IQBAL FATIMA Versus QAISER TANVEER
ORDER
This order will dispose of C. M. As. Nos. 1957 and 1958 of 1975.
2. In the first application the plaintiff has prayed for a temporary ,injunction to restrain the defendant from interfering with his possession of -the plot in suit and from using or utilising in any manner the receipt for Rs. 5,000 dated 19-11-1974, Annexure 'C' to the plaint. In the second application under section 151, C. P. C. the prayer of the plaintiff is for a direction to the Sub-Registrar to withhold the registration of the sale deed of the suit plot pending disposal of the suit.
3. The suit is for specific performance, damages and injunction founded on a written agreement of sale dated 23-1-1967 between the plaintiff and first three defendants whereby the latter who are the owners of the suit land .contracted to sell the same to the plaintiff for a consideration of Rs. 20,000. The case of the plaintiff is that as admitted in the recitals in the agreement he ,had paid a sum of Rs. 5,000 out of the consideration by wav of earnest money to the vendors and the balance of consideration of Rs. 15,000 was to be paid at the time of registration of the final deed of transfer. The plaintiff was put in possession of the plot under the terms of this agreement. The plaintiff further contends that before the final sale deed could be .executed in her favour the fourth and fifth defendants offered to purchase the plot from her for a total consideration of Rs. 30.000. However, at the instance of the said defendants the entire consideration' was not to be shown and instead an arrangement was entered into between the parties whereby the sum of Rs. 10,000 over and above the stipulated consideration payable under the agreement for sale between the plaintiff and the vendors, was to be deposited in the joint account in a bank in the name of plaintiff's father and defendant No. 4 to be subsequently paid to the plaintiff.
4. Pursuant to this offer the plaintiff agreed to sell the plot to the fourth and fifth defendants and executed a receipt for the payment of Rs. 5,000 by I 'the latter which is Annexure 'C' to the plaint. It is then contended by the plaintiff that after the vendors came to know of the subsequent agreement for sale of the plot to defendants 4 and 5 they tried to back out from the contract and in breach thereof negotiated to sell the plot directly to defendants 4 and 5. Due to this the said agreement was mutually cancelled and the sum of Rs. 5,000 was refunded to the defendants 4 .and 5. This suit was thus subsequently filed.
5. In their counter-affidavits the defendants have resisted these applications and have contended that the plaintiff voluntarily surrendered and assigned her interest in favour of defendants 4 and 5 and agreed that the vendors execute the final conveyance in favour of the said defendants after receiving the balance of the consideration of Rs. 15.000 in pursuance whereof a sale deed was executed and presented for registration on 23-9-1975, to the Sub-Registrar. They further contended that the document was to be delivered back to the purchasers on 9-10-1975 according to the receipt issued 'by the Sub-Registrar. However, on 4-10-1975, the plaintiff wrote a letter to ,the Sub-Registrar asking him to desist from registering the document and arranged with the Sub-Registrar to withhold the document although the registration was complete at that time. They further strenuously denied that the plaintiff was put in possession of the plot in pursuance of the agreement of sale by the vendors as stated in the recital.
6. This suit was filed on 10-10-1975 and ad interim orders in terms of the prayers in both these applications were granted on 11-10-1975.
7. I have heard Mr. Saeeduz Zaman for the plaintiff and Mr. Nasim Farooqui for defendants. There is no controversy regarding the fact that the agreement for sale was executed by the vendors in favour of the plaintiff and part consideration received in terms of the said agreement. There is also no controversy that the plaintiff then agreed to sell the plot to defendants 4 and 5. However, the said defendants dispute the amount of consideration and allege that the consideration was the same, namely Rs. 20,000. The contention of Mr. Saeeduz Zaman is that the plaintiff is entitled to the interim relief as she has made out a prima facie case and produced documentary evidence in support of the fact that the plaintiff is. in possession. He further referred to a report lodged with the police by the defendants complaining that the plaintiff had taken forcible possession of the plot which, according to him leads to the conclusion indisputably that the plaintiff is in possession of the plot. Learned counsel further urged by referring to section 27 of the Specific Relief Act, that the defendants 4 and 5 had no right to directly obtain conveyance of the property from the vendors as they claim through the plaintiff and if at all they had any right to the transfer of the property it was to be enforced as against her. He further submitted that the plaintiff's case is based on the rights protected under section 53-A of the Transfer of Property Act, as part performance of the contract the plaintiff was put in possession of the property.
