Delhi High Court

Veena Mahajan vs V.N Verma on 2 February, 2023

2023/DHC/000740

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 02nd February, 2023

+ EX.P. 282/2012
VEENA MAHAJAN ..... Decree Holder
Through: Ms. Geeta Luthra, Sr. Advocate
with Ms. Shivani Luthra Lohiya,
Ms. Maitry Bhandari, Ms. Apoorva
Maheshwari & Ms. Pragati
Srivastava, Advocates.

versus

V.N VERMA ..... Judgement Debtor
Through: Mr. A.K. Singla, Sr. Advocate with
Mr. Rahul Shukla & Mr. Sayantani
Basak, Advocates.
Mr. Ashok Gurnani, Advocate for
Objector.
CORAM:
HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA

J U D G M E N T

EX. APPL. (OS) 682/2012 (u/S 47 r/w Section 151 of CPC, 1908)

1. This is a case where the dream of the Decree Holder to own a home
became a reality when the Suit for Specific Performance of an Agreement
to Sell was decreed with alacrity in less than two months. However, it
turned into a mirage as she embarked on a long and arduous journey on
the path of execution since 1988, which continues even after 38 years.
The adage by an unknown Writer "The Hurrier I Go, The Behinder I Get"
aptly explains the dilemma of Decree Holder. The journey to realize the

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fruits of the Decree may still not end with the determination of these
Objections.
2. This case reflects the archetype challenges of an adversarial
litigation system and urgently requires the attention of all the stakeholders
to assume responsibility to work out a mechanism to ensure that the
person with a Decree is not left only with papers which do not materialize
into fruition.
3. The Objections under Section 47 read with Section 151 of the Code
of Civil Procedure, 1908 (hereinafter referred to as "CPC, 1908") have
been filed on behalf of Ms. Meena Rani Gupta and Ms. Nalini Gupta
(hereinafter referred to as "Objectors") in the Execution Petition filed on
behalf of Ms. Veena Mahajan, Decree Holder (hereinafter referred to as
"DH") for execution of the Judgment and Decree dated 29 th April, 1988 in
Suit No. 553/1998 for Specific Performance of an Agreement to Sell
which was decreed in favour of the plaintiff/DH.
4. The suit property got subjected to chain transactions of Sale on the
basis of Agreements to Sell and other ancillary documents. Mr. V.N.
Verma, Judgement Debtor (hereinafter referred to as "JD"), the original
owner, sold his Property bearing Plot No. 40 situated at Chitra Vihar
behind Radhu Cinema in the Village Khreji Khas, Elaka Shahdara,
Delhi-110092 (hereinafter referred to as "suit property") to the DH Ms.
Veena Mahajan vide Agreement to Sell dated 14th February, 1986. The
JD again entered into a sale transaction in regard to this property on 21 st
January, 1988 by executing an Agreement to Sell, Undertaking/affidavit &
Registered Will in favour of Kamlesh Gupta and Registered Special
Power of Attorney & General Power of Attorney in favour of her husband,

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Mr. Gagan Prasad Gupta. In part performance of the Agreement to Sell,
they were put in physical possession of the suit property by the JD, and
under the Agreement to Construction, they were fully authorized to raise
or construct the building and further use the building for the residence of
himself/herself or his/her nominee or to let out the property to anybody in
part or full, and collect the rent from such tenants.
5. In the integrum, Civil Suit bearing No. 533/1988 titled Veena
Mahajan vs. V.N. Verma for Specific Performance and Possession and in
the alternative for Refund of the Part Payment and Damages was filed by
the DH on 07.03.1998 (i.e., after the execution of the Agreement to Sell
dated 21st January 1988 in favour of Kamlesh Gupta).
6. This Court vide Order dated 14th March, 1988 passed an interim
order restraining the defendant i.e., V.N. Verma (JD) by way of temporary
injunction from selling or parting with the possession or creating any
third-party rights in the property.
7. The Suit was decreed vide Judgement dated 29th April, 1998. The
operative part of judgement reads as under:
"This suit on this coming day for final disposal before this
court in the presence of the counsel for the parties as
aforesaid, it is ordered that a decree for specific performance
of the Agreement to Sell dated 14.02.1986 with regard to plot
No, situated at village Khureji Khas, measuring 3602 sq. yards
in Chitra Vihar, be and the same is hereby passed in favour of
the Plaintiff and against the defendant directing:
(i) the plaintiff to deposit the sum of Rs. 70,000/- on
or before 31.07.1998:
(ii) on the plaintiff depositing the amount, the
defendant shall execute necessary document in
favour of the plaintiff within thirty days from the

