Karnataka High Court
V Jayamma vs Gulab Jan on 17 April, 2026
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF APRIL, 2026
BEFORE
THE HON'BLE MR. JUSTICE RAVI V HOSMANI
REGULAR SECOND APPEAL NO. 863 OF 2009 (INJ-)
BETWEEN:
V. JAYAMMA
W/O. RAMACHANDRA
AGED ABOUT 52 YEARS
R/AT PINDINAGARA VILLAGE
YELDUR HOBLI
SRINIVASPUR TALUK
KOLAR DISTRICT-572338.
...APPELLANT
(BY SRI GA SRIKANTE GOWDA, ADVOCATE)
AND:
1. GULAB JAN
W/O. LATE ABDUL JABBAR
AGED ABOUT 58 YEARS
2. ALEEMULLA
CHANDRASHEKAR
LAXMAN
KATTIMANI
S/O. LATE ABDUL JABBAR
Digitally signed by
CHANDRASHEKAR
AGED ABOUT 38 YEARS
LAXMAN KATTIMANI
Location: High Court of
Karnataka, Dharwad Bench
Date: 2026.04.17 22:34:31 -
0700
3. NOORULLA
S/O. LATE ABDUL JABBAR
AGED ABOUT 38 YEARS
4. NASRULLA
S/O. LATE ABDUL JABBAR
AGED ABOUT 26 YEARS
5. AFZAL PASHA
S/O. LATE ABDUL JABBAR
AGED ABOUT 27 YEARS
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RESPONDENTS NO.1 TO 5 ARE
R/AT ELAHEE MANZIL
OPP. TO H.P. PLAZA
RAHAMATH NAGAR
CHIKKABALLAPUR ROAD
KOLAR TOWN-572338.
6. VENKATAPPA
S/O. GURAPPA
AGED ABOUT 65 YEARS
R/AT PINDINAGARA VILLAGE
YELDUR HOBLI
SRINIVASAPUR TALUK
KOLAR DISTRICT.
7. G. MANJUNATHA
S/O. LATE GIREGOWDA
AGED ABOUT 49 YEARS
R/AT PINDINAGARA VILLAGE
YELDUR HOBLI
SRINIVASAPUR TALUK
KOLAR DISTRICT-572338.
...RESPONDENTS
(BY SRI V. VINOD REDDY, ADVOCATE FOR R7;
NOTICE TO R1 TO R5 - SERVED AND UNREPRESENTED;
SRI SAMPATH A., ADVOCATE FOR R6)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGEMENT AND DECREE DATED 25.04.2009
PASSED IN R.A.NO.170/2008 ON THE FILE OF THE I
ADDITIONAL CIVIL JUDGE (SR. DN.) AND CJM, KOLAR,
ALLOWING THE APPEAL AND SETING ASIDE THE JUDGEMENT
AND DECREE DATED 19.06.2008 PASSED IN O.S.NO.109/2005
ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (JR. DN.) AND
JMFC, SRINIVASAPUR.
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THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 06.03.2026, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THROUGH VC FROM
DHARWAD BENCH, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
CORAM: HON'BLE MR. JUSTICE RAVI V HOSMANI
CAV JUDGMENT
Challenging judgment and decree dated 25.04.2009
passed by I Addl. Civil Judge (Sr.Dn.), Kolar, in RA
no.170/2008 and judgment and decree dated 19.06.2008
passed by Principal Civil Judge (Jr.Dn.), Srinivaspur, in OS
no.109/2025, this appeal is filed.
2. Sri GA Srikante Gowda, learned counsel for appellant
submitted appellant was defendant no.2 in OS no.109/2005 for
decree of permanent injunction and for declaring judgment and
decree passed in OS no.135/2004 as not binding on him etc.
Said suit was filed by G. Manjunatha – plaintiff against Abdul
Jabbar – defendant no.1, V. Jayamma – defendant no.2 and
Venkatappa – defendant no.3.
3. In plaint, it was stated plaintiff’s father – Giregowda
got 2 Acres 24 guntas of land in Sy.no.67/3, situated at
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Pindiganagara village, Srinivaspur Taluk (‘suit property’ for
short) from Chikkamuniswamy S/o Sonnappa and his name
entered in revenue records. That prior to his death
Chikkamuniswamy had executed agreement of sale in favour of
Giregowda on 15.08.1966 by receiving entire agreed sale
consideration of Rs.150/- and delivered possession. And after
death of plaintiff’s father, plaintiff continued in possession,
wherein they had planted Eucalyptus. It was stated that
defendant no.1, owner of Sy.no.67/1 measuring 1 Acre 28
guntas situated at Pindiganagara sold it to defendant no.2
under registered Sale Deed dated 19.09.1992, who in turn sold
it to defendant no.3 under registered Sale Deed on 06.03.2004.
But said sale-deeds were with incorrect boundaries and
description of property. Though defendant no.2 was not
concerned with property of Chikkamuniswamy, she filed OS
no.135/2004 against defendant no.1 for declaration of title and
for correction of Sy.no.67/1 measuring 1 Acre 28 guntas as
Sy.no.67/3 measuring 2 Acres 24 guntas in sale deed. Said suit
ended in collusive compromise, with intention of grabbing suit
property from plaintiff. Therefore said decree was not binding
on plaintiff. And though defendant no.2 was not in possession,
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she tried to interfere with plaintiff’s possession on 09.06.2005,
which led to filing of present suit.
4. Defendants no.2 and 3 appeared and filed separate
written statements denying plaint averments. Defendant no.2
stated under registered Sale Deed dated 19.09.1992, she
purchased two lands from defendant no.1. There was no
dispute with regard to Sy.no.43/3 measuring 1 Acre 08 guntas.
Insofar as other land, in sale deed defendant no.1 wrongly
mentioned it as Sy.no.67/1 measuring 1 Acre 28 guntas instead
of Sy.no.67/3 measuring 2 Acres 24 guntas. She realized same
in 2003 when surveyor visited spot. She claimed, boundaries
mentioned in her sale deed corresponded to Sy.no.67/3,
revenue records of which were in her name and not Sy.no.67/1
which belonged to defendant no.3. And when she informed
defendant no.1 of mistake, he advised her to execute sale deed
in favour of defendant no.3 mentioning same particulars. When
defendant no.1 failed to execute rectification deed, on ill advice
of plaintiff, she filed OS no.135/2004 for declaration and
rectification of sale deed. Said suit ended in compromise, as
per which, she was absolute owner in possession of suit
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property and revenue entries were in her name. She stated,
neither plaintiff nor defendant no.1 or defendant no.3 had any
manner of right, title or interest or possession of suit property.
Hence, plaintiff’s suit was liable for dismissal.
