ORDER
S.P. Khare, J.
1. This is an appeal under Order 43, Rule 1(r), CPC by the plaintiff-company against the order by which its application under Order 39, Rules 1 and 2, CPC for temporary injunction for restraining the defendants from interfering with the possession of the plaintiff-company on the property in dispute has been rejected.
2. This appeal has been transferred by the Supreme Court by order dated 20-4-1998 in Civil Appeal No. 2140 of 1998 from Indore to Jabalpur and it has been assigned to this Bench by Hon’ble the Chief Justice.
3. The facts which are not in dispute are that the defendant Nos. 1 to 4 with thirty other persons executed the agreement dated 13-9-1986 in favour of the plaintiff-company. By this agreement they covenanted to sell the property known as House Nos. 8 and 8-A (8/1 arid 8/2) situated at Mahatma Gandhi Road, Indore to the plaintiff-company. This property consisted of 1,00,000 sq ft. of land with two houses constructed thereon. One house was on 1500 Sq. ft. in possession of defendant No. 1 Om Prakash Khandelwal and the other house was on 3500 sq. ft. in possession of defendant No. 3 Vijay Kumar Khandelwal. They are real brothers. They have been shown as first party Nos. 20 and 23 in the agreement. The consideration which was agreed upon for the sale of this property was Rs. 1,06,00,000/-Out of this an amount of Rs. 42,00,000/- was paid by the plaintiff-company to the vendors on the date of the agreement as per Annexure ‘C’ to this agreement. Further an amount of Rs. 8,00,000/- was paid by the plaintiff to the defendants apart from the agreed consideration for “addition and extensions carried to the structures and immediately vacating the said property”. This property was under attachment of the M.P. Sales Tax Department and Income-tax Department for the dues payable by some of the vendors. They agreed to get the property released from the attachment. The total liability for which the property was under attachment was of Rs. 3,50,000/-. Itwas agreed that the property “will be made free from all the sales tax and income-tax liabilities and dues before the sale-deed is executed”. Clause 19 of the agreement provides :– “that the first party has put the second party in actual, physical and vacant possession of the said property in furtherance of this agreement. The second party shall henceforth be entitled to commence and carry on Survey and construction activities thereon but shall not get any title or ownership therein before final sale”. Clause 20 further provided that the sale deed was to be executed and registered within one year on payment of balance amount of Rs. 64,00,000/-. But there was a provision for extension of this period by six months on payment of compound interest at the rate of 18% per annum. There was a further clause that “further extension of time for payment is totally ousted and entails termination of this agreement and forfeiture of all advances”. Clause 21 again reiterated that the first party shall arrange for and obtain permission for transfer from Income-tax and Urban Land Ceiling Authorities if and when necessary. It is also stated in the agreement that “mere delay in any of these formalities shall not absolve the second party from making balance payment in time”. Defendants Om Prakash Khandelwal and Vijay Kumar Khandelwal supported the agreement by their affidavits dated 13-9-1986 and in these affidavits they have also shown that they have “handed over the vacant possession of these premises to the second party on 13-9-1986 under the said agreement”. The vendors executed a power of attorney also in favour of the Directors, of the plaintiff-company.
4. The plaintiff-company sent letter dated 17-2-1988 to the vendors stating therein that they were ready and willing to fulfil their part of the contract i.e. payment of the balance consideration before the Sub-Registrar at the time of the registration of formal sale deed. The plaintiff-company called upon the vendors to see that the property is released from attachment by the Sales Tax and Income-tax Department and necessary no objection certificates are obtained from the Income-tax Department and the Competent Authority under the Ceiling Act. The plaintiff-company requested all the vendors to assemble at Indore and execute the sale deed. The defendants sent their reply dated 11-8-1988 by which the period stipulated for performance of the contract and payment of balance consideration was extended by six months and it was expressed that if necessary this period would be further extended for another six months. It was also stated in this reply that no further extension would be given. It was also mentioned in this reply that the NOC from the Income-tax Department would be obtained by them.
5. The defendants sent their notice dated 7-6-1989 through their Advocate to the plaintiff-company by which the agreement was “cancelled” and the amount already paid by the plaintiff was “forfeited”. It was also expressed in this notice that though in the agreement it was mentioned that the possession of the property was delivered to the plaintiff-company, this was nothing more than mere formality and the actual possession is still with the defendants. Thereafter there was exchange of several other postal and telegraphic notices between the parties. Income-tax Clearance Certificate was not obtained by the vendors and the sale deeds were not executed within the time stipulated in the agreement or within the extended time.
