M/S Asha Developers vs M/S Romell Properties
2013 Latest Caselaw 227 Bom

                                                    AO 916 OF 2013

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        vks
           IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                   
                   CIVIL APPELLATE JURISDICTION
                APPEAL FROM ORDER NO.916 OF 2013.




                                           
                               WITH
               CIVIL APPLICATION NO.1460 OF 2013.


        M/s Asha Developers




                                          
        and ors                            ..       Applicants.

                    V/s.




                                 
        M/s Romell Properties
        Pvt. Ltd and ors  ig               ..       Respondents.


        Mr. Kishore Patil a/w Sameer S. Kolge, for
                        
        the appellant.
        Mr. Sanjay Kothari a/w M/s Sheeja John i/by
        M/s M. P. Savla & Co. for the Respondent Nos 1
        & 2.
          

        Mr. Rohan S. Hadwale, for Respondent No.4.
       



                         CORAM : ANOOP V. MOHTA, J.

DATE : 28th November, 2013

Oral Judgment.

Heard finally by consent of the

parties.

2. The appellants/plaintiffs have

challenged order dated9th July, 2013, passed by

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AO 916 OF 2013

the City Civil Court, Dindoshi, thereby

rejected the Notice of Motion, for injunction

that defendant Nos 1 to 4 (respondents) be

restrained from disturbing possession of

plaintiff No.1 without following due process

of law. A Notice of Motion was also taken out

by the contesting defendants for injunction

against plaintiffs from carrying out

construction ig of compound wall and/or

construction of any nature whatsoever and to

remove the gate illegally put up by plaintiff

No.1 on the suit land (The property).

3. The appellants purchased the suit

property by a registered deed of conveyance

dated 24th February, 2011 from appellant Nos 2

to 6 (plaintiff Nos 2 to 6. As alleged,

respondent No.1 tried to trespass the property

and disturbing the possession, the plaintiffs

filed suit No.1307 for necessary declaration

and injunction alongwith Notice of the Motion.

4. Defendant Nos 1 & 2 had resisted the

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AO 916 OF 2013

same by filing a written statement to the

suit whereby claimed to be in possession of

the suit property. The parties have filed the

respective written notes of arguments

alongwith supporting documents.

5. The appellant/plaintiffs case is

revolving around registered conveyance deed of

22nd February, 2011. For the issue possession,

the supporting documents are telephone bills

and /or electricity bills and an affidavit of

defendant No.4, who stated to be in possession

since long. It is also alleged that in May,

2011, there was no objection received with

regard to the sale and/or transaction of the

property from any person. There is nothing on

record to show that defendant No.4 was the

owner of the property on the date of

transaction. The person in occupation and/or

possession, even if any, though denied by the

respondents, cannot be stated to be the owner

and/or have right or title to transfer the

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AO 916 OF 2013

property. The reference to the earlier

registered documents by the appellants, the

just cannot be overlooked while considering

the principles of grant of

injunction/protective order.

6. The appellants whole case of getting a

deed of relinquishment dated 13.5.2011 from

defendant No.4, who alleged to be in use and

occupation and possession from year 1971 and

even filing of an Affidavit of indemnity bond

in favour of plaintiff No.1, itself is an

issue in view of the admitted registered

document of respondent Nos 1 & 2 about the

property. The plaintiffs have not challenged

and prayed for setting aside these documents.

The prayers are for the declaration and

injunction against defendant Nos 1 to 3 not to

trespass and encroach upon the suit plot and

the permanent injunction from disturbing the

plaintiffs peaceful possession. The avernments

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AO 916 OF 2013

made paragraph Nos 21, 22 and 23 by the

plaintiff, itself shows that they were fully

aware of the transaction i.e. registered

document of the year 8.5.1987 and 18.9.2003.

Unless those registered document are quashed

and set aside and/or declared null and void.,

the submission and the averments made, itself

shows that at the relevant time or till the

date of filing of the suit, defendant No.4

and/or the plaintiffs were not in possession

of the property. How they get possession is

again a matter of discussion. In view of the

positive averments made in the written

statement by defendant Nos 1 & 2 while denying

avernments of possession so made by the

appellant plaintiff, the Court required to

consider at this stage the effect of

registered documents which are admittedly

prior in point of time.

7. It is quite settled that transfer of

immovable property once made by a registered

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AO 916 OF 2013

document, as in the present in the year 1987

itself, unless those documents are set aside

and declared null and void, the contents of

the documents need to be respected in every

aspect, including the issue with regard to the

possession of the property. Mere filing

affidavit by the owner even if any, is not

sufficient to set aside the registered sale

deed. There ig is no question of unilateral

cancellation of any sale deed by such

subsequent document even though it is

registered one. The aspect of sale of

immovable property pending registered

agreement in view of specific provisions of

the Transfer of Property Act, just cannot be

overlooked.