5. In his written statement, defendant no.3 stated, he
purchased Sy.no.67/1 measuring 1 Acre 28 guntas from
defendant no.2 under registered Sale Deed dated 06.03.2004
and was in lawful possession and enjoyment and his name
entered in revenue records. He had resisted plaintiff attempt to
interfere with his possession on 02.08.2005. He also stated, as
on date of suit, defendant no.2 was in possession of
Sy.no.67/3, situated towards southern side of his property. And
further that plaintiff was in possession of Sy.no.67/2, but never
in possession of Sy.no.67/1 or Sy.no.67/3. Hence, suit was
without cause of action and liable for dismissal. He also sought
counter-claim for declaration of his title over Sy.no.67/1
measuring 1 Acre and 28 guntas and for permanent injunction
restraining plaintiff etc. from interfering with his possession
over said property.
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6. Based on pleadings, trial Court framed following:
ISSUES
1) Whether the plaintiff proves that he is
in possession of suit schedule property
on the basis of sale agreement dated
15.08.66 and as on the date of suit?
2) Whether the plaintiff proves that 1st
and 2nd defendants have colluded
together and obtained decree in OS
no.135/2004?
3) Whether the plaintiff proves that 1st
defendant has no right to sell the suit
schedule property in favour of 2nd
defendant?
4) Whether the plaintiff proves that 2nd
defendant has no saleable interest to
sell the suit schedule property in
favour of defendant no.3?
5) Whether the plaintiff proves the
alleged interference?
6) Whether the plaintiff is entitled for the
relief as claimed in the plaint?
7) What order or decree?
7. In trial, plaintiff examined himself and three others as
PWs.1 to 4 and got marked Exs.P1 to P11. In rebuttal,
defendant no.2 examined herself as DW.1 and got marked
Exs.D1 to D16.
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8. On consideration, trial Court answered issues no.1, 5
and 6 in negative, issues no.2 to 4 as not surviving for
consideration and issue no.7 by dismissing suit with costs.
Aggrieved, plaintiff preferred RA no.170/2008 on various
grounds. Based on same, first appellate Court framed following:
POINTS
1) Whether this appellant/plaintiff proves
that he is in possession and
enjoyment of the suit schedule
property?
2) Whether the judgment and decree
passed by the trial Court under appeal
is perverse, capricious and arbitrary
and it calls for any interference by this
Court?
3) What order?
9. And answering points no.1 and 2 in affirmative and
point no.3, it allowed appeal, set-aside judgment and decree of
trial Court and decreed plaintiff’s suit permanently restraining
defendants from interfering with plaintiff’s possession and
enjoyment of suit property and holding judgment and decree
passed in OS no.135/2004 as not binding on plaintiff.
Consequently, counter claim of defendant no.3 was dismissed
with cost. Aggrieved thereby, only defendant no.2 is in appeal.
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10. It was submitted, judgment and decree of first
appellate Court was contrary to law and evidence on record. It
erred in granting injunction, though purchase of property by
defendant no.2 under registered Sale Deed 19.09.1992 with
same boundary description as suit property and not
Sy.no.67/1, was undisputed. It was submitted, boundary
description prevailed over Survey number and extent. It was
submitted, Iyyanna was owner of land measuring 1 Acre 28
guntas in Sy.no.67/1 and under Ex.D15 – Gift Deed dated
17.05.1948, Iyyanna gifted said property to Nanjappa and
Venkatappa mentioning boundaries as:
East: Changappa’s land;
West: Mustafa’s land;
North: Patel Narayana Gowda’s land;
South: Doddamunıshamy’s land.
11. It was submitted, Patel Narayana Gowda, father of
Giregowda and grandfather of plaintiff, was owner of 0.35
guntas of land in Sy.no.67/2. Chikkamuniswamy was owner of
land measuring 2 Acres 24 guntas in Sy.no.67/3. Under Sale
Deed dated 07.06.1951, Chikkamuniswamy sold said property
in favour of Abdul Azeez. But by erroneously mentioning 1 Acre
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28 guntas in Sy.no.67/1 instead of 2 Acres 24 guntas in
Sy.no.67/3, in sale deed. Thereafter, defendant no.2 purchased
property from Abdul Jabbar S/o Abdul Azeez under registered
Sale Deed dated 19.09.1992, wherein error in survey number
and extent continued, but boundary description remained
consistent and identical to suit property. It was submitted,
comparison of boundaries in Sale Deeds dated 07.06.1951 and
19.09.1992 was as follows:
SCHEDULE IN SALE PLAINT SCHEDULE
DEEDS
East by: Ireppa Uppukunte Changappa (Ireppa's father)
West by: Gire Gowda Another property of plaintiff (Gire Gowda
is father of plaintiff)
North Pichagundla Property of Iyyanna (Venkatappa - foster
by: Venkatappa son of Iyyanna got it under gift deed
dated 17.05.1948)
South Gire Gowda Another property of plaintiff (Gire
by: Gowda)
(Note: Gire Gowda is son of Narayanag
Gowda @ Patel Narayana Gowda)
12. Thus, property described under sale deeds and
property described in suit property were one and same.
13. It was submitted, plaintiff claims to be son of
Giregowda who was only holder of agreement of sale dated
15.08.1966, allegedly executed by Chikkamuniswamy in
respect of Sy.no.67/3. It was submitted, plaintiff claim that
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Chikkamuniswamy was original owner of Sy.no.67/3 and that
defendants no.1 and 2 played fraud in obtaining compromise
decree in OS no.135/2004 and attempted to interfere with
plaintiff’s possession over suit property. It was submitted,
defendant no.1 filed written statement denying right, title and
possession of plaintiff and specifically denied execution of Ex.P1
– alleged agreement of sale dated 15.08.1966. And in her
written statement, defendant no.2 claimed, she purchased suit
property under Ex.D6 – registered sale deed dated 19.09.1992
and was absolute owner in possession thereof. Defendants
contended, though there were errors in survey number and
extent of demised land in sale deeds, boundary description
consistently referred to suit property.
14. And said error was rectified under Ex.D1 – decree in
OS no.135/2004 and Ex.D7 – revenue entries made in name of
defendant no.2. Thus, plaintiff had no right, title or interest
over suit property and had attempted to take undue advantage
of clerical error in description of property in sale deed, and filed
frivolous suit based on alleged Agreement of sale dated
15.08.1966 (Ex.P-1) in order to lay claim over property
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belonging to defendant no.2. In view of above, suit for bare
injunction was not maintainable in law, particularly when title
over suit property was seriously disputed.
