1. This is an appeal against the judgment and decree of the first appellate Court dated March 31, 1976, by which the decision of the trial Court was affirmed and the appeal filed by the plaintiffs was dismissed.
2. The subject-matter of this litigation is a temple known as Durga Devi alias Basanti Devi Mandir and vacant land attached thereto which were earlier situated in village Kailar, Tehsil Kharar, District Ambala. The temple was built by the Rajputs and Brahmins residents of the village. The area of whole village including the temple was acquired for construction of Chandigarh. Compensation vis-a-vis the temple was also assessed. However, the owners refused to accept the same. The temple was preserved by the Authorities as a place of worship. Eventually the Government decided to transfer the proprietary rights regarding the temple to the owners in consideration of the amount of compensation already assessed at the time of acquisition which the owners had refused to accept. A conveyance deed (Exhibit P.2) was executed between the parties on December 17, 1956 which was not registered. The residents of erstwhile village Kailar brought the instant suit in representative capacity under Order 1 Rule 8 of the Code of Civil Procedure against the defendant Santan Dharam Sabha, Chandigarh, for permanent injunction restraining the latter from interfering with the plaintiffs' management, administration, control and possession of the temple on the allegation that the defendant Sabha had started threatening to take forcible possession of the temple.
3. The defendant Sabha resisted the suit on the ground that the Chandigarh Administration has allotted the temple in their favour vide order dated September 15, 1971 (Exhibit D. 1) and possession has also been delivered to them in pursuance of this allotment. Ownership rights of the plaintiffs were denied.
4. The trial Court held that the conveyance deed (Exhibit P. 2) required compulsory registration and being admittedly unregistered it cannot convey title to the plaintiffs. It was found that the temple has been allotted by the Chandigarh Administration to the defendant-Sabha Vide order Exhibit D.1 and on these findings the plaintiffs' suit was dismissed. The lower appellate Court affirmed the findings of the trial Court and discerning no merit in the appeal carried by the plaintiffs dismissed the same.
5. While criticising the judgments of the Courts below the learned plaintiff-appellants' counsel contended that the conveyance deed (Exhibit P.2) is not compulsorily registrable and, therefore, it had vested ownership rights in the plaintiffs. In support of this contention the learned counsel relied upon Section 90(1)(d) of the Registration Act, 1908, which lays down that 'sanads, inam title-deeds and other documents purporting to be or to evidence grants or assignments by Government of land or of any interest in land are exempted from registration under the Act. The contention of the counsel is manifestly misconceived because clause (d) mentioned above is inapplicable to the property in dispute. It is neither land nor any interest in land. It is specifically mentioned in the conveyance deed (Exhibit P. 2) that the vendor had transferred by way of sale to the purchasers all rights, title and interest in the property, that is, two temples situated in village Kailar. The temples cannot be considered land or interest in land. I am, therefore, unable to accept the learned counsel's argument that Exhibit P. 2 is exempted from registration under S. 90(1)(d). The Courts below have, therefore, rightly held that this conveyance deed being compulsorily registrable in view of S. 54 of the T. P. Act cannot be received as evidence of the transaction and is not competent to convey title in respect of the property.
6. The next submission of the learned counsel is that in fact the execution of the conveyance deed (P.2) was redundant because the Government, after acquiring the temple had decided to release it under section 6(2) of the Punjab Requisitioning and Acquisition of Immovable Property Act, 1948 (as amended and validated by the Punjab Requisitioning and Acquisition of Immovable Property (Amendment and Validation) Act of 1951). This contention has also been found untenable. No doubt, the temple had been acquired by the Government under the said Act, but Section 6(2) relates to the release of requisitioned property and not release of acquired property. Section 3(1) empowers the competent authority to requisition any property which is needed or likely to be needed for any public purpose being purpose of the State. Section 7 of the Act provides that where any property is subject to requisition the State Government may acquire the property if it is of opinion that it is necessary to do so for a public purpose. Thus, the property is requisitioned under section 3 and acquired under section 7 of the Act. Section 6(2) relates to the release from requisitioning and it does not apply to any property which is acquired for a public purpose. Hence, the provisions of Section 6(2) of the said Act are entirely inapplicable to the present case. After the acquisition of the temples their title vested in the Government and it could be transferred to the plaintiffs only by means of a conveyance deed. There is, therefore, no merit in the contention that the Government had de-requisitioned the temples making the execution of the conveyance deed redundant.
