Judgment:
ORDER
M.R. Shah, J.
1. Present Appeal from Order under Order 43, Rule 1(r) of the Code of Civil Procedure has been preferred by the appellant herein-original plaintiff to quash and set aside the impugned order dated 10-8-2009 passed by the learned Chamber Judge, City Civil Court, Ahmedabad passed below Notice of Motion Exh. 6/7 in Civil Suit No. 67 of 2009, by which the learned Judge has rejected the said Notice of Motion.
2. That the appellant herein-original plaintiff has instituted Civil Suit No. 67 of 2009 in the City Civil Court at Ahmedabad for cancellation of sale deed executed by the original defendant Nos. 1 and 2 (original owners) in favour of defendant No. 3 on 14-11-2006 vide Registration No. 7698 and also for cancellation of the registered sale deed executed by the original defendant No. 3 in favour of the defendant Nos. 4 to 8 on 19-6-2008 vide Registration No. 5781. The appellant-plaintiff has also prayed for a relief of permanent injunction alleging inter alia that the original defendant Nos. 1 and 2 have executed one agreement to sell in favour of the deceased-husband of the plaintiff and the deceased-husband of the plaintiff paid full sale consideration and possession receipt was executed in favour of the deceased-husband of the plaintiff on 3-8-2004 and since then the deceased husband of the plaintiff has become the absolute owner, occupier and in possession of land in question. It is further averred in the plaint that her husband died on 17-2-2008 and the plaintiff has inherited the said disputed suit land in question. It is averred in the plaint that in spite of above transaction with the deceased-husband of the plaintiff the defendant Nos. 1 and 2 have executed one sale deed in favour of the defendant No. 3 with respect to the land admeasuring 3982 sq. yards by registered sale deed dated 14-11-2006 and thereafter the defendant No. 3 has executed the sale deed in favour of the defendant Nos. 4 to 8 illegally. In the said suit, the appellant-plaintiff took out the Notice of Motion below Exh. 6/7 restraining the defendant Nos. 4 to 23 from transferring/alienating the disputed land in question in any manner whatsoever till the final disposal of the suit. That the learned Judge by impugned order dated 10-8-2009 rejected the said Notice of Motion by holding that the plaintiff has failed to establish the prima facie possession of the suit property and that the defendants are found to be in possession of the suit property and that the plaintiff has filed the suit only for injunction and plaintiff has never prayed for a decree of specific performance of the alleged agreement to sell executed by the defendant Nos. 1 and 2 in favour of the deceased-husband of the plaintiff. Being aggrieved and dissatisfied with the impugned order passed by the learned Chamber Judge of the City Civil Court, Ahmedabad rejecting the Notice of Motion and refusing to grant any interim relief as prayed for, appellant-plaintiff has preferred the present Appeal from Order along with Civil Application for interim relief therein.
3. Shri J. T. Trivedi, learned Advocate appearing on behalf of the appellant-original plaintiff has submitted that the learned trial Court has materially erred in not granting the injunction as prayed for protecting the possession of the appellant. It is submitted that without even asking for any other relief either for specific performance and/or any other relief a suit for injunction only is maintainable. Therefore, it is submitted that when the appellant-original plaintiff is in possession of disputed land in question the learned trial Court ought to have granted injunction as prayed for. It is further submitted that even the learned trial Court ought to have granted the injunction restraining the defendant Nos. 4 to 23 from transferring/alienating the suit property in question during the pendency and final disposal of the suit.
4. Shri J. T. Trivedi, learned Advocate appearing on behalf of the appellant-original plaintiff has heavily relied upon Section 53A of the Transfer of Property Act by submitting that a suit simpliciter for injunction to protect the possession by the prospective transferee in possession is maintainable and transferee in possession can file a suit for perpetual injunction seeking protection under Section 53A of the Transfer of Property Act. Therefore, it is submitted that the appellant-original plaintiff is entitled to seek relief of protection of his possession. It is submitted that the proposed transferee in possession can use Section 53A as shield, but not as a sword. In support of his above submission Mr. Trivedi, learned Advocate appearing on behalf of the appellant-original plaintiff has heavily relied upon the decision of the Full Bench of the Bombay High Court in the case of Sadashiv Chander Bhamgare v. Eknath Pandharinath Nangude reported in : AIR 2004 Bombay 378 more particularly, para 11 of the said decision. By making above submissions and mainly relying upon Section 53A of the Transfer of Property Act and decision of the Full Bench of the Bombay High Court in the case of Sadashiv Chander Bhamgare (supra), it is requested to allow the present Appeal from Order.
