It is thus clear that in such a situation where a suit for a decree for specific performance is barred by the Law of Limitation, the prospective purchaser in possession would not be in a position to institute a suit for decree of specific performance, but Section 53-A creates an equity in his favour, as a result of which he is entitled to continue in possession. If it is held that though his possession is protected, he cannot institute a suit in case he finds that his possession has been threatened would amount to denying a remedy for enforcing the equity which is created in his favour by Section 53-A. In a case where the prospective purchaser has a live cause of action for instituting a suit for specific performance, he omits to institute such a suit, and instead files a suit only for perpetual injunction for protection of his possession, in that situation it is for the Court to consider whether to grant him a decree of perpetual injunction or not But that will be in the realm of exercise of the jurisdiction. It will not be a case of absence of jurisdiction to entertain the suit. Therefore, we find that there is nothing in Specific Relief Act also which can be said to have barred the jurisdiction of the Civil Court to take cognizance of such a suit even by necessary implications.
Bombay High Court
Sadashiv Chander Bhamgare vs Eknath Pandharinath Nangude on 16 April, 2004
Equivalent citations: AIR 2004 Bom 378, 2004 (4) CTC 465, 2004 (3) MhLj 1131
Bench: R Lodha, D Deshmukh, J Devadhar
1. The Hon'ble the Chief Justice has constituted this Bench for consideration and decision of the following point.
"Whether a suit simplicitor for injunction which is filed seeking protection under Section 53-A of the Transfer of Property Act is maintainable".
2. The facts giving rise to the reference are, one Eknath Pandharinath Nangude, present respondent, filed a civil suit seeking a decree of perpetual injunction restraining the defendant, present Appellant, from disturbing the possession of the plaintiff of two acres of land out of Gat No. 102 situated at village Gorhe Khurd, Taluka; Haveli, District; Pune. The case of the plaintiff is that on 20-2-1975 an agreement of sale was entered into between the plaintiff and the defendant for sale of two acres of land from Gat No. 102 situated at village Gorhe Khurd, Taluka; Haveli, District; Pune (hereinafter referred to as the "suit land") for consideration of Rs. 9,000/-. On the date of the agreement an amount of Rs. 5000/- out of the agreed consideration was paid by the plaintiff to the defendant and the defendant placed the plaintiff in possession of the land. According to the plaintiff on 25-2-1977 he paid further amount of Rs. 3000/- to the defendant. According to the plaintiff, the defendant did not execute the sale deed. According to the plaintiff on 2-7-1992 the defendant and the members of his family obstructed the plaintiff from cultivating the suit land. He, therefore, filed the suit seeking a decree of perpetual injunction restraining the defendant from disturbing the possession of the plaintiff of the suit land. He claimed that he is in possession of the land pursuant to the agreement dated 20-2-1975 as a prospective purchaser. In this suit on an objection being raised by the defendant preliminary issue was framed to the effect "whether a suit simplicitor for injunction seeking protection under Section 53-A of the Transfer of Property Act is maintainable?" The trial Court decided the issue and held that such suit is not maintainable and dismissed the suit. The order of the trial Court was challenged in appeal. The Appellate Court, however, came to the conclusion that such a suit is maintainable and therefore remanded the suit back for trial to the trial Court. It is against this order of the Appellate Court that Appeal From Order No. 1119 of 1995 was filed before this Court. This appeal was heard by the learned Single Judge. The learned Single Judge found that two learned Single Judges of this Court have held that a suit simplicitor for injunction for protection of the rights of the plaintiff under Section 53-A of the Transfer of Property Act is not maintainable. The two Judgments were, one in the case of Hussain Khan s/o Sawarkhan Pathan v. Shaikh Ahmed s/o Shaikh Lal, reported in 1988 Mh.L.J. 55 and the other in the case ofMathurabai K. Koli v. Roopchand L. Koli .
The learned single Judge also found that another learned single Judge of this Court by judgment in the case of Mahadeo Nathuji Patil v. Surjabai Khushalchajid Lakkad and Ors. reported in 1994 Mh.LJ. 1145 has on the contrary held that such a suit is maintainable. The learned single Judge finding a clear conflict of opinion referred the matter to Hon'ble the Chief Justice for referring the issue either to the Division Bench or to the Full Bench. The Hon'ble the Chief Justice, therefore, constituted this Bench for consideration of the aforesaid issue.