6A. The next contention of the learned counsel is that even though Exhibit P. 2 is unregistered, the appellants are entitled to take advantage of the same under section 53A of the Transfer of Property Act. The objection of the respondent's counsel is that the appellants being plaintiffs are not entitled to invoke the provisions of Section 53A of the Transfer of Property Act. To meet this objection the appellants' counsel relied upon Ram Chander v. Maharaj Kunwar AIR 1939 All 611. In that case the plaintiff was lessee of a house under registered lease which was defective as it was not signed by both the parties as required by Section 107 of the Transfer of Property Act. The plaintiff instituted a suit against the subsequent purchaser of the house for an injunction restraining him from demolishing the house or otherwise interfering with his right as lessee. It was held that although the lease was defective and inoperative, the provisions of section 53A of the Transfer of Property Act applied to the case and that the plaintiff had a right of suit. The learned Judges observed:--
'Now, in the present case, what is it that the plaintiff is attempting to do. He is not attempting to set up a transfer which is invalid; he has not instituted a suit for the declaration of the validity of the transfer; he has not instituted a suit in which he claims an order against the defendant directing him to perform any covenant of the transfer. What he is seeking to do is to debar the defendants from interfering with his possession into which he has entered with the consent of his transferor after the execution of a transfer in his favour. He is, in other words, seeking to defend the 'rights to which he is entitled under section 53A of the Transfer of Property Act.............................. It is the defendants who are seeking to assert rights covered by the contract. The plaintiff seeks merely to debar them from doing so; the plaintiff is seeking to protect the rights. In a sense, in the proceedings he is really a defendant and we see nothing in the terms of section 53A of the Transfer of Property Act to disentitle him from maintaining the present suit'.
This proposition was approved by Andhra Pradesh High Court in Achayya v. Venkata Subba Rao AIR 1957 Andh. Pra 854, and it was held that the plaintiffs who rely upon the defensive quality of statute recognised under section 53A can take benefit of the same.
7. I find myself unable to agree with the proposition of law laid down in these judgments. In the case of Achayya (Supra) the pronouncement of the Privy Council in Probodh Kumar v. Dantmara Tea Co., Air 1940 PC 1, was noticed. In that case the plaintiffs were in possession of an estate under unregistered documents from the previous owners. Subsequently, the defendants got a registered conveyance of the estate in their favour from the same owners. The plaintiffs filed the suit for a declaration that the defendant had no right or title to the estate and that they were debarred from enforcing any right to the estate. The suit was dismissed on the ground that the plaintiffs could not rely upon Section 53A of the Transfer of Property Act as they could not ask for the relief of declaration for the obvious reasons that the title did not pass to them. The decision in Probodh Kumar's case (Supra) is clearly relevant to the instant case. In order to give benefit of Section 53A of the Transfer of Property Act to the plaintiff it will have to be found that the defendant-Sabha is not the rightful transferee of the temple from the Chandigarh Administration. No such finding can be given as no title had passed in favour of the plaintiffs vide conveyance deed (Exhibit P.2). On the other hand the property in dispute had been allotted to the defendant-Sabha by the competent authority. Thus, it is evident that the plaintiff can take benefit of Section 53A only in a suit in which they are the defendants. They cannot claim to be considered as transferees from the Government on the basis of the conveyance deed Exhibit P-2 in the instant suit. In other words in a conflict between rival transferees it cannot be held that the plaintiffs under Section 53A have preferential right of ownership as against the defendant-Sabha. Such interpretation of Section 53A of the Transfer of Property Act to my mind is not permissible. The case of Achayya (Supra) was noticed in Motilal v. Jaswant Singh, Air 1964 Raj 11, and the view taken was not approved. In this judgment it was held that Section 53A of the Transfer of Property Act clearly lays down that 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. The learned Judge observed:--
'To my mind, the language is clear and must be construed as debarring any person coming to a Court of law from enforcing any right against the transferee. This section does not give any right to the transferee'.
