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GUJARAT HIGH COURT
Sanjeev J. Thaker, J.
Jyotiba Gambhirsinh Jadeja – Appellant
versus
Lakhbirsinh Bhagwansinh
Zala Through Heirs and Ors. – Respondents
R/Second Appeal No.361 of 2023
Decided on 17.7.2025
(A) Transfer of Property Act, 1882 – Section 54 – Registration Act, 1908 – Sections 17 and 49 – Agreement to sell – Agreement to sell holder does not have any right in property – Only right available to such agreement to sell holder is to seek specific performance of agreement – In present case, when there was a cause of action for seeking specific performance, Plaintiff omits not to do the same and seeks suit simpliciter for permanent injunction, same is impermissible – No cause of action for seeking permanent injunction in absence of specific performance can be said to have arisen. (Paras 8 and 9)
(B) Specific Relief Act, 1963 – Section 41(h) – Transfer of Property Act, 1882 – Section 53-A – Suit seeking relief of injunction – Suit filed simpliciter for injunction where claim is funded purely to claim to protection under Section 53-A is not maintainable, and such a suitor is not entitled to claim relief in view of provision of Section 41(h) of Specific Relief Act – Such a suitor should not be usually granted injunction – Benefit of Section 53A of TP Act is not available to an Unregistered Agreement to sell holder – For the purposes of Section 53A and claiming any benefit thereunder, unregistered agreement to sell can give birth to no right – Unregistered agreement to sell cannot be used to protect possession of property which Plaintiff claims to have received in part performance of Agreement – On this count also, suit is not maintainable. (Paras 17, 19, 21 and 22)
Result: Second Appeal dismissed.
ORDER (ORAL)
The present second appeal has been filed under section 100 of the Code of Civil Procedure, 1908 (for short “the Code”) challenging the judgement and decree passed in Regular Civil Appeal no.31 of 2021, passed by 4th Additional District Judge, Surendranagar confirming the judgement and decree, passed in Regular Civil Suit No.56 of 2015, dated 18.11.2021, passed by the Additional Civil Judge, Surendranagar.
2. For the sake of brevity and convenience, the parties are referred to as their original status as that in the suit.
3. The brief facts arising in the present proceedings are that, the plaintiff filed Civil Suit for injunction on the ground that, the plaintiff had entered into an agreement to sell with respect to the suit property on 27.03.2004 and in view of the understanding that has been arrived at on 29.03.2011, the plaintiff was put in possession of the property and the plaintiff was orally assured that a sale deed will be executed in favour of the plaintiff. In the suit, the plaintiff has sought for a relief restraining defendants from illegally taking away the possession of the suit property and restraining the defendant no.2 from causing any hindrance, obstruction to the plaintiff’s peaceful possession of the suit property. The defendant appeared in the said suit and filed their written statement, the Trial Court framed issues vide exhibit 27 as under:—
“(1) Whether the plaintiff proves that the defendant no.1 had executed Agreement for sale of land admeasuring Acre-5, 13-Gunthas of Revenue Survey No.222 of Moje: Kherali, Taluka: Wadhwan in favour of the plaintiff on 27/03/2004 and accordingly, it was decided to sale the said property for total Rs.21,30,000/- at the rate of Rs.4,00,000/- per acre?
(2) Whether the plaintiff proves that the plaintiff had paid an amount of Rs.51,111/- to the defendant no.1 herein towards token money of agreement for sale executed on 27/03/2004 for sale of suit property and in order to keep the agreement for sale in force, Rs.7,65,000/- were taken on piecemeal basis on various occasions till 29/03/2011 and defendant no.1 has executed Memorandum of Understanding in presence of two witnesses on 29/03/2011 regarding the same?
(3) Whether the plaintiff proves that the defendant no.1 had handed over absolute and peaceful possession of the property in suit to the plaintiff pursuant to the agreement for sale executed on 27/03/2004?
(4) Whether the plaintiff proves that the sale deed executed by the defendant no.1 in favour of the defendant no.2 on 13/10/2010 is fabricated and the defendant no.2 has not paid any consideration to the defendant no.1 pursuant to the said sale deed?
(5) Whether the defendant no.2 proves that he became the owner and occupier of the suit property from 13/10/2010 when he purchased the property in suit from the defendant no.1 by registered sale deed?
(6) Whether the plaintiff proves that his suit is within the period of limitation?
(7) Whether the plaintiff is entitled for the relief as sought for?
(8) What order and decree?”
4. The plaintiff entered witness box, vide exhibit 35 and the witness of the plaintiff was examined vide exhibit 47. The defendant no.2 entered the witness box and was examined vide exhibit 55 and after taking into consideration oral evidence, the documentary evidence and giving findings on all the issues, the Trial Court dismissed the said suit, the plaintiff thereafter challenged the said judgement and decree of the Trial Court and the First Appellate Court while re-appreciating the evidence dismissed the same hence, the present Second Appeal.
5. Learned advocate for the appellant has mainly argued that though the suit is for possession, the Trial Court could not have dismissed the same the suit on the ground that the plaintiff has not proved that the defendant no.1 had agreed to sell the suit property to the plaintiff for an amount of Rs.21,30,000/- and in view of the evidence before the Court, the Trial Court could
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