JUDGMENT
S.J. Deshpande, J.
1. The petitioner is the original plaintiff in a suit instituted by him in the Court of Civil Judge (Junior Division), Sawantwadi, being Suit No. 51 of 1981. The suit was filed on 29th April, 1981 against 21 defendants. Original defendants Nos. 1 to 4 are brothers and other defendants Nos. 5 to 21 are co-sharers in the plain property. The suit relates to different pieces of lands mentioned in Schedule A and Schedule B attached to the plaint and some other properties fallen to the share of the defendants. It is alleged that defendants No. 1 executed an agreement of sale on 20th October, 1979 in favour of the plaintiff. The said agreement relates to property in Schedule A. The agreement is on a simple paper. It is not stamped or registered. In para 2-A of the agreement it is stated that in the properties mentioned in para 1 there was some suit between the co-shares and one Mukund Vedave Suit No. 39 of 1967. In that suit, Regular Darkhast No. 18 of 1969 was filed and on 9-11-1978, the vendor i.e. defendant No. 1 and other co-sharers got possession of the suit property. In that property the vendor has 7/30 the share. In para 28 it is mentioned that the property mentioned in para 1 of the agreement situate at Bande. There was some litigation in the Supreme Court in respect of the said property and in that litigation claim of the defendant No. 1 was in dispute. The vendor had 7/30th share. Some other properties to which reference is made in the agreement are said to have been acquired, with which we are not concerned.
2. Para 2-D of the agreement relates to property situate at village Galot. It is stated that it is of ancestral ownership and in that property also, the vendor has got in joint 7/30th share. Though agreement mentions 7/20th share, in fact, I am told by both the learned Advocate that the share of the plaintiff is 7/30th. Therefore, wherever 7/20th is stated, it should be read as 7/30th. Out of the said properties mentioned in para 2-A, D, the vendor has right including Patpani Imarati etc., which are all hereby agreed to be sold to the plaintiff for a consideration of Rs. 8,000/- and an amount of Rs. 7,000/- has been received on the date of agreement in cash and as separate receipt is necessary for the same. After the decision of the Supreme Court in S.L.P. 124/3320/79, in accordance with the judgment a balance sum of Rs. 1,000/- will be paid in cash to the vendee. The properties mentioned above have been given in possession of the plaintiff, with all rights of wahiwat and ownership and the vendor has no interest reserved in this property and vendor will not claim any right and if anybody claims that right, the vendor is liable to get the property clear from any such claim at his own costs. This agreement was executed on 20th October, 1979.
3. It is alleged by the plaintiff that on 2nd April, 1981, defendant No. 1 tried to obstruct his possession. The plaintiff filed a suit for permanent injunction against defendant No. 1 and other defendants.
4. During the pendency of the suit, the plaintiff made an application Exhibit 10, praying injunction against the defendant No. 1 restraining him from interfering with his possession. The said application was replied to by the defendant No. 1 by filling his say. In the said reply, it was contended that the said property is of joint wahiwat and ownership of all the defendants and they are co-shares. In para 3 it is specifically stated that the suit property is in occupation of defendant No. 1 and defendants Nos. 1 to 3 have got possession and defendant No. 1 is in actual occupation and enjoyment of the property. The agreement relied on by the plaintiff was disputed by defendant No. 1 as being fraudulent, though no details were given. Defendants No. 1 also disputed possession of the plaintiff as alleged. It was also disclosed from the reply that on the same day, the other defendants, who are co-shares also agreed to sell the property to the plaintiff. It is stated that the plaintiff merely obtained his signature on the blank paper and converted the said agreement into an agreement of sale. It was also disputed that any payment was made to the vendor. A plea was raised that part of the contract relates to performance of the contract. There is no equity in favour of the plaintiff.