15. It was submitted, trial Court dismissed suit mainly on
ground that plaintiff’s father who allegedly obtained agreement
in year 1966, made no effort to obtain registered sale deed as
well as on ground that plaintiff failed to establish his possession
over suit property, on date of filing of suit. It also relied on
assertion by defendant no.3, owner of Sy.no.67/1 in his written
statement that defendant no.2 was in possession of Sy.no.67/3
and holding if plaintiff was in possession of suit property, he
would have produced other supporting documents and not rely
only on Exs.P1 and P2. It was submitted, revenue records
produced by defendants, on contrary, showed name of
defendant no.2 entry in revenue records in respect of suit
property as on date of suit. Thus, even if defendants pleaded
mistake in mentioning correct survey number and extent, trial
Court applied correct proposition of law that plaintiff must
succeed on strength of his own case and not on weakness of
defendant’s case and dismissed suit. And reversal of said
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findings by first appellate Court was defective and prayed for
allowing appeal on following substantial question of law:
“When trial Court dismissed plaintiff’s suit on
appreciation of evidence on record, whether first
appellate Court was justified in reversing it
without assigning consistent and cogent reasons
and thereby committed illegality?”
16. It was submitted, Ex.P1 was un-registered deed, held
by trial Court to be concocted. And as per recitals, it was sale
deed and therefore, compulsorily registered as per Section 17
(1) (b) of Registration Act. Being unregistered, it was
inadmissible in evidence. Further, being insufficiently stamped
Ex.P1 was also hit by Article 34 of Stamp Act and therefore,
could not be relied even for collateral purposes. It was
submitted, Hon’ble Supreme Court in case of Avinash Kumar
Chauhan v. Vijay Krishna Mishra, reported in AIR 2009 SC
1489, held:
“7. It is now well settled that there is no prohibition
under Section 49 of the Registration Act, to receive an
unregistered document in evidence for collateral
purpose. But the document so tendered should be
duly stamped or should comply with the requirements
of Section 35 of the Stamp Act, if not stamped, as a
document cannot be received in evidence even for
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collateral purpose unless it is duly stamped or duty
and penalty are paid under Section 35 of the Stamp
Act.”
17. It was further submitted, plaintiff pursued suit for
bare injunction, even when defendant no.2 in para-1 of her
written statement raised ground about its maintainability. In
later paras, defendant no.2 specifically denied plaintiff’s title
over suit property and in para-15, claimed title over suit
property on basis of purchased from defendant no.1. In view of
above, suit for bare injunction would not be maintainable as
held by Hon’ble Supreme Court in case of Anathula Sudhakar
v. P. Buchi Reddy (Dead) By LRs & Ors., reported in AIR
2008 SC 2033:
“11.3. Where the plaintiff is in possession, but his title
to the property is in dispute, or under a cloud, or
where the defendant asserts title thereto and there is
also a threat of dispossession from defendant, the
plaintiff will have to sue for declaration of title and the
consequential relief of injunction. Where the title of
plaintiff is under a cloud or in dispute and he is not in
possession or not able to establish possession,
necessarily the plaintiff will have to file a suit for
declaration, possession and injunction.”
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18. And by this Court in case of Smt.Nirmala v. Sri
Naveen Chhaggar, reported in AIR 2007 Kar 40 holding:
“34. … which had been filed initially for declaration
and consequential injunction, wherein the first
defendant had denied title of the plaintiff, the suit fails
unless the prayer for declaration is also made good.
The suit in law is not maintainable, as unless
declaration is made in favour of the plaintiff, the
continued possession of the plaintiff particularly in the
light of denial by the first defendant cannot be
recognized in law, more so when the first defendant
has also claimed to herself title in the property and
had denied the title of the plaintiff. In fact, when the
plaintiff filed a memo for deletion of the prayer for
declaration subsequent to the trial court framing
issues on this aspect ie. issue no.1, the plaintiffs suit
should have been dismissed then and there.”
19. Further, defendant no.2 had raised objection at time
of marking of Agreement of Sale as Ex.P1. Trial Court recorded
objections and though marking was subject to objections, it
failed to adjudicate on admissibility. Therefore, Ex.P1 had no
evidentiary value. Besides, no documents produced by plaintiff
to establish his possession over suit property as on date of suit.
Therefore, suit was rightly dismissed by trial Court.
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20. Without considering admissibility of Ex.P1 and without
noting whether un-registered and under-stamped deed would
be admissible in evidence, in view of bar under Section 17 (1)
(b) read with Section 49 of Registration Act and Section 34 of
Stamp Act, first appellate Court erroneously reversed judgment
and decree of trial Court. Main reason assigned was that Ex.P1
was 30 years old document and entitled for presumption in law.
Further, Hon’ble Supreme Court in Namdeo Gajre v. Narayan
Bapuji Dhotra, reported in 2004 (8) SCC 614, held:
“13. The agreement to sell does not create an interest
of the proposed vendee in the suit property. As per
Section 54 of the Act, the title in immovable property
valued at more than Rs 100 can be conveyed only by
executing a registered sale deed. Section 54
specifically provides that a contract for sale of
immovable property is a contract evidencing the fact
that the sale of such property shall take place on the
terms settled between the parties, but does not, of
itself, create any interest in or charge on such
property. It is not disputed before us that the suit land
sought to be conveyed is of the value of more than Rs
100. Therefore, unless there was a registered
document of sale in favour of Pishorrilal (the proposed
transferee) the title of the suit land continued to vest
in Narayan Bapuji Dhotra (original plaintiff) and
remain in his ownership. This point was examined in
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detail by this Court in State of U.P. v. District
Judge [(1997) 1 SCC 496] and it was held thus: (SCC
pp. 499-500, para 7)“7. Having given our anxious consideration to the
rival contentions we find that the High Court with
respect had patently erred in taking the view that
because of Section 53-A of the Transfer of
Property Act the proposed transferees of the land
had acquired an interest in the lands which would
result in exclusion of these lands from the
computation of the holding of the tenure-holder
transferor on the appointed day. It is obvious
that an agreement to sell creates no interest in
land. As per Section 54 of the Transfer of
Property Act, the property in the land gets
conveyed only by registered sale deed. It is not
in dispute that the lands sought to be covered
were having value of more than Rs
100. Therefore, unless there was a registered
document of sale in favour of the proposed
transferee agreement-holders, the title of the
lands would not get divested from the vendor
and would remain in his ownership. There is no
dispute on this aspect. However, strong reliance
was placed by learned counsel for Respondent 3
on Section 53-A of the Transfer of Property Act.
We fail to appreciate how that section can at all
be relevant against the third party like the
appellant State. That section provides for a shield
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of protection to the proposed transferee to
remain in possession against the original owner
who has agreed to sell these lands to the
transferee if the proposed transferee satisfies
other conditions of Section 53-A. That protection
is available as a shield only against the
transferor, the proposed vendor, and would
disentitle him from disturbing the possession of
the proposed transferees who are put in
possession pursuant to such an agreement. But
that has nothing to do with the ownership of the
proposed transferor who remains full owner of
the said lands till they are legally conveyed by
sale deed to the proposed transferees. Such a
right to protect possession against the proposed
vendor cannot be pressed in service against a
third party like the appellant State when it seeks
to enforce the provisions of the Act against the
tenure-holder, proposed transferor of these
lands.”
