Orissa High Court

Girija Sankar Satpathy & Anr vs Dr. Abhaya Charan Mishra on 21 February, 2025

Author: Sashikanta Mishra

Bench: Sashikanta Mishra

             IN THE HIGH COURT OF ORISSA AT CUTTACK

                           RSA No. 329 of 2019

        [In the matter of an appeal under Section 100 of the Code of
        Civil Procedure, 1908.
                                 ---------------

        Girija Sankar Satpathy & Anr              ......         Appellants

                                       -Versus-

        Dr. Abhaya Charan Mishra                         .....
        Respondent

        Advocate(s) appeared in this case :-
        _________________________________________________________
           For Appellants : Mr. S. K. Dash, Advocate

             For Respondent:  Mr. B. Routray, Senior Advocate,
                              J. Biswal, Advocate
        ________________________________________________________

               CORAM
                   JUSTICE SASHIKANTA MISHRA

                                  JUDGMENT

21stFebruary, 2025

SASHIKANTA MISHRA, J. The plaintiffs have filed this

appeal against a confirming judgment.

2. The judgment passed by the learned

Additional District Judge-cum-Special Judge, CBI

(Court No. III), Bhubaneswar on 16.11.2019 followed

by decree is impugned whereby, the judgment passed

by learned 2nd Additional Senior Civil Judge,

Bhubaneswar on 27.08.2019 followed by decree in CS

No. 780 of 2008 was confirmed.

3. For convenience, the parties are referred to

as per their respective status in the Court below.

4. The plaintiffs filed the suit for permanent

injunction. It was their case that intending to purchase

the suit property they entered into an agreement with

the defendant through his brother and power of

attorney holder on 10.02.1996. The defendant had

obtained the suit land by lease for commercial purpose

from the Government vide registered lease deed No.

4175/1975 on 07.04.1975. He expressed his desire to

sell the land in order to meet the expenses of

construction of his house at the village and other

household expenses. The plaintiffs agreed and the

consideration amount was fixed at Rs. 2,00,000/-.

Since permission from the Government in P & S

Department was required for execution and

registration of the sale deed, the defendant applied for

the same through his power of attorney holder. There

being delay in grant of permission by the P & S

department and defendant being in urgent need of

money, his power of attorney holder executed the

agreement for sale on 10.02.1996 on the condition of

obtaining permission for sale and to execute and

delivered physical possession of the land and handed

over the original documents including the registered

power of attorney executed by the defendant to the

plaintiff. The suit land consisted of rooms given on rent

to different persons which the plaintiff, in terms of the

agreement, collected. The defendant had sought for

permission from the Director of Estates, P & S

Department/ G.A Department of the Government

through his power of Attorney Holder on 06.05.1995.

Thereafter, on the plea of delay in grant of permission,

he went on deferring the execution and registration of

the sale deed. The plaintiffs continued to be in actual

possession of the suit land by paying holding tax. On

10.07.2008, it came to the knowledge of the plaintiff

that the defendant, through his power of attorney

holder, was negotiating with some mischief mongers to

sell the suit property to dispossess him.

5. The defendant contested the suit by filling

written statement. He challenged the suit on the

ground of maintainability and absence of cause of

action. It was the case of the defendant that neither he

and nor his power of attorney holder had ever executed

any agreement for sale on 10.02.1996. He further

claimed he has right, title, interest and possession over

the suit land and that there was no discussion either

between him or his power of attorney holder with the

plaintiff regarding sale of suit land. Further, neither he

nor his power of attorney holder ever applied for

permission seeking transfer of the suit land. The

alleged agreement dated 10.02.1996 is a forged one

and the defendant never delivered possession of the

suit land to the plaintiff. It is also his case that when

the power of attorney holder was transferred from

Cuttack to Berhampur, the mother of the plaintiffs,

being his younger sister, was entrusted to collect the

rent from the suit premises on his behalf for which the

papers were handed over to her. Said papers were

utilised by the plaintiffs for their wrongful gain. The

plaintiffs are his nephews for which they were also

allowed to collect rent on his behalf. When he was

serving in New Delhi in the year 1985, he executed a

power of attorney in favour of his elder brother who

was serving in SCB Medical College, Cuttack to

manage the suit property. When his elder brother was

transferred in the year 1990, he entrusted his younger

sister, mother of the plaintiffs, to collect rent from the

tenants. Further, he has no intention to sell the suit

land.