The following observations in a Division Bench judgment of the Orissa High Court in Padmalabha Panda v. Appalanarasamma, AIR 1952 Ori 143, were accepted with approval:--
'Every action, more or less, presupposes some sort of invasion or interference with the plaintiff's right and every suit of a plaintiff, therefore, can be said to be defensive. To accede to this contention would amount to a misuse of the statute by extending its application to cases outside its ambits'.
8. I am of the opinion that the construction put on Section 53A of the Transfer of Property Act in aforesaid Judgments of Orissa High Court and Rajasthan High Court is the correct and sound one. The contrary view expressed in the aforesaid judgments in cases of Ram Chander (AIR 1939 All 611) (Supra) and Achayya (Air 1957 Andh Pra 854) (Supra) has been taken by stretching the plain meaning of the Section in order to uphold the view that a particular plaintiff is really defending his right to the property as against the transferor. I am inclined to approve the following observations in the case of Moti Lal (AIR 1965 Raj 11) (Supra):--
'Whatever be the nature of the cause of action, S. 53A is applicable only when the defendant transferee seeks to debar the transferor plaintiff from enforcing his right against the defendant-transferee in the property which he has transferred with consideration and has parted with possession but has not executed a registered document'.
Taking this view of the matter I am unable to agree with the learned appellants' counsel that in the present case the appellants even in the capacity of plaintiffs are entitled to take benefit of Section 53A of the Transfer of Property Act.
9. It was lastly contended by the appellants' counsel that the appellants being in possession of the temple cannot be ousted by the defendant-Sabha otherwise than in due course of law. A decree for injunction in these terms was claimed. The counsel drew my attention in this respect to Mohan Lal v. State of Punjab 1971 Pun LJ 3338, in which the Supreme Court held that 'under our jurisprudence even an unauthorised occupant can be evicted only in the manner authorised by law. This is the essence of the rule of law'. One can have no quarrel with this proposition of law. Obviously, the defendant-Sabha cannot forcibly dispossess the plaintiffs who are admittedly held to be in possession as observed by S. S. Sidhu, J. in the order dated July, 5, 1976, disposing of a miscellaneous application which arose for determination in this appeal, but the question arises whether a decree for injunction in this respect can be issued in plaintiffs favour simply on their possessory title. The answer to this query must be in the negative in view of the judgment of the Supreme Court in M. Kallappa Setty v. M. V. Lakshminarayana Rao, Air 1972 SC 2299. It was clearly held in this judgment that a plaintiff can, on strength of his possession, resist interference from persons who have no better title than himself to the suit property. In other words A decree for injunction can be passed in favour of the plaintiff, who is in possession, only against those persons who are not proved to have a better title than he to the suit property. In the present case, it cannot be said that the plaintiffs'title is better than that of the defendant-Sabha and, therefore, I am unable to agree with the learned appellants' counsel that simply because the appellants are in possession of the suit property they are entitled to a decree for injunction against the defendant.
The observation of the Supreme Court in the case of Mohan Lal (1971 Pun LJ 338) (Supra) relied upon by the learned appellants' counsel cannot be read contrary to the observations of the same Court in the later judgment in the case of M. K. Setty (Air 1972 SC 2299) (Supra) and it is not possible to hold that the intention of the Supreme Court in making the aforesaid observations in the case of Mohan Lal (1971 Pun LF. 338) (Supra) was to approve the granting of relief of injunction in favour of a plaintiff on the strength of his possession even against those persons who have better title than he to the suit property.
10. For all the aforesaid reasons I find no merit in this appeal and dismiss the same with costs.
11. Appeal dismissed.