(emphasis supplied)
There was no agreement between the appellant and
the respondent in connection with the suit land. The
doctrine of part-performance could have been availed
of by Pishorrilal against his proposed vendor subject,
of course, to the fulfillment of the conditions
mentioned above. It could not be availed of by the
appellant against the respondent with whom he has
no privity of contract. The appellant has been put in
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possession of the suit land on the basis of an
agreement of sale not by the respondent but by
Pishorrilal, therefore, the privity of contract is between
Pishorrilal and the appellant and not between the
appellant and the respondent. The doctrine of part-
performance as contemplated in Section 53-A can be
availed of by the proposed transferee against his
transferor or any person claiming under him and not
against a third person with whom he does not have a
privity of contract.”
21. Consequently, there no enforceable right vested in
favour of agreement of sale holder. Even in case of Rohtash
Singh v. Sanwal Ram, reported in 2018 SCC OnLine P&H
7606, it was held:
“33. The plaintiff has not taken any step in
furtherance of this writing as it was taken as
document of sale of plot. In plaint and evidence, this
writing was presenting and referred as document of
sale of plot. It is also recited in the writing that plot
has been sold to plaintiff. Even Courts below have
referred to this as document of sale. The transaction
of immovable property worth more than Rs. 100/- can
be made by a registered document. This finds support
from the observations of Hon’ble Apex Court in case
of Guman Singh v. Manga Singh (D) by LRs2 (2016) 3
RCR (Civil) 592, wherein, it has been observed as
follows:
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“From the facts narrated above, it becomes
manifest that the purported sale deed dated
02.05.1966 was never registered and remained
an unregistered document. Even as per the
appellants, consideration for the suit land was
Rs. 9000/-, i.e., more than Rs. 100. The
transaction pertains to immovable property. Such
a sale deed was compulsorily registrable under
Section 17 of the Indian Registration Act. The
consequence of non-registration are provided in
Section 49 thereof. Such document cannot be led
into evidence and no rights indicated in the said
document can be pressed and claimed. The
document can be seen only for collateral
purposes. In the instant case, on the basis of the
said document, the appellants are claiming
ownership which cannot be countenanced. Thus,
the appellants cannot claim that they had
become owners of the suit land on the basis of
document dated 02.05.1966. Insofar as rights
claimed on the basis of Section 53 A of the Act
are concerned, that deals with only part-
performance. It has been held by this Court in
‘Ranchhoddas Chhaganlal v. Devaji Supdu
Dorik‘[(1977) 3 SCC 584] that the plea of
Section 53 A of the Act can be taken only in
defence…………………………….”.
22. In light of above submissions, learned counsel sought
for answering substantial question of law in favour of defendant
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no.2, allow appeal and restore judgment and decree passed by
trial Court.
23. On other hand, Sri V. Vinod Reddy, learned counsel
for plaintiff opposed appeal. It was submitted, OS no.109/2005
was instituted by plaintiff for permanent injunction and for
declaration that judgment and decree dated 08.10.2004 passed
in OS no.135/2004 was not binding on plaintiff. It was
submitted, suit property was land bearing Sy.no.67/3
measuring 2 Acres 24 guntas consisting of eucalyptus
plantation, situated at Pindinagara village, Yeldur Hobli,
Srinivasapura Taluk, bounded on:
East: Property of Uppakunta Chikka Changappa.
West: Another property of plaintiff.
North: Property of Iyanna.
South: Another property of plaintiff.
24. It was submitted, plaintiff’s case was that he acquired
possession of suit property from his father Giregowda who died
about 9 years prior to suit. Plaintiff further stated that his
father acquired possession of suit property from its previous
owner Chikkamuniswamy s/o Sonnappa with consent who was
resident of Pindiganagara village in year 1964-65. And
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considering his possession, his name was entered in RTC for
years 1964 to 1970 as per Ex.P2. And that Chikkamuniswamy
had executed an agreement for sale in favour of plaintiff’s
father Giregowda on 15.08.1966 as per Ex.P1. That
Chikkamuniswamy and his two brothers i.e. Byrappa and
Muniswamy died unmarried and issueless.
25. Plaintiff further stated that said Chikkamuniswamy
executed registered sale deed dated 07.06.1951 as per Ex.P3
selling Sy.no.67/1 measuring 1 Acre 28 guntas in favour of
Abdul Azeez, with boundaries:
East By: Chenga Gowda,
West By: Narayana Gowda,
North By: Annappa,
South By: Patil Narayanagowda.
26. Subsequently, his son – defendant no.1 – Abdul
Jabbar S/o Abdul Azeez and owner of Sy.no.67/1 measuring 1
Acre 28 guntas and another land bearing Sy.no.43/3 measuring
1 Acre 8 guntas of Pindinagara village to defendant no.2 –
Jayamma under registered sale deed dated 19.09.1992 as per
Ex.D6, with following boundaries:
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East By: Erappa,
West by: Giregowda (Father of Plaintiff)
North by: Pichaguntala Venkatappa and
South by: Property of Giregowda (Father of plaintiff).
27. Thereafter, defendant no.2 sold Sy.no.67/1 measuring
1 Acre 28 guntas to defendant no.3 – Venkatappa under
registered sale deed dated 06.03.2004 as per Ex.P5 by
changing boundaries as:
East by: Uppakunte Erappa,
West by: Parvathamma,
North by: G. Manjunath and
South by: Remaining extent of Jayamma.
28. Thus, it was evident that by cleverly changing
boundaries defendant no.2, sold Sy.no.67/1 measuring 1 Acre
28 guntas. After sale, defendant no.2 wanted to rectify sale
deed executed by her vendor Abdul Jabbar in respect of
Sy.no.67/1 measuring 1 Acre and 28 guntas and filed OS
no.135/2004 on 30.08.2004. Rectification sought was to
change survey number of land sold from Sy.no.67/1 measuring
1 Acre 28 guntas to Sy.no.67/3 measuring 2 Acres 24 guntas.
It was settled law that after sale of property, Jayamma had no
right to rectify sale deed, especially so when Sy.no.67/3
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belonged to plaintiff. When based on collusive compromise
decree, defendants tried to interfere with plaintiff’s possession
over suit property, present suit was filed for permanent
injunction and to hold decree passed in OS no.135/2004 as not
binding on plaintiff. Trial Court erroneously dismissed suit, but
in appeal, first appellate Court, decreed suit. And against
divergent findings, this appeal was filed.
29. It was submitted, in order to establish possession over
suit property, plaintiff relied on Exs.P1 and P2. It was
submitted, Ex.P4 – sale deed executed by defendant no.1 in
favour of defendant no.2 clearly refers to property of
Giregowda on southern side. Even Exs.D11 to D14 and Ex.D16
show suit property was in plaintiff’s vendor name, establishing
plaintiff’s possession over suit property.
