Back
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Sindhu Sharma, J.
Swaran Singh - Appellants
Versus
Sub-Registrar Jammu and Others - Respondents
CSA No. 01 of 2012, IA No. 01 of 2012
Decided On : 16-07-2020
Transfer of Property Act - Section 54 - Transfer of Property - Contract for sale - Appeal filed by plaintiff is against judgment and decree passed by Principal and District Judge Jammu dismissing the First Appeal filed by plaintiff against the dismissal of his suit by Court Sub-ordinate Judge Jammu facility of reference parties hereinafter to referred to as plaintiff and defendants plaintiff first filed suit for permanent prohibitory injunction restraining defendant- Raj and his attorney Suresh Kumar or their agents from transferring alienating trespassing upon or interfering in his possession land measuring comprising and comprising situated at Village and District Jammu commanding respondents to execute Sale Deed of aforementioned land in favour of plaintiff –Held, Sale as claimed as long as sub-section Section existed in State Transfer of Property Act - Registration Act has no application of case because registration of Sale Deed could not be refused as vendor law was owner and registering officer had no reason refuse registration after vendor had just received consideration amount and was ready suffer consequences of restraint order which he was apprised by Sub-Registrar - However even so Sub-Registrar wisely postponed the registration previously settled by law of land or binding precedent and must have a material bearing on the decision of case if answered either way insofar rights of the parties before it are concerned - To question of law involving in case there must be first foundation for laid in pleadings and the question should emerge from the sustainable findings arrived at by court and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for first time before the High Court is not question involved in the case unless it goes to root of the matter - It will therefore depend on and circumstance of each case whether a question of law is substantial one and involved in case or not paramount overall consideration being need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in life - appeal dismissed
JUDGMENT :
1. This Appeal filed by the plaintiff is against the judgment and decree dated 05.10.2012 passed by the Principal and District Judge, Jammu dismissing the First Appeal filed by the plaintiff against the dismissal of his suit by the Court of 3rd Sub-ordinate Judge, Jammu on 07.10.2009. For the facility of reference, parties hereinafter to be referred to as ‘plaintiff and defendants’. The plaintiff first filed suit for permanent prohibitory injunction restraining the defendant-Tilak Raj and his attorney Suresh Kumar or their agents from transferring, alienating, trespassing upon or interfering in his possession of the land measuring 23 Kanals 18 Marlas comprising Khasra No. 324 and also 19 Marlas comprising Khasra No. 325 situated at Village Seora, Tehsil and District Jammu, commanding the respondents to execute the Sale Deed of the aforementioned land in favour of the plaintiff.
2. The suit appears to have been filed on 14.09.2009 when the Sub-Judge, Jammu took up the application for grant of interim relief and passed the order, the operative portion of which is reproduced below:-
3. It appears that Sale deed executed by defendant Tilak Raj in favour of one Gurdeep Singh for land measuring 04 Kanals out of the suit land comprising Khasra No. 324 Min was presented for registration by the vendor on 14.09.2009. As soon as the document was taken up for registration, Mr. K. S. Johal, learned counsel for the plaintiff appeared before the Sub-Registrar, Jammu and objected to the registration. The Sub-Registrar 1st Additional Munsiff, Jammu heard Mr. K. S. Johal and by order dated 23.09.2009 rejected the application and posted the document for registration on 10.10.2009. Since Sub-Registrar, Jammu was not a party in the suit, the restraint order was only against the defendants.
4. The plaintiff filed a fresh suit before the Sub-Registrar 1st Additional Munsiff, Jammu, impleading Tirlok Chand-vendor and S. Gurdeep Singh, the vendee as defendants.
5. It being a suit for declaration seeking the relief that Sale Deed Dated 12.08.2009 executed by the defendant No. 2 in favour of defendant No. 3 in respect of land measuring 04 Kanals comprising Khasra No. 324-Min Khewat No. 83 and Khata No. 215-Min situated in Villate Seora, Tehsil and District Jammu and the order dated 23.09.2009 passed by the defendant No. 1 be declared as null and void. However, after hearing arguments, suit was dismissed by the Court of 3rd Civil Subordinate Judge (Excise Magistrate), Jammu on 07.10.2009 the day on which it was filed mainly on the ground that Section 54 of the Transfer of Property Act specifically provides that a contract for sale of immovable property does not by itself create any interest or charge in such property and, therefore, the defendant-Tilak Raj continues to be the owner and could sell any part of the suit property, as such, the plaintiff, therefore, had no cause of action.
6. The appeal filed by the plaintiff against the judgment and decree dated 07.10.2009 passed by the Trial Court was dismissed by the Principal and District Judge, Jammu vide the Judgment and decree dated 05.01.2012 which is impugned in the appeal.
7. In Para-2 of this appeal as many as 12 substantial questions of law have been formulated while the grounds for challenging the impugned judgment and decree are given in para 5(v) (a) to (g). The main question for consideratio
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