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date of deposit and in the event of the defendant
not executing the necessary document, the
plaintiff shall be entitled to apply for a proper
direction for the appointment of an officer of this
Court for the purpose of executing the required
documents in favour of the plaintiff and for
registering the same at the cost of the plaintiff"
8. While the Execution was pending, Ms. Kamlesh Gupta and Mr.
Gagan Prasad Gupta further sold the suit property to the Objectors by
executing an Agreement to Sell, Registered Will, General /Special Power
of Attorney and Receipt dated 26th November, 1990 and handed over the
actual physical and vacant possession of the plot to them in part
performance thereof. The Objectors were given similar assurance at the
time of execution of Agreement to Sell that they shall be entitled to hold,
enjoy and use the plot and put it to use as permissible under law without
any hindrance either from Ms. Kamlesh Gupta or from the confirming
party or any other person claiming through or under them. In addition to
this, the Agreement to Sell also contained a clause that the plot in question
was absolutely free from any kind of encumbrances.
9. An Agreement for Building Construction dated 11 th September,
1990 was also executed by the JD acting through Attorney Ganga Parshad
Gupta in favour of Mr. Binod Kumar Gupta, husband of Ms. Meena Rani
Gupta, applicant No. 1 and Mr. Anant Kumar Gupta, husband of Ms.
Nalini Gupta, applicant No. 2.
10. The JD challenged the Judgement and Decree by filing the
RFA (OS) 86/1998. The Objectors came to know for the first time on
07th December, 1998, about the pendency of the present Suit. They moved
an application under Order I Rule 10 of CPC, 1908 to be impleaded as a
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party in the said appeal but the application for impleadment was dismissed
by observing that the Objectors were strangers to the suit. The application
was also dismissed by the Division Bench by its Judgement dated
18th January, 2012.

11. This led the Objectors to file an independent Appeal vide RFA (OS)
125/1998 against the Judgement dated 18th January, 2012, but it met the
same fate of dismissal. However, while dismissing the Appeal, the
Division Bench observed that whatever defences are available to the
appellants to seek possession of the suit property, may be raised at the
time of execution of the Decree.

12. The Objectors, thereafter, filed a petition under Article 136 of the
Constitution of India seeking leave of the Hon'ble Apex Court, but the
petition was dismissed vide Order dated 04th July, 2012.
13. The Objectors have then filed a Suit bearing No. CS (OS) 779/2001
for Specific Performance and in the alternative for Damages which is
pending disposal.
14. The DH filed the present Execution petition for execution of the
Judgement and Decree dated 29thApril, 1998. The Objectors have filed
against the Objections under Section 47 of CPC, 1908 for protection of
their possession as they are in physical possession of the suit property by
way of part performance of the Agreement to Sell dated 26th November,
1990 under Section 53A of Transfer of Property Act, 1882 (hereinafter
referred to as "TPA, 1882"). The Objectors have asserted that while
entering into the transaction on 26th November, 1990, neither were they

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aware that the JD had already entered into an Agreement to Sell with DH
nor was the pendency of suit in their knowledge.
15. It is further asserted that a fraud has been committed on the Court
on account of collusion between DH and JD. Despite the JD's admissions
in the cross-examination as DW-1 during the trial that he had entered into
an Agreement to Sell with Ms. Kamlesh Gupta, no steps were taken either
by JD or DH to implead Ms. Kamlesh Gupta as a party to the Suit.
16. The JD was not in physical possession of the suit property at the
time of institution of the suit. The Agreement to Sell was executed by JD
in favour of Ms. Kamlesh Gupta prior to filing of the suit and the doctrine
of lis pendens enshrined under Section 52 of the TPA, 1882 is not
applicable. The Objectors have asserted that they have independent rights
and are entitled to protection of their possession by virtue of Section 53A
of TPA, 1882.
17. The Objectors have stated that the question of law that has arisen is
whether the person having an Agreement to Sell, who may not be affected
by Section 52 of TPA, 1882, would have the protection of Section 53A of
the TPA, 1882 and if so, whether such person is bound by a Decree made
in respect of the immovable property to which they were not made a party.
18. It is submitted that this Court under Order I Rule 10 of CPC, 1908
may add the Objectors as a party to the present proceedings as has been
held in Baster Transport and Trading Co. & Anr. vs. Court of Wards
Baster and Anr AIR 1955 Nagpur 78. The Objectors have a locus standi
to file the objections for which reliance is placed on Kancherla
Lakshminarayana vs. Mattararthi Syamala and Ors. 2008 (14) 258. A

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prayer has, therefore, been made that the objections may be allowed, and
the execution proceedings be dismissed.
19. The DH, VeenaMahajan in her Reply to the objections has taken
a preliminary objection that the Objectors have already availed all the
remedies and all their applications and appeals have been dismissed. The
present Objections are frivolous and have been filed only with the
dishonest intention to delay the proceedings.
20. In response to the contention of part performance, it is asserted that
the Objectors cannot avail any protection under Section 53A of
TPA, 1882 as the same is available only against the transferor and not a
third party for which reliance has been placed on Rambhau Namdeo Gajre
vs. Narayan Bapuji Dhotra (2004) 8 SCC 614. The protection of part
performance could have been availed by the objectors from the alleged
Transferor i.e., Ms Kamlesh Gupta who was not a party to the main suit.
21. On merits, all the averments made in the application are denied by
the DH.
22. Submissions heard.
23. Admittedly, the JD who was the owner of the suit property, entered
into an Agreement to Sell dated 14th February, 1986 with the DH, but
failed to execute the Sale Deed. The DH filed a Suit for Specific
Performance in 1988 which was decreed vide Judgement/Decree dated
29th April, 1988, the execution of which has been sought by way of
present Execution Petition.
24. The Apex Court in Sanjeev Lal and Others vs. Commissioner of
Income Tax, Chandigarh and Another, (2015) 5 SCC 775 observed that
when a right is created in favour of the Vendee, the Vendor is restrained

