Jharkhand High Court
Md. Kalim vs Mosamat Bibi Samina Khatoon on 4 July, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No. 635 of 2015
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Md. Kalim .... Appellant
-Versus-
1. Mosamat Bibi Samina Khatoon
2. Md. Salim
3. Md. Aashique
4. Bibi Shahnaz
5. Bibi Shahida Khatoon
6. Kedarnath Thakur ..... Respondents.
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CORAM : HON'BLE MR. JUSTICE ANANDA SEN.
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For the Appellant(s) : Mr. Birendra Kumar, Advocate.
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09/04.07.2022: This appeal has been filed by the appellant against the judgment
dated 9.9.2015 and decree dated 22.9.2015 passed by the learned Principal
District Judge, Sahibganj in Title Appeal No. 19 of 2011, whereby, the appeal
filed by the appellant has been dismissed upholding the judgment dated
29.7.2011 and decree dated 11.8.2011 passed by the learned Sub-ordinate
Judge-VI, Sahibganj in Title Suit No. 14/2019.
2. This appeal has been heard under "Order XLI Rule 11 C.P.C".
3. Counsel for the appellant submits that the appellant, herein, who
was the plaintiff, happens to be the son of respondent NO. 1 and brother of
respondent Nos. 2 to 5. It is his case that respondent No. 1 entered into an
agreement for sale of the suit property. After execution of the agreement, the
possession of the property was handed over to the appellant-plaintiff, but the
sale deed was not executed on the ground that the permission could not be
obtained from the Government, as the same was necessary. He further submits
that thereafter respondent Nos. 1 to 5 sold the property in question in favour of
respondent No. 6 during the pendency of the agreement for sale, which casted
doubt on title of the plaintiff. It is his case that the trial court dismissed the suit
and subsequently the appeal was also dismissed without taking into
consideration that the mother had entered into an agreement for sale with the
plaintiff. He also submits that since the possession was given, he had right, title
and interest over the property and subsequent deed/agreement is nothing but
paper transaction and will not confer any title upon the purchaser. He further
submits that the point of law in this Appeal would be whether respondent No. 1
could sale the land in question by executing a deed of agreement in favour of
respondent No. 6 in view of the admitted fact that she had earlier entered into an
agreement for sale with the plaintiff.
4. Heard the counsel for the appellant and gone through both the
judgments passed by the courts below.
5. The plaintiff filed a suit for declaration and confirmation that the
plaintiff has absolute possession over the suit property as the defendant had
already transferred her absolute possession in his favour by virtue of an
agreement dated 31.3.2003. Further a prayer was made for declaration that the
subsequent agreement/deed dated 12.5.2006 executed by defendant No. 1
along with defendant Nos. 2 to 5 in favour of defendant No. 6 has got no force of
law. It is the case of the plaintiff that his mother i.e. defendant No. 1 entered into
an agreement for sale, of the suit property, in favour of the plaintiff vide an
agreement dated 31.3.2003. It is further his case that full consideration money
was also paid, therefore, the right, title, interest and possession got relinquished
in favour of plaintiff. The plaintiff further stated that when he came to know about
subsequent sale agreement dated 12.5.2006 executed by defendant No. 1
alongwith defendant Nos. 2 to 5 in favour of defendant No. 6, it prompted him to
file the suit. It is his case that defendant No. 1 in collusion with defendant Nos. 2
to 5 had played fraud with the plaintiff by executing sale agreement dated
12.5.2006 in favour of defendant No. 6.
6. In a suit, which is filed by the plaintiff it is the plaintiff who has to
prove his case. The plaintiff has to stand on his own legs to prove his case. The
relief he is seeking should be based on his pleading and proof. In the instant
case, I find that the plaintiff has prayed that he has right, title, interest and
possession over the suit land on the basis of agreement for sale dated
31.3.2003, executed by defendant No. 1. His further prayer is that the sale
agreement dated 12.5.2006, executed by defendant Nos. 1 to 5 in favour of
defendant No. 6 has got no relevance and is not a valid document.
7. The proposition of law is quite clear. An agreement for sale does not
create nor confer any interest-in or charge or in any property. The transfer of
immovable property by way of sale can only be by a sale deed. In absence of
sale deed, duly stamped and registered, as required by law, no right, title or
interest in an immovable property can be transferred. The Hon'ble Supreme
Court in the case of Suraj Lamp & Industries (P) Ltd Vs. State of Haryana,
reported in (2012) 1 SCC 656 has held that any contract of sale i.e. agreement
for sale, which is not a registered deed of conveyance i.e. deed of sale would fall
short of the requirements of Sections 54 and 55 of the Transfer of Property Act
and will not confer any title nor transfer any interest in an immovable property,
except to the limited right granted under Section 53-A of the Transfer of Property
Act. An agreement of sale whether with possession or without possession,
is not a conveyance. As per provisions of Transfer of Property Act, the sale of
immovable property can be made only by a registered instrument and an
agreement of sale does not create any interest or charge on the property, which
is subject matter of agreement for sale.
8. Keeping in view of this legal proposition, if the prayer of the plaintiff
in the suit is seen, it is clear that the relief which he has claimed cannot be
granted in his favour as per law. The plaintiff claimed right, title, interest and
possession over the property in question on the strength of an agreement for
sale. Though the said agreement is prior in time than the other documents which
the defendants executed in favour of defendant No. 6, yet the said agreement
executed in favour of the plaintiff will create no right, title and interest in favour of
the plaintiff in respect of property in question. Further, the suit was not filed for
specific performance of contract, rather it is the suit for declaration of title and
interest and for declaration that the subsequent deed i.e. agreement for sale
dated 12.5.2006 is bad.
9. Since the suit is not for specific performance, no direction could have
been given by the Court to enforce the agreement for sale, which has been
entered into by and between the plaintiff and defendant No. 1 by the strength of
agreement for sale. The plaintiff also cannot claim right, title and interest over the
land in question, on the basis of an agreement. The prayer made in the plaint by
the plaintiff could not be granted, as per law.
10. Thus, there is no substantial question of law involved in this appeal.
Accordingly, this appeal is dismissed.
Anu/-CP2. (ANANDA SEN, J.)
