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JAMMU AND KASHMIR HIGH COURT
Mrs. Sindhu Sharma, J.
Swaran Singh —Petitioner
Versus
Sub-Registrar Jammu and others —Respondents
CSA No. 01/2012 IA No. 01/2012
Decided on 16.7.2020
(A) Agreement to Sell – Whether Agreement to Sell whereunder possession of land has been handed over by one party to other party after receiving total sale consideration creates enforceable right in favour of proposed vendee in Court of law and owner can execute sale-deed in favour of third party – Agreement to Sell is always a voluntarily act because unless both parties agree there cannot be any agreement – Property in land gets conveyed only by registering Sale Deed and not by Agreement to Sell – Since defendant continues to be owner of suit land, he was competent to alienate suit land or part thereof in breach of agreement. [Transfer of Property Act, 1882 – Section 54] (Paras 11, 14 and 22)
(B) Injunction – Suit for Permanent Prohibitory Injunction – Question of locus standi to file suit on the basis of possession of suit property would arise only when suit for possession is filed against plaintiff – Suit for restraining recorded owner against alienation or to set aside sale deed executed by owner is not maintainable because if fact that title of land remained with defendant No. 2, Sale Deed executed by him could not be declared – Suit for declaration was rightly dismissed. (Para 17)
(C) Civil Procedure Code, 1908 – Section 100 – Second appeal – Substantial question of law – To be substantial a question of law must be debatable, not previously settled by law of land or a binding precedent and must have a material bearing on decision of case, if answered either way, insofar as rights of parties before it are concerned – To be a question of law involving in the case there must be first a foundation for it laid in pleadings and question should emerge from sustainable findings of fact arrived at by court of facts 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 High Court is not a question involved in the case unless it goes to root of matter – It will depend on facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; paramount overall consideration being need for striking a judicious balance between indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in life of any lis. (Para 25)
Result: Appeal dismissed.
JUDGMENT
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:-
“............issue notice to the non-applicants for filing objections and in the meanwhile the non-applicants shall temporarily restrained from selling or alienate as well as dispossessing the applicant from the suit property till next date. This order is however, subject to objections from the other side and shall be effective from the moment it is served upon non-applicants. Applicant/Plaintiff shall furnish copies of this order, application, along with the copies of plaint and documents etc. to the non-applicants/defendants either personally or through registered post. Put up on 22nd September 2009.’
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 m
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