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from selling the said property to someone else because the vendee, in
whose favour a right in personam is created, has a legitimate right to
enforce specific performance of the Agreement, if the Vendor for some
reason is not executing the sale deed. It can thus be extrapolated that the
consequence of execution of the Agreement to Sell is that the owner
cannot sell the property to someone else and the Vendor's right to further
sell the property stands extinguished.
25. Undeterred and in defiance of the legal embargo as explained in
Sanjeev Lal (supra), the JD went ahead and executed the Agreement to
Sell, registered Will, registered General /Special Power of Attorney, all
dated 21st January, 1988 in favour of Ms. Kamlesh Gupta and her
husband, Gagan Parshad. Thereafter, the present suit was filed in March,
1988 by the DH and Injunction order was granted on 14th March, 1988
which is subsequent to the delivery of possession of the suit property by
the JD to Ms. Kamlesh Gupta.Ms. Kamlesh Gupta in turn executed the
Agreement to Sell dated 26th November, 1990 in favour of the Objectors,
who were then put in possession of the suit property.

Doctrine of Lis Pendis under Section 52 of the Transfer of Property
Act, 1882:

26. The Objectors have claimed that the doctrine of lis pendis is not
applicable to them since they derive their title, not from the JD, but from
Ms.Kamlesh Gupta, who was not a party to the suit.
27. Significantly, the Objectors' claim to title is based on the
transaction entered into during the pendency of the Execution of the

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decree made in the Suit i.e., they are the transferee pendent lite deriving
their rights from the JD even though through Kamlesh Gupta.
28. The Rule of lis pendisis based on the principles of justice, equity
and good conscious, which is enshrined in Section 52 of the TPA, 1882. It
reads as under: -
"Section 52 -Transfer of property pending suit relating
thereto.--
During the pendency in any Court having authority within the
limits of India excluding the State of Jammu and Kashmir or
established beyond such limits by the Central Government of
any suit or proceedings which is not collusive and in which any
right to immoveable property is directly and specifically in
question, the property cannot be transferred or otherwise dealt
with by any party to the suit or proceeding so as to affect the
rights of any other party thereto under any decree or order
which may be made therein, except under the authority of the
Court and on such terms as it may impose.
Explanation.--For the purposes of this section, the pendency of
a suit or proceeding shall be deemed to commence from the
date of the presentation of the plaint or the institution of the
proceeding in a Court of competent jurisdiction, and to
continue until the suit or proceeding has been disposed of by a
final decree or order and complete satisfaction or discharge of
such decree or order has been obtained, or has become
unobtainable by reason of the expiration of any period of
limitation prescribed for the execution thereof by any law for
the time being in force."

29. In Ballamy vs. Sabine,(1857) 1 DeG&J 566, Lord Cranworth, L.C.
about one and a half centuries back, explained that this doctrine is based
on the necessity of putting an end to litigation which otherwise would
continue ad infinitum. The relevant paragraph reads thus:

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"...where a litigation is pending between a plaintiff and a
defendant as to the right to a particular estate, the necessities of
mankind require that the decision of the Court in the suit shall
be binding not only on the litigating parties, but also on those
who derive title under them by way of alienations made during
the pendency of the suit, whether such alienees had or had not
notice of the pending proceedings. If this is not so, there could
be no certainty that the litigation would ever come to an end."

30. In Amit Kumar Shaw vs. Farida Khatoon (2005) 11 SCC 403, the
Hon'ble Apex Court observed that the doctrine of lis pendens, therefore,
applies only when the lis is pending before a Court. It enumerated the
following elements that should be present in order to constitute lis
pendens:
"1. There must be a suit or proceeding pending in a court of competent
jurisdiction.
2. The suit or proceeding must not be collusive.
3. The litigation must be one in which the right to immovable property
is directly and specifically in question.
4. There must be a transfer of or otherwise a dealing with the property
in dispute by any party to the litigation.
5. Such transfer must affect the rights of the other party that may
ultimately accrue under the terms of the decree or order."

31. In Smt. Ram Peary vs. Gauri and Ors., AIR 1978 All 318, the Full
Bench of Allahabad High Court explained that this rule is based on the
principles of public policy wherein a purchaser who purchases during the
pendency of a suit need not be impleaded as a party and shall have
subservient rights in comparison to the litigating parties. It expounded the
doctrine of lis pendens as follows:

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"...Ordinarily, it is true that the judgment of a court binds only the
parties and their privies in representations or estate. But he who
purchases during the pendency of an action, is held bound by the
judgement that may be against the person from whom he derives
title. The litigating parties are exempted from taking any notice of
the title so acquired; and such purchaser need not be made a party
to the action. Where there is a real and fair purchase without any
notice, the rule may operate very hardly. But it is a rule founded
upon a great public policy; for otherwise, alienations made during
an action might defeat its whole purpose, and there would be no
end to litigation. And hence arises the maxim pendente lite, nihil
innovetur; the effect of which is not to annul the conveyance, but
only to render it subservient to the rights of the parties in the
litigation. As to the rights of these parties, the conveyance is
treated as if it never had any existence; and it does not vary them."

32. The Hon'ble Apex Court in the case of Usha Sinha vs Dina Ram
(2008) SCC 144 explained the rights of the transferee pendent lite by
observing that a transferee from a Judgment Debtor is presumed to be
aware of the proceedings before the Court of Law. Thus, he should be
careful before he purchases the property which is the subject matter of
litigation. Rule 102 of Order XXI of CPC, 1908 thus takes into account
the ground reality and refuses to extend a helping hand to purchasers of a
property in respect of which the litigation is pending. It recognizes the
doctrine lis pendens contained in Section 52 of the TPA, 1882. Similar
observations were made by the Apex Court in Sarvinder Singh vs. Dalip
Singh (1996) 5 SCC 539.
33. In Sanjay Verma vs. Manik Roy and Ors. (2006) 13 SCC 608, in
accordance with equity, good conscience and justice, applying the
principles of public policy as contained in Section 52 of TPA, 1882, it was

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concluded that it will be impossible to bring an action or suit to a
successful termination if alienations are permitted to prevail and no
question of good faith or bona fide arises. A Transferee pendente lite is
bound by the decree just as if he was a party to the Suit. The mere
pendency of a suit does not prevent one of the parties from dealing with
the property constituting the subject matter of the suit. The section only
postulates a condition that the alienation will in no manner affect the
rights of the other party under any decree which may be passed in a Suit,
unless the property was alienated with the permission of the court. The
view expressed in Ballamy (supra) were thus endorsed.
34. Similarly, in M.S. Mansoor Deen and Ors. vs. Fathimuthu Bevy
&Ors. (2009) 4 CTC 489, the Madras High Court observed that the
transferees pendente lite from the JD having no independent right in the
teeth of Section 52 of the TPA, 1882, cannot resist the execution since
under the doctrine of lis pendens a Decree passed in a suit during the
pendency of which a transfer is effected, makes the decree binding on the
transferee.
35. In Silverline Forum Private Limited vs. Rajiv Trust (1998) 3 SCC
723, while considering the resistance caused by the transferee pendente
lite, the Hon'ble Apex Court held that the scope of the adjudication is
confined to the question of whether he was a transferee during the
pendency of the suit in which the decree was passed. If such finding is in
affirmative, the executing court must hold that he has no right to resist or
obstruct the proceedings and such person cannot seek protection from the
executing Court. The exclusion of such a third party Transferee from
raising further contentions is based on the salutary principle adumbrated

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in Section 52 of TPA, 1882. For example, if the obstructer admits that he
is the Transferee pendente lite, it is not necessary to determine a question
raised by him that he was unaware of the litigation when he purchased the
property. Similarly, a third-party who questions the validity of a transfer
made by a DH to an assignee, cannot claim that the question regarding its
validity should be decided during the executing proceedings.
36. Hence, the question for determination is whether the title of the
Objectors is superior to that of the Decree Holder and whether they are
entitled to remain in possession on the strength of the Agreement to Sell
dated 26th November, 1990 executed in their favour by Ms. Kamlesh
Gupta.
37. The Agreement to Sell was executed by the JD in favour of the DH
on 14th February, 1986. Subsequently, he entered into another Agreement
to Sell with Ms. Kamlesh Gupta on 21.01.1988, which is prior to the
institution of this Suit. Once the Agreement to Sell had already been
executed in favour of the DH on 14th February, 1986, any subsequent
Agreement to Sell would obviously be subject to the earlier interest
already created by way of the Agreement to Sell dated 14th February,
1986.
38. Ms. Kamlesh Gupta could have sought execution of Agreement to
Sell only if she could establish that her title was superior to that of the
DH. But in the absence of any Sale Deed in her favour, she could not have
asserted any ownership rights. Thus, merely on the basis of an Agreement
to Sell, she could not have transferred the ownership rights which she
herself did not possess.

