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Sujan Charan Lenka and ors. Vs. Smt. Pramila Mumari Mohanty and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 486 of 1985
Judge
Reported inAIR1986Ori74
ActsTransfer of Property Act, 1882 - Sections 14 and 54; Code of Civil Procedure (CPC) , 1908 - Sections 115 - Order 39, Rules 1 and 2
AppellantSujan Charan Lenka and ors.
RespondentSmt. Pramila Mumari Mohanty and ors.
Appellant AdvocateB.H. Mohanty, ;J.K. Bastia, ;R.K. Nayak, ;B. Das and ;S.P. Mohanty, Advs.
Respondent AdvocateM. Patra, ;S.R. Patnaik and ;D. Das, Advs.
DispositionPetition allowed
Cases ReferredGovinda Chandra Tripathy v. Pal Hira Purchase Ltd.
Excerpt:
.....virtue of the sale deeds the petitioners acquired title, as well as possession, in respect of the suit land. patrala gouri mahalaxmi raimani (air 1977 orissa 58) (supra) it was held by a learned single judge of this court that it is fairly well settled that grant or refusal of temporary injunction rests on sound exercise of discretion and it cannot be lightly interfered with unless it is shown that such exercise of discretion is unreasonable or capricious. rama routa, that where an order passed by a court if allowed to stand would occasion a failure of justice and/or cause irreparable injury to a party against whom it was made, the revisional jurisdiction can be invoked. samual santhi kumar choudhury, where it was held that the high court in revision is empowered to set aside an order..........the code of civil procedure ('code' for short) restraining the petitioners from entering upon the suit land.2. in the suit, opposite party no. 1 is the plaintiff and opposite party no. 2 and the petitioners are defendants. indisputedly, opposite party no. 2 (defendant) was the previous owner of the suit land consisting of a thatch house and fruit bearing trees- he is a close relation of the husband of opposite party no. 1. according to the case set up by opposite party no. 1, opposite party no. 2 having settled down in a different village agreed to sell the suit land in favour of opposite party no. 1 for a consideration of rs. 17,000/- and executed a deed of contract for sale in her favour on 21-3-1984. in part performance of the contract opposite party no. 1 paid a sum of rs. 7000/- to.....
Judgment:
ORDER

K.P. Mohapatra, J.

1. This revision is directed against the order passed by the learned Additional District Judge, Cuttack confirming the order passed by the learned Subordinate Judge, Jagatsinghpur under Order 39, Rules 1 and 2 of the Code of Civil Procedure ('Code' for short) restraining the petitioners from entering upon the suit land.

2. In the suit, opposite party No. 1 is the plaintiff and opposite party No. 2 and the petitioners are defendants. Indisputedly, opposite party No. 2 (defendant) was the previous owner of the suit land consisting of a thatch house and fruit bearing trees- He is a close relation of the husband of opposite party No. 1. According to the case set up by opposite party No. 1, opposite party No. 2 having settled down in a different village agreed to sell the suit land in favour of opposite party No. 1 for a consideration of Rs. 17,000/- and executed a deed of contract for sale in her favour on 21-3-1984. In part performance of the contract opposite party No. 1 paid a sum of Rs. 7000/- to opposite party No. 2 and the latter delivered possession of the suit land to the former. Although opposite party No. 1 was at all times ready and willing to perform her part of the contract, opposite party No. 2 avoided with ulterior motive and ultimately on 16-1-1985, he sold the suit land in favour of the petitioners by registered sale deeds. According to opposite party No. 1, as she was in possession of the suit land in part performance of the contract and the petitioners are subsequent transferees with notice of prior contract for sale, during pendency of the suit, the petitioners should be restrained under Order 39, Rules 1 and 2 of the Code.

3. The defence of opposite party No. 2 is that he did not enter into any contract for sale of the suit land in favour of opposite party No. 1 and did not execute the deed of contract of sale on 21-3-l984. Opposite party No. 1 had obtained his signatures on some blank pieces of paper and forged the deed of contract for sale dated 21-3-1984. He did not receive part of consideration of Rs. 7000/-, nor delivered possession of the suit land in part performance of the contract to opposite party No. 1.

4. The defence of the petitioners is that opposite party No. 2 having received cash consideration of Rs. 53,000/- sold the suit land in their favour by executing registered sale deeds on 16-1-1985. After sale they have been in possession of the suit land. They are transferees for valuable consideration without prior notice of the contract for sale and hence acquisition of title by them cannot be disturbed. Therefore, they are not liable to be restrained during pendency of the suit.

5. The learned Courts below concurrently held on the strength of the deed of contract for sale dated 21-3-1984 that opposite party No. 1 has prima facie case, she will suffer irreparable injury if the petitioners are not restrained by way of temporary injunction from entering into the suit land and the balance of convenience is in her favour. Accordingly the order of temporary injunction passed by the learned Subordinate Judge against the petitioners was confirmed by the learned Additional District Judge.

