A prospective purchaser under an agreement of sale, who has obtained possession of the suit-property and paid part of the consideration, is entitled to an injunction to protect his possession during the pendency of the suit for specific performance.

Headnote:
INJUNCTION - SPECIFIC PERFORMANCE - SECTION 53-A OF THE TRANSFER OF PROPERTY ACT - A prospective purchaser under an agreement of sale, who has obtained possession of the suit-property and paid part of the consideration, is entitled to an injunction to protect his possession during the pendency of the suit for specific performance.
Fact of the Case:

Plaintiff, a prospective purchaser, entered into an agreement of sale with the defendant for the purchase of a portion of land. The agreement was executed on a stamp paper and contained a recital that the plaintiff had obtained possession of the land on the date of the agreement. The plaintiff paid Rs. 20,000/- as part of the consideration. The defendant refused to execute the sale deed and the plaintiff filed a suit for specific performance. During the pendency of the suit, the plaintiff applied for an interim injunction to protect his possession of the land.
Finding of the Court:

The trial court dismissed the plaintiff's application for injunction, holding that the plaintiff was not entitled to such relief under section 53-A of the Transfer of Property Act. The court relied on a judgment of the Madras High Court which held that an application for injunction by a plaintiff suing for specific performance is an application for equitable relief under section 53-A of the Transfer of Property Act.
Issues: 1. Whether a prospective purchaser under an agreement of sale, who has obtained possession of the suit-property and paid part of the consideration, is entitled to an injunction to protect his possession during the pendency of the suit for specific performance. 2. Whether the provisions of Order 39, Rules 1 and 2 of the Civil Procedure Code are available to a plaintiff suing for specific performance.
Ratio Decidendi: 1. The court held that the provisions of Order 39, Rules 1 and 2 of the Civil Procedure Code are available to a plaintiff suing for specific performance. 2. The court held that a prospective purchaser under an agreement of sale, who has obtained possession of the suit-property and paid part of the consideration, is entitled to an injunction to protect his possession during the pendency of the suit for specific performance. 3. The court held that the plaintiff's possession was lawful and that he was entitled to protection against any interference by the defendant.
Final Decision: The court set aside the order of the trial court and allowed the plaintiff's appeal. The court granted an injunction to protect the plaintiff's possession of the suit-property during the pendency of the suit.

JUDGMENT - S.J. DESHPANDE, J.:---Plaintiff appellant is the prospective purchaser of the suit land Gat No. 63. It is alleged that the portion of this suit land to the extent of 9 acres 10 gunthas was purchased by plaintiff under an agreement of sale executed by the respondent No. 1 original defendant No. 1. Consideration of the agreement was Rs. 31,590/-. Out of which, it is alleged, Rs. 20,000/- have been paid before the agreement to the respondent No. 1. The agreement recites that on the date of execution of agreement plaintiff has obtained possession. This agreement is on a stamp-paper and written in Marathi language. This agreement has been signed by both the parties. Defendant refused to execute the sale-deed and, therefore, the plaintiff has filed the present suit to obtain specific performance of the aforesaid agreement.

2. During the pendency of the suit, plaintiff made an application for temporary injunction under Order 39, Rules 1 and 2 read with section 151 of the Civil Procedure Code for an interim relief to protect his possession. By this application plaintiff prayed that the interference of the respondents and obstruction to the peaceful enjoyment of this suit land be prevented.

3. This application was opposed by the defendants. Defendants, however, admitted the execution of the agreement. It was the case of the defendants that the agreement does not reflect the true nature of transaction but it was an agreement executed only to secure the amount taken by him. No agreement of sale, as alleged by the plaintiff, was passed. He also disputed the recital that the possession was delivered to the plaintiff.

4. Parties have filed certain affidavits. There is no reference to these affidavits in the judgment of the learned trial Judge. I find on page 11 of the judgment of the learned trial Judge there is a reference to the 7/12 extracts only.

5. The learned trial Judge after considering the merits of the application was persuaded to take the view that under section 53-A of the Transfer of Property Act it is not open for plaintiff to obtain an interim relief by way of injunction. The learned trial Judge derived support to his conclusion from the judgment reported in (Krishna Moorthy Koundar v. Paramasiva Kounder),A.I.R. 1981 Madras 310)1. He has dealt with the academic question only in regard to the claim of the plaintiff suing for specific performance under an agreement of sale to obtain relief of injunction. He has rejected the application of injunction filed by the plaintiff on the ground that the plaintiff has no title to the suit property and if he has no title to the suit-property his possession obtained under the agreement of sale is only of defensive character and he cannot claim protection as the plaintiff is suing for specific performance on the strength of an agreement of sale. This judgment was delivered by the trial Court on 29th January, 1982.

6. Plaintiff has challenged this judgment in this appeal. The learned Advocate for the appellant-plaintiff, Shri R.G. Deo, invited my attention to certain judgments. I am not referring to those judgments as in my opinion the true position of law is not reflected in those authorities for the purposes of deciding this appeal.

7. Reliance placed by the learned Advocate for the respondent No. 1 was on the judgment of the Madras High Court (supra). Adopting the reasoning given by the learned Judges of the Madras High Court, the learned Advocate for the respondent No. 1 submitted that the ratio of this decision should be followed and plaintiff's application should be dismissed. Next contention of the learned Advocate for the respondent No. 1, was that there is no finding with regard to the actual delivery of possession and, therefore, the matter should be remanded back to the lower Court.

8. The learned Advocate for the appellant contended before me that the agreement which is executed by the respondent No. 1 is on the stampaper. The execution of the agreement is admitted by th

Click Here to Read the rest of this document

Judicial Analysis