30. It was submitted, first appellate Court framed proper
points for consideration and observed Ex.P1 indicated sale of
suit property in favour of plaintiff’s father and Ex.P2 – RTC
entries for years 1964-1970 bearing name of plaintiff’s father
gave rise to presumption about possession. Further, Ex.P1
being a 30 year old document and produced from proper
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custody was presumed to be genuine and even though Ex.P1
was unregistered and marked subject to objection, plaintiff was
required to pay only stamp duty and penalty. It also noted that
deposition of PWs.2 to 4 supported plaintiff. Thus judgment and
decree passed by first appellate Court was on basis of material
on record and well reasoned.
31. In support of his submission that it was not necessary
for person claiming injunction to prove title over suit property
and it would suffice if he proves his lawful possession and there
was attempt to same by person without title, learned counsel
relied on decision in case of Rame Gowda (Dead) By LRs. v.
M. Varadappa Naidu (Dead) By LRs. and Anr., reported in
(2004) 1 SCC 769, wherein it is held:
“11. In the present case the trial court has found
the plaintiff as having failed in proving his title.
Nevertheless, he has been found to be in settled
possession of the property. Even the defendant
failed in proving his title over the disputed land
so as to substantiate his entitlement to evict the
plaintiff. The trial court, therefore, left the
question of title open and proceeded to
determine the suit on the basis of possession,
protecting the established possession and
restraining the attempted interference
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therewith. The trial court and the High Court
have rightly decided the suit. It is still open to
the defendant-appellant to file a suit based on
his title against the plaintiff-respondent and
evict the latter on the former establishing his
better right to possess the property.
12. The learned counsel for the appellant relied on the
Division Bench decision in Dasnam Naga
Sanyasi v. Allahabad Development Authority [AIR
1995 All 418] and a Single Judge decision in Kallappa
Rama Londa v. Shivappa Nagappa Aparaj [AIR 1995
Kant 238] to submit that in the absence of
declaration of title having been sought for, the
suit filed by the plaintiff-respondent was not
maintainable and should have been dismissed
solely on this ground. We cannot agree. Dasnam
Naga Sanyasi case [AIR 1995 All 418] relates to the
stage of grant of temporary injunction wherein, in the
facts and circumstances of that case, the Division
Bench of the High Court upheld the decision of the
court below declining the discretionary relief of ad
interim injunction to the plaintiff on the ground that
failure to claim declaration of title in the facts of that
case spoke against the conduct of the plaintiff and was
considered to be “unusual”. In Kallappa Rama Londa
case [AIR 1995 Kant 238] the learned Single Judge
has upheld the maintainability of a suit merely seeking
injunction, without declaration of title and on dealing
with several decided cases the learned Judge has
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agreed with the proposition that where the suit for
declaration of title and injunction is filed, and the title
is not clear, the question of title will have to be kept
open without denying the plaintiff’s claim for
injunction in view of the fact that the plaintiff has
been in possession and there is nothing to show that
the plaintiff has gained possession by any unfair
means just prior to the suit. That is the correct
position of law. In Fakirbhai Bhagwandas v. Maganlal
Haribhai [AIR 1951 Bom 380 : 53 Bom LR 163] a
Division Bench spoke through Bhagwati, J. (as his
Lordship then was) and held that it is not necessary
for the person claiming injunction to prove his title to
the suit land. It would suffice if he proves that he was
in lawful possession of the same and that his
possession was invaded or threatened to be invaded
by a person who has no title thereof. We respectfully
agree with the view so taken. The High Court has kept
the question of title open. Each of the two contending
parties would be at liberty to plead all relevant facts
directed towards establishing their titles, as
respectively claimed, and proving the same in duly
constituted legal proceedings. By way of abundant
caution, we clarify that the impugned judgment shall
not be taken to have decided the question of title to
the suit property for or against any of the contending
parties.”
(emphasis supplied)
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32. For same proposition, he relied on decision in case of
Ramji Rai and Anr. v. Jagdish Mallah (Dead) Through
LRs. and Anr., reported in (2007) 14 SCC 200, wherein it is
held:
“10. On the finding of facts, we do not wish to
interfere. There is no reason to reverse the concurring
findings. However, suffice it to state that the lower
appellate court should have dismissed the suit filed by
the appellants only on the ground that the appellants
had failed to prove that they were in possession of the
disputed lands. Under Section 38 of the Specific
Relief Act, 1963 an injunction restraining
disturbance of possession will not be granted in
favour of the plaintiff who is not found to be in
possession. In the case of a permanent
injunction based on protection of possessory
title in which the plaintiff alleges that he is in
possession, and that his possession is being
threatened by the defendant, the plaintiff is
entitled to sue for mere injunction without
adding a prayer for declaration of his rights.
(See Mulla’s Indian Contract and Specific Relief Acts,
12th Edn., p. 2815)”
(emphasis supplied)
33. On admissibility of Ex.P1, learned Counsel relied on
decision of Hon’ble Supreme Court in case of R.V.E.
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Venkatachala Gounder v. Arulmigu Viswesaraswami and
V.P. Temple and Anr., reported in (2003) 8 SCC 752
holding:
“20. The learned counsel for the defendant-
respondent has relied on Roman Catholic
Mission v. State of Madras [AIR 1966 SC 1457] in
support of his submission that a document not
admissible in evidence, though brought on record, has
to be excluded from consideration. We do not have
any dispute with the proposition of law so laid down in
the abovesaid case. However, the present one is a
case which calls for the correct position of law being
made precise. Ordinarily, an objection to the
admissibility of evidence should be taken when it is
tendered and not subsequently. The objections as to
admissibility of documents in evidence may be
classified into two classes: (i) an objection that the
document which is sought to be proved is itself
inadmissible in evidence; and (ii) where the objection
does not dispute the admissibility of the document in
evidence but is directed towards the mode of
proof alleging the same to be irregular or insufficient.
In the first case, merely because a document has
been marked as “an exhibit”, an objection as to its
admissibility is not excluded and is available to be
raised even at a later stage or even in appeal or
revision. In the latter case, the objection should
be taken when the evidence is tendered and
once the document has been admitted in
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evidence and marked as an exhibit, the objection
that it should not have been admitted in
evidence or that the mode adopted for proving
the document is irregular cannot be allowed to
be raised at any stage subsequent to the
marking of the document as an exhibit. The
latter proposition is a rule of fair play. The crucial
test is whether an objection, if taken at the
appropriate point of time, would have enabled the
party tendering the evidence to cure the defect and
resort to such mode of proof as would be regular. The
omission to object becomes fatal because by his
failure the party entitled to object allows the party
tendering the evidence to act on an assumption that
the opposite party is not serious about the mode of
proof. On the other hand, a prompt objection does not
prejudice the party tendering the evidence, for two
reasons: firstly, it enables the court to apply its mind
and pronounce its decision on the question of
admissibility then and there; and secondly, in the
event of finding of the court on the mode of proof
sought to be adopted going against the party
tendering the evidence, the opportunity of seeking
indulgence of the court for permitting a regular mode
or method of proof and thereby removing the
objection raised by the opposite party, is available to
the party leading the evidence. Such practice and
procedure is fair to both the parties. Out of the two
types of objections, referred to hereinabove, in
the latter case, failure to raise a prompt and
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timely objection amounts to waiver of the
necessity for insisting on formal proof of a
document, the document itself which is sought
to be proved being admissible in evidence. In the
first case, acquiescence would be no bar to raising the
objection in a superior court.”