6. Mr. B. H. Mohanty appearing for the petitioners contended that the deed of contract of sale in respect of the suit land did not confer a valid title on opposite party No. 1 as against the registered sale deeds for consideration in respect thereof executed by the real owner (opposite party No. 2) in favour of the petitioners. In such circumstances, opposite party No. 1 has no prima facie case. The learned Courts below did not consider these aspects and so they came to the erroneous conclusion that opposite party No. 1 has a prima facie case. In support of his contention, he placed reliance on two decisions reported in AIR 1967 SC 744, Ram Baran Prasad v. Ram Mohit Hazza, and AIR 1981 Delhi 291, Jiwan Dass Rawal v. Narain Dass, Mr. M. Patra, learned counsel appearing for opposite party No. 1, on the other hand, urged that the concurrent findings of fact recorded by the learned Courts below should not be disturbed in civil revision. In support of his contention he cited AIR 1977 Orissa 58, Ravad Raibari v. Patarala Gouri Mahalaxmi Raimani, AIR 1976 SC 2621, the Municipal Corporation of Delhi v. Suresh Chandra Jaipuria, and AIR 1979 Pat 174, Ram Narain Prasad v. SethSao.

7. In view of the contentions raised, the first point of consideration is whether on the basis of the deed of contract for sale, the learned Courts below were justified in holding that opposite party No. 1 has a prima facie case, specially when, the petitioners have sale-deeds in their favour in respect of the same land executed by the real owner. In the case of Ram Baran Prasad (supra) it was held that in the case of an agreement for sale entered into prior to the passing of the Transfer of Property Act, it was the accepted doctrine in India that the agreement created an interest in the land itself in favour of the purchaser. But there has been a change in the legal position since the passing of the Transfer of Property Act. Section 54 of the said Act states that a contract for sale of immovable property does not of itself, create any interest in or charge on such property. Reading Section 14 along with Section 54 of the said Act, it is manifest that a mere contract for sale of immovable property does not create any interest in the immovable property. In an identical case reported in the case of Jiwan Dasa Rawal (AIR 1981 Delhi 291) (supra) the Delhi High Court relied upon the Supreme Court decision in the case of Ram Baran Prasad (AIR 1967 SC 744) (supra) and held that unlike the law in England where an agreement for sale creates an equitable estate in the purchaser, the law in India does not recognise any such estate. Section 54 of the Transfer of Property Act in specific terms provides that a contract for sale does not, by itself, create any interest in or charge on such property. Such contract is merely a document creating a right to obtain another document in the form of sale deed to be registered in accordance with law. In other words, a contract for sale is a right created in personam and not in estate. No privity in estate can be deduced therefrom which can bind the estate, as is the position in cases of mortgage, charge or lease. Of course, such personal right created against the vendor to obtain specific performance can ultimately bind any subsequent transferee who obtains transfer of the property with notice of the agreement of sale. Till, therefore, a decree for specific performance is obtained, the vendor or a purchaser from him is entitled to full enjoyment of the property. In fact, even if a decree for specific performance of contract is obtained, and no sale-deed is actually executed, it cannot be said that any interest in the property has passed.

In the present case, opposite party No. 2 executed a deed of contract for sale in respect of the suit land on 21-3-1984. It was recited in the said document that opposite party No. 2 entrusted opposite party No. 1 with the management of the same land with a thatch house and fruit bearing trees. There is no specific recital to the effect that opposite party No. 2 gave possession of the suit land in favour of opposite party No. 1. To remain in charge of management of certain property is one thing and to be in possession thereof is another. A person can remain in charge of the property without being in possession thereof though the position is not so vice versa, because, a person in possession of the property, automatically remains in charge thereof. For the reason that there was a recital in the deed of contract for sale that opposite party No. 1 was entrusted with the management of the suit land, it cannot be concluded that she actually came into possession thereof. On the other hand, opposite party No. 2 outright transferred the suit land in favour of the petitioners by executing registered sale-deed on 16-1-1985 in which it was recited that the purchasers were given delivery of possession of the suit land soon after sale. It is yet to be decided in the suit on the basis of evidence as to whether the contract for sale was a genuine and not a fraudulent document and if the vendees had prior notice of the contract for sale. It is also yet to be determined as to whether opposite party No. 1 come into possession of the suit land on the date of contract for sale or the petitioners came into possession thereof soon after the sale deeds were executed in their favour. At this stage the Courts should accept as real what is apparent. In other words they have to accept that by virtue of the sale deeds the petitioners acquired title, as well as possession, in respect of the suit land. Particularly, they should accept the position as such on the basis of the dictum laid by the Supreme Court in the case of Ram Narain Prasad (AIR 1979 Pat 174) (supra) that a deed of contract for sale does not confer title. Thus, in this case opposite party No. 1 on the basis of a deed of contract for sale has prima facie acquired no title in respect of the suit land, whereas, the petitioners on the basis of the sale deeds have prima facie acquired title in respect thereof. Possession would ordinarily be presumed to be with those having prima facie title. So in my view, both the learned Courts below lost sight of the proposition of law laid down by the Supreme Court in the case of Ram Baran Prasad, (AIR 1967 SC 744) (supra) and, therefore, came to an erroneous conclusion that opposite party No. 1 on the basis of the deed of contract for sale has prima facie title and has a prima facie case. Therefore, the conclusion, though concurrent, cannot be accepted. But on the other hand, in the facts and circumstances of this case, it is bound to be held that prima facie title remains with the petitioners, they should be deemed to have acquired possession soon after the sale in their favour and, therefore, the balance of convenience is on their side.