6. On 19-4-1993 the plaintiff-company filed the suit for declaration and permanent injunction. In this civil suit the plaintiff-company filed an application for temporary injunction for restraining the defendants from interfering with its possession on the property in dispute. The case of the plaintiff-company is that the possession of the property in dispute was delivered to it on the date of the agreement and the company was in actual possession of this property on the date of the institution of the suit. An amount of Rs. 8,00,000/- was paid to the defendants as a consideration for “immediately vacating the property”. According to the plaintiff-company it was in possession of the disputed property on the date of the filing of the suit after payment of the amount of Rs. 50,00,000/-. It has been pleaded by the plaintiff-company that it was always ready and willing to perform its part of the contract but the vendors did not obtain the Income-tax Clearance Certificate for execution of the sale deeds. It is further stated by the plaintiff-Company that from 24-8-1987 to 12-4-1989 it has paid several amounts to the defendants towards balance sale consideration. The plaintiff-company has made payment to other co-owners and majority of them have executed sale deeds in favour of the plaintiff-company. The defendants have refused to execute the sale deed and are attempting to interfere in the possession of the plaintiff-company.
7. The defendants’ case is that the possession of the property in dispute was never delivered to the plaintiff-company. It was not ready and willing to perform its part of the contract. In para 6 in the reply to the application for temporary injunction it has been stated by the defendants that “as the plaintiff was required to take necessary actions concerning the maps of suit property in different offices and Corporations, therefore, the defendants had “for the sake of papers” mentioned in the suit agreement, affidavits, vouchers and general power of attorney “about the delivery of the possession of the suit property to the plaintiff, but the actual possession of entire suit property along with its structures remained vested with the defendants only and the plaintiff was never in the possession of the suit property”. It is also pleaded that the plaintiff company had agreed to deposit the amount of sales tax and the income-tax which was due from some of the vendors and any delay in completion of these formalities could not come in the way of the plaintiff-company to fulfil its part of the contract, that is, payment of remaining amount of Rs. 64,00,000/- to the vendors. The plaintiff has failed to pay the remaining amount of consideration to the vendors and thus they have committed the breach of contract and it cannot be said that they were ready and willing to perform their part of the contract. It is also pleaded by the defendants that S.D.M., Indore passed a preliminary order under Section 145, Cr, P.C. on 27-4-1993 and also an ex parte order under Section 146, Cr. P.C. attaching the property in dispute. He appointed a Receiver and the property was attached on 28-4-1993 and it remained in the possession of the Receiver after that date. According to the defendants, the property was attached from their possession and the Receiver had taken possession from them. The plaintiff-Company has not filed any suit for specific performance of contract and, therefore, the present suit for injunction is not maintainable. As the suit is not maintainable, the application for temporary injunction is also legally untenable.
8. The trial Court held that the suit of the plaintiff-company for protection of possession is legally maintainable under Section 53A of the Transfer of Property Act even if it has not filed the suit for specific performance of contract. The trial Court has further held that the possession of the disputed property was not given to the plaintiff-company by the defendants and it continued to be in their possession. The trial Court relied upon twenty documents detailed in para 19 of the impugned order to hold that the possession of the disputed property was not given to the plaintiff-company at the time of the execution of the agreement of sale. It has also been held that the possession of the disputed property has been taken over by the Receiver appointed by the S.D.M. in proceedings under Sections 145 and 146, Cr. P.C. and, therefore, now there is no question of protection of the possession of the plaintiff-company. The trial Court was of the view that the recital in the agreement that the possession has been delivered to the plaintiff was untrue and was made with some other purpose. It was further of the view that the presumption arising from the admission in the agreement to sell regarding delivery of possession to the plaintiff company is rebutted by the documents produced by the defendants. As the possession of the disputed property was prima facie not found with the plaintiff-company it was held that there was no prima facie case and the balance of convenience is not in its favour and it would not suffer any irreparable injury if the application for temporary injunction is rejected.