6. Basing on the rival pleadings, the trial court

framed the following issues for determination:

(i) Whether the suit is maintainable?

(ii) Whether there is any cause of action to file the suit?

(iii) Whether the defendant and his agents can be permanently restrained from interfering with the peaceful possession of the plaintiff over the suit land?

(iv) To what any other relief, the plaintiff is entitled?

7. Issue No. 3, being the main issue, was taken

up for consideration at the outset by the trial Court.

After analysing the oral documentary evidence and the

settled position of law, the trial Court found that

admittedly the defendant was granted lease of the suit

land by the Government vide lease No. 4175/1975 on

07.04.1975 and the premises consisted of shop rooms

let out to persons on rent. The trial Court took note of

the position of law that a person in wrongful

possession is not entitled to an order of injunction

against the rightful owner. The plaintiffs sought decree

of permanent injunction against the defendant whose

right, title or interest is admitted by them. The Trial

Court thereafter, considered the provision under

Section 41 (h) of the Specific Relief Act read with

Section 38 to hold that permanent injunction cannot

be granted as equal and efficacious relief can be

obtained by any other usual mode of proceedings.

According to the trial Court, the usual mode of

proceeding in the instant case would be to bring a suit

for specific performance of contract under Section 19 of

the Specific Relief Act. The trial Court also referred to

Section 53-A of the T.P. Act to decide the question

whether a lawful owner of a property can be injuncted

permanently on the basis of an agreement for sale.

Examining Sections 54 and 53-A of T.P. Act, it was

held that it is permissible to transfer ownership

without transferring possession and vice-versa. The

trial Court then referred to Section 17 of the

Registration Act and held that in view of the provision

under Section 17 (1A) of the said Act, documents

containing contracts to transfer for consideration any

immovable property shall be registered. Since the

agreement in question was not registered, it was held

that the same would not transfer right, title or interest.

It was clearly held that as the plaintiff has alternative

efficacious remedy available, injunction cannot be

granted as he failed to prove that he is the owner of the

property having right, title or interest in the same. On

such findings, the suit was dismissed.

8. The plaintiffs carried the matter in appeal. The

First Appellate Court scanned the oral and

documentary evidence independently and found that

plaintiff No. 1 (P.W.1) could not depose properly about

the agreement marked Ext. 4 as regards how it came to

be executed and how it was prepared by the scribe. His

mother, being examined as P.W. 3, was not a witness

to the execution of the document. Neither the scribe

nor any other witness was examined. In any case, the

agreement was executed in the year 1996 but the suit

was filed in the year 2008 that is, after 12 years.

Clauses 8 and 9 of the agreement show that the

remedy of filing a suit for specific performance of

contract was available along with the right of the

plaintiffs to take refund of the consideration money.

The First Appellate Court thus found that the plaintiffs

did not take recourse to any of the clauses of the

agreement but simply filed the suit for permanent

injunction. According to it, the plaintiffs had come up

with contradictory pleas inasmuch as on one hand, he

claimed that the cause of action for filing a suit for

specific performance of contract had not matured since

the defendant had not obtained permission to execute

the sale deed yet, on the other hand, they alleged that

the defendants were attempting to sell the suit land

which compelled them to file the suit for injunction.

Since permission had not been obtained, the defendant

could not have attempted to sell away the suit land to

any other person. The First Appellate Court thus, held

that the plaintiffs should have sought for relief of

specific performance of contract by invoking Clauses 8

and 9 of the agreement along with relief of declaration

regarding validity of the agreement. In such event, the

relief of injunction would have been consequential.

Relying on the provision under Order-II Rule-2 of CPC,

the First Appellate Court held that a suit is to include

the whole claim. In a suit for injunction simpliciter,

title or right cannot be gone into. On such findings, the

appeal was dismissed and the judgment of the First

Appellate Court was confirmed.