5. Defendants Nos. 2 to 21 were not heard at the time of injuction as the plaintiff did not claim any relief against them. They have not participated at the time of hearing at the stage. So, plaintiff’s contest is confined only to defendant No. 1. The learned trial Judge found that the plaintiff has failed to prove his prima facie possession and he was not impressed by the documentary evidence of the plaintiff. The learned Judge, therefore, rejected the application by his order dated 16th July, 1981. He found that relief, which the plaintiff was claiming was covered by section 53A of the Transfer of Property Act. He was not impressed by the case of fraud made out by the defendants and he did not think it necessary to consider the same. Relying on the fact that 7/12 extracts do not support the case of the plaintiff, he refused the prayer for injuction. The learned Judge also found that the plaintiff has no title to the land.
6. The plaintiff being dissatisfied with this judgment of the learned trial Judge filed an appeal before the learned District Judge. The learned Assistant Judge proceeded on the basis that the plaintiff’s possession is obtained under section 53A of the Transfer of Property Act as stated by him. He, however, held that plaintiff cannot get any injuction as he can protect his possession only as a defendant. He found that the defendant’s title is still valid and has not been transferred to the plaintiff. He also observed that at the most plaintiff can claim back the amount of consideration of Rs. 7,000/-. Plaintiff has no substantial right under section 53A of the Transfer of Property Act. In the result, the learned Assistant Judge dismissed the appeal filed by the plaintiff, by his judgement and order dated 4th July, 1984. It is against this judgement that the present revision application has been filed by the plaintiff.
7. The learned Advocate for the petitioner challenged correctness of the view taken by the courts below. The learned Advocate for the petitioner contended that it was material irregularity on the part of the learned Judges to have ignored vital fact in relation to the entitlement of the possession of the plaintiff on the land. There is a recital in the agreement itself that the possession has been delivered to the plaintiff and whole basis of the plaintiff’s claim is agreement in question which contain facts and circumstances in which the plaintiff was put in possession of the land. The contention of the learned Advocate for the plaintiff was that he has obtained lawful possession of the land and if he is in actual possession, his possession can be protected against any attack by any person, including owner of the property. It was material irregularity on the part of the courts below to have refused injunction on erroneous view of law in regard to application of provision of section 53A of the Transfer of Property Act.
8. The learned Advocate for the petitioner relied on two unreported judgments of this Court in support of his contention that mere possession of plaintiff is sufficient to claim injunction. The first judgment which he relied is in Second Appeal No. 129 of 1985 dated 2nd September, 1959, by my brother Tarkunde, J. Relevant portion on which reliance is sought to be placed by the learned Advocate is as follows :
“It is however, well established that if a person possession files a suit for an interim injunction, he is entitled to succeed unless the defendant shows that he has a better title to the possession of the suit property.”
The further observations in the said judgment were pressed into service which are as under :-
“Apart from this, it appears to me that, even where the defendant is entitled to the possession of the property in dispute the plaintiff, can still resist any attempt on the defendant’s part to take possession without due process of law. This is clear from section 9 of the Specific Relief Act.”
It was further observed in the said judgment that :—
“The position, therefore, seems that when a plaintiff files a suit for a perpetual injunction and proves that he has been in peaceful possession of the defendant does not prove a better title to possession, the plaintiff still be entitled in a proper case a limited injunction that he shall not be dispossessed by the defendant without ‘due process of law.”
This judgment is of no assistance to the plaintiff in this case. The observation which are made in the above judgment are qualified by the facts of the at case, wherein injunction was claimed by the plaintiff on the ground that he was a tenant of the room. It was the case of the plaintiff therein that the defendant had no right to interfere with his possession and he should be restrained from disturbing or interfering with his possession of the premises. The defendant tried to claim that the plaintiff was merely a licensee and not a tenant. Purpose of application for interim injunction during the pendency of the suit was that the plaintiff was afraid that he would be dispossessed and, therefore; he applied for injunction. This case is distinguishable on two points. First of all possession claimed in that suit was as of right on the basis of assertion that he was a tenant of the room which itself clothes the plaintiff to continue in possession. Such assertion of right based on some title has a natural relevance in regard to claim of injunction in a suit filed by such plaintiff against the defendant and the defendent may resist the claim of the title both as a tenant or a licensee. In my opinion, this judgment is not an authority for the purpose of plaintiff suing on contract and, having obtained possession on a contract can obtain injunction through owner from interfering with the possession of the plaintiff.