9. In this appeal it has been argued on behalf of the appellant that so far as the maintainability of the suit and the application for temporary injunction are concerned, the finding of the trial Court is in its favour and therefore, it cannot be said prima facie at this stage that the suit suffers from any legal infirmity. It is further argued that the possession of the property in dispute was delivered by the vendors to the plaintiff-company on the date of the execution of the agreement to sell and it has been unequivocally stated in the agreement that the possession was delivered to the plaintiff and that has been supported by the two affidavits mentioned above. It is submitted that the trial Court has not given proper weight to the admission made by the defendants in the agreement and the affidavits and it has been wrongly held on the basis of the documents produced by the defendants that the possession was not delivered to the plaintiff-company. It is further submitted that the S.D.M. terminated the proceedings under Sections 145 and 146, Cr. P.C. on 2-3-1995 after the impugned order was passed on the ground that now the civil Court is seized of the matter and has passed an order on the application for temporary injunction. It is pointed out that the S.D.M. has not made any enquiry regarding the possession of the rival claimants and, therefore, the order of the S.D.M. terminating the proceedings in view of the order of the civil Court does not determine the question which party was in possession of the disputed property on the date of the institution of the suit.
10. The argument of the learned counsel for the respondents is that the suit as filed by the plaintiff-company is legally not maintainable as the alleged transferee cannot come to the Court as a plaintiff for protection of its possession, as the equity of part performance incorporated in Section 53A of the Transfer of Property Act is available to a defendant and not to a plaintiff. It is further argued that the suit for specific performance of contract not having been filed the plaintiff cannot claim any title to the property in dispute and, therefore, the suit based on possession alone could not be entertained. As the suit is not maintainable, the application for temporary injunction would also not lie. It is submitted that the finding of the trial Court that the possession of the disputed property was not given to the plaintiff is based on proper appreciation of the documentary evidence and affidavits and it cannot be interfered with in appeal as this finding is not perverse or unreasonable. It is also contended that after passing of the impugned order by the Civil Court, possession of the disputed property has been delivered to the defendants after 2-3-1995 by the Receiver on the orders of the S.D.M. and that is the additional ground why the application for temporary injunction is legally not maintainable.
11. The points for determination in this appeal are : (a) whether the suit of the plaintiff for permanent injunction and the application for temporary injunction are prima facie maintainable, (b) whether the possession of the property in dispute was delivered to the plaintiff on the date of execution of the agreement of sale and it was in its possession on the date of the institution of the suit, (c) whether the plaintiff was ready and willing to perform its part of the contract, and (d) whether the plaintiff has a strong prima facie case and balance of convenience in its favour and it would suffer irreparable injury if the application for temporary injunction is not allowed.
12. Point (a)
Section 53A of the Transfer of Property Act relevant for the present purpose provides that where any person “contracts to transfer for consideration” any immovable property by writing signed by him and the “transferee” has in part performance of the contract “taken possession” of the property and the transferee has “performed or is willing to perform his part of the contract”, then notwithstanding that the contract, though required to be registered, has not been registered, the transferor “shall be debarred from enforcing against the transferee” any right in respect of the property of which the transferee has taken possession other than the right expressly provided by the terms of the contract. A plain reading of the Section shows that a statutory right has been conferred on the “transferee in possession” to protect his possession if he satisfies all the conditions of the Section. It imposes a statutory bar on the transferor, but confers no title on the transferee. The right conferred on the transferee can be used “as a shield and not as a sword”, it is a “weapon of defence and not of attack”, it is a defensive or passive equity and not an active one”. To this extent the law is well settled. In Ranchhoddas v. Devaji, AIR 1977 SC 1517, it has been observed by the Supreme Court that the doctrine of part performance is a defence. It is a shield and not a sword. It is a right to protect his possession against any challenge to it by the transferor contrary to the terms of the contract. In State of U.P. v. District Judge, AIR 1997 SC 53, it is said that Section 53A provides for a shield of protection to the proposed transferee to remain in possession against the original owner who has agreed to sell the lands to the transferee if the proposed transferee satisfies other conditions of Section 53A. That protection is available as a shield only against the transferor, the proposed vendor, and would disentitle him from disturbing the possession of the proposed transferees who are put in possession pursuant to such agreement. Again in Hamzabi v. Syed Karimuddin (2001) 1 SCC 414 : (2000 AIR SCW 4354) it is reiterated that Section 53A protects the possession of persons who may have acted on a contract of sale but in whose favour no legally valid sale deed may have been executed or registered.
13. The divergence of opinion is on the point whether the transferee is protected when he is in the Court as a defendant or he can also knock at the doors of the Court as a plaintiff and seek the intervention of the Court for protection of his possession. On a dispassionate consideration this Court is of the opinion that he can come to the Court as a plaintiff also for recognition and protection of his right which has been given to him by the statute. The Court cannot tell him if he comes as plaintiff; “go back, use your physical strength and muscle power to resist and repel the attack of the transferor and drive him to come to the Court as a plaintiff and then if you are arrayed as defendant the Court will protect you”. This will be against the basic concept of the rule of law. The transferee-in-possession satisfying all the conditions of the section must be protected by the Court whether he comes as a plaintiff or as a defendant. He cannot be permitted to assert his title but he can legitimately claim through the Court the right which has been given to him by the law. If he has a good case he must get the assistance of the Court. If he has a genuine grievance that must be redressed whether he is in the shoes of the plaintiff or of the defendant.
14. In Achayya v. Venkata Subba Rao, AIR 1957 Andh Pra 854, Subba Rao, C. J. (as his Lordship then was) speaking for the Division Bench has stated the law : “Section 53A does not either ‘expressly, or by necessary implication indicate that the rights conferred on the transferee thereunder can only be invoked as a defendant and not as a plaintiff. Under the section no title passes to a transferee. He cannot file a suit for a declaration of his title to the property or seek to recover possession of the same on the basis of any title conferred to him. But, if the conditions laid down in the section are complied with, it enables the transferee to defend his possession if the transferor seeks to enforce his rights against the property. This statutory right he can avail himself both as a plaintiff and as defendant provided he is using his right as a shield and not as a sword. Or to put it in other words, he cannot seek to enforce his title but he can resist the attack made by a transferor. The same view has been taken by Allahabad High Court in Baburam v. Vasudeo, AIR 1982 All 414, following Pandit Ramchander v. Maharaj Kunwar, AIR 1939 All 611. It has been held that Section 53A applies to the transferee even if he is plaintiff. A contrary interpretation would reduce the utility of the Section to a naught, because a powerful transferor would then, defeat the section by forcibly dispossessing the transferee and compelling him to sue as a plaintiff. Such a result would not be conducive to the interest of an orderly social order.
15. In S.F. Munuswami v. Erusa Gounder, AIR 1975 Madras 25, it has been held by a Division Bench that a transferee in possession under Section 53A of the T. P. Act can ask for injunction protecting his rights. He can claim injunction against the transferor restraining him from interfering with his possession. Similarly in Maruti v. Krishna, AIR 1967 Bom 34, it has been held that the plaintiff can take advantage of Section 53A. In Dharmaji v. Jagannath, AIR 1994 Bom 254, it has been observed : “if this right as a shield is available to him as a defendant, there is no justification for a view that it would be denied to him even if by force of circumstances he as a law abiding citizen is compelled to approach the Court as a plaintiff to use that shield. The transferee is entitled to resist any attempt on the part of the transferor to disturb transferee’s lawful possession under the contract of sale and his position either as a plaintiff or as a defendant should make no difference. Contrary interpretation viz. the transferee can use the shield only as a defendant and not as a plaintiff, would defeat the very spirit of Section 53A, for it will be possible for an overpowering transferor to forcibly dispossess the transferee even against the covenants in the contract and compel him to go to the Court as a plaintiff. In Kantappa v. Krishnabai, AIR 1995 Kant 213, a decision of the Division Bench of Karnataka High Court (consisting of M.N. Venkatachaliah and N.R. Kudoor, JJ.), has been cited in which it has been held : “An intending transferee under a contract for sale of immovable property, who is put in possession of the properly in part performance of the contract, can as a plaintiff bring an action for the possessory remedy of an injunction in protection of his possession against the transferor”. In view of this Division Bench decision the case reported in U.N. Sharma v. Puttegowda, AIR 1986 Kant 99, taking a contrary view has been held to be not laying down good law.
16. The source of authority that the right conferred by Section 53A, T. P. Act is a right available only to the “defendant” to protect his possession is said to be the decision of the Privy Council in Probodh Kumar v. Dantmara Tea Co., AIR 1940 PC 1, on which reliance has been placed by the learned counsel for the respondents in this appeal. A Division Bench of the Chief Court of Oudh in Ewaz Ali v. Firdous Jehan, AIR 1944 Oudh 212, explained the observations of the Privy Council : “We are unable to consider that their Lordships of the Privy Council by the use of the word “defendant” in the above observation intended to mean that the right conferred by Section 53A was not available to a person in the position of Mst. Firdaus Jehan and that the mere position of party in the heading of a suit would determine whether he is or is not entitled to benefits of the section. The subsequent sentence makes this clear. When they use the word ‘defendant’ they use it to describe the position of a person who pleads Section 53A and they say his position must be that of a person who invokes it for defending himself against the transferor”. It was further observed : “It is clear to our mind that the section cannot be used as a weapon of attack, and that it confers upon the transferee the privilege of invoking the doctrine embodied therein only as a shield against any invasion of his rights by the transferor or persons claiming under him. The words of the section do not warrant a conclusion that a plaintiff as such is necessarily debarred from the benefit of the rule. Where by the nature of the case as disclosed by the pleadings or otherwise it is apparent that the transferee comes to defend his possession against the invasion of it by the transferor, he is entitled to invoke the aid of the equitable doctrine therein embodied.”
