- (1.) UMESHWAR Pandey, J. Heard Sri S. K. Rai learned Counsel for the appellant.
(2.) THIS appeal arises out of the judgment and decree dated 8-8-2006 whereby the plaintiff's appeal has been dismissed and the judgment of the trial Court has been affirmed. The appellant plaintiff filed a suit for specific performance of a contract and also for permanent injunction stating that an agreement of sale was executed in his favour by defendant No. 2 for a total consideration of Rs. 40,000/-, out of which Rs. 11,000/- was received by him as earnest money. Plaintiff's possession over the disputed property in question was continuing from before the execution of the agreement. The defendant No. 2, however, did not execute the sale-deed in compliance to that agreement in spite of several requests and reminders. Later on it was brought to the knowledge of the plaintiff through reply notice dated 3-7-1995 that the property in question was transferred by defendant No. 2 through a sale-deed dated 30-5- 1995 in favour of defendant No. 1. On the basis of that sale-deed the defendant No. 1 threatened the possession of the plaintiff over the disputed property which gave rise to the filing of the suit. The suit was contested by defendants No. 1 and 2 by filing separate written statements in which the execution of the agreement in question was denied and receipt of the earnest money was also denied. It is stated that the property in question since belonged to defendant No. 2, he had every right to transfer the same in favour of defendant No. 1. That sale-deed is valid and no right or title of the plaintiff is there in the property as to entitle him to get the reliefs claimed.
(3.) THE trial Court upon the evidence and other materials available on record was of the view that the agreement in question was not executed by defendant No. 2. THE document being an unregistered one, it could not be enforced for grant of the relief of specific performance of the same. This finding was also concurred by the appellate Court. It is, however, found in the judgments of the Courts below that the possession of the plaintiff over one room of the disputed property is there in which he was inducted as a tenant. THE Courts below on the basis of findings that the plaintiff does not have a vested right or title over the property did not find it proper to grant the relief of permanent injunction and the suit as a whole as well as the appeal have been dismissed. The learned Counsel appearing for the appellant has tried to submit that the relief of specific performance of contract has rightly been refused in view of the agreement in question being an unregistered document. It could not be enforced under law for the grant of such relief by the Court. He has of course rightly emphasised that the relief of permanent injunction should have been easily granted giving benefit to the plaintiff of the provisions of Section 53-A of the Transfer of Property Act. His possession in part of the building have been found by both the Courts below. In support of his arguments, the learned Counsel cited the case law of Wilfred Lovette v. Ganesh, 1988 Bombay 142, and a decision of the Hon'ble Supreme Court given in Sheth Maneklal Mansukhbhai v. Messrs. Hormusji Jamshedji Guwalla and sons, (1950) SCR 75. Much emphasis has been given on the point that when Section 53-A of the Transfer of Property Act, 1882 debars the transferee or any person claiming under him from enforcing his right against such person in whose favour the transfer has not been completed in respect of a property in question over which he is continuing in possession.;