8. It is relevant to note, as relied by

the learned trial Judge the judgment of Full

Bench of Madras High Court in M/s Latif Estate

Line India Ltd -vs- Mrs. Hadeeja Ammal & ors,

reported in AIR 2011 MADRAS 66,

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"54. There is no provision in the Transfer of Property Act or in the

Registration Act, which deals with the cancellation of deed of sale. The

reason according to us is that the execution of a deed of cancellation by the vendor does not create,

assign, limit or extinguish any right, title or interest in the

immovable property and the same has no effect ig in the eye of law. A provision relating to the cancellation of a document is

provided in Section 31 of the Specific Relief Act, 1963 (Old Section 39). Section 31 reads as

under:

"31. When cancellation may be ordered: (1) Any person against

whom a written instrument is void or void able, and who has reasonable apprehension that such instrument, if left out

standing, may cause him serious injury, may sue to have it adjudged void or void able, and the Court may, in its discretion, so adjudge it and

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AO 916 OF 2013

order it to be delivered up and cancelled.

(2) If the instrument has been registered under the Indian

Registration Act, 1908 (16 of 1908), the Court shall also send a copy of its decree to

the officer in whose office the instrument has been so

registered; and such officer shall note on the copy of the

instrument contained in his books the fact of its

cancellation.

59. After giving our anxious

consideration on the questions raised

in the instant case, we come to the following conclusion:

(i) A deed of cancellation of a sale unilaterally executed by the transferor does not create,

assign, limit or extinguish any right, title or interest in the property and is of no effect.

Such a document does not create any encumbrance in the property

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AO 916 OF 2013

already transferred. Hence such a deed of cancellation cannot be

accepted for registration.

(ii) Once title to the property is vested in the transferee by the sale of the property, it

cannot be divested unto the transferor by execution and

registration of a deed of cancellation ig even with the consent of the parties. The proper course would be to re-

convey the property by a deed of conveyance by the transferee in favor of the transferor.

(iii) Where a transfer is effected by way of sale with the

condition that title will pass on payment of consideration, and such intention is clear from the recital in the deed, then such

instrument or sale can be cancelled by a deed of cancellation with the consent of both the parties on the ground of non-payment of consideration. The

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AO 916 OF 2013

reason is that in such a sale deed, admittedly, the title

remained with the transferor.

(iv) In other cases, a complete and absolute sale can be cancelled at the instance of the

transferor only by taking recourse to the Civil Court by

obtaining a decree of cancellation of sale deed on the

ground inter alia of fraud or any other valid reasons.

9. It is quite settled by Supreme Court

in Suraj Lamp and Industries Pvt. Ltd -vs-

State of Haryana, Mh. L. J. 2009 (6), page

11, that once the document is registered it

gives notice to the world that such document

is effective on full and complete account of

all transactions and respective obligation and

liability of the person who signed and

executed the document. This also cover and

declare the right, title and interest in the

property for all the other parties. The

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publication stated to be done in the present

case some time in May, 2011 was of no

consequence, so also the documents like;

Electricity bills and/or documents, telephone

bills, to overlook the registered legal

documents of the property even for the

possession.

10. The plaintiffs own case is that they

have got

relinquished deed of possession

and/or receipt of possession from defendant

No.4 recently. This itself shows and dis-

entitles the plaintiff to claim possession of

the property as sought to be contended as the

earlier registered document/deeds are not

contested and/or not got set aside and or

challenged.

11. The judgments cited by the learned

counsel, appearing for the respondent in line

for the contentions about the possession of

property under Order 39 Rule 1 & 2 Shamrao

Ganpat Chintamani -vs- Kakasaheb Laxman Gorde,

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2008 (2) Mh. L. J. 819, Sanjay Shrikrishanji

Somani and anr -vs- Vishnupant Shankarrao

Shahane, 2007 (6) Mh. L. J. 550, Nandkumar

Gangadhar Agarmore -vs- Laxmibai Ganpat Khade,

1984 Mh. L. J. page. 915, are with regard to

the protection of possession, pending the

trial and/or settlement of dispute so raised

are also of no assistance, as in view of

admitted position on the record with regard to

the earlier registered transactions for the

property. The appellants are claiming only

possession of the property against the

owner/defendant Nos 1 & 2.

12. The avernments of appellant in the

plaint and in the supportive documents, itself

dis-entitle them to reopen the possession

issue even if any. Such avernments are self

contradictory and self destructive. Merely

raising a challenge to those documents without

asking for any reliefs for setting aside the

same, in my view, itself sufficient to deny

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them injunction so prayed by the plaintiff.

13. It is not a question of deciding prima

face case and/or balance of convenience and

equity. The delay in challenging those

registered documents and effect of this

registered document supports the case pf

defendant Nos 1 & 2, who are the legal owners

of the property. Mere filing of the affidavit

by earlier vendor/seller of the property, In

support of appellant in no way sufficient to

grant of interim relief so prayed.

14. The learned Judge, therefore, by

giving reasons considering the provisions of

the Act and the factual position on record

refused to grant interim relief in favour of

the appellant. There is no case of grant of

any relief in view of above for the first

time. Therefore, taking overall view of the

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matter, I see there is no reason to interfere

with the order so passed. The appeal is

dismissed, so also the application. No order

as to costs.

(ANOOP V. MOHTA, J.)

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