3. The learned Counsel appearing for the Appellant submits that the judgment of the learned Single Judge in the case of Hussain Khan referred to above holding that such a suit is not maintainable relies on a judgment of the Privy Council in the case of Probodh Kumar Das and Ors. v. Dantmara and Company Ltd. , and therefore in the submission of the learned Counsel, the learned Single Judge who decided Dharmaji's case was not justified in taking a different view. The learned Counsel further submits that the learned Single Judge in the judgment in the case of Mathurabai K. Koli for taking the same view apart from relying on the judgment of the learned Single Judge in Hussain Khan's case also relied on the judgment of the Division Bench of this Court in the case ofYeshwantrao Martandrao Mukane v. Khushal R. Bhatia, 1986 Mh.LJ. 659 : 1986 (1) BCR 533 and has reached the same conclusion. According to the learned Counsel, therefore, the learned single Judge who decided Dharmaji's case was not justified in holding that a suit of such a nature is maintainable. The learned Counsel submits that Section 53-A of Transfer of Property Act by itself does not create any right in the prospective purchaser who is in possession pursuant to an agreement to sell. It only creates an equity in favour of such a prospective purchaser that he is entitled to raise the defence based on the provisions of Section 53-A of the Transfer of Property Act to protect his possession in a suit which is filed against him. According to the learned Counsel the protection under Section 53-A of the Transfer of Property Act can be claimed by the prospective purchaser in possession only as a defendant and not as a plaintiff.
4. On behalf of the respondent, on the other hand, it is submitted that Section 53-A has been enacted to put restriction on the right of the owner of the property who has entered into agreement to sell the property and has delivered possession of that property to the prospective purchaser. According to the learned Counsel, thus, Section 53-A of the Act has been enacted for the benefit of the prospective purchaser who is in possession pursuant to an agreement for sale. Section 53-A thus confers a right on the prospective purchaser to continue in possession of the property which he had agreed to purchase. This right is given by the statute to the prospective purchaser to defend his possession. He can defend that possession in case it is threatened by the owner even by instituting a suit himself. He can also raise it as a defence in case the owner files a suit against him. The learned Counsel relies on a judgment of the Supreme Court in the case of Patel Natwarlal Rupji v. Kondh Group Kheti Vishayak and Anr., and submits that the Supreme Court has held that
Section 53-A confers a right on the transferee to the extent that it imposes a bar on the transferor, to protect the transferee's right to retain possession of the property under the contract. The learned Counsel also relies on the judgment of the Supreme Court in the case of Biswabani Pvt. Ltd. v. Santosh Kumar Dutta and Ors., , specially observations in paragraph 9 of that judgment. The learned Counsel also relies on the judgment of the Supreme Court in the case of Delhi Motor Co. and Ors. v. U. A. Basrurkar and Ors., .
5. For the purpose of deciding this reference we are taking following as admitted position:
i. that the plaintiff was given possession of the suit property pursuant to an agreement of sale;
ii. The" plaintiff has paid the amount of the agreed consideration substantially;
iii. The defendant has not executed sale-deed in favour of the plaintiff;
iv. The plaintiff continues to be in possession of the land though there is no sale deed in his favour,
v. The plaintiff filed a civil suit seeking a decree of perpetual injunction against the defendant, who is transferor, restraining him from disturbing the possession of the plaintiff;
6. Section 53-A of the Act, which falls for consideration reads as under:--
53-A. Part performance.-- Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty,
and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract,
and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, 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, other than a right expressly provided by the terms of the contract:
Provided that nothing in this Section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.
Section 53-A did not find place in the Transfer of Property Act. It was inserted by Act 20 of 1929. The Supreme Court in its judgment in the case of Shrimant Shamrao Suryavanshi and Anr. v. Pralhad Bhairoba Suryavanshi (dead) by Lrs. and Ors., has considered the circumstance in which it became necessary for the Government to set up a Special Committee for making recommendation whether the British equitable doctrine of part-performance be extended to India also. The Supreme Court in paragraph 15 of its judgment in the case of Shrimant Suryavanshi referred to above has referred to the aims and object of the Amending Act, 1929 insofar as provisions of Section 53-A are concerned and has observed that the purpose behind enacting Section 53-A was to provide protection to a transferee who in part performance of the contract has taken possession of the property even after limitation to bring a suit for specific performance has expired. Perusal of the provisions of Section 53-A shows that before the transