Madhya Pradesh High Court
Babu Patel vs Ms. S.P.J. Infabuild Through Its ... on 9 August, 2023
Author: Hirdesh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
ON THE 9 th OF AUGUST, 2023
MISC. APPEAL No. 3049 of 2020
BETWEEN:-
BABU PATEL S/O SHRI AMBARAM PATEL, AGED ABOUT
57 YEARS, OCCUPATION: BUSINESS PRESENTLY
RESIDING AT- GRAM CHIRAKHAN, TEHSIL DEPALPUR,
DISTRICT DHAR/ PERMANENT ADDRESS- GRAM
SILOTIYA, TEHSIL DEPALPUR, DIST. DHAR (MADHYA
PRADESH)
.....PETITIONER
(SHRI SATISH JAIN, LEARNED COUNSEL FOR THE PETITIONER)
AND
1. MS. S.P.J. INFABUILD THROUGH ITS PARTNER
PARTNER PATEL MOHALLA, PITHAMPUR, TEHSIL
AND DIST. DHAR (MADHYA PRADESH)
2. ASHOK PATEL S/O SHANKARLAL PATEL, AGED
ABOUT 56 YEARS, OCCUPATION: BUILDER PATEL
MOHALLA, PITHAMPUR, DISTRICT DHAR
(MADHYA PRADESH)
3. SMT. MOHINI CHOUDHARY W/O SHRI MOTIRAM
CHOUDHARY, AGED ABOUT 45 YEARS,
OCCUPATION: BUILDER 43-B, SATYASAI VIHAR
COLONY, STATION ROAD, RAU INDORE
(MADHYA PRADESH)
4. SANJAY MUKATI S/O SHRI RAMCHANDRA
MUKATI, AGED ABOUT 31 YEARS, OCCUPATION:
BUILDER 133B SILICON CITY, INDORE (MADHYA
PRADESH)
5. CHANDRASHEKHAR SHINDE S/O SHRI PANDIT
SHINDE, AGED ABOUT 59 YEARS, OCCUPATION:
BUILDER 78, CLERK COLONY, INDORE (MADHYA
PRADESH)
6. S T A T E OF M.P. THROUGH REGISTRAR
Signature Not Verified
Signed by: REENA JOSEPH
Signing time: 10-08-2023
18:22:05
2
REGISTRATION AND STAMPING DEPARTMENT
REGISTRAR OFFICE, DISTT. DHAR (MADHYA
PRADESH)
.....RESPONDENTS
(SHRI NITIN PHADKE, LEARNED COUNSEL FOR THE RESPONDENT
NO.2)
This appeal coming on for admission this day, th e court passed the
following:
ORDER
The appellant has filed this miscellaneous appeal being aggrieved by the
order dated 20.11.2020 passed by the learned District Judge, Dhar in Civil Suit
No.53-A/2020 whereby the application filed by the appellant/plaintiff under
Order 39 Rules 1 and 2 read with Section 151 of CPC has been dismissed.
2. The brief facts of the case is that the plaintiff/appellant filed a suit for
declaration of the sale deed executed on 09.05.2018 as null and void alongwith
an application under Order 39 Rules 1 and 2 of CPC for grant of temporary
injunction before the trial Court and pleaded that appellant/plaintiff is an
uneducated rustic person and respondent assured him for the complete
payment of sale consideration through cheques and on such assurance
appellant/plaintiff had executed sale deed in favour of respondent no.1 on
09.05.2018, but appellant was surprised when he received only a part sale
consideration of Rs.63,37,000/-. Hence, he filed a suit for cancellation of the
sale deed which was based on fraud play. The respondent filed written
statement and submitted that the sale deed was executed after possession was
given to him after full consideration. After hearing the both the parties the
learned trial Court found that there is no prima facie case in favour of the
appellant/plaintiff so he is not entitled for temporary injunction and rejected the
Signature Not Verified
application. Being aggrieved by the aforesaid order, the appellant/plaintiff filed
Signed by: REENA JOSEPH
Signing time: 10-08-2023
18:22:05
this appeal.
3. The learned counsel for the appellant submitted that the trial Court
committed legal and factual error by not considering the bank passbook entries
submitted by the respondent by which it is abundantly clear that part of the
consideration was paid after the date of execution of the sale deed from which it
can be clearly inferred that there was no complete payment of sale consideration
on the date of execution of sale deed under challenge. The learned trial Court
committed legal and factual error by holding that the registration of sale deed
was completed, inspite of the fact that document sale deed transfer the right
only after payment of complete consideration. So, on the above basis, the
appellant prays for setting aside the impugned order passed by the trial Court
and grant temporary injunction in favour of the appellant by restraining the
respondents from creating third party interest over the disputed property in any
manner.
4. Learned counsel for the appellant has relied on the judgment of the Apex
Court in the case of Kanaklata Bai Vs.Parvati Bai and others reported in
2009 (1) MPWN 106 and contended that if the intention is that the property
should pass on registration, the sale is complete as soon as deed is registered
whether the sale price has been paid or not.
5. On the other hand, learned counsel for the respondent/defendant submitted
that the sale deed has been executed and possession was given to the defendant
after full consideration and there is no prima facie case in favour of the plaintiff,
therefore, the trial Court has rightly rejected the application under Order 39
Rules 1 and 2 of CPC filed by the appellant. He has relied upon a judgment of
the Co-ordinate Bench in the case of Govind Chawla Vs. Manoj Choudhary
Signature Not Verified
Signed by: REENA JOSEPH
Signing time: 10-08-2023
18:22:05
reported in 2019 (4) MPLJ 328 whereby it has been held that if alienation
takes place during pendency of suit, interest of appellant would be protected
under Section 52 of the Transfer of Property Act.
6. After hearing both the parties and perusing the record, it is found that
registration of the sale deed has been executed between the parties and perusing
the sale deed delivery of possession of the disputed property was handed over
to the respondent. It is settled law that when sale is complete, as soon as the
sale deed is registered whether sale consideration is paid or not it is not
necessary. In the case of Kanaklata (Supra) it is held that payment of price is
not necessarily a sine qua non to the completion of the sale. If the intention is
that the property should pass on registration, the sale is complete as soon as
deed is registered whether the sale price has been paid or not.
7. On perusal of the record, it is found that sale deed executed on 09.05.2018
by the plaintiff and he himself admitted full consideration amount has been
received which is acknowledged by the execution of the sale deed. Nothing is
due on account of consideration and in the sale deed it is also mentioned from
the date of execution of the sale deed of the ownership has been transferred in
favour of the purchasers. At the time of filing of the suit, plaintiff/appellant was
neither owner nor possession holder of the disputed land. So appellant plaintiff
has no prima facie case. Hence, the trial Court has not committed any error in
rejecting the application of the plaintiff/appellant.
8. Resultantly, no case is made out for interference in the impugned order.
The miscellaneous appeal is accordingly dismissed.
(HIRDESH)
JUDGE
Signature Not Verified
Signed by: REENA JOSEPH
Signing time: 10-08-2023
18:22:05
RJ
Signature Not Verified
Signed by: REENA JOSEPH
Signing time: 10-08-2023
18:22:05