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39. The sole claim of the Objectors' rests on the Agreement to Sell
dated 26th November, 1990 executed by Ms. Kamlesh Gupta during the
pendency of the present Suit. From the admitted facts, it is evident that
Ms. Kamlesh Gupta merely had an Agreement to Sell and other
documents in her favour, but the big question is whether the mere
execution of an Agreement to Sell amounted to sale of the suit property as
defined under Section 54 of TPA, 1882 or whether it was merely an
Agreement subject to the rights of the owner i.e., the JD.
40. Ms. Kamlesh Gupta and her husband Gagan Parshad are the
predecessor-in-interest through whom the Objectors are claiming a right
and title which cannot be better than that of the predecessor-in-interest
i.e., Ms. Kamlesh Gupta. Rather, the rights of Ms. Kamlesh are
subservient to those of DH as held in the case of Ram Peary (supra). In
addition to this, the JD, having entered into Agreement to Sell dated 14th
February, 1986 with the DH, was enjoined by law from entering into any
further sale transaction with third party. The facts in hand get squarely
answered by the decision of the Apex Court in Sanjeev Lal (supra).
41. The DH has already got a Decree dated 29th April, 1988 in her
favour and has been held to be entitled to specific performance on the
basis of Agreement to Sell dated 14th February, 1986 which is prior to the
documents dated 21st January, 1988 executed in favour of Kamlesh
through whom the Objectors are claiming a title.
42. Though the Agreement to Sell between the JD and Kamlesh Gupta
was executed on 21st January, 1988 i.e., prior to the institution of the Suit
by the DH, the Agreement to Sell dated 26th November, 1990 between
Kamlesh Gupta and the Objectors was executed subsequent to the Decree

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for Specific Performance dated 29th April, 1988 in favour of DH. Thus,
Kamlesh Gupta and Ganga Prasad Gupta, though not a party to the Suit,
were made party to the Execution Petition No 282/2012 for the execution
of the Decree in CS (OS) 553/1988.
43. The explanation to Section 52 of TPA, 1882 provides that lis
pendens subsists until the decree is discharged. With the execution of the
decree yet to be effected, Suit No 553/1998 is still lis pendence for the
purposes for section 52 of the TPA, 1882 making the transaction between
Kamlesh Gupta and the Objectors fall under the scope of Section 52 of
TPA, 1882. As observed in Sanjay Verma (supra), a Transferee pendente
lite is bound by the decree, thus making the appellants, who were
transferees from Kamlesh Gupta, bound by the Decree.
44. In Surjit Singh vs. Harbans Singh (1995) 6 SCC 50, the Hon'ble
Apex Court answered the question of whether a person to whom the suit
property is alienated after passing of the preliminary decree by the trial
court which had restrained the parties from alienating or otherwise
transferring the suit property, has the right to be impleaded as party, in the
negative. While rejecting the impleadment of the assignees, the Hon'ble
Apex Court had also observed that if alienation/assignment is allowed in
defiance of the restraint order, it would defeat the ends of justice and the
prevalent public policy. When the Court intends a particular state of
affairs to exist while it is in seisin of a lis, that state of affairs is not only
required to be maintained but is presumed to exist till the Court orders
otherwise. The court in these circumstances has the duty, as also the right,
to treat the alienation/assignment as having not taken place at all for its
purposes.

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45. In Vidur Impex and Traders Private Limited vs. Tosh Apartments
Private Limited and Others (2012) 8 SCC 384, while making a reference
to Surjit Singh (supra), it was held that where an Agreement to Sell was
made and even the Sale Deed pursuant thereto was executed by
respondent No. 2 in favour of the appellants in a clandestine manner and

in violation of the injunction granted by the High Court, it cannot be said that any valid title or interest has been acquired by the appellants in the suit property by virtue of such a Sale Deed.

46. Thus, the transaction inter se between Ms. Kamlesh Gupta and the applicant dated 26.11.1990 is covered by doctrine of lis pendens as provided in Section 52 of the Transfer of Property Act, 1882 and the rights acquired, if any, by the applicant was subject to the outcome of the pending suit. This suit has been decreed in favour of the DH, Veena Mahajan and her rights have crystallized into a superior title and Ms. Kamlesh Gupta cannot claim any right title merely on the basis of an Agreement to Sell. Ms. Kamlesh Gupta could not have transferred any title better than what she had in favour of the Objectors. Thus, even if she executed an Agreement to Sell, Will, Special Power of Attorney, General Power of Attorney and Receipt all dated 26th November, 1990 in favour of the Objectors, their rights were not only hit by the doctrine of lis pendens, but also were subject to the decree which has been given in favour of the DH Veena Mahajan.

47. The Objectors do not have any valid independent right title in the property and thus, their objections are without merit and have no right to seek protection of their possession.

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Protection of possession under Section 53A of the Transfer of Property Act, 1882:

48. The Objectors may have been put in possession pursuant to the Agreement to Sell dated 26.11.1990 by Ms. Kamlesh Gupta, but the other aspect is whether they can seek any protection under Section 53A of TPA, 1882.

