HC reiterates Un-registered agreement to sell in contravention of the Registration Act cannot be accepted for establishing the possession of property

 

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The Punjab and Haryana High Court recently comprising of a bench Justice Alka Sarin has held that an unregistered agreement to sell, being in contravention of the provisions of the Registration Act, 1908, cannot be accepted by the Court for granting possession in favour of the claimant party. (Phool Singh and Another versus Amit Kumar and Others).

Facts of the case

The revision petition was filed under Article 227 of the Constitution of India challenging the impugned orders dated 05.04.2022 and 08.03.2022 passed by the Courts below dismissing the application under Order 39 Rules 1 and 2 of the Code of Civil Procedure, 1908 (CPC) filed by the plaintiff-petitioners herein.  

 

The Petitioners had filed a suit for permanent injunction averring therein that they were the owners in possession of suit property. It was submitted that one Wazir Chand had executed a written agreement to sell in their favour and also handed over possession to them, and they in turn had constructed a boundary wall on the plot and had installed a gate and the same was in their possession since then. However, the sale deed could not be executed and a suit for specific performance was also pending qua the same.

The Trial Court dismissed the application filed by the plaintiff-petitioners under Order 39 Rules 1 and 2 CPC vide the impugned order dated 08.03.2022 holding therein that the plaintiff- petitioners were not able to make out a prima facie case in their favour and nor the balance of convenience was in their favour. Aggrieved by the said order, an appeal was preferred by the plaintiff-petitioners which was also dismissed vide the impugned order dated 05.04.2022. Hence, the present revision petition.  

Contention of the Parties 

The learned counsel for the plaintiff-petitioners stated that in a suit for permanent injunction the plaintiff-petitioners were required to show that they were in possession of the suit property and their possession of the suit property was clearly discernible from the recital in the agreement to sell dated 03.09.2015 executed by Wazir Chand in their favour. It was further contended by the learned counsel that the plaintiff-petitioners had purchased the suit property for a consideration of Rs.66,98,000/- and had hence become the owners in possession. 

Court's observations and Judgment 

The bench at the very outset observed, "In the present case the stand of the plaintiff-petitioners is that they had become owners in possession of the suit property on the basis of the agreement to sell dated 03.09.2015. Admittedly, a suit for specific performance of the said agreement to sell is already pending. The defendant-respondent No.1 has a registered sale deed dated 17.07.2019 in his favour vide which the suit property was sold by Sumitra Devi (defendant-respondent No.2) who had purchased the suit property vide a registered sale deed dated 24.07.2018 from Kitabo (defendant-respondent No.3), Rajesh and Rakesh (defendant-respondent No.4 and 5). The defendant-respondents have a registered sale deed in their favour whereas the document being sought to be relied upon by the plaintiff-petitioners is an agreement to sell. 

On a pointed query by this Court as to how the possession of the plaintiff-petitioners was established from the documents produced by them the learned counsel for the plaintiff-petitioners submitted that the same was discernible from the recital in the agreement to sell dated 03.09.2015 wherein it was stated that the possession had been handed over to the plaintiff- petitioners."

The bench noted that Prima facie there was no sale deed in favour of Wazir Chand qua the suit property which has been produced on the record. On the contrary, there was a registered sale deed in favour of defendant- respondent No.1 who had purchased the suit property in question from Sumitra Devi (defendant-respondent No.2) who was the owner of the suit property on the basis of another registered sale deed dated 24.07.2018. Besides the recital in the alleged agreement to sell dated 03.09.2015, there is no documentary evidence on the record to show the possession of the plaintiff-petitioners. 

 The bench remarked,  "The agreement to sell dated 03.09.2015 is also an unregistered document whereunder possession was purportedly handed over to the plaintiff-petitioners. Such an unregistered document cannot be accepted being in contravention of the provisions of the Registration Act, 1908. In the absence of any document showing the possession of the plaintiff-petitioners, this Court does not find any illegality or infirmity in the orders passed by the Courts below. The plaintiff-petitioners have not been able to make out a prima facie case for grant of injunction in their favour and neither is the balance of convenience in their favour."

 

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