(emphasis supplied)
34. Sri Sampath A, learned counsel for defendant no.3
supported appellant.
35. Heard learned counsel, perused impugned judgment
and decree and records.
36. This appeal is by defendant no.2 being aggrieved by
divergent finding of first appellate Court in suit for permanent
injunction and declaration. As rightly observed by both Courts,
suit herein was for bare injunction to restrain defendants from
interfering with plaintiff’s peaceful possession over suit property
was main and contentious relief and other prayer was for
declaring decree in OS no.135/2004 as not binding on plaintiff.
37. It would also not be in dispute that in suit for
permanent injunction, plaintiff would require to establish his
lawful possession over suit property, illegal interference by
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defendants and irreparable loss and injury being caused to
plaintiff in case injunction is refused.
38. On behalf of plaintiff, suit claim is based on alleged
execution of Ex.P1 – Agreement of sale by Chikkamuniswamy
earlier owner of suit property on 15.08.1966 by accepting
entire sale consideration and delivery of possession to plaintiff’s
father. Plaintiff also relies upon RTC of year 1964 to 1970
marked as Ex.P2, to corroborate Ex.P1 as well as to establish
his possession over suit property.
39. Challenge by defendant no.2 – appellant is on three
specific grounds. Firstly, relying on Avinash Kumar‘s case
(supra), it is contended, when trial Court had opined Ex.P1 was
concocted and even as per recitals was in nature of sale deed
and being unregistered and improperly stamped was hit by
Section 49 of Registration Act as well as Section 34 of Stamp
Act, it cannot even be looked into for collateral purposes.
Secondly, referring to decision in Anathula Sudhakar and
Smt.Nirmala’s cases (supra), and contention about
maintainability of suit raised in written statement based on
denial of plaintiff’s title and defendant no.2 setting up rival title
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based on Ex.D6 – sale deed, it is contended suit for bare
injunction without declaration of title would not be
maintainable. And thirdly, relying upon Namdev Gajre and
Rohtash Singh’s cases (supra), it is contended as per Ex.P1,
plaintiff at best could claim to be holder of an agreement of
sale which would not create any interest in immovable property
and therefore suit for injunction would not be maintainable.
40. On other hand, appeal is opposed by plaintiff on
ground that suit property i.e. Sy.no.67/3 measuring 2 Acres 24
guntas with definite boundaries acquired by plaintiff’s father
from admitted original owner Chikkamuniswamy who executed
Ex.P1 – agreement of sale on 15.08.1966 by receiving entire
sale consideration and delivered possession. It is stated that on
death of original owner and his brothers issueless and
unmarried, plaintiff’s father and thereafter plaintiff continued in
possession. And though Ex.P1 was unregistered, fact that name
of plaintiff’s father was entered in revenue records in
cultivator’s Column from 1964-65 onwards as per Ex.P2, duly
corroborated plaintiff’s claim under Ex.P1. Thus, observation by
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trial Court that Ex.P1 was created for purposes of suit was
without basis or detailed reasoning and presumptuous.
41. It is also contended that on other hand, claim of
defendants over suit property was on basis of sale deeds, with
different survey numbers and extents and Ex.P7 being collusive
decree obtained behind back of plaintiff as well as without
admitted original owner Chikkamuniswamy being made a party.
Therefore, plaintiff’s possession over suit property stood
established by Exs.P1 and P2 as well as by Ex.P4 – sale deed
referring to property of plaintiff’s father as its southern
boundary. It was submitted, first appellate Court rightly applied
law that Ex.P1 being a 30 year old document and produced
from proper custody attracted presumption about its genuinity.
Relying on Ramegouda and Ramji Rai’s cases (supra), it is
contended in a suit for bare injunction plaintiff was not required
to establish title and it would suffice if he establishes
possession and interference by person without title over it.
Relying on Venkatachal Gounder’s case (supra), it is
contended question regarding admissibility would stand waived
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on marking of a document. Therefore, no substantial question
of law would arise for consideration.
42. Thus, there is no dispute about fact that plaintiff’s suit
for permanent injunction against defendants herein in respect
of suit property is based on Ex.P1 – which is an unregistered
Agreement of sale dated 15.08.1966. While, defendants’ claim
right over suit property on basis of registered sale deed
executed by same original owner as in case of plaintiff, but
based on further assertion that there was mistake in
mentioning correct survey number and extent in said sale deed,
which percolated into subsequent alienations and corrected
under compromise decree. There is also a counter claim by
defendant no.3, but for permanent injunction against plaintiff.
Neither of parties have sought declaration of their respective
title over suit property.
43. As rightly, contended, in a suit for permanent
injunction, it would not be necessary for trial Court to decide on
title. And it would be necessary only in case of clear and
specific claim of ownership over suit property by defendants
such as those based on registered deeds.
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44. In instant case, though claim of defendants is specific
and based on registered deeds, said deeds even according to
defendants were with error in mentioning survey numbers and
extents. Though they claim that boundary description would be
same as suit property herein and as such prevail over
erroneous survey numbers and extent, same need not detain
this Court on said contentious claim, since defendants have not
made any counter-claim for declaration of title nor weakness of
defendants’ case can benefit plaintiff.
45. Pivotal fact herein is about claim of plaintiff being
based on an unregistered and improperly stamped agreement
of sale, noted by trial Court to be in nature of sale deed, as per
recitals. There cannot be dispute about principle of law that an
unregistered and/or under-stamped agreement of sale cannot
be looked into as evidence under Section 49 of Registration Act
as well as under Section 34 of Karnataka Stamp Act.
46. While passing impugned judgment, trial Court took
note of rival contentions and observed plaintiff’s suit was for
permanent injunction and in view of prayer no.2, it would not
be necessary for it to decide on validity of decree in OS
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no.135/2004 and it would suffice to examine whether it binds
plaintiff. It noted oral and documentary evidence of plaintiff. It
noted consistency between pleadings, oral evidence and
documentary evidence and nothing material being elicited by
defendants. It also noted absence of cross examination of
PW.4, son of scribe of Ex.P1 – Agreement of sale, who
identified his father’s signature on it. It also noted rival oral and
documentary evidence. It noted that in her cross-examination,
defendant no.2 as DW.1 admitted lands bearing Sy.nos.67/1,
67/2 and 67/3 were separate and distinct property. It noted
claim of plaintiff pivoted on Ex.P1 – Agreement of sale and
Ex.P2 – RTC from 1964-65 to 1969-70. It noted that plaintiff
could not sustain claim of being in lawful possession based only
on Ex.P1 alone and suspected it to be concocted for purposes of
suit. It noted that in cultivator’s Column in Ex.P2, name of
plaintiff’s father as well as Pichuguntla Venkatappa was
mentioned and there was no explanation about Pichuguntla
Venkatappa. Based on same, it concluded, father of plaintiff
was not in exclusive possession of suit property. It also drew
adverse inference against plaintiff’s father for not making any
efforts to have sale deed registered. It opined, in case original
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owner and his brothers passed away without legal heirs,
property would eschew to Government would also go against
plaintiff.