49. The essential conditions which are required to be fulfilled if a transferee wants to defend or protect his possession under Section 53A of the TPA, 1882 have been explained by the Apex Court in Shrimant Shamrao Suryavanshi vs. Pralhad Bhairoba Suryavanshi (2002) 3 SCC 676 which are:

"1. There must be a contract to transfer for consideration of any immovable property;

2. The contract must be in writing, signed by the transferor, or by someone on his behalf;

3. The writing must be in such words from which the terms necessary to construe the transfer can be ascertained;

4. The transferee must in part-performance of the contract take possession of the property, or of any part thereof;

5. The transferee must have done some act in furtherance of the contract;

6. The transferee must have performed or be willing to perform his part of the contract."

50. If these conditions are fulfilled, then the equitable doctrine of part-performance provided under Section 53A of TPA, 1882 comes into play in favour of the proposed Transferee who can protect his possession against the proposed transferor, even though the Registered Deed conveying the title is not executed by the proposed Transferor. The protection provided under Section 53A of TPA, 1882 is only against the

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Transferor. It disentitles the transferor from disturbing the possession of the proposed Transferee who is put in possession in pursuance of such an Agreement to Sell.

51. In State of U.P. vs. District Judge & Ors. 1997 (1) SCC 496, it was observed that the protection is available under the TPA, 1882 as a shield only against the transferor and the proposed vendor who is disentitled from disturbing the possession of the proposed Transferees who are put in possession pursuant to such Agreement. But this has nothing to do with the ownership of the proposed Transferor who remains the full owner of the said land till it is legally conveyed by Sale Deed to the proposed Transferees. It was further observed that Section 53A of TPA, 1882 is merely to protect the possession of the proposed vendee and may entitle him to protection of the possession which they have acquired pursuant to an Agreement to Sell but such a right cannot be pressed against a third party.

52. The pertinent question which arises in the facts of this case is whether the doctrine of part-performance can be availed by the Objectors with whom the judgement debtor has never entered into an Agreement of Sale. In Rambhau Namdeo Gajre vs. Narayan Bapuji Dhotra (2004)8 SCC 614, similar facts as in hand came up for consideration. The owner executed an Agreement to Sell with one Pishorrilal who also took possession in part-performance thereof. Sale deed had never been executed. Within a period of two and a half months, the Pishorilal executed a similar agreement of sale in favour of the appellant and put them in possession of the suit land. Pishorrilal who merely had an

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Agreement to Sell in his favour, had no ownership right and thus was held to have no right to enter into an Agreement to Sell with the appellants.

53. In the present facts as well the owner had executed an Agreement to Sell in favour of one Ms. Kamlesh Gupta who in turn executed another Agreement to Sell in favour of the present Objectors vide Agreement to Sell dated 26th November, 1990, and also put them in possession. Ms. Kamlesh Gupta being merely having an Agreement to Sell was not the owner and could not have possibly entered into the Agreement to Sell in respect of the suit property with the present Objectors.

54. In Rambhau Namdeo Gajre (supra), it was observed that an Agreement to Sell does not create any interest of the proposed vendee in the suit property. As per Section 54 of TPA, 1882 the title in immovable property valued at more than Rs. 100 can be conveyed only by executing a registered sale deed. This Section 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 by itself create any interest in or charge on such property. Unless a registered document of sale is executed pursuant to the Agreement to Sell in favour of the proposed transferee, the title of the suit land continues to vest in the original owner and the property remains in his ownership. The doctrine of part performance can be availed by the proposed transferee against the Transferor or any person claiming under him and not against the third party with whom he does not have any privity of contract.

55. The Scope of Agreement to Sell and the right, title and interest which are created under an Agreement to Sell was explained by the Apex

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Court in Suraj lamp and Industries private limited vs. State of Haryana (2012) 1 SCC 656. It was held that the Agreement to Sell coupled with other documents namely Special Power of Attorney, General Power of Attorney are not transactions of transfer or sale and cannot be treated as a complete sale or conveyance. They may continue to be treated as existing Agreement to Sell and nothing prevents the affected parties from getting registered deeds of conveyance to complete their title. These documents may even be used to obtain specific performance or to defend possession under Section 53A of the TPA, 1882 or may also be used to apply for regularization of allotments/leases by development authorities. However, the Agreement to Sell independently continues to be only an agreement and does not create any valid transfer of ownership in the suit property.

56. In Rekha Nankani vs. Kulwant Singh Sachdeva and Ors. (2009) 107 DRJ 282, this Court observed that if a property was bound by the Agreement of the owner/vendor, then merely because the vendor had transferred the property, the transferee shall not acquire rights better than that of the vendor and shall be subject to the liability of the vendor. Similar observations were made by the High Court of Allahabad in Smt. Ram Peary (supra).

57. Therefore, in view of the law as laid down in the afore-discussed case law, it may be concluded that the Objectors are not entitled to any protection of their possession under Section 53-A of TPA, 1882. Alleged Fraud and Collusion between the Decree Holder and the Judgement Debtor:

58. A plea has been set up by the Objectors that the Judgement and Decree dated 29th April, 1988 is not executable as it has been obtained by

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fraud and collusion between the decree holder and the judgement debtor with the view to cause prejudice to the interest of Kamlesh Gupta in the property in question, who was having enforceable rights against the property in view of the Agreement to Sell dated 21st January, 1988 having been executed in her favour and she being put in physical possession of the property in question.

