The main legal point established in the judgment is that a suit for permanent prohibitory injunction may be barred by Section 41 (H) of the Specific Relief Act if an alternate remedy, such as a suit for specific performance, is available.

Alok Singh, J.

Present petition is preferred assailing the judgment and order dated 26.08.2014, passed by the Civil Jude (Junior Division), Dehradun in O.S. No. 126 of 2013, Dilshad Alvi Vs. Ikram Ahmad and others, whereby learned Trial Court was pleased to hold that suit simplicitor for permanent prohibitory injunction is barred by Section 41 (H) of the Specific Relief Act as well as judgment and order dated 19th January, 2015, passed by the First Addl. District Judge, Dehradun, whereby appeal filed by the plaintiff petitioner herein was dismissed.

2. Brief facts of the present case, inter alia, are that plaintiffs have filed Civil Suit seeking permanent prohibitory injunction restraining the defendants not to transfer the suit property in favour of third party saying agreement to sell was executed between the parties on 04.10.2012, however, same was never got registered; when plaintiff requested the defendant to execute the sale deed after receiving the sale consideration, defendant refused to execute the sale deed and has extended threat that he would sell the property in favour of third party, therefore, necessity arose to file suit for permanent prohibitory injunction restraining the defendant not to transfer the property in favour of the third party.

3. In a suit, preliminary issue was framed to the effect that as to whether suit for permanent prohibitory injunction is barred by Section 41 (H) of the Specific Relief Act. Learned Trial Court has observed that if plaintiff has alternate remedy to file suit for specific performance, then suit for prohibitory injunction would be barred by Section 41 (H) of the Specific Relief Act.

5. Mr. Manish Arora, learned counsel, appearing for the plaintiff petitioner has vehemently argued that since agreement to sell is unregistered, therefore, plaintiff cannot file suit for specific performance. Hence suit for permanent prohibitory injunction was filed against the defendant not to create third party interest.

5. Section 54 of the Transfer of Property Act, 1882, as applicable in the State of U.P. as well as Uttarakhand, reads as under :-

“54. "Sale" defined. - "Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.

Sale how made.- Such transfer, in the case of tangible immoveable property or in the case of a reversion or other intangible thing, can be made only by a registered instrument.

Contract for sale.-A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property. Such contract can be made only by a registered instrument.”

6. As per Section 54 of the Transfer of Property Act, 1882, contract for the sale of immovable property does not create any interest in or charge on such property agreed to sell or purchased and agreement to sell can be made only by a registered instrument.

7. Since alleged agreement to sell is not unregistered instrument and it does not create right or charge in favour of the petitioner over the property, in question, therefore, suit for permanent prohibitory injunction, on the basis of it, was not maintainable.

8. It is true that on the basis of unregistered agreement to sell, petitioner will not be in position to sue for specific performance of the contract, however, since alleged unregistered document has not created any right in favour of the petitioner, therefore, suit for permanent prohibitory injunction is also not maintainable.

9. Consequently, no interference is called for. Writ petition fails and is hereby dismissed.

10. CLMA No. 9916 of 2015 also stands disposed of accordingly.