47. It noted failure on part of plaintiff to establish his
possession over suit property as on date of suit. It also noted
there was no reason to disbelieve written statement of
defendant no.3 stating Sy.no.67/3 was in possession of
defendant no.2 and Sy.no.67/2 was in possession of plaintiff. It
observed, plaintiff had not disputed such assertion by
defendant no.3 would be part of evidence that plaintiff was not
in possession of suit property and except Exs.P1 and P2 no
other documents were produced by plaintiff during filing of suit.
It noted Ex.D2 – MR no.3/2004-05 was certified on 19.10.2004
in favour of defendant no.2. And suit was filed 10 months
thereafter. Therefore, plaintiff failed to prove his possession
over suit property and there would be no question of
interference by defendants.
48. While considering points no.1 and 2, first appellate
Court observed it was incumbent on plaintiff to establish his
lawful possession over suit property. It noted plaintiff reiterated
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plaint averments, examined three other witnesses and got
marked Exs.P1 to P11. On perusal of Ex.P1, it observed it was
unregistered sale agreement executed by Chikkamuniswamy,
accepting entire sale consideration and handing over
possession to plaintiff’s father. And from recitals, Ex.P1 was in
fact a sale deed. However, by observing that even in such case,
as it was an ancient document and as it was marked, there
would be no scope for defendants objecting against same and
plaintiff would only require to pay stamp duty/penalty.
49. It also noted Ex.P2 – RTC from 1964 to 1970 showed
name of Chikkamuniswamy in Column no.9 and name of
plaintiff’s father in Column no.12 (2) in respect of suit property.
And held, Exs.P1 and P2 established plaintiff’s possession over
suit property and defendants not concerned with it. It noted
since plaintiff’s possession over suit property was without
interference for more than four decades, plaintiff was entitled
for protection. It noted, though defendant no.2 to have
purchased suit property from defendant no.1 under Ex.D6 –
registered sale deed, he claimed, there was error in mentioning
correct survey number and extent, which percolated into
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subsequent alienations, and error was got rectified by Ex.P7 –
compromise decree and mutation of revenue records in
pursuance of same. It noted Ex.D11 – RTC of year 2002-03 in
respect of Sy.no.67/3 showed entry of name of defendant no.1
in Column no.9 as successor (Pouti Waras), which would be
impossible and indicated manipulation of revenue records and
also noting Ex.D13 issued by Taluka Surveyor showed
Chikkamuniswamy’s possession of 2 Acres 24 guntas in
Sy.no.67/3 and OS no.135/2004 for rectification of sale deed
was behind back of plaintiff, it held same to be not binding.
50. Insofar issues no.2, 3 and 4 answered by trial Court
as not surviving for consideration, it held same to be contrary
to Order XIV Rule 2 of CPC vitiating judgment and decree of
trial Court. Based on same, it set-aside judgment and decree of
trial Court. And for failure by defendant no.3 to enter witness-
box, it junked counter claim of defendant no.3.
51. Thus, neither of Courts answered issues no.2, 3 and 4
and committed error. But, same will not give rise to any
substantial question of law, as indisputably plaintiff herein is
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claiming to protect his possession over suit property under
agreement of sale.
52. On question, whether an agreement of sale would
vest any right, Hon’ble Supreme Court in case of RBANMS
Educational Institution v. B. Gunashekar, reported in 2025
SCC OnLine SC 793, held:
“15.1. Undoubtedly, a sale deed, which amounts to
conveyance, has to be a registered document, as
mandated under Section 17 of the Registration Act,
1908. On the other hand, an agreement for sale,
which also requires to be registered, does not amount
to a conveyance as it is merely a contractual
document, by which one party, namely the vendor,
agrees or assures or promises to convey the property
described in the schedule of such agreement to the
other party, namely the purchaser, upon the latter
performing his part of the obligation under the
agreement fully and in time. Section 54 of the
Transfer of Property Act, 1882 explicitly lays down
that a contract for sale will not confer any right or
interest. Section 53-A of the Transfer of Property Act,
1882 offers protection only to a proposed transferee
who has part performed his part of the promise and
has been put into possession, against the actions of
transferor, acting against the interest of the
transferee. For the proposed transferee to seek any
protection against the transferor, he must have either
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performed his part of obligation in full or in part. The
applicability of Section 53-A of the Transfer of
Property Act, 1882 is subject to certain conditions viz.,
(a) the agreement must be in writing with the owner
of the property or in other words, the transferor must
be either the owner or his authorised representative,
(b) the transferee must have been put into possession
or must have acted in furtherance of the agreement
and made some developments, (c) the protection
under Section 53-A is not an exemption to Section 52
of the Transfer of Property Act, 1882 or in other
words, a transferee, put into possession with the
knowledge of a pending lis, is not entitled to any
protection, (d) the transferee must be in possession
when the lis is initiated against his transferor and
must be willing to perform the remaining part of his
obligation, (e) the transferee must be entitled to seek
specific performance or in other words, must not be
barred by any of the provisions of the Specific Relief
Act, 1963 from seeking such performance. The
protection under Section 53-A is not available against
a third party who may have an adversarial claim
against the vendor. Therefore, unless and until the
sale deed is executed, the purchaser is not vested
with any right, title or interest in the property except
to the limited extent of seeking specific performance
from his vendor. An agreement for sale does not
confer any right to the purchaser to file a suit against
a third party who is either the owner or in possession,
or who claims to be the owner and to be in
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possession. In such cases, the vendor will have to
approach the court and not the proposed transferee.
15.2. In the present case, juxtaposing the above legal
principles to the facts of the case, we find that the
respondents’ claim suffers from multiple fatal defects
that go to the root of the case, which are as follows:
15.2.1. First, there is no privity between the
respondents and the appellant. The agreement to sell,
is not between the parties to the suit. According to
Section 7 of the Transfer of Property Act, 1882, only
the owner, or any person authorised by him, can
transfer the property. We have already held that an
agreement to sell does not confer any right on the
proposed purchaser under the agreement. Therefore,
as a natural corollary, any right, until the sale deed is
executed, will vest only with the owner, or in other
words, the vendor to take necessary action to protect
his interest in the property. According to the
respondents, the property belongs to the vendors and
according to the appellant, the property vests in them.