9. Being further aggrieved, the plaintiffs have filed this

Second Appeal which has been admitted on the

following substantial questions of law;

(i) Whether the plaintiffs-appellants were obliged to bring a suit for specific performance of contract or sought for a declaration with regard to validity of such agreement for sale, in order to seek the statutory protection available under Section 53-A of the Transfer of Property Act, 1882?

(ii) Whether in the given circumstance, the bar under Section 41(h) is applicable to a suit for permanent injunction based on Section 53-A of the Transfer of Property Act, 1882?

(iii) Whether the delivery of possession by attornment of tenancy in respect of the tenanted shop rooms over the land agreed to be sold under Ext.4, in favour of the plaintiffs is sufficient to seek for protection under Section 53-A of the Transfer of Property Act, 1882?

(iv) Whether the defendant was capable of executing Ext.4 and whether the same confers a right on the plaintiffs to seek for protection under Section 53-A of the Transfer of Property Act, 1882.

10. Heard Mr. S.K.Dash, learned Senior counsel with

Mr. S.Das, Advocates for the plaintiffs-appellant and

Mr. B.Routray, learned Senior counsel with Mr.

J.Biswal for the defendant respondent.

11. Learned Senior counsel, Mr. Dash would assail the

impugned judgments by arguing that the trial Court

did not accept the agreement for sale on the ground

that it had not been registered by relying upon Section

17 (1A) of the Registration Act but failed to appreciate

that the said provision was inserted by way of

amendment in the year 2001 whereas, the agreement

was executed on 10.02.1996. Similarly, the bar under

Section 53-A of the T. P. Act would also not be

applicable for the same reason. Mr. Dash would further

argue that both the Courts below committed error as to

the scope and purport of the agreement as per which

permission of the Government was necessary to

execute the sale deed but no permission was required

to file the suit. Mr. Dash also argued that both the

Courts below proceeded on the misconceived notion

that the plaintiffs are claiming title in the garb of

injunction, which is absolutely not the case.

12. Mr. Dash, in support of his contentions, has relied

upon the following judgments of the Supreme Court:-

1. Khursida Begum & Ors. Vs. Mohammad Farooq

& Ors.1

2. Jahangirkhan Mahebubkhan Patha Vs.

Sharaben D/O Mangaji Shanaji2

3. Giriyappa & Anr. V. Kamallama &Ors.3

AIR 2016 SC 694

4. Chandnee Widya Vati Madden Vs. C.L. Katilal &

Ors.4

Mr. Dash also relies upon the following judgments of

some high courts:-

1. Sadashiv Chander Bhamgare V. Eknath

Pandharinath Nanagude5, High Court of

Bombay

2. Chetak constructions Ltd. Indore Vs. Om

Prakash6, High Court of Madhya pradesh

3. Rohtash Singh Vs. Sanwal Ram7, High Court of

Punjab and Haryana

13. Per contra, learned Senior counsel Mr. Routray

invites attention of this Court to the clauses of the

agreement vide Ext. 4, particularly to Clauses 8 and 9

thereof. He also refers to a document (Ext.5) by which

application was submitted seeking permission by the

defendant from the Government on 06.05.1995 but

2024 INSC 1043

AIR 1964 SC 978

AIR 2004 Bombay 378

AIR 2003 MP 145

such letter was withdrawn vide letter dated 30.08.2008

(Ext. 9). According to Mr. Routray, any contract

without obtaining prior permission makes it voidable

as per Section 23 of the Contract Act. Moreover, it was

open to the plaintiffs to bring a suit for Specific

Performance of Contract in view of the Clause-8 or to

recover the consideration amount invoking due process

of law. Therefore, Section 41 (h) of the Specific Relief

Act comes into the picture by prohibiting a simple suit

for injunction in such circumstances. Mr. Routray

further argues that even otherwise the suit is barred by

limitation in view of the admission of P.W.3 that they

were aware of the defendants' intention of not selling

the suit land 5 years prior to the institution of the suit

by styling it as suit for injunction on an imaginary

cause of action. Furthermore, the agreement itself was

unlawful as the respondent had never any valid

permission to sell the land.

