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High Court Of Orissa
K. P. MOHAPATRA
SUJAN CHARAN - Appellant
Versus
PRAMILA - Respondent
CIV. REVN. 486 Of 1985
Decided On : 09/11/1985
CONTRACT FOR SALE - TRANSFER OF PROPERTY ACT, S. 54 - EFFECT OF CONTRACT FOR SALE - NO INTEREST IN IMMOVABLE PROPERTY CREATED - RIGHT IN PERSONAM AND NOT IN ESTATE - NO PRIVITY IN ESTATE - VENDOR OR PURCHASER FROM HIM ENTITLED TO FULL ENJOYMENT OF PROPERTY - DECREE FOR SPECIFIC PERFORMANCE DOES NOT PASS INTEREST IN PROPERTY - SALE DEEDS IN FAVOUR OF PETITIONERS - PRIMA FACIE TITLE AND POSSESSION - BALANCE OF CONVENIENCE IN THEIR FAVOUR - TEMPORARY INJUNCTION AGAINST PETITIONERS VACATED.
Fact of the Case:
Opposite party No. 2 (defendant) was the previous owner of the suit land consisting of a thatch house and fruit bearing trees. He executed a deed of contract for sale in favor of opposite party No. 1 for a consideration of Rs. 17,000/- and delivered possession of the suit land to the latter. Opposite party No. 2 subsequently sold the suit land to the petitioners by registered sale deeds. Opposite party No. 1 filed a suit for temporary injunction restraining the petitioners from entering upon the suit land, claiming that she had a prima facie case and would suffer irreparable injury if the injunction was not granted.
Finding of the Court:
The court held that the deed of contract for sale did not confer a valid title on opposite party No. 1 as against the registered sale deeds executed by the real owner in favor of the petitioners. The court found that opposite party No. 1 had no prima facie case and that the balance of convenience was in favor of the petitioners.
Issues: 1. Whether the deed of contract for sale conferred a valid title on opposite party No. 1 as against the registered sale deeds executed by the real owner in favor of the petitioners? 2. Whether opposite party No. 1 had a prima facie case and would suffer irreparable injury if the injunction was not granted?
Ratio Decidendi: 1. The court relied on the Transfer of Property Act, S. 54, which states that a contract for sale of immovable property does not, by itself, create any interest in or charge on such property. The court held that a mere contract for sale of immovable property does not create any interest in the immovable property and that such contract is merely a document creating a right to obtain another document in the form of a sale deed to be registered in accordance with law. 2. The court held that opposite party No. 1 had no prima facie case because she had not acquired any title to the suit land by virtue of the deed of contract for sale. The court also held that the balance of convenience was in favor of the petitioners because they had acquired title to the suit land by virtue of the registered sale deeds and had been in possession of the land since the date of sale.
Final Decision: The court allowed the civil revision and vacated the impugned orders of temporary injunction passed against the petitioners.
K. P. MOHAPATRA, J.
( 1 ) THIS revision is directed against the order passed by the learned Additional District Judge, Cuttack confirming the order passed by the learned Subordinate Judge, Jagatsinghpur under O. 39, Rr. 1 and 2 of the Code of Civil Procedure ('code' for short) restraining the petitioners from entering upon the suit land.
( 2 ) IN the suit, opposite party No. 1 is the plaintiff and opposite party No. 2 and the petitioners are defendants. Indisputedly, opposite party No. 2 (defendant) was the previous owner of the suit land consisting of a thatch house and fruit bearing trees. He is a close relation of the husband of opposite party No. 1. According to the case set up by opposite party No. 1, opposite party No. 2 having settled down in a different village agreed to sell the suit land in favour of opposite party No. 1 for a consideration of Rs. 17,000/- and executed a deed of contract for sale in her favour on 21-3-1984. In part performance of the contract opposite party No. 1 paid a sum of Rs. 7000/- to opposite party No. 2 and the latter delivered possession of the suit land to the former. Although opposite party No. 1 was at all times ready and willing to perform her part of the contract, opposite party No. 2 avoided with ulterior motive and ultimately on 16-1-1985, he sold the suit land in favour of the petitioners by registered sale deeds. According to opposite party No. 1, as she was in possession of the suit land in part performance of the contract and the petitioners are subsequent transferees with notice of prior contract for sale, during pendency of the suit, the petitioners should be restrained under O. 39, Rr. 1 and 2 of the Code.
( 3 ) THE defence of opposite party No. 2 is that he did not enter into any contract for sale of the suit land in favour of opposite party No. 1 and did not execute the deed of contract of sale on 21-3-1984. Opposite party No. 1 had obtained his signatures on some blank pieces of paper and forged the deed of contract for sale dated 21-3-1984. He did not receive part of consideration of Rs. 7000/-, nor delivered possession of the suit land in part performance of the contract to opposite party No. 1.
( 4 ) THE defence of the petitioners is that opposite party No. 2 having received cash consideration of Rs. 53,000/- sold the suit land in their favour by executing registered sale deeds on 16-1-1985. After sale they have been in possession of the suit land.
They are transferees for valuable consideration without prior notice of the contract for sale and hence acquisition of title by them cannot be disturbed. Therefore, they are not liable to be restrained during pendency of the suit.
( 5 ) THE learned Courts below concurrently held on the strength of the deed of contract for sale dated 21-3-1984 that opposite party No. 1 has prima facie case, she will suffer irreparable injury if the petitioners are not restrained by way of temporary injunction from entering into the suit land and the balance of convenience is in her favour. Accordingly the order of temporary injunction passed by the learned Subordinate Judge against the petitioners was confirmed by the learned Additional District Judge.
( 6 ) MR. B. H. Mohanty appearing for the petitioners contended that the deed of contract of sale in respect of the suit land did not confer a valid title on opposite party No. 1 as against the registered sale deeds for consideration in respect thereof executed by the real owner (opposite party No. 2) in favour of the petitioners. In such circumstances, opposite party No. 1 has no prima facie case. The learned Courts below did not consider these aspects and so they came to the erroneous conclusion that opposite party No. 1 has a prima facie case. In support of his contention, he placed reliance on two decisions reported in AIR 1967 SC 744, Ram Baran Prasad v. Ram Mohit Hazza, AIR 1981 Del 291, Jiwan Dass Rawal v. Narain Dass, Mr. M. Patra, learned counsel appearing for opposite party No. 1, o
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