5. Having heard Shri J. T. Trivedi, learned Advocate appearing on behalf of the appellant and considering the impugned order passed by the learned Judge of the City Civil Court at Ahmedabad the following facts emerge.
That the appellant-original plaintiff claims ownership on the basis of alleged unregistered agreement to sell executed in favour of late husband of the plaintiff dated 30-8-2004. There is no sale deed in favour of late husband of plaintiff or in favour of the plaintiff. That, thereafter the original defendant Nos. 1 and 2 i.e. original land owners have sold out the suit property to the defendant No. 3 by registered sale deed dated 14-11-2006. That the defendant No. 3 has further transferred the suit property in favour of defendant Nos. 4 to 8 by registered sale deed dated 19-6-2008 for a sale consideration of Rs. 37,82,900/-. That the original defendant Nos. 9 to 11 had sold out the undivided property of 5261 sq. mtrs. out of which 1279 sq. mtrs. has been sold out in favour of the defendant No. 12 by registered sale deed dated 2-7-2008. Thus, as such there is no privity of contract or agreement to sell between other defendants i.e. other than defendant Nos. 1 and 2. Admittedly, the day on which the suit came to be filed defendant Nos. 1 and 2 were not the owners of the disputed land in question as it was already sold by registered sale deed and the suit has been filed to cancel or set aside the respective sale deeds.
Considering the Notice of Motion it appears that injunction has been sought by the plaintiff against the defendant Nos. 4 to 23 with whom the plaintiff has no privity of the contract. As stated above, plaintiff is claiming the right on basis of the agreement to sell executed by the original defendant Nos. 1 and 2 original land owners in favour of her late husband. No suit for specific performance of the agreement to sell dated 30-8-2004 alleged to have been executed by the original defendant Nos. 1 and 2 in favour of plaintiff-husband, has been filed. Merely on the basis of the agreement to sell plaintiff cannot claim the ownership right. It cannot be disputed that agreement to sell only does not confer any title in favour of the person in whose favour agreement to sell is executed. Therefore, as such plaintiff cannot claim the ownership right on the basis of the alleged agreement to sell executed by the original defendant Nos. 1 and 2 in favour of her late husband.
6. Learned Advocate for the appellant-original plaintiff has mainly relied upon Section 53A of the Transfer of Property Act, in support of the prayer of the plaintiff to protect the possession and for that purpose learned Advocate for the plaintiff has relied upon the decision of the Full Bench of the Bombay High Court in the case of Sadashiv Chander Bhamgare (supra). As stated above, there is no agreement to sell and/or privity of contract between the plaintiff and defendant Nos. 4 to 23. As stated above, plaintiff is claiming right on the basis of the agreement to sell executed by the defendant Nos. 1 and 2 only in favour of her late husband and on that basis relying upon Section 53A of the Transfer of Property Act has filed the suit only for injunction contending inter alia that at the time of execution of the agreement to sell by the defendant Nos. 1 and 2 her late husband was put in possession. In the aforesaid facts when there is no privity of contract and/or agreement to sell between the plaintiff and/or her late husband through whom the plaintiff is claiming right and between the defendant Nos. 4 to 23 against whom the plaintiff has prayed interim relief, Section 53A of the Transfer of Property Act would not be applicable. Section 53A of the Act imposes a statutory bar on the transferor to seek possession of the immovable property from the transferee in possession. Therefore, it disentitles the transferor from seeking possession from the proposed transferee in possession. Therefore, if the transferor tries to take possession forcibly, the proposed transferee in possession would be entitled to institute a suit to enforce the bar of Section 53A of Act against the transferor. Therefore, remedy available to the prospective transferee in possession under Section 53A of the Transfer of Property Act would be available only against the transferor i.e. with whom the prospective transferee has privity of contract and/or in other words who executed the agreement to sell in favour of proposed transferee. Therefore, proposed transferee in possession is entitled to institute the suit to enforce bar of Section 53A of the Act against the transferor only. As stated above, Section 53A imposes as a statutory bar on the transferor to seek possession of the immovable property from the transferee in possession. Therefore, on fair reading of Section 53A of the Transfer of Property Act such a statutory bar cannot impose on the third party who is not a party to agreement to sell and/or contract between the transferor and transferee. Therefore, a suit by proposed transferee against the third party to the contract/agreement to sell, for enforcement of the bar created by Section 53A shall not be maintainable against the third party to the contract/agreement to sell. Under the circumstances, a suit by a prospective transferee to protect the possession to enforce the bar of Section 53A against the defendant Nos. 4 to 23 is not maintainable. As stated above, defendant Nos. 4 to 8 and 12 are the subsequent purchasers of the land in question purchased by registered sale deed for value. Therefore, the plaintiff cannot institute the suit for perpetual injunction against the defendant Nos. 4 to 23 to protect his possession relying upon Section 53A of the Transfer of Property Act against the said purchaser.