14. Having considered the rival submissions noted

above and having gone through the materials on record

carefully, this Court would first take note of the

admitted fact that the defendant has a better and valid

right over the property in question, having been

granted lease by the Government in P & S department

vide lease deed No. 4175/1975. It is the further

admitted position that the defendant has the power to

alienate the property but only after obtaining

permission of the lessor that is, the Government in P &

S Department. It has been argued that in the absence

of permission no agreement for sale could have been

validly executed. In this regard Mr. Routray, learned

Senior counsel has cited a judgment passed by this

Court in the case of Panchu Das vrs. Bhaskar Swain

and Others (RSA No. 369 of 2014). Referring to the

observations made in said judgment under paragraphs

15 to 18, Mr. Routray would argue that the case at

hand involves a similar situation as the very validity of

the so-called agreement is questionable. Reading of the

cited judgment discloses that in the said case the

agreement in question for sale of the property was

considered unlawful as it involved sale of land by a

scheduled caste person to a non-scheduled caste

person without obtaining permission under Section 22

of the OLR Act. It was held in the said context that

enforceability of the contract depends on its validity.

15. There is no second thought with regard to the

above proposition. However, in the instant case, there

is no such statutory bar for sale of the land by the

lessee, save and except the condition of obtaining prior

permission of the lessor. This condition cannot be

stretched so far as to say that the lessee would be

incompetent to contract for sale awaiting permission of

the lessor. At best, the contract can be treated as a

contingent contract, more so as it provides the

consequences for its breach in the form of empowering

the proposed transferee to bring a suit for specific

performance. This Court is therefore, of the view that

the ratio decided in the cited judgment would have no

application in facts of the present case.

16. Coming to the case laws cited by learned Senior

counsel Mr. Dash, as held in hereinbefore, there being

absence of clear and cogent evidence that the plaintiffs

were put in possession on the basis of the agreement

dated 10.02.1996, the protection available under

Section 53-A of the T.P. Act cannot be applied to them.

Therefore, the judgments rendered in Sadashiv

(supra), Chetak (supra), Jahangir (supra) and

Rohtash Singh (supra) are not applicable. The

judgment in Chandnee (supra) would also not apply

since admittedly the plaintiffs have not sought for a

decree of specific performance of contract based on the

terms of contract (Clause-8). Had such a suit been filed

by the plaintiff question of performance of plaintiffs'

part of the contract would have been considered.

17. Be that as it may, the decision in the present case

would turn on the interpretation of the clauses of the

agreement, viz. Clauses 8 and 9. Before that however,

it would be proper to refer to the lease deed bearing No.

4175 dated 07.04.1975 (Ext.1) of which Clause XIV

reads as follows:

"That he shall not without the consent in writing of the lessor use or permit the use of the said land for any purpose other than that for which it is leased or shall not transfer the said plot without such consent provided that no such consent to transfer the leasehold by way of sale or gift shall be given by the lessor unless the lessee pays such amount as may be decided by the Government from time to time as consent fee."

Coming to the agreement dated 10.12.1996 (Ext.4)

Clauses 8 and 9 being relevant are quoted herein

below:

"8. That in the event of the 1st party/seller fails to execute and register the sale deed even after the 2nd party /purchaser expresses his willingness to purchase the schedule land it will be open for the 2nd party to sue the 1st party/seller in appropriate court of law having jurisdiction of Bhubaneswar town for enforcement of Agreement and for specific performance contract.

9. That in the event at any point of time it is found that the 1st party/Seller in respect of the suit land if fails to obtain permission from the Govt., due to legal infirmities or for any other reason, the 2nd party/purchaser is entitled to the refund of the entire consideration amount of Rs 2,00,000/-(Rupees Two Lakhs only) with interest as admissible at the interest of Bank rate."

Thus, the agreement itself provides the consequences

for its breach. Clause 3 of the agreement makes it

obligatory for the first party seller to apply for

permission to sell the land from the appropriate

authority after paying the required fee. In the instant

case, permission was apparently sought for by the

defendant through his power of attorney holder on

06.05.1995 (Ext.5) which is obviously prior to the date

of execution of the agreement. Therefore, as on the

date of the agreement, the permission of the

appropriate authority had already been sought for.