8. Mr. Nasim Farooqui, on the other hand, strongly relied upon the receipt executed by the plaintiff in favour of defendants 4 and 5. (Annexure 'C') and stated that the final position emerging from this admitted transaction is that the plaintiff's right to transfer of title in her favour stood assigned to the said defendants and she has no subsisting right to claim specific performance of the contract in her favour. On the question of possession learned counsel stated that the defendants do not admit that. the plaintiff is in possession of the plot at present as she has not excluded the subsequent purchaser from the possession and at the most she could be said to have trespassed on the land and raised a wall illegally there. Learned counsel emphatically argued that this does not amount to settled possession by the plaintiff over the plot in question. He further referred to. the rejoinder-affidavit filed by the father of the plaintiff in reply to the counter-affidavit by defendants 1 to 3 wherein in paragraph 7 it was denied that the said defendants were at all put in possession of plot A-57 by the K. D. A. Mr. Saeeduz Zaman has replied to this by submitting that this statement cannot be read out of context as it is by way of reply to para. 9 of the counter-affidavit which speaks of a plot of land subsequently numbered as A-57. Learned counsel submitted that the denial on the part of the plaintiff in the rejoinder-affidavit related to the allegation that subsequent to the agreement for sale in favour of the plaintiff contesting defendants. were put in possession of the plot. Accordingly he submitted that the case of the plaintiff is that after entering into possession she was never, dispossessed and continued to enjoy the possession up-to-date.
9. It is not necessary at this stage to give a finding on the factual controversies raised by the parties as they would be a subject-matter of the decision at the trial. What is necessary is to see whether the plaintiff had made out an arguable case and has succeeded in raising a serious question to go to trial. There is no doubt that Annexure 'C', to the plaint which is the only documentary evidence of the transaction between the plaintiff and defendants 4 and 5, does prima facie support the contention that the plaintiff had agreed to assign her interest to defendants 4 and 5 after the receipt of Rs. 5,000 by her. which were appropriated towards the advance already paid by her to the vendors. However, there is a significant lack of a written document to evidence the terms of agreement governing the transaction. It is also admitted that a joint-account was opened and an amount of Rs. 10,000 deposited thereunder in the names of plaintiff's father and defendant No. 4. But the contention of the defendants is that this amount pertained to another oral agreement of sale of the adjacent plot owned by the plaintiff's sister. This controversy being dependent entirely on oral assertions cannot be resolved in a summary way for the decision of the present application. If the defendant's contention is accepted it will also have to be seen how far such an agreement which was virtually without consideration would bind the plaintiff. Thus these are serious questions affecting the rights of the parties which must go to trial for their decisions.
10. But the fact remains that the dominion of the plaintiff over the disputed plot is more or less made out and supported by documentary evidence in the shape of recitals in the agreement for sale, as well as by the admission in the counter-affidavit of defendants 1 to 3 to the effect that the plaintiff had encroached upon and trespassed into the plot. Added to this is the absence of assertion in the counter-affidavit by the defendants that any of them is holding possession of the disputed plot at present. I have therefore come to the conclusion that prima facie the plaintiff is in possession of the plot.
11. But Mr. Farooqui contended that in view of the fact that the title finally stands conveyed to defendants 4 and 5, there is no equity in favour of the plaintiff for interim relief. However, since these defendants are subsequent purchasers with notice of the prior agreement for sale in favour of the plaintiff, if the plaintiff succeeds in this suit this fact would become immaterial, as the plaintiff can sue for relief against subsequent purchasers 't who claim through the vendors, by the combined effect of section 53-A., Transfer of Property Act and section 27 of the Specific Relief Act. I am therefore, of the confirmed view that the plaintiff has made out a case for grant of temporary injunction.
12. As regards the other application it was more or less admitted by the learned counsel that the document in favour of defendants 4 and 5 has been registered but has been withheld on account of ad interim orders passed by this Court. It will serve no useful purpose, if that is so. to keep the document from being delivered to the defendants, whatever the decision in this suit. On the other hand, they should be permitted to rely on this document, in that event, in support of their case. Accordingly I have come to the conclusion that the application under section 151, C. P. C. has no force and has to be dismissed.
13. In the result, the rule issued by this Court granting ad interim injunction is confirmed. But, in order to protect the interests of the defendants the orders of injunction would be on terms, so that the plaintiff shall furnish security in the sum of Rs. 15,000 to the satisfaction of the Nazir of this Court. Subject to the condition, the injunction shall stand confirmed as granted earlier. The application for a direction to the Sub-Registrar is however dismissed.
S. Q. Order accordingly.