ORDER :

Anjani Kumar Mishra, J.

1. Heard Shri H.N. Singh, learned Senior Advocate for the revisionists and Shri Navin Sinha, learned Senior Advocate for the opposite parties in this revision, which is directed against the order dated 12.01.2015 rejecting the defendant-revisionists' application under Order VII Rule 11 C.P.C.

2. The plaintiff-opposite parties filed a suit for prohibitory injunction restraining the defendants from developing the site or interfering in the actual physical possession of the plaintiffs' over immovable properties situated in village Nizampur and Raghunathpur.

3. The relief for mandatory injunction seeking a direction to the defendants to furnish to the plaintiff land use certificates of their respective lands, as also, their documents of title, to enable the plaintiffs to get sale deeds executed in their favour. Damages for the losses caused by the act and conduct of the defendants was also sought.

4. The aforesaid reliefs were claimed on the basis of two memorandums of understanding, entered into between the parties in the year 2001.

5. An application under Order VII Rule 11 C.P.C. was filed on behalf of the defendants 1 to 15 and 26 and another application was filed on behalf of the defendants 16 to 20 and 22 on identical allegations that the plaint did not disclose any cause of action and was premature; the suit was also barred in view of Section 41-h of the Specific Relief Act, 1963, and by the provisions of the Transfer of Property Act and the Registration Act. The plaint was, therefore, liable to be rejected. It was also averred that the plaintiffs had failed to perform their part of the contract. The plaint was, therefore, liable to be rejected with cost of Rs. 2 lacs in favour of the defendants.

6. The trial court rejected the application under Order VII Rule 11 C.P.C. holding that the suit was within time, having been filed for permanent and mandatory injunction within three years from the refusal to act in accordance with the memorandum of understanding and that the suit did not seek specific performance of the memorandum of understanding.

7. Assailing the impugned order, the contention of learned counsel for the revisionists is that although the relief as worded in the plaint is one for restraining the defendants from interfering in the development of the property, and for delivery by the defendants of their documents of title and their land use certificates, but, in effect, the relief is one for execution of sale deeds in favour of the plaintiffs.

8. It is contended that the suit is barred by Section 34 of the Specific Relief Act as no declaration has been sought by the plaintiffs. Reliance has been placed upon Section 41-h of the Specific Relief Act to state that the relief prayed for in the suit cannot be granted.

9. Learned counsel has also relied upon Section 17 of the Indian Registration Act, read with Section 53-a of the Transfer of Properties Act, to submit that the memorandums of understanding, which are the basis of the suit, not being registered documents, the suit is clearly barred.

10. In rebuttal, the submission of Shri. Navin Sinha, learned Senior Advocate is that the memorandum of understanding, which is the basis of the suit falls within the ambit of Section 17(2)(v) of the Indian Registration Act. It therefore, did not require registration. He has also referred to paragraphs 4, 5, 6 and 8 of the memorandum of understanding, stated to have been filed along with the plaint, to submit that the suit is not barred. He has next submitted that the defendants in the suit are required to get some land transferred in their favour and, thereafter, to transfer the same to the plaintiffs. Therefore, the memorandum of understanding cannot be construed as an agreement to sell. In any case from the perusal of Section 49 of the Indian Registration Act, it is clear that the memorandum of understanding, which is an unregistered agreement can be looked into, for collateral purposes.

11. He has next subm