7. Now, so far as the reliance placed by the learned advocate appearing on behalf of the appellant upon the decision of the Full Bench of the Bombay High Court in the case of Sadashiv Chander Bhamgare (supra) is concerned, on facts the said decision would not be of any assistance to the plaintiff. In the case before the Bombay High Court a suit was filed by the prospective transferee in possession against the transferor with whom the prospective transferee had privity of contract i.e. against whom who executed the agreement to sell in favour of the prospective transferee and the point which was referred to the Full Bench for its consideration and decision was that whether a suit simpliciter for injunction which is filed seeking protection under Section 53A of the Transfer of Property Act is maintainable and on the said facts the Full Bench of the Bombay High Court held that prospective transferee in possession can institute suit for protection of his possession, which is threatened for perpetual injunction seeking protection under Section 53A to enforce the bar under Section 53A of the Transfer of Property Act against the transferor. Considering the facts and circumstances of the case, the Full Bench has observed that the proposed transferee in possession can use Section 53A as a shield but not as sword. It is to be noted that even in the said decision it is specifically observed by the Full Bench that the proposed transferee in possession cannot use Section 53A to sue the transferor for a declaration of title but he can avail of benefits of Section 53A as a shield to retain his possession. As observed herein above and it is held that a prospective transferee in possession can avail of benefit of Section 53A as shield to retain his possession only against the transferor with whom the plaintiff has a privity of contract and/or with whom the plaintiff has entered into agreement to sell and not against the third party to the contract/agreement, more particularly the subsequent purchasers that too without asking for any relief of specific performance of the agreement to sell.
8. Even otherwise, it is to be noted that there is a specific finding given by the learned Judge that the original plaintiff is not in possession of the disputed land in question. It appears from the impugned order that plaintiff relied upon some panchnama prepared by the Court Commissioner in another suit between plaintiff and original defendant Nos. 1 and 2 and the learned trial Court has elaborately dealt with the said aspect and has observed that as such defendant Nos. 4 to 23 were not party to the aforesaid suit and, therefore, the panchnama prepared in their absence would not be binding to them. Even on appreciation of evidence the learned trial Court has specifically held and found that plaintiff is not in possession of the disputed land in question. Therefore, also when the plaintiff is not found to be in possession of the disputed land in question even otherwise there is no question of claiming right under Section 53A of the Transfer of Property Act. Even in the decision of the Bombay High Court in the case of Sadashiv Chander Bhamgare (supra) the Full Bench has observed that thus when it is stated that proposed transferee in possession can use Section 53A of the Act as shield but not as sword, it means that he cannot use Section 53A either as plaintiff or as defendant to protect his possession, but he can use Section 53A either for getting title or for getting possession if he is not actually in possession.
9. Considering the aforesaid facts and circumstances of the case and for the reasons stated above it cannot be said that the learned trial Court has committed any error in rejecting the Notice of Motion and refusing to grant injunction as prayed against the defendant Nos. 4 to 23. Under the circumstances, there is no substance in the present Appeal from Order, which deserves to be dismissed and is accordingly dismissed. In view of dismissal of Appeal from Order, no order in Civil Application and is accordingly dismissed.
10. At this stage, Shri J.T. Trivedi, learned Advocate for the appellant has requested to grant status quo so as to enable the appellant-original plaintiff to challenge the present order before the Hon'ble Supreme Court. However, in the facts and circumstances of the case narrated hereinabove and when it is held that a suit for perpetual injunction by the plaintiff against the defendant Nos. 4 to 23 is not maintainable to protect her possession against defendant Nos. 4 to 23 relying upon Section 53A of the Transfer of Property Act, prayer to grant status quo is hereby rejected.