59. Though a plea of fraud has been taken on behalf of the applicant, but aside from claiming a fraud and collusion between the decree holder and the judgement debtor, no further facts have been disclosed from where any inference of there being fraud and collusion can be inferred. In fact, the Agreement to Sell dated 14th February, 1986 executed in favour of the DH, Ms. Veena Mahajan was prior to the Agreement to Sell dated 21st January, 1988 executed in favour of Ms. Kamlesh Gupta. No fraud or collusion has been even prima facie disclosed by the applicant in its objections.

60. Moreover, the JD had filed an appeal by way of RFA (OS) 86/1998 challenging the Decree in favour of the DH which was dismissed on merits on18th January, 2012.The conduct of the JD also does not reflect any collusion with the DH.

Cancellation of earlier Agreement to Sell dated 14th February, 1986:

61. The Objectors have further asserted their right over the suit property by claiming that there is no finding in the judgement that the JD had entered into an Agreement to Sell with Ms. Kamlesh Gupta only after cancellation of the Agreement with the DH in respect of the suit premises. In the absence of any such determination of the controversy about the

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Agreement to Sell in favour of DH having been cancelled by the JD before entering into Agreement to Sell with Ms. Kamlesh Gupta, the Decree of Specific Performance could not have been passed against the JD.

62. This argument is completely fallacious because all the aspects surrounding the Agreement to Sell had been specifically considered while allowing the decree of specific performance in favour of the DH. The aspect of cancellation of the Agreement to Sell in favour of the DH was specifically considered in the judgement dated 29th April, 1998. This aspect of cancellation of the Agreement to Sell in favour of decree holder was also specifically considered in RFA (OS) 86/1998 and the same was negated. Moreover, it is not within the scope of the Objectors to challenge the Decree dated 29th April, 1988 itself, which has already attained finality.

Bona fide Purchase: Not Aware of the previous Agreement to Sell in favour of DH:

63. The Objectors have set up a defence that they were not aware of the Sale Agreement between the DH and the JD. Section 19 of the Specific Relief Act, 1963 provides for the relief to the parties claiming under them by subsequent title. It reads as under:

"Section 19:

Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against--

(a) either party thereto;

(b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of

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the original contract;

(c) any person claiming under a title which, though prior to the contract and known to the plaintiff, might have been displaced by the defendant;

(d) when a company has entered into a contract and subsequently becomes amalgamated with another company, the new company which arises out of the amalgamation;

(e) when the promoters of a company have, before its incorporation, entered into a contract for the purpose of the company and such contract is warranted by the terms of the incorporation, the company: Provided that the company has accepted the contract and communicated such acceptance to the other party to the contract."

64. Lord Buckmaster speaking for a five judge bench in Mt. Fatima Bibi vs. Saadat Ali, AIR (1930) Privy Council while interpreting a parimateria provision of Section 27 (b) of the old Specific Relief Act held that even though the title may be subsequent to the Agreement to Sell of which specific performance is claimed, but if that title was in pursuance to an Agreement of a date earlier to the date of the Agreement of which specific performance was claimed, then the plaintiff is not entitled to the relief of specific performance.

65. In R.K. Mohammed Ubaidullah & Ors. vs. Hajee C. Abdul Wahab (D) Ors. (2000) 6 SCC 402, the Hon'ble Apex Court observed that the person who purchases the property should have made necessary effort to find out whether the title or interest of the person from whom he is making purchase of the property was in actual possession of such property. Considering the effect of Section 19 of the Specific Relief Act, 1963, and Section 52 of TPA, 1882, it was held that subsequent

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purchasers have to be fairly informed before he purchases the suit property.

66. Similar facts as in hand came for consideration in Guruswamy Nadar vs P. Lakshmi Ammal (2008)5 SCC 796, wherein the during the pendency of a suit for specific performance, the owner sold the property to another person and the contention of bonafide purchaser was examined. It was held that the defence of bonafide purchase is not applicable during lis pendens.

67. This plea of being unaware of the prior Agreement to Sell or of bona fide purchase does not come to the rescue of the Objectors. No Relief of possession is claimed:

68. The Objectors have taken the ground that the decree in the present suit was for the Specific Performance of the Agreement to Sell dated 14th February, 1986 in respect of the suit property in favour of the DH. The fundamental question which has arisen is whether the DH can claim possession when the JD himself was not in physical possession thereof. In addition to this, no relief with respect to delivery of possession was granted even though it was one of the reliefs sought in the Suit. The DH is, therefore, not entitled to seek possession.

69. There has been a divergence of opinion in various judgements as to whether the possession can be delivered while executing a Decree for Specific Performance, when no relief of possession is sought. To obviate the confusion, the Law Commission in its 9 th Report submitted on 19th July, 1958 recommended introduction of Section 22 of the Specific Relief Act, 1963 which provided that no relief in a Suit for Specific Performance

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may be granted unless it is specifically claimed. Section 22 of the Specific Relief Act, 1963 was thus introduced which reads as under:

―Section 22. Power to grant relief for possession, partition, refund of earnest money, etc.--(1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908 (5 of 1908), any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for--

(a) possession, or partition and separate possession, of the property, in addition to such performance; or

(b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or made by him, in case his claim for specific performance is refused. (2) No relief under clause (a) or clause (b) of sub-section (1) shall be granted by the court unless it has been specifically claimed: Provided that where the plaintiff has not claimed any such relief in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just for including a claim for such relief.