17. The Division Bench of Andhra Pradesh High Court in Achayya’s case (AIR 1957 AP 854) (supra) agreed with the reasoning given by the Chief Court of Oudh and observed : “We do not think hat the Judicial Committee intended to lay down, irrespective of the nature of the relief claimed, that, under no circumstances, can the transferee rely upon the provisions of Section 53A of the Act as a plaintiff. It was further observed : “In the context, the question whether the rights conferred under Section 53A, without asserting title to the property were available to the plaintiff did not arise for consideration in that case, and, therefore, the observations relied upon could not be accepted as a considered decision on the question not raised or argued in that case”.
18. Thus, the decision of the Privy Council referred to above has been fully explained by the two Division Benches and it has been clarified that even the plaintiff can invoke the aid of defensive equity incorporated in Section 53A of the Act.
19. In Kanhaiyalal v. Jerome D’Costa, AIR 1955 Nag 302, the Full Bench of Nagpur High Court has held that Section 53A is ordinarily to be used as a defence and not as a weapon of attack. That was not a case in which the plaintiff was seeking protection of his possession. In Bhulkoo v. Hiriyabai, AIR 1949 Nag 410 it has been held that Section 53A creates a defence. But it gives the part performer a right to resist dispossession, and if, in point of fact he is forcibly ejected, he has his remedy. Were it otherwise the shield, would be useless against resolute men who relied on the strong arm, not of the law, but of force. In Madan Mohan v. Gaurishanker, AIR 1988 MP 152, it has been held that the plaintiff in possession under an unregistered sale deed would be entitled to a decree for permanent injunction. Again in Sltaram v. Tularam, AIR 1989 MP 128, the view taken by Nagpur High Court in Bhulkoo v. Hiriyabai (AIR 1989 Nag 410) (supra) that a part performer is entitled to protect his possession against any resolute man, out to dispossess him “is not only preferable, but is also a binding precedent so far as this Court is concerned”. Thus, there is consistent view of this Court that the benefit of Section 53A of the T. P. Act can be extended to the plaintiff also to protect his possession if he satisfies all the conditions of the Section.
20. In Stoneware Pipe v. State of Rajasthan, AIR 1972 Raj 83, a contrary view has been taken and it has been held that Section 53A does not give a right of action for a suit, including so-called defensive suit for restoration of possession forcibly taken by the transferor or for injunction. This view is primarily based on the decision of the Privy Council in the case of Probodh Kumar (AIR 1940 PC 1) (supra) which has been discussed above. The view taken by Nagpur High Court and affirmed by this Court, as discussed above, must be followed. This question arose before the Supreme Court in Delhi Motor Company v. V. A. Basrurkar, AIR 1968 SC 794, but it was left open.
21. In view of the legal position discussed above the trial Court has rightly held that the present suit is prima facie maintainable and the argument of the learned counsel for the respondents that the application for temporary injunction could not be entertained because the suit is not maintainable has to be rejected.
22. It has also been urged that the plaintiff has not filed any suit for specific performance of contract and, therefore, it cannot claim injunction invoking the benefit of Section 53A, T. P Act. Recently in S. S. Suryavanshi v. P.B. Suryavanshi, 2002 AIR SCW 659, it has been held that the Special Committee’s report which is reflected in the aims and objects of amending Act, 1929 shows that one of the purpose of enacting Section 53A was to provide protection to a transferee who in part performance of the contract had taken possession of the property even if the limitation to bring a suit for specific performance has expired. In that view of the matter, Section 53A is required to be interpreted in the light of the recommendation of Special Committee’s report and aims, objects contained in amending Act,
1929 and specially when Section 53A itself does not put any restriction to plea taken in defence by a transferee to protect his possession under Section 53A even if the period of limitation to bring a suit for specific performance has expired.
23. In light of the above decision the transferee can protect his possession even if he has not filed the suit for specific performance of contract and thereby disabled himself from acquiring legal title.
24. Point (b) :
It is not in dispute that the defendants had mentioned in the agreement dated 13-9-1986, affidavits, vouchers and general power of attorney that the possession of the suit property has been delivered to the plaintiff on the date of the execution of the agreement. It is also not in dispute that the amount of Rs. 42,00,000/- was paid to the vendors on that date and an additional amount of Rs. 8,00,000/- was paid to the defendants for “immediately vacating the property”. The question is what is the effect of these admissions ? It is not the case of the defendants that there was any coercion or duress or there was any fraud or misrepresentation. They were not under any constraint. There was no inequality of bargaining power. The terms of the agreement clearly show that the parties knew the import of what they were signing. The agreement has been drafted by a person having full legal acumen. It is not a case of a rustic villager. The defendant Nos. 1 and 3 are well-educated and men of business. The defendants are not the persons who could sign on dotted lines and that is not the pleading also.
It is well settled that a party’s admission as defined in Sections 17 to 20 fulfilling the requirements of Section 21, Evidence Act is substantive evidence proprio vigore. An admission if clearly and unequivocally made is the best evidence against the party making it and though not conclusive, shifts the onus on to the maker on the principle that “what a party himself admits to be true may reasonably be presumed to be so and until the presumption is rebutted the fact admitted must be taken to be established. (Thiru John v. Returning Officer, AIR 1977 SC 1724. A person is bound by admissions in the document executed by him. The presumption is that the recitals in the document are true and if he seeks to displace it, the onus is heavy on him. Section 31 of the Evidence Act provides that admissions are not conclusive proof of the matters admitted, but they may operate as estoppels. In Narayan v. Gopal, AIR 1960 SC 100, the Supreme Court has held that an admission is the best evidence that an opponent can rely upon, and though not conclusive is decisive of the matter unless successfully withdrawn or proved erroneous. In Avadh Kishore v. Ram Gopal, AIR 1979 SC 861, the Supreme Court has held that : “It is true that evidentiary admissions are not conclusive proof of the facts admitted and may be explained or shown to be wrong; but they do raise an estoppel and shift the burden of proof on the person making them. Unless shown or explained to be wrong they are an efficacious proof of the facts admitted”.
25. In view of the above legal position, heavy burden lies on the defendants to show that the admission made in the agreement, affidavits and other papers regarding the delivery of possession of the property in dispute to the plaintiff on the date of execution of the agreement is not correct. In this context it must be seen that there is not only admission about the delivery of possession but it is coupled with the fact that an amount as big as Rs. 42,00,000/- was paid to the vendors on the date of the agreement. Further an amount of Rs. 8,00,000/- was admittedly paid to the defendants for “immediately vacating the property”. This is a very strong circumstance to indicate that the possession of the property was delivered to the plaintiff on the date of the execution of the agreement. The defendants and the other vendors who have pocketed an amount of Rs. 50,00,000/- cannot turn around and say that the recital regarding delivery of the possession in the agreement was made “for the sake of papers” only. The trial Court has not dealt with this vital aspect in the impugned order. It has not attached proper weight to the fact that the amount of Rs. 42,00,000/-was paid to the vendors on the date of the execution of the agreement and an additional amount of Rs. 8,00,000/- was paid to the defendants for vacating the property immediately.
26. The only plea of the defendants is that recital regarding the delivery of the possession in the agreement was made as the plaintiff was required to take necessary action concerning the maps of the suit property in different offices and Corporations. The defendants and other vendors had executed the power of attorney in favour of the plaintiff and on that basis the necessary action concerning the map could be taken. The property was still in the names of the vendors and, therefore, the maps could be sanctioned by the authorities in the names of the vendors only. It is difficult to comprehend that the recital regarding delivery of possession was made “for the sake of papers” only. That is only a device to get rid of the admission which is of decisive character. Probative value of the admission made in the agreement and the affidavits cannot be overlooked. The Court cannot shut its eyes to the glaring facts.
27. There are twenty documents detailed in para 19 of the impugned order which have been relied upon by the trial Court for upholding the possession of the defendants on the property in dispute. The map annexed to the agreement shows the shares of each of the vendors. The area shown in the share of the defendants (parties Nos. 2-20 to 26) is 12000 sq. ft. out of the total area of one lac square feet which was agreed to be sold to the plaintiff. Out of this area of 12000 sq. ft. 6000 sq. ft. is of defendant No. 1 Om Prakash and his branch and 6000 sq. ft. is of defendant No. 3 Vijay Kumar and his branch. There was a structure described as “Apni Dunia Press” in a corner. Out of the twenty documents the first three are FIRs dated 3-1-1987, 2-4-1987 and 20-9-1987 regarding theft of some moveable property from this press, the fourth is the Receipt dated 23-1-1989 of the New India Assurance Company, the fifth is Meter Reading card of the MPEB dated 16-8-1989 of the Apni Duniya, and the seventh is a Receipt in the name of this Press. The other documents relate to cancellation of the power of attorney in favour of the plaintiff, notices, telephone bills, publications in the newspaper, the affidavits, photographs and the FIR dated 22-4-1993. The plaintiff or its Directors have nothing to do with these documents. In the FIR which is document No. 1 the building of the Apni Duniya Press has been described as “former Press” and present “Press Godown” of which the lock has been broken. The notices relate to the period after the disputes arose between the parties. The electricity and telephone bills were coming because the electric meter and telephone were there before the date of agreement. A close scrutiny of all the 20 documents goes to show that they are not of such nature which may take away the unequivocal admission made in the agreement, affidavit and the vouchers that the possession of the property in dispute was delivered to the plaintiff on the date of the execution of the agreement.
28. The possession of immovable property is delivered by one man to the other by making a clear declaration that he has done so and that declaration is generally evidenced by some document. This was done by the agreement, affidavits and the vouchers. The recital in these documents about the delivery of possession by the vendors including the defendants is admitted. That was sufficient to pass possession from one party to the other. The immovable property by its very nature is incapable of movement. It cannot be put by one party into the hands or pocket of another. The clear, unambiguous and unequivocal admission in the agreement, affidavits and vouchers about the delivery of possession by the defendants to the plaintiff must prevail over the documents on which reliance has been placed by the trial Court. The defendants have, as already discussed, taken an additional amount of Rs. 8,00,000/- for “immediately vacating the property” agreed to be sold and this stark reality cannot be overshadowed or obliterated by the documents produced by the defendants. The recital in Clause 19 of the agreement that “the first party has put the second party in actual, physical and vacant possession” is prima facie not proved to be untrue and it must prevail in preference to the said 20 documents. The weight of the said recital is not denuded by these self-serving documents.
29. The defendants had 12000 sq. ft.
share in the total land which was agreed to
be sold. The other vendors have not disputed
delivery of possession of the land of their
share to the plaintiff on the date of the agreement. The land of the share of the other vendors is about 88000 sq. ft. Some of them
have executed sale deeds in favour of the
plaintiff. When the other vendors who held
the major share in the land covered by the
agreement are not disputing the fact of de
livery of possession of their share to the
plaintiff as per recitals in the agreement, that
is also a pointer in the direction that the
defendants had also delivered possession of
their share to the plaintiff on the date of
agreement especially when the defendants
were paid extra amount of Rs. 8,00,000/-
for that purpose.
30. The suit out of which this appeal has arisen was filed on 19-4-1993 and the S.D.M. issued the orders under Sections 145 and 146, Cr. PC. on 27-4-1993: and appointed a Receiver who took possession of the land in dispute. The S.D.M. did not make any inquiry as per Section 145, Cr. P.C. to ascertain which party was in possession on the date of the preliminary order and terminated the proceedings in view of the impugned order of the Civil Court. The proceedings under Sections 145 and 146, Cr. P.C. could not continue because of the impugned order and the order of the S.D.M. has been upheld by the two superior Courts in view of the decision of the Supreme Court in Amresh Tiwari v. Lalta Prasad Dubey, AIR 2000 SC 1504. Therefore, the order by which the proceedings under Sections 145 and 146, Cr. P.C. came to an end is not germane for determining the question which party was in possession of the land in dispute on the date of the institution of the suit.
31. On consideration of the entire material on record this Court is of the opinion that prima facie the plaintiff was given possession of the property in dispute on 13-9-1986 by the vendors including the defendants and this property was in possession of the plaintiff on the date of the institution of the suit. The view taken by the trial Court on this point is not correct.
