L. Narasimha Reddy, J.
1. The unsuccessful plaintiff in O.S. No. 1 5 of 1996, on the file of the Junior Civil Judge, Narsipatnam, filed the second appeal. He filed the suit for the relief of perpetual injunction, against the respondents, in respect of the suit schedule property. He pleaded that he entered into an agreement of sale, with the 1st respondent, on 27-3-1983, for purchase of the suit schedule property, for a consideration of Rs. 15,000/-, and he paid a sum of Rs. 5,100/- on the date of agreement. A further sum of Rs. 8,000/- is said to have been paid on 20-4-1983 and Rs. 1,000/- in June 1983. According to him, the possession of the property was delivered on the date of agreement itself. The 1st respondent was said to be under obligation, to arrange for execution of the sale deed, with the participation of the original owners, by name Macherla Seetharaatnam of Kakinada and Kadimisetti Saraswathi of Anakapalli. He alleged that notwithstanding his possession and enjoyment over the property since 1983, the respondents who belong to the same family, attempted to dispossess him on 23-1-1996. With these averments he filed the suit.
2. The 1st respondent filed written statement. He stated that he is only a lessee, in respect of the suit schedule property, and that he borrowed certain amount from the appellant. He alleged that the appellant brought about an alleged agreement of sale, with a mala fide intention, and that the appellant was never in possession of the suit schedule property. He further contends that the agreement of sale, even otherwise, was never intended to be acted upon. The trial Court dismissed the suit, through its judgment dated 26-4-2004. Thereupon, the appellant filed A.S. No. 5 of 2004, in the Court of Senior Civil Judge, Narsipatnam. The appeal was dismissed on 2-1-2006. Hence, this second appeal.
3. Sri Vedula Venkataramana, learned Counsel, advanced arguments on behalf of the appellant. He contends that the view taken by the Courts below, that a suit for mere injunction was not maintainable, without the prayer for specific performance of the agreement of sale, is untenable. He contends that apart from being used as a shield, under Section 53-A of the Transfer of Property Act, an agreement of sale can be pressed into service, to protect the possession, even by filing a suit. Learned Counsel further submits that the evidence on record clearly discloses not only that the agreement of sale was executed, but also that the appellant is in possession of the property.
4. Sri K. Sarvabouma Rao, learned Counsel for the respondents, on the other hand, submits that when the 1st respondent did not have any right to sell the property, the question of his executing an agreement of sale, much less its being enforced, does not arise. He further contends that the Courts below have taken into account, the settled principles of law, particularly in relation to the rights of an agreement holder, in the context of seeking a positive relief, and that no interference is warranted.
5. Since the suit was filed for relief of injunction simplicitor, the trial Court framed only one issue; viz;
Whether the plaintiff is entitled for the relief of perpetual injunction ?
The 1st respondent admitted his signature on the agreement of sale, Ex.A-1, but took a plea that it was not nominal and was never intended to be acted upon, the following additional issue was framed, at a later stage:
Whether the sale agreement dated 27-3-1983 is nominal one and not supported by consideration ?
6. To prove his case, the appellant examined PWs. 1 to 5 and filed Exs.A-1 to A-14. On behalf of the respondents, DWs-1 to 4 were examined and the documents filed on their behalf were marked as Exs.X-1 to X-9. The trial Court answered the additional issue in favour of the respondents, but dismissed the suit by answering the other issue, against them. The lower appellate Court concentrated much upon the entitlement of the appellant, for the relief of perpetual injunction, and dismissed the appeal. This Court is of the view that the following questions arise for consideration in the second appeal, viz;
(a) Whether the agreement of sale executed by a lessee of a land can be enforced in law ?
(b) Whether a suit for perpetual injunction can be filed, on the strength of an agreement of sale ?
7. The 1st respondent admitted the execution of Ex.A-1, the agreement of sale. He, however, pleaded that it came to be executed, only in the context of some loan transaction, and was never intended to be acted upon. The trial Court repelled this contention, and before the lower appellate Court, the correctness of the finding recorded by the trial Court, on this issue, was not canvassed. Therefore, it has to be proceeded that Ex.A-1 was executed by the 1st respondent, and that is binding upon him.