9. The second judgment relied on by the learned Advocate for the petitioner was a judgment, in Appeal from Order No. Judgment 90 of 1965 dated 14th June, 1965, delivered by my brother K.K. Desai, J. This judgment is also pressed into service on the ground that even if the appellant therein was a trespasser, the defendant was not entitled to throw him out of the land without due process of law. This case relates to demolition of the certain premises by the Municipal Corporation. There, the plaintiffs’ contention was that certain property was demolished on which he had a right to continue, assuming that right was in dispute, he was entitled to injunction against the Corporation. That suit was filed on the basis that the trespasser could not be ejected except due process of law and, therefore, plaintiff was entitled to claim interim injunction. In my opinion, ratio of this judgment also is clearly distinguishable from the case with which I am directly concerned. Case of the plaintiff therein is based on contract of sale for enforcing right under the contract and the claim was based on partial ownership of the land which is different than the claim of the trespasser who is in actual possession of the premises claiming injunction against the person who cannot issue on the basis of title. Both these unreported judgments, therefore, in my opinion, have no relevance to decide the point in question.
10. The learned Advocate for the petitioner contended that even protection can be granted to a plaintiff, who has obtained possession under agreement of sale and claimed relief of injunction against vendor who has agreed to sell the property. The learned Advocate for the petitioner relied on a judgement of the Andhra Pradesh High Court in the case of Akram Mea v. Municipal Corporation, Secundarabad, reported in A.I.R 1957 A.P. 859. This judgement was delivered by Subba Rao C.J., following his own judgment reported in the same issue at page 854. Therefore, I propose to deal with this judgment which is directly in point to support the case of the plaintiff. The judgement even clearly lays down that on a suit filed by the plaintiff on the basis of the claim which he asserts for protecting his possession under section 53A of the Transfer of property Act, plaintiff in such case can certainly obtain an injunction against a vendor. The tenor of the judgment shows that interpreting section 53A of the Transfer of Property Act, what was stated by the learned Judges was that the transferee therein who is invoking section 53A of the Transfer of Property Act cannot, in fact, file a suit or declaration his title, but he can certainly protect his possession, because possession which is granted to him under section 53A of the Transfer of Property Act is lawful possession and as such, claim for injunction can be considered. The learned Judges of the Andhra Pradesh High Court have in para 4 observed :
“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…..
The transferee can resist any attempt on the part of the transferor to enforce his rights in respect of the property whatever position he may occupy in the field of litigation. In one sense, it is a statutory recognition of the defensive equity . It enables the transferee to use it as a shield against any attempt on the part of the transferror to enforce his rights against property.”
In para 19 of the said judgment, the learned Judges have observed ;
“It is not necessary to multiply cases. It is settled law that under section 53A of the Transfer of Property Act, 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 on 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 a defendent 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.”
This judgment, in my opinion, does not touch the real question to be answered in regard to claim of injunction. I have series of cases before me, but I do not think it necessary to refer to all of them. The High Courts have tried to appreciate the possession of the plaintiff issuing on the basis of contract and under section 53A of the Transfer of Property Act plaintiff is entitled to protection. Having taken that approach, they have based their judgments on the footing that even in equity which the plaintiff is claiming as a plaintiff or defendent, protection of possession is not outside the scope of protecting him by way injunction at the interim stage. I am afraid, this view is contrary to provisions of section 53A itself, and this judgment which I will presently show, does not lay down any proposition as sought to be contended by the learned Advocate for the petitioner. In this judgment, it is material to note what the learned Judges have laid down is that if the plaintiff comes with a case that he is pleading protection under section 53A,as in the present case, it is essential to find out whether the plaintiff has complied with full provisions of section 53A itself. In this case, it is undisputed that the plaintiff has not come with averment in the plaint that he is willing to perform his part of the contract, secondly, he has already performed the contract and nothing remains to be performed and thirdly, he is willing to perform whatever remains to be done and defendants should be directed to perform his part of the contract. In my opinion, if these conditions are absent, provisions of section 53A cannot be made applicable at all. Kindly refer to Head Note (b) in the judgment of the Andhra Pradesh cited above at page 854. The judgement of the Andhra Pradesh High Court is to be understood in the light of the conditions which are laid down by the learned judges in order to evoke section 53A. Head Note (b) lays down as under :
“The necessary conditions for the application of section 53A are (i) there is a contract to transfer immovable property for consideration, (ii) the contract is signed by or on behalf of the transferror, (iii) the terms can be ascertained with reasonable certainty from the document, (iv) the transferee is put in possessing or if he has been already in possession continues in possession, (v) he has done some act in furtherance of the contract and (vi) the transferee has performed or is willing to perform his part of the contract. If the aforesaid conditions are fulfilled the transferor any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of that property.”
The words “If the aforesaid conditions are fulfilled the transferror or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of that property” or relevant to understand the real ratio of this judgment. In this case, plaintiff has not based his case on the averment relating to performance and his willingness to perform his part of the contract under section 53A of the Transfer of Property Act. In fact, the learned Appellate Judge has observed in his judgment that the plaintiff has not shown his willingness in the plaint to that effect . I am concerned with the case of the plaintiff who issuing on the basis of recitals in the agreement of sale, and claiming interim relief of injunction without making any averment in regard to other conditions of the agreement and part to be performed by the plaintiff under the agreement in such cases. It is not a suit for specific performances at all. Plaintiff has come out with a case that his possession which is granted under section 53A is just and lawful and such possession should be sufficient even against a vendor to claim in junction.
11. I am afraid that the plaintiff cannot rely on partial satisfaction of the agreement of sale, if he wants to take benefit of section 53A of the Transfer of Property Act, although he may obtained possession under the agreement for sale. The observations of the Andhra Pradesh High Court in Head-Note (b) are quite clear and in my opinion, emphasise the fact that the plaintiff must show that he has done some act in furtherance of the contract and he is willing to perform his part of the contract. These avertments being absent in the present case, the plaintiff cannot derive any assistance from the judgment of the Andhra Pradesh High Court. Some other judgments were also cited before me which have followed the view taken by the Andhra Pradesh High Court, for instance, judgment of the Madras High Court in the case of S.F. Muniswani v. Erus Gounder, , was also relied on by the learned Advocate for the plaintiff. But that judgement follows the ratio of the Andhra Pradesh High Court judgement earlier referred to me. So, I do not propose to deal with separately with reasoning of that judgment.
12. There is another aspect which is very important while applying ratio of the Andhra Pradesh High Court. In my opinion, ratio of the Andhra Pradesh High Court judgment runs scounter to the view taken by the privy Council in the case of Probodh Kumar v. Dantamara Tea Co., . In that judgment defendants themselves had become full owner of the part granted by vendor. Plaintiff in the said case was claiming under an agreement of sale dated 10th October, 1931. No conveyance was executed in favour of the plaintiffs. The 1st respondents-Dantamara Tea Co., were persons who had duly registered deed of sale in their favour by the original owner. They had completed all transaction and there was a registered sale with all rights in favour of the defendants in that case on 1st June, 1934. Original owners Kaiyacherra Tea Co. Ltd. were the persons who had agreed to sell their right to the plaintiffs on 10th October, 1931 and they were the persons who had completely sold their rights mentioning therein about the failure of the plaintiffs to complete the contract of sale. Plaintiffs had no title to the estate although plaintiffs were admittedly, in possession and which fact they had relied on in that case. In short, case before the Privy Council was of plaintiff who had agreement of sale in their favour, they had also part possession of the property under the agreement of sale and they had also claimed injunction. Plaintiffs therein were suing to enforce such contract and they had also prayed for injunction. It is against this background that the Privy Council has observed as follows :–
“It is in these circumstances that the plaintiffs brought the present suit in which they seek to have it declared that the Dantamara Tea, Co. Ltd., and others have no right or title to the estate and are debarred from enforcing any right to the estate including right to sell tea under the export quota allotted to it or to transfer the quota right to any person. They also seek an injunction. The defendants challenged the aforesaid right of the plaintiffs to bring the suit and maintained that they had no title to sue”.
It is against this plea for enforcing right and to claim for injunction that the Privy Council observed that :—
“In Their Lordship’s opinion, that amendment of the law effected by the enactment of section 53A conferred no right of action on a transferee in possession under an unregistered contract of sale. Their Lordships agree with the view expressed by Mitter. J., in the High Court that “the right conferred by section 53A is a right available only to the defendants to protect his possession”. They note that this was also the view of their late distinguished colleague, Sir Dinhash Mulla, as stated in Edn. 2 of his treatise on the Transfer of Property Act at p. 262. The section is so framed as to impose a statutory bar on the transferor; it confers no active title on the transferee. Indeed, any other reading of it would make a serious inread on the whole scheme of the Transfer of Property Act. It was suggested that by obtaining the export quota rights from the Licensing Committee the Dantamara Tea Co. Ltd., as persons claiming under the transferors, were enforcing a right in respect of the property against the appellants as persons claiming under the transferee, and could be enjoined at the appellant’s instance from so doing, but in Their Lordship’s view there has been no enforcement within the meaning of the section of any right against the appellants.”
The above observations of the Privy Council, according to me, contains true ratio of the judgment which shows that plaintiff in such case cannot claim any injunction. The judgments of the Andhra Pradesh cited supra therefore in my opinion, are contrary to the proposition laid down by the Privy Council.
13. This judgment of the Privy Council has been also followed by the Supreme Court in the case of Delhi Motor Co. v. Basrurkar, , and has been referred to by the courts below. In my opinion, the judgment of the Supreme Court clearly lays down that the ratio laid down by the Privy Council is quite correct and if that is so, any further investigation on this point, in my opinion, will be a further repetition and unnecessary exercise in view of the pronouncement of the Supreme Court itself. The Supreme Court in para 6 has clearly stated that the interpretation of section 53A is to be understood and has laid down that section 53A of the Transfer of Property Act is also available as a defence to a lessee and not as conferring right on the basis of which the lessee can claim right against the lesser. It has clearly stated that this interpretation was clearly laid down by the Privy Council in Probodh Kumar Das v. Dantamara Tea Co. Ltd. .
14. Relying on this judgment of the Supreme Court, the learned Advocate for the plaintiff invited my attention to certain paragraphs of the said judgment. He invited my attention to paragraph 7 wherein view of the Allahabad High Court in Ram Chander v. Maharaj Kunwar was examined by the Supreme Court. The Allahabad High Court in the said case had proceeded on the basis that the defendant was seeking to defend his rights covered by the contract, and the plaintiff seeks merely to debar them from doing so, the plaintiff is seeking to protect his rights. In the sense, he is really defendant in the proceeding. It also observed that it see nothing in the terms of section 53A of the Transfer of Property Act to disentitle the plaintiff from maintaining the suit. The observation of the Allahabad High Court is quoted in the judgment of the Supreme Court. Thereafter, the Supreme Court has observed as follows :
“Without expressing any opinion as to the correctness of the view taken by the Allahabad High Court, we have to point out that the interpretation put on section 53A of the Transfer of Property Act even by that Court is of no assistance to the firm in the present case”.
The Supreme Court has further pointed out :
“In this case, the firm is seeking to enforce rights under the registered lease and to seek a decree for possession. The Allahabad High Court in that case proceeded on the basis that the plaintiff of that suit was in the position of a defendant and was only seeking to protest his rights by resort to the provisions of section 53A of the Transfer or Property Act, so that no principle was laid down by the High Court that section 53A is available to lessee otherwise than as a defence. We are unable to accept the submission that the judgment in that case should be read as recognising a right of lessee to enforce rights on the basis of an unregistered lease by resort to that provision of law. In fact, if that case be interpreted as laid down such a principle, it must be held that it has been directly overruled by the decision of the Privy Council in the case of Probodh Kumar Das (supra) and is not correct”.
In view of the above observations of the Supreme Court, I do not think that the contention of the learned Advocate for the petitioner can be sustained.
15. There is another factor in this case, which cannot be overlooked. Plaintiff vendor in this case is only a part owner of the joint property. The ownership is undivided and joint. It is recited in the agreement that the property is delivered to the plaintiff. In such a case, it is difficult to appreciate how that mere recital saying that possession is delivered will constitute sufficient compliance with the conditions of section 53A of the Transfer of Property Act as the possession to be delivered under section 53A of a particular property must be a possession of a particular and definite property exclusively. In a case of joint and undivided property, recital describing that the possession is given would only mean that plaintiff is allowed to share common enjoyment of the property along with vendor. However, without going into merits of the contention I think that in the case of joint ownership mere recitals in the agreement itself without further proof supported by other evidence such as 7/12 extracts or clear affidavits saying that actual possession of the property has been delivered, it would not be possible to consider the case of the plaintiff as being in actual occupation of portion of the land, especially when vendor was joint owner of the property. The plaintiff has no title to sue for declaration of his right of ownership. He has no title to sue for perpetual injunction as the only right which he gets under the contract of sale is to enforce the same terms of the contract. It may be that one of the terms may refer to delivery of possession, but then such delivery of possession has to be examined in a given case on the basis of facts and evidence adduced. Distinction in suits based on title and suits based on contract is well recognised. If one of the terms of the contract such as in this case, recital relating to delivery of possession is made the basis for relief of granting injunction, such a choice of enforcing that term alone without reference to other terms or without following provisions of section 53A of the Transfer of Property Act, in the words of the Privy Council, such interpretation will result, in the serious in reads on the true owner. With fear of repetition, I may again emphasise that in such a case, where plaintiff who is suing on the basis of agreement of sale, does not choose to show his willingness to perform his part of the contract embodied in the agreement of sale and still wishes to have protection, under section 53A, it would be difficult to grant him any relief. The basis of entitlement of possession under section 53A is of a defensive character. It cannot be coverted into active the claiming relief and protecting possession by enforcement of a solitary terms of the contract, as is attempted to be done in the present case. Section 53A itself has not given equitable right. It is a statutory right and if it is to be claimed, it must be claimed as a whole, following full condition mentioned in the contract. So, the claim for injunction against true owner in such a suit, to enforce solitary term alone, may not be maintainable at all. Restrictive nature of the protection granted to the prospective vendee under section 53A itself is eloquent to show that the statute has amended its extent and no equitable consideration can be imported in it. A statute i.e. section 53A must be fully obeyed. Therefore, there is no merits in the contentions raised by the learned Advocate for the petitioner. In this case, in my judgment, the lower courts were rights in refusing injunction. So, this revision application will have to be dismissed.
16. In the result, civil revision application is dismissed. Rule is discharged. No order as to costs.
17. The learned Advocate for the petitioner after I deliver the judgment immediately requested me that sometime should be granted to enable him to take appropriate remedy for redressing his grievance. In my opinion, ordinarily, this Court should not depart from its own judgment, which would not be in confirmity with the reliefs to be granted in such matters. However I propose to grant four weeks’ time to the plaintiff to take steps to redress his grievance. Injunction granted by this Court will continue for four weeks from today. The injunction granted by this Court will be operative till 26th November, 1984 and then it will automatically expire, subject to orders of the higher Court.