(3) The power of the court to grant relief under clause (b) of subsection (1) shall be without prejudice to its powers to award compensation under Section 21."

70. There is no doubt that no specific relief of possession has been granted despite a prayer being made for the same. This aspect was considered by the Madras High Court in S.S Rajabather vs. N.A. Sayeed AIR 1974 Mad 289, held that if the relief of Specific Performance of a Contract for Sale was granted by a Decree, everything which was necessary for the contract to be specifically performed, can be ordered and informed in the execution.

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71. In Gyasa vs. Smt. Risalo AIR 1977 Allahabad 156, Allahabad High court held that it was not always incumbent on the plaintiff to claim possession of partition or separate possession in a suit for specific performance of the contract for the transfer of immovable property. This is to be done where the circumstances so demand. The relief of specific performance of the contract of sale embraces within its ambit not only execution of sale deed but also possession of the property which is the subject matter of the sale deed. Similar observations were made in Narayana Pillai Krishna Pillai vs. Ponnuswami ChettiarSubbalekshmi Ammal AIR 1978 Kerala 236; by the Division Bench of the Calcutta High Court in Debabrata Tarafder vs. Biraj Mohan Bardhan AIR 1983 Calcutta 51, Sm. Dhiraj BalaKaria Vs. Jethia Estate Pvt. Ltd 1982 SCC OnLine Cal 152.

72. A similar situation, as in hand, was discussed by the Hon'ble Apex Court in Babu Lal vs. Hazari Lal Kishori Lal & Ors. (1982) 1 SCC 525, wherein it was observed that the expression "in an appropriate case" appearing in Sub-Section (1) of Section 22 of the Act implies that a relief of possession has to be sought against the third person as he is not bound by the Contract to be enforced. The Hon'ble Apex Court further observed that the relief of possession can be granted to the Decree Holder where the property is agreed to be conveyed by virtue of an Agreement to Sell. The argument that the plaintiff must claim possession in a Suit for Specific Performance of a Contract in all cases was also negated as Section 22 of the Specific Relief Act, 1963 talks of relief of possession in appropriate cases.

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73. Supreme Court in S. Sampoornam Vs. P.V. Kuppuswamy 2007 SCC OnLine Mad 365 reiterated the same principle and held that even in the absence of prayer for possession, once the suit for specific performance is decreed, the court has got every power to order delivery of possession as per the proviso to Section 22 (2) of the specific Relief Act.

74. The Hon'ble Supreme Court in Manickam Thandapani & Anr. vs. Vasantha 2022 Live Law (SC) 395 referred to the aforementioned judgements and emphasized that the phrase "in an appropriate case" stated in Sub-Section 1 of Section 22 of the Specific Relief Act, 1963 does not mandatorily require that possession has to be claimed and granted in every Suit for Specific Performance of Agreement to Sell. It is only where the plaintiff/third party acquires the title to the property alone in the Suit for Specific Performance and his claim for possession/partition is based on independent rights, then in such case, the delivery of possession cannot be granted to the Decree Holder merely on execution of Sale Deed which is in consonance with Section 55(1) of Transfer of Property Act, 1882. However, in cases where the Agreement to Sell itself envisages the handing over of the possession to the Decree Holder, then it may not be necessary for the Decree Holder to have specifically claimed possession over the property as provided in Section 22 (1) of the Specific Relief Act, 1963. It was thus concluded that though Section 22 (2) of the Act, which is in negative language, states that "no relief under clause (a) or clause

(b) of Sub-Section (1) shall be granted by the court unless it has been specifically claimed", but the proviso thereto takes out the mandatory nature from the substantive provision and allows the plaintiff to amend the plaint "at any stage of the proceeding". The Hon'ble Apex Court

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explained that any "stage of proceeding" would include the proceedings in Suit, in appeal and also in execution. The proviso to Section 22(2) makes the provision directory with no penal consequences. Section 22(2) of the Act only contains the rule of prudence to ask for possession "in an appropriate case". It cannot be said that it is a mandatory provision or that the relief of possession cannot be granted in a Decree for Specific Performance in the absence of there being a specific relief so granted.

75. It may be thus concluded that even though the relief for possession had not been granted in the Decree, but it is inherent in the Decree for Specific Performance of the Agreement to Sell. The decree holder is, therefore, entitled to the relief of possession.

76. It is thus concluded that there is no merit in the present application under Section 47 of CPC, 1908 filed by the applicants, Ms. Meera Rani Gupta and Ms. Nalini Gupta and the same is accordingly dismissed.

EX.P. 282/2012& EX. APPLs.(OS) 302/2019, 3241/2022, 3542/2022, 3543/2022

77. List before the Roster Bench on 23rd February, 2023.

(NEENA BANSAL KRISHNA) JUDGE

FEBRUARY 02, 2023 S.Sharma/PA

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