IMPORTANT POINT
Possession under an agreement to sell can establish a possessory title, necessitating a survey for property location disputes.

JUDGMENT :

J.J. Munir, J.

1. This is a defendants’ second appeal arising out of a suit for permanent prohibitory injunction.

2. Original Suit No.1187 of 1991 was instituted by the four plaintiffs, Virendra Kumar, Sheo Singh, Rampal Singh Chauhan and Km. Pushpa with a case that plaintiff-respondents Nos.1 to 3 are tenants in the premises detailed at the foot of the plaint since the year 1970 on a monthly rent of Rs.300/-. Defendant-respondent No.5, Sirajuddin son of Fariduddin, arrayed as defendant No.3 to the suit, was the owner of the said premises and the land comprising it. He agreed to transfer the premises aforesaid in the plaintiff-respondents' favour, and for the purpose, executed a registered agreement to sell dated 5. 04.1990. The agreement to sell last mentioned (for short, 'the suit agreement') covenants to transfer an area of 5000 square yards, situate in Khasra No.5751M of Khewat Nos.1 and 15, Qasba Meerut (for short, 'the suit property'). The further case of the plaintiff-respondents is that they are residing in the premises under reference as tenants and now by virtue of the suit agreement have contracted a right to purchase the suit property for a total sale consideration of Rs.5,00,000/-. Out of the settled sale consideration, the plaintiff-respondents have paid an earnest in the sum of Rs.4,70,000/- to defendant-respondent No.5. The plaintiff-respondents say that they were paying rent to defendant-respondent No.5 regularly up to the date of execution of the said agreement, but not later on, as was covenanted between the plaintiff-respondents and defendant-respondent No.5 at the time of execution and registration of the last mentioned agreement that no further rent shall be payable by the plaintiff-respondents to defendant-respondent No.5 for reason that a substantial part of the sale consideration had been paid at the time of registration of the suit agreement.

3. It is also the plaintiff-respondents' case that in part performance of the suit agreement, possession of the suit property has been given to the plaintiff-respondents (described in the plaint as 'remained with the plaintiffs'). The plaintiff-respondents are residing in the suit property and tethering their cattle there. The defendant-appellants have no concern with the suit property. It has never been acquired by the defendant-appellants and no proceedings for acquisition of the suit property have been taken. The defendant-appellants never sent any notice to the plaintiff-respondents or defendant-respondent No.5 with regard to the suit property, or so to speak, regarding its acquisition or taking possession. The constructions standing in the suit property are old and neither the plaintiff-respondents nor defendant-respondent No.5 have raised any new construction. The plaintiff-respondents do not own any other house, except the one located in the suit property in the city of Meerut.

4. In the first week of September, 1991, the employees of the defendant-appellants attempted to take possession of the suit property and also attempted demolition of the constructions standing thereon. The plaintiff-respondents, therefore, sent a notice under Section 88 of the Uttar Pradesh Avas Evam Vikas Parishad Adhiniyam, 1965 (for short, 'the Act of 1965') to the defendant-appellants on 10.09.1991, which was received by the said defendant-appellants, but not answered. The employees of the defendant-appellants, a day before institution of the suit, attempted to demolish the plaintiff-respondents' construction and take forcible possession of the suit property. They are also said to have demanded money of the plaintiff-respondents. It was on this cause of action that the plaintiff-respondents prayed that a decree of permanent injunction be granted against the defendant-appellants, restraining them from interfering in the rights and possession of the plaintiff-respondents or user by the plaintiffs of the suit property (described as working of the plaintiffs on the premises)