2020 Supreme(Mad) 8

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
N. Sathish Kumar, J.
T.S. Govindarajan & Another - Appellant
Versus
M. Govindarajan & Another - Respondent
Appeal Suit(MD) No. 138 of 2018 & Cross Objection(MD).No. 22 of 2018 & CMP.(MD).No. 11537 of 2018
Decided On : 29-01-2020

Headnote:

Code of Civil Procedure , 1908 - Section 96 - Order XLI - Rule 22 - Laws Act, 2001 - Transfer of Property Act - Section 53A - Specific Relief Act - Section 16 - Suit property - Defendant is owner of suit property and has constructed a building, which is said to be incomplete for want of funds - Plaintiff and defendants are said to be friends - Since defendant approached plaintiff for advancement of loan to him, plaintiff advanced a loan for sum of Rs -1,25,000/- for completion of construction work - According to plaintiff, defendant also agreed to treat above said loan amount, ie -, Rs -1,25,000/-, as an Othi amount to defendant, in lieu of said loan, property to be let into daughter of plaintiff by name, Chitra, for her occupation - Plaintiff has paid a sum of Rs -1,00,000/- to defendant - Thereafter, plaintiff has paid a sum of Rs -10,000/- - Despite above loan amount, defendant has not completed construction of house and utilised loan amount for his business - As building was incomplete, again defendant has approached plaintiff for further financial assistance and plaintiff has given a further sum of Rs -20,000/- for completion of work - Defendant is in lawful possession and enjoyment of suit property as Othidar - As defendant incurred heavy loss in his business and also he is in need of money to run his business, he has approached plaintiff to sell suit property - Accordingly, he has entered into a sale agreement, and agreed to sell suit property in exchanging property of plaintiffs wife - Defendant has agreed to receive balance amount after exchange of said properties - plaintiffs wife has paid a sum of Rs -1,00,000/- to defendant - Since both parties could not perform their part of contract as per agreement, said agreement was mutually cancelled by parties - Thereafter, defendant have entered into a sale agreement - Hence suit – Held , Now as already discussed, possession was also not handed over to plaintiff in furtherance of contract - plaintiff clearly stated in his evidence that he took possession on basis of Othi after paying a sum of Rs -1,10,000/- - Though trial Court rightly rejected that plaintiff is not entitled to invoke provision, it is to be noted that to invoke part performance, possession should have taken in part performance of contract or transferee already being in possession or continues in possession in part performance of contract and has done some act in furtherance of contract and transferee has performed or is willing to perform his part of contract - Though plaintiff claims that he is in possession of property, from records, it is clearly established that only plaintiffs daughter had come into possession - Though suit agreement came into existence between parties plaintiffs daughter had already come into possession - Hence, it cannot be construed that her possession was in furtherance of contract, as possession was taken on basis of Othi - Even in agreement, said possession of plaintiffs daughter has not been referred - At any event, to claim a protection ready and willingness has to be established on side of plaintiff, but it is totally absent - Yet another aspect, which has to be seen is when a person seeking to protect his possession on basis of agreement as part performance, very contract itself should have been registered - Unless document is registered, one cannot seek part performance - It is necessary to place reliance of commencement of Registration and Other Related Laws which makes it very clear that documents contained a contract to transfer consideration of any immovable property for purpose shall be registered, if they have been executed on or after commencement of Registration or Other Related Laws - If such documents are not registered on or after such commencement, then, they shall have no effect for purpose - Therefore, though admitted, even assuming that plaintiffs daughter was in possession on behalf of plaintiff, plaintiff cannot claim any right on basis since it is an unregistered document - Therefore, trial Court findings that part performance cannot be claimed by plaintiff does not require any interference - Now, with regard to question of permanent injunction in favour of plaintiff, though it is contended by plaintiff that possession of plaintiff is on basis of Othi , there is no whisper in agreement that possession continues in pursuant to agreement, but evidence of plaintiff clearly indicated that only plaintiffs daughter is residing in independent right and telephone connection receipt and other documents clearly show that she is residing independently in her own right in said property - Such being position, it cannot be said that possession of daughter is only on behalf of plaintiff - Therefore, lower Court judgment granting permanent injunction in favour of plaintiff cannot be sustained in law for simple reason that person, who seeks a decree of Permanent Injunction must be in actual possession and he cannot seek injunction against somebody, who is actually in possession of property - No doubt, defendant has also admitted that plaintiffs daughter is residing in ground floor of suit property and that itself cannot be a ground to grant an injunction in her favour, who has not come before Court as a party - Admittedly, plaintiff is not residing in suit property - Such being position, permanent injunction granted by trial Court is certainly not maintainable and liable to be set aside - Accordingly, cross objection has necessarily - However, fact remains that defendant has also admitted in his written statement that plaintiffs daughter was inducted as a tenant and is continuing in possession - Such being position, when possession was initially permissive and subsequently, he claims that she is not paying any rent, such possession is unlawful - defendant has to take legal course to recover property from possession of plaintiffs daughter - Appeal suit stands dismissed