32. Point (c) :–
It is admitted that the plaintiff paid Rs. 42,00,000/- on the date of the agreement as part of the consideration of Rs. 1,06,00,000/- to the vendors. The plaintiff sent the letter dated 17-2-1988 showing its readiness and willingness to perform the contract. The defendants were called upon to obtain clearances from the Income-tax Department and the Competent Authority under the Ceiling Act. The defendants in their reply dated 11-8-1988 extended the period for performance of the contract and they promised to obtain NOC from the Income-tax Department. It is further admitted that the Income-tax Clearance Certificate was not obtained by the defendants. Section 230A of the Income-tax Act, 1961 provides restriction on registration of transfer of immovable property. The statutory provision required the defendants to obtain such certificate as the value of the property to be sold was more than Rs. 2,00,000/-. The plaintiff could not obtain such certificate. Without such certificate the sale deed could not be registered. It is settled law that in judging willingness to perform the Court must consider the obligations of the parties and the sequence in which they were to be performed. (Nathulal v. Phoolchand, AIR 1970 SC 564). In the present case the defendants did not come forward showing their ability to execute the sale deed by obtaining the Income-tax Clearance Certificate as per Section 230A of the Income-tax Act, 1961. When one party moves one or two steps ahead towards the performance of the Contract the other side should also take one step forward so as to assure the other party that he is prepared and willing to perform his part of the Contract. As the defendants did not do so naturally the plaintiff could not pay the balance amount as per Annexure ‘C’ to the agreement. They had already paid a total amount of Rs. 50,00,000/- and the performance of the contract by the other side was not in sight. Therefore, the plaintiff cannot be blamed for not paying the remaining amount. It has been expressed by the plaintiff-company that it is still ready and willing to perform its part of the contract. Therefore, it must be held prima facie that the plaintiff was and is ready and willing to perform its part of the contract.
33. Point (d) :–
It has been found that the defendants had delivered possession of the property in dispute to the plaintiff on 13-9-1986, the date on which the agreement of sale was executed. The plaintiff was in its possession on the date of the institution of the suit on 19-4-1993. The position obtaining on the date of the suit is material for deciding the question of temporary injunction. In P. Venkateswarlu v. Motor and General Traders. AIR 1975 SC 1409, the Supreme Court observed : “It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceedings”. Order 39. Rule 1(c), CPC as amended in 1976 clearly provides that if the defendant threatens to dispossess the plaintiff from the property in dispute the Court may by order grant a temporary injunction to restrain dispossession of the plaintiff. It is argued on behalf of the respondents that the Receiver appointed by the S.D.M. has delivered possession of the property in dispute to the defendants as per order dated 2-3-1995 of the S.D.M. and therefore, now an order of temporary injunction cannot be issued against them. This argument is not acceptable as the factual position on the date of the suit is to be considered. The S.D.M. relying upon the impugned order terminated the proceedings under Sections 145 and 146, Cr. P.C. and as it has been found by this Court (disagreeing with the finding of the trial Court) that the property in dispute on the date of the suit was in possession of the plaintiff, the order of temporary injunction as per Order 39, Rule l(c), CPC can be issued against the defendants. The impugned order must be set aside. If the S.D.M. on an independent inquiry had upheld the possession of the defendants dehors the impugned order the question of restoring status quo existing on the date of the suit by “interim mandatory injunction” could be considered but the order of the S.D.M. is based on the impugned order only which is being set aside. There is no need of issuing interim mandatory injunction. The plaintiff being in possession the balance of convenience is in its favour and it would suffer substantial and irreparable injury if the order of temporary injunction is not issued. However, to safeguard the interest of the defendants it is necessary to direct the plaintiff to deposit the amount in the trial Court which is payable to the defendants as per Annexure ‘C’ to the agreement which comes to approximately Rs. 7,50,000/-.
34. In the result the appeal is allowed. The impugned order is set aside. The application of the plaintiff under Order 39, Rules 1 and 2, CPC for temporary injunction is allowed and the defendants are hereby restrained from interfering with the possession of the plaintiff on the property in dispute house Nos. 8/1 and 8/2 (old Nos. 8 and 8-A), M. G. Road, Indore and the land as shown in the map annexed to the agreement dated 13-9-1986 or in any part thereof until the decision of the civil suit. The plaintiff will deposit an amount of Rs. 7,50,000/- in the trial Court which is approximately the balance of consideration payable to the defendants by the plaintiff as per Annexure ‘C’ to the agreement dated 13-9-1986 within two months of the date of this order. The trial Court will pass appropriate order about this amount at the time of final decision in the suit. Costs to abide by the final result. It is made clear that the views expressed by this Court on the points referred to above are only for the purpose of deciding the application for temporary injunction and the trial Court will decide the issues arising in the suit uninfluenced by any observation made in this order. The points have been decided as these were raised and argued at length.