This makes the contract a contingent contract. In other

words, without grant of permission of the Government

no sale could be affected. As already stated, the

contract also provides the consequences for its breach

in the form of Clause-8. So, if it was the case of the

plaintiffs that the defendant failed to honour the

contract by obtaining permission of the Government

and thereby did not execute and register the sale deed,

it was always open to them to file a suit for specific

performance of contract. Instead, claiming to be in

possession, the plaintiffs simply prayed for injunction

against the rightful owner of the property purportedly

on the strength of Section-53-A of the T.P.

Act. Section 41(h) of the Specific Relief Act obviously,

bars such a suit as held by both the Courts below.

Further, the defendant having specifically disputed the

agreement it was also incumbent upon the plaintiff to

have sought the relief of declaration regarding its

validity but what the plaintiffs have done is to pray for

injunction simpliciter on the alleged cause of action

that the defendant was trying to sell away the land to

some other persons and to dispossess the plaintiffs. As

held by the First Appellate Court, and rightly so, this

claim of the plaintiffs is not worthy of consideration

firstly, for the reason that no acceptable evidence was

laid in this regard and secondly, the defendant

obviously could not have attempted to sell away the

land without obtaining permission of the Government.

Thus, on the face of alternative efficacious remedy

being available in the form of suit for specific

performance, a mere suit for injunction would not be

maintainable against the rightful owner.

18. Coming to the provision under 53-A of the T.P. Act,

this Court, on reading the judgment passed by the

Trial Court would agree with the contentions advanced

on behalf of the plaintiff-appellants that the

amendment affected in the year 2001 to the

Registration Act has not considered in its proper

perspective inasmuch as the agreement in question

was executed prior to the amendment. Therefore,

finding that the agreement not being registered shall

have no effect for the purposes of Section 53-A cannot

be accepted. Nonetheless, the question is, whether said

provision can otherwise come to the aid of the

plaintiffs. It would be worthwhile to quote the provision

under Section 53-A:

"53A. Part performance.-- Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has. in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract,then, notwithstanding that 2***, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract:

Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof."

From the language employed in the provision, it is

abundantly clear that it is basically a question of fact

to be determined on the basis of the evidence in a case.

Here, the defendant has disputed the existence of the

agreement dated 10.02.1996 and in addition has taken

a specific plea that the mother of the plaintiffs was

entrusted to look after the shop rooms in the premises

and to collect monthly rent from the tenants. Under

such circumstances, when the possession of the

plaintiffs itself is disputed, it was for the plaintiff to

adduce cogent evidence to prove the same. It is

needless to mention, the plaintiffs utterly failed to do

so. Therefore, in the absence of clear and cogent

evidence that the plaintiffs were put in possession on

the basis of the agreement dated 10.02.1996, this

Court fails to understand as to how the protection

under Section 53-A could be invoked. As already

stated, in such event, the plaintiff ought to have sought

for declaration of validity of the contract and for

confirmation of possession. Even if it is accepted that

the mother of the plaintiffs as well as the plaintiffs

themselves were entrusted to collect rents from the

tenants, that by itself will not bring the case within the

ambit of Section 53-A because such possession, if at

all may be treated as constructive in nature and can

only be permissive in nature and not on the basis of

any contract much less the agreement dated

10.02.1996. The fact that the plaintiffs are the

nephews of the defendant assumes much significance

in this context.

19. The circumstances under which a mere suit for

injunction without claiming title would lie is no longer

res integra having been long settled in several

judgments of the Supreme Court notable among which

is the one rendered in the case of Anathula Sudhakar

v. P. Buchi Reddy (Dead) by L.Rs 8. The following

observations of the Supreme Court are noteworthy.

"11. The general principles as to when a mere suit for permanent Injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly.

8 AIR 2008 SC 2033

11.1. Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.

11.2. Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession."

It was held that a person in unlawful possession is not

entitled to an injunction against the rightful owner.

Reference also can be made in this regard to the

judgment of Premji Ratansey Vrs. Union of India

wherein the following was held;

"Issuance of an order of injunction is absolutely a discretionary and equitable relief. In a given set of facts, injunction may be given to protect the possession. It is not mandatory that mere asking such relief should be given. Injunction is a personal right under section 41(j) of the Specific Relief Act 1963; the plaintiff must have personal interest in the matter. The interest of right not shown to be in existence, cannot be protected by injunction. It is equally settled law that injunction would not be issued against the true owner.