8. It is not in dispute that the executant of Ex. A-1, the 1st respondent, was a lessee, in respect of the suit schedule property. It was not as if the appellant was not aware of this fact. In the plaint itself, there is a recital to the effect that the 1st respondent was under obligation to arrange for the execution of sale deed, with the participation of the actual owners of the land i.e. Macherla Seetharaatnam of Kakinada and Kadimisetti Saraswathi of Anakapalli. A lessee can, at the most, transfer his leasehold rights, if he was so permitted by the lessor. The question of a lessee entering into an agreement of sale, in respect of the leased property, does not arise. Such agreements, if entered into, do not clothe the parties with any rights. Therefore, Ex.A-1 was unenforceable in law, for the reason that the 1st respondent did not have the right or title, to convey the property. QuestionNo. 1 is answered accordingly.
9. A serious objection was raised on behalf of the respondents that a suit for mere injunction, on the strength of an agreement of sale, cannot be maintained. In other words, it was urged that if the appellant was so mindful of his rights under Ex.A-1, he ought to have filed a suit for specific performance, and the relief of perpetual injunction could have been claimed, as an ancillary relief. Learned Counsel for the appellant places reliance upon the judgment of the Supreme Court in Ramesh Chand Ardawatiya v. Anil Panjwani : [2003]3SCR1149 , to contend that the holder of an agreement of sale can seek the relief of declaration, or injunction, without a prayer for specific performance. A perusal of the judgment referred to above discloses that the holder of an agreement of sale filed the suit for declaration of title, recovery of possession and injunction, against a person other than the vendor, and such a course was held permissible. However, on a close analysis of the observation made by the Hon'ble Supreme Court, it emerges that the submission made on behalf of the appellant cannot be accepted. The relevant portion of the judgment reads as under:
34. A contract for sale does not confer title in immovable property. Section 54 of the Transfer of Property Act provides that a contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties; it does not of itself, create any interest in or charge on such immovable property. However still, if a person has entered into possession over immovable property under a contract for sale and is in peaceful and settled possession of the property with the consent of the person in whom the title vests, he is entitled to protect his possession against the whole world, excepting a person having a title better than what he or his vendor possesses. If he is in possession of the property in part-performance of contract for sale and the requirements of Section 53-A of the Transfer of Property Act are satisfied, he may protect his possession even against the true owner.
36. So, the person in possession may not have title to the property yet if he has been inducted into possession by the rightful owner and is in peaceful and settled possession of such property he is entitled in law to protect the possession until dispossessed by due process of law by a person having a title better than what he has. A person in possession of the property cannot be forcibly dispossessed by another rank trespasser and even if the latter does so, the former may be entitled to restoration of possession, because the law respects peaceful possession and frowns upon the person who takes the law in his own hands.
The proceedings that gave rise to the judgment of the Supreme Court were instituted against a third party, and not the person, who held the title and who executed the agreement of sale.
10. Even assuming that the 1st respondent had the title to transfer the property and Ex.A-1 was enforceable in law, the appellant could not have maintained the suit for mere injunction. The proviso to Section 34 of the Specific Relief Act mandates that if a plaintiff, being in a position to seek further relief than mere declaration, omits to do so, the relief of declaration cannot be granted. The Parliament did not anticipate a situation that a suit for mere injunction would be filed by a person, who got the possession of the property, under an agreement of sale, without filing the suit for specific performance. Obviously for that reason, the proviso, similar to the one added to Section 34, was not incorporated in Sections 36, 37 and 38 of the Specific Relief Act. Further, a mere suit for injunction, by a person who holds an agreement of sale of the suit property, would violate Rule 2 of Order II C.P.C., which mandates that a suit shall include the whole claim of the plaintiff, which he is entitled to make, in respect of the cause of action. If any such claim is omitted, it is prone to be treated as having been relinquished.
11. On facts also, the Courts below recorded clear and definite findings to the effect that the appellant failed to prove his possession over the suit schedule property. This Court does not find any basis to interfere with the concurrent findings of fact.
12. The second appeal is accordingly dismissed. It is, however, made clear that it shall be open to the appellant herein, to file a suit for specific performance of the agreement of sale, Ex.A-1, if he is otherwise entitled to, in law. In case such a suit is filed, the legality, enforceability etc., of the said agreement of sale, shall be decided, on their own merits, un-influenced by any observations made by the Courts below in the present suit. There shall be no order as to costs.