(1) The architect of this litigation is a disingenuous defendant 1 who executed two agreements of sale in favour of two different persons. One of them was an agreement in favour of the plaintiff and the other was in favour of defendant 2. But before he executed a sale deed in favour of defendant 2, he delivered possession to the plaintiff. Then the plaintiff brought the suit out of which this appeal arises for a permanent injunction restraining defendant 1 from disturbing his possession, and during the pendency of the suit he obtained temporary injunction. It is alleged that after service of the temporary injunction on defendant 1,she executed a sale deed in favour of defendant 2. Then defendant 2 was impleaded as a supplemental defendant.
(2) The Court of first instance recorded a finding that possession was delivered to the plaintiff when an agreement of sale was executed in his favour, and that finding was affirmed by the appellate court. But the decree for permanent injunction made by the court of first instance was reversed by the lower appellate court on the ground that the agreement of sale in favour of defendant 2 was an earlier agreement. Mr Savannur appearing for the plaintiff contends that so long as the plaintiff is concurrently found to be in possession of the suit property, the question whether the agreement of sale to defendant 2 was earlier has little relevance and that the plaintiff should be protected against disturbance of possession by the two defendants.
(3) It is clear from the findings of the courts below that when defendant 1 executed an agreement of sale in favour of the plaintiff, she delivered possession of the suit property to him. So, the plaintiff was, when he brought the suit, in lawful possession of the suit property since by then the agreement of sale in favour of defendant 2 had not ripened into a sale. The sale deed was executed only during the pendency of the suit, and by then the plaintiff was already in possession having been delivered possession by defendant 1 who was then the owner of the suit property. Since both the courts have found that that was how the plaintiff acquired possession, it is clear that even if the agreement to sell in favour of defendant 2 was the earlier agreement, he could not, on the basis of the sale deed subsequently executed in his favour, take the law into his own hands and secure possession from the plaintiff. The proper remedy available to defendant 2 is to institute a suit for possession on the foundation of the earlier agreement of sale which culminated in the execution of a sale deed in his favour.
(4) The plaintiff is of course bound by the finding recorded by the lower appellate court that the agreement of sale executed in favour of defendant 2 was the earlier agreement. But in the suit brought by the plaintiff in which he sought only a permanent injunctions restraining disturbance of possession, the question whether the agreement of sale in favour of the plaintiff has to yield to the earlier agreement of sale which culminated in the execution of a sale deed does not properly arise. What is material for the present unit in which the only issue which was framed by the court of first instance was whether the plaintiff was in possession and therefore entitled to a permanent injunction, is whether the plaintiff was in such possession. If he was, he was clearly entitled to a permanent injunction since the course of his possession was the delivery of possession by the plaintiff who had executed an agreement of sale in his favour. It may be that under the earlier agreement of sale defendant 2 has a superior right, but on that question 1 desist from expressing any opinion in this litigation since that question does not arise. That question should therefore be left open to be decided at the appropriate stage in a suit which may be commenced by defendant 2 for obtaining possession of the suit property from the plaintiff on the basis of his sale deed which was the sequel to his earlier agreement of sale.
(5) But what cannot be overlooked is that the plaintiff was in possession when he brought the suit and he was in possession because the owner of the suit property had given possession to him.Even if defendant 2 has the superior right to possession on the basis of the subsequent sale deed, he must obtain possession only through the machinery of law. He could not disturb the plaintiff's possession when he was lawfully on the suit property.
(6) The acceptance of Mr. Albal's contention that the earlier agreement of sale executed in favour of defendant 2 precludes the plaintiff from suing for a permanent injunction involves the recognition of the postulate that on the basis of the earlier agreement of sale defendant 2 could even without the instrumentality of suit, take forcible possession from the plaintiff. Surely that is not the law.
(7) So, I allow this appeal and reverse the decree of the lower appellate court. But that does not mean that I can affirm the decree of the court of first instance in the form in which it is made. What the court of first instance has done is to make a decree for a permanent injunction against defendants 1and2 restraining them from disturbing the plaintiff 's possession. If the decree is allowed to stand in that form, it may be understood as forbidding defendant 2 from recovering possession even through a suit brought for that purpose. So, that decree requires modification. But it requires modification only in the case of defendant 2,while it may remain in its present form with respect to defendant 1.So,in respect of defendant 1 it will remain as it is. But in respect of defendant 2, I make a modified decree that defendant 2 shall not disturb the plaintiff 's possession of the suit property except by resort to the instrumentality of law for securing possession of the suit property on the basis of his earlier agreement of sale if that agreement entitles him to superior right to possession on the property. Until he brings a suit for that purpose and there is a decree in that suit in his favour,the decree for permanent injunction made in this suit shall remain operative. The decree against defendant 2 shall stand modified in this way.
(8) This appeal succeeds to the extent indicated. But in the circumstances, I make a direction that each party will bear his or her own costs in all the three courts.
(10) Appeal allowed but decree modified.