8. The second point of consideration is whether this Court in exercise of jurisdiction under Section 115 of the Code should be reluctant to reverse concurrent findings of fact recorded by the learned Courts below. In the case of the Municipal Corporation of Delhi v. Suresh Chandra Jaipuria, (AIR 1976 SC 2621) (supra) in view of the facts of that case it was held that it was not justified to interfere with the concurrent findings recorded by the Courts below. In the case of Ravad Raibari v. Patrala Gouri Mahalaxmi Raimani (AIR 1977 Orissa 58) (supra) it was held by a learned single Judge of this Court that it is fairly well settled that grant or refusal of temporary injunction rests on sound exercise of discretion and it cannot be lightly interfered with unless it is shown that such exercise of discretion is unreasonable or capricious. In the facts and circumstances of that case, it was further held that there was no legal infirmity or material irregularity when the learned lower Courts concurrently held that the plaintiff had a prima facie case. It was further held that the exercise of the revisional power is purely discretionary. The revisional Court cannot interfere where there is no patent violation of law or any perversity manifested in the order. It cannot, in exercise of its jurisdiction under Section 115 of the Code, correct errors of the fact however gross they may be unless it has relation to the jurisdiction of the Court. In the case of Ram Narain Prasad (AIR 1979 Pat 174) (supra) it was held that while exercising the jurisdiction of revision, the High Court should not ordinarily interfere with the discretion of the Court below though it may be erroneous. The High Court should interfere only if the impugned order passed by the Court is without jurisdiction or it falls within the proviso to Section 115 of the Code. It was held in AIR 1985 Orissa 77, Doshei Dei v. Rama Routa, that where an order passed by a Court if allowed to stand would occasion a failure of justice and/or cause irreparable injury to a party against whom it was made, the revisional jurisdiction can be invoked. An identical view was expressed in (1985) 59 Cut LT 207 : (AIR 1985 Orissa 195), Jeypore Evengelical Lutheran Church v. Samual Santhi Kumar Choudhury, where it was held that the High Court in revision is empowered to set aside an order if it is allowed to stand would occasion a failure of justice or cause irreparable injury to the party against whom it was made. In (1985) 59 Cut LT 222 : (AIR 1985 NOC 151), Raghu Mohapatra v. Bhaskar Mohapatra, it was held that when the question is one relating to pure appreciation of evidence it is not a case for interference in Civil Revision and it cannot be said that the lower court has exercised its jurisdiction not vested in it by law or has acted in exercise of its jurisdiction illegally or with material irregularity. In other words, it is not open to the High Court in exercise of its revisional jurisdiction to question the finding of fact recorded by a subordinate Court. Revisional jurisdiction shall be exercised in cases involving questions of jurisdiction i.e. questions regarding the irregular exercise or non-exercise of jurisdiction or the illegal assumption of jurisdiction by a Court and is not directed against conclusion of law or fact in which questions of jurisdiction are not involved. In (1985) 59 Cut LT (Note) 162 : (AIR 1985 Orissa 178), Govinda Chandra Tripathy v. Pal Hira Purchase Ltd., (Civil Revision No. 3 of 1982) it was held that in a civil revision the High Court shall not ordinarily interfere with findings of fact passed purely on the assessment of evidence. The ratio of the aforesaid decisions is that the High Court in exercise of its revisional jurisdiction under Section 115 of the Code shall not ordinarily interfere with the concurrent findings of fact recorded by the Courts below, unless it appears to it that the Courts below patently committed an illegality and took a wrong view of law, as a result of which they arrived at erroneous findings of fact by illegal exercise of jurisdiction. In any event, when an impugned order, if it is allowed to stand, will occasion a failure of justice and the party against whom it is made will suffer irreparable injury, the High Court is not precluded to exercise its revisional jurisdiction. It must be remembered that in whatever language Section 115 of the Code has been couched, and despite the restrictions imposed after its amendment in 1976, once the High Court is satisfied on materials on record placed before it that the impugned order passed by the Court or Courts below shall cause injustice to a party and/or it is illegal, it should not be reluctant to reverse such an order and pass such order as would serve the ends of justice.

9. In the ultimate analysis, the learned Courts below did not keep the correct principle of law in view and, therefore, arrived at palpably erroneous conclusions. If the impugned orders are allowed to stand, they will occasion a failure of justice and will cause irreparable injury to the party against whom they were made. Therefore, this Court, in exercise of its revisional jurisdiction, should not be reluctant to reverse the impugned orders even though the findings are concurrent.

10. In the result, therefore, the Civil Revision is allowed and the impugned orders of temporary injunction passed against the petitioners are vacated. Parties to bear their own costs.


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