2016 (3) TMI 1437 - HC - Indian Laws

Validity of sale deed - Maintainability of Suit for permanent injunction - time limitation - Suit for declaration against the present petitioners as well as respondents No.2, 3 and 4 claiming declaration of sale deeds executed by defendants No.1 and 2 in favour of defendants No.3, 4 and 5 (the present petitioners) as null and void - HELD THAT - From reading of 53-A of Transfer of Property Act, it is clear that a prospective purchaser is entitled to protect his possession, only if, he has done something further in pursuance of the contract. In the present case, though the alleged agreements to sale and possession of the Respondent No.1 are disputed but even if, they are considered as it is, clear from the plaint that the Respondent No. 1 has done nothing in pursuance of the alleged agreements to sale. It is also not pleaded that the Respondent No.1 was ready and willing to perform his part of contract or was willing to get sale deed executed. It is also pertinent to mention that according to the proviso no such right is available against the purchaser for consideration without notice like the present petitioners. Hence, the Respondent No. 1 is not entitled to maintain the suit for permanent injunction u/s 53-A of the Transfer of Property Act. Maintainability of suit for permanent injunction - HELD THAT - In view of proviso to the Section 53-A of the Transfer of Property Act and also in view of section 41(h) of the Specific Relief Act, because the Respondent No.1 has not resorted to equally efficacious remedy i.e. by filing a suit for specific performance, hence the suit for permanent injunction was not maintainable. It is not in dispute in the present case that the Respondent No.1 is not the owner of the suit land as there is no conveyance deed in his favour and the Respondent No. 1 is claiming his right on the basis of alleged agreements to sale. It cannot be disputed that in view of clear provision of section 54 of the Transfer of Property Act, an agreement to sale does not confer any title. Thus, if the Respondent No. 1 himself is not the owner of the suit property, how can he challenge the title of the other who acquired title by registered sale deed in his favour. It is settled position of law that a person can challenge the title of other, only if, he himself is having title in the suit property. Apart from it in view of the proviso to section 34 of the Specific Relief Act, until the Respondent No. 1 claims ownership or claim relief for specific performance for acquiring title for he is entitled to claim, in absence of the same, a mere suit for declaration as the present suit is clearly hit by the proviso to section 34 of the Specific Relief Act. The question is, when the suit property and claim of the Respondent No.1 is the same, why was the relief prayed in the present suit not claimed/prayed in the previous suit, while the same could have been and should have been claimed in the previous suit and if the same was not claimed or omitted to be claimed, the subsequent suit would be clearly hit by the provisions of Order II Rule 2 CPC. In view of the aforesaid provision of law, present suit is clearly barred by law and hence, the plaint is liable to be rejected - The provisions of Order VI Rule 4-A of CPC are mandatory in nature and it is clear from the bare perusal of the suit, it is clear that there no necessary pleadings which are mandatorily required to be made in the plaint. Thus failure to comply with the aforesaid mandatory provisions of law would lead to rejection of the plaint. Time Limitation - HELD THAT - It is also clear that the present suit filed in the year 2011 to challenge the sale deeds of the year 1995 i.e. after 16 years is clearly barred by time, while the period of limitation is only 3 years. It is also not in dispute that the petitioners name in the revenue record were also recorded in the year 1995. Thus, the suit filed by the Respondent No.1 is clearly barred by limitation. The manner in which the learned trial court has dealt with the judicial precedent relied upon by the petitioners is also not proper because it has merely been observed that those citations are not applicable in the present circumstances without any discussion. Even all objections, which are purely legal objections, are not considered and decided. This approach of the learned trial court clearly amounts to failure to exercise the jurisdiction vested in it by law - the suit filed by the Respondent No.1 is clearly barred by law and allowing its continuance would be gross misuse of process of law, hence the plaint deserves to be rejected and consequently the suit deserves to be dismissed. The present civil revision stands allowed - The application preferred under Order VII Rule 11 of the Code of Civil Procedure, 1908 stands allowed and the plaint is rejected.

Summary

Issues Involved:
1. Whether the suit was barred by limitation.
2. Applicability of Section 53-A of the Transfer of Property Act.
3. Whether the suit was barred by Section 34 of the Specific Relief Act.
4. Compliance with Order VI Rule 4(a) of the Code of Civil Procedure.
5. Whether the subsequent suit was barred by Order II Rule 2 of the Code of Civil Procedure.
6. Whether the plaintiff had the right to seek the declaration of sale deeds as null and void.
7. Whether the suit was maintainable without claiming the relief of possession.
8. Valuation of the suit and court fees.

Detailed Analysis:

1. Barred by Limitation:
The court held that the suit filed in 2011 to challenge the sale deeds executed in 1995 was clearly barred by limitation. The period of limitation for such suits is three years, and the registration of the document serves as notice to the entire world. The court cited the case of Suraj Lamp & Industries Pvt. Ltd. vs. State of Haryana to support this view, emphasizing that registration provides public notice and protection from fraud.

2. Applicability of Section 53-A of the Transfer of Property Act:
The court found that the plaintiff could not maintain the suit under Section 53-A of the Transfer of Property Act as the plaintiff had not performed any act in furtherance of the contract and had not shown readiness and willingness to perform his part of the contract. The court referred to the Supreme Court's decision in Nanjegowda vs. Gangamma, which outlined the conditions necessary for invoking Section 53-A, none of which were fulfilled by the plaintiff.

3. Barred by Section 34 of the Specific Relief Act:
The court held that the suit was barred by Section 34 of the Specific Relief Act as the plaintiff, not being the owner of the property, could not challenge the title of the defendants who had acquired it through registered sale deeds. The court emphasized that an agreement to sell does not confer any title, and without claiming ownership or seeking specific performance, the suit for mere declaration was not maintainable.

4. Compliance with Order VI Rule 4(a) of the Code of Civil Procedure:
The court noted that the plaint did not comply with the mandatory provisions of Order VI Rule 4(a) of the CPC, which necessitates specific pleadings. The failure to comply with these provisions warranted the rejection of the plaint.

5. Barred by Order II Rule 2 of the Code of Civil Procedure:
The court observed that the plaintiff had filed a previous suit (Civil Suit No. 5-A/2011) regarding the same property and claims. The relief sought in the present suit could have been claimed in the previous suit, and the failure to do so barred the subsequent suit under Order II Rule 2 CPC.

6. Right to Seek Declaration of Sale Deeds as Null and Void:
The court held that the plaintiff, not being the title holder of the property, had no right to seek the declaration of the sale deeds as null and void. The plaintiff's claim was based on an agreement to sell, which did not confer any title, and thus, he could not challenge the title of the defendants.

7. Maintainability Without Claiming Relief of Possession:
The court found that the suit was not maintainable without claiming the relief of possession. The defendants were in possession of the property since 1995, as evidenced by the registered sale deeds and revenue records, and the plaintiff had not shown any evidence of being in possession.

8. Valuation of the Suit and Court Fees:
The court noted objections regarding the valuation of the suit and court fees. However, these objections required some evidence and were not the primary basis for the rejection of the plaint.

Conclusion:
The court concluded that the suit was barred by law on multiple grounds, including limitation, non-compliance with mandatory provisions, and lack of title. The trial court had committed a jurisdictional error by not considering these objections. Consequently, the plaint was rejected, and the suit was dismissed. The civil revision was allowed, and no order as to costs was made.