transfer of land is governed by the statutory transfer as was covered under the provisions of Ss. 12 and 13 of the C.P. Tenancy Act in Mahabir Prasad''s case (supra), in that context, it has been held that registration of the instrument is not necessary; whereas in the instant case the. transfer of the house in question was not a statutory transfer, but being fully covered by the provisions of S. 54 of the Transfer of Property Act, registration is a must. Therefore, neither Jagribai''s case (supra) nor Mahabir Prasad''s case or Sayyed Ibne Hussain''s case (supra) has any effective bearing to the facts of the instant case being distinguishable on facts.

In the instant case, considering the fact as are appearing on record the conduct of the party is an important ingredient and is to be considered while granting discretionary relief, one like injunction, in its right perspective.

As discussed above, the facts of this case demonstrate that Narendrapal Singh, Respondent No. 1, appears to have been branded as plaintiff at the instance of respondent No. 2, Sardar Kartar Singh against whom the eviction decree fro the suit house is passed and by one way or the other the trial to obstruct the execution of the decree and for this purpose he invented and resorted to frivolous devices just to defeat the claim of the decree holder appellants. In such set of circumstances considering the over- all conduct of the respondents, and even that the father of respondent No. 1, viz. Sohendra Singh is subjected to prosecution of his criminal acts vide Criminal Case No. 340/82, the respondent No. 1, Narendrapal Singh is not at all entitled to get the discretionary powers exercised in his favour in granting injunction.

While granting the interim injunction, the Trial Court has completely lost sight of legal position to consider whether respondent No. 1, Narendrapal Singh was at any point of time in lawful possession of the property, on the face of the unregistered document which does not confer any title in his favour for want of registration. In Gangubai Bablya Chaudhary and Others Vs. Sitaram Bhalchandra Sukhtankar and Others, their Lordships have held vide para 6 of the judgment that:

When an interim injunction is sought, the curt may have to examine whether the party seeking the assistance of the court was at any time in lawful possession of the property and if it is so established one would prima facie ask the other side contesting the suit to show how the plaintiffs were dispossessed?

Applying the ratio laid down in Gangabai''s case (supra) the respondent No. 1, Narendrapal Singh, in the opinion of this Court, fails to establish that his possession is lawful and, therefore, no prima facie case has been found proved in his favour and as such no balance of convenience tilts in his favour which, in the opinion of this Court, has been set up by the judgment debtor, Kartar Singh against whom the ejectment decree has been passed in Civil Suit No. 155-A/72.

Shri Ravish Agrawal relying on M.P. Colliery Workers Federation, Chrimiri v. United Collieries Ltd. 1972 MPLJ 78, strenuously argued that grant of temporary injunction being discretionary, in appeal the same cannot be lightly interfered with.

It is true; but where the discretion in passing an order on injunction application is based on sound principles, then ordinarily no interference is called for. But this principle only applies where the court grants injunction only after rightly appreciating the facts. In the instant case, such is not the position. Notwithstanding the conduct of the plaintiff Narendrapal Singh, his father Sardar Sohendar Singh and Sardar Kartar Singh, the so called possession of Narendrapal Singh over the suit property is also not supported by any legal judgment, and, therefore, M.P. Colliery Workers Federation''s case (supra) is of no help to Shri Ravish Agrawal.

While considering the application for discretionary orders, it is to be seen whether the main relief sought for in the suit is of discretionary relief and whether there is any other equality efficacious remedy available and on these considerations, it is to be decided whether injunction is to be granted. In Vaish Degree College v. Lakshmi Narain AIR 1976 SC 888, their Lordships have observed, even the main relief being based purely on discretion of the court, the plaintiff cannot claim it as of right. The relief has to be granted by the curt according to sound legal principles "ex-debito justitias." The Court has to administer justice between the parties and cannot convert itself into an instrument of injustice or an engine of oppression. In these circumstances, while exercising its discretionary power, the court must keep in mind the well settled principles of justice and fair play and should exercise the discretion only if the ends of justice require it, for justice is not an object which can be administered in vacuum.

From the discussions aforesaid, the respondent No. 1/plaintiff utterly failed to make out a case for grant of injunction in his favour as the requisite ingredients of Order 39 Rule 1 and 2 of the CPC, i.e. prima facie case, balance of convenience and in the event of refusal irreparable injury will be sustained by him, has not been established. Therefore, the order impugned deserves to be set aside by this Court.

Consequently, from the discussions aforesaid, this appeal succeeds and is allowed with cost setting aside the impugned order. Counsel''s fee Rs. 750/ -, if certified.