Since the respondents are not divested any right by
virtue of the agreement, they cannot sustain the suit
as they would not have any locus. Consequently, they
also cannot seek any declaration in respect of the title
of the vendors. But when the title is under a cloud, it
is necessary that a declaration be sought as laid down
by this Court in the judgment in Anathula Sudhakar v.
P. Buchi Reddy (Dead) by LRs and others. Therefore,
the suit at the instance of the respondents/plaintiffs is
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not maintainable and only the vendors could have
approached the court for a relief of declaration. In the
present case, strangely, the vendors are not arrayed
as parties to even support any semblance of right
sought by the respondents/plaintiffs, which we found
not to be in existence. Further, the
respondents/plaintiffs claim to have paid the entire
consideration of Rs.75,00,000/- in cash, despite the
introduction of Section 269ST to the Income Tax Act
in 2017 and the corresponding amendment to Section
271 DA. As held by us, the agreement can only create
rights against the proposed vendors and not against
third parties like the appellant herein. As the
agreement to sell does not create any transferable
interest or title in the property in favour of the
respondents/ plaintiffs, as per Section 54 of the
Transfer of Property Act, 1882, we hold that the
attempt of the plaintiffs to disclose the cause of action
through clever drafting, based solely on an agreement
to sell, must fail, as such disclosure cannot be
restricted to mere statement of facts but must
disclose a legal right to sue.
15.2.2. Secondly, and perhaps more fundamentally,
as we have seen and held above, the respondents
have no legal right that can be enforced against the
appellant as their claim is impliedly barred by virtue of
Section 54 of the Transfer of Property Act, 1882. Their
remedy, if any, lies against their proposed vendors.
The plaint averments remain silent regarding the
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execution of a registered sale deed in favour of the
respondents, which alone can confer a valid right on
them to file a suit against the appellant as held by us
earlier. Another, remedy available to them is to
institute a suit against the vendors for specific
performance. This principle was clearly established
in K. Basavarajappa (supra), wherein this Court held
that an agreement holder lacks locus standi to
maintain actions against third parties. The relevant
paragraph of the said judgment is extracted below:
“8. … By mere agreement to sell the appellant
got no interest in the property put to auction to
enable him to apply for setting aside such
auction under Rule 60 and especially when his
transaction was hit by Rule 16(1) read with
Rules 51 and 48. Consequently he could not be
said to be having any legal interest to entitle
him to move such an application. Consequently
no fault could be found with the decision of the
Division Bench of the High Court rejecting the
entitlement of the appellant to move such an
application.”
………
15.2.4. Further, the respondents are not in possession
of the property. Whereas, the appellant’s possession
since 1905 is admitted in the plaint itself. In such
circumstances, where the plaintiffs are not in
possession and the defendant is in settled possession
for over a century, a suit for bare injunction by a
proposed transferee is clearly not maintainable.
Section 41 (j) of the Specific Relief Act, 1963 prohibits
grant of injunction when the plaintiff has no personal
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interest in the matter. In the present case, the
respondents, being mere agreement holders,
have no personal interest in the suit schedule
property that can be enforced against third
parties. The “personal interest” is to be
understood in the context of a legally
enforceable right, as when there is a bar in law,
the mere existence of an interest in the outcome
cannot give a right to sue. As held by us above, no
declaratory relief has been sought as contemplated
under Section 34 of the Specific Relief Act, 1963. This
principle was clearly established in Jharkhand State
Housing Board (supra), in which, this Court
emphasized that where title is in dispute, a mere suit
for injunction is not maintainable. The relevant portion
of the said judgment is reproduced hereunder:-
“11. It is well settled by catena of judgments of
this Court that in each and every case where
the defendant disputes the title of the plaintiff it
is not necessary that in all those cases plaintiff
has to seek the relief of declaration. A suit for
mere injunction does not lie only when the
defendant raises a genuine dispute with regard
to title and when he raises a cloud over the title
of the plaintiff, then necessarily in those
circumstances, plaintiff cannot maintain a suit
for bare injunction.”
(emphasis supplied)
53. In fact, on very issue of maintainability of suit for
permanent injunction on basis of an unregistered agreement of
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sale of Hon’ble Supreme Court in case of Balram Singh v.
Kelo Devi, reported in (2024) 12 SCC 723, held:
“6. At the outset, it is required to be noted that the
original plaintiff instituted a suit praying for a decree
of permanent injunction only, which was claimed on
the basis of the agreement to sell dated 23-3-1996.
However, it is required to be noted that the
agreement to sell dated 23-3-1996 was an
unregistered document/agreement to sell on ten
rupees stamp paper. Therefore, as such, such an
unregistered document/agreement to sell shall not be
admissible in evidence.
7. Having been conscious of the fact that the plaintiff
might not succeed in getting the relief of specific
performance of such agreement to sell as the same
was unregistered, the plaintiff filed a suit simpliciter
for permanent injunction only. It may be true that in a
given case, an unregistered document can be used
and/or considered for collateral purpose. However, at
the same time, the plaintiff cannot get the relief
indirectly which otherwise he/she cannot get in a suit
for substantive relief, namely, in the present case the
relief for specific performance.
8. Therefore, the plaintiff cannot get the relief even
for permanent injunction on the basis of such an
unregistered document/agreement to sell, more
particularly when the defendant specifically filed the
counterclaim for getting back the possession which
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RSA No. 863 of 2009HC-KAR
was allowed by the learned trial court. The plaintiff
cleverly prayed for a relief of permanent
injunction only and did not seek for the
substantive relief of specific performance of the
agreement to sell as the agreement to sell was
an unregistered document and therefore on such
unregistered document/agreement to sell, no
decree for specific performance could have been
passed. The plaintiff cannot get the relief by
clever drafting.”
(emphasis supplied)
54. Consequentially, it has to be held, suit by plaintiff
herein as holder of an agreement of sale seeking declaratory
relief which were subject matter of issues no.2 to 4, as also suit
for bare injunction based on mere agreement of sale, against
defendants who according to plaintiff were third parties seeking
to interfere with his possession, but according to defendants,
they were purchasers of suit property from original owner,
would be in either case in view of ratio in B. Gunashekar and
Balram’s cases (supra), not maintainable.
55. In view of above, substantial question of law framed is
answered in negative. Consequently, following:
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ORDER
i) Appeal is allowed;
ii) Judgment and decree dated 25.04.2009
passed by I Addl. Civil Judge (Sr.Dn.),
Kolar, in RA no.170/2008 is set-aside;
iii) Judgment and decree dated 19.06.2008
passed by Civil Judge (Jr.Dn.),
Srinivaspur, in OS no.109/2005 is
restored.
Sd/-
(RAVI V HOSMANI)
JUDGE
GRD
List No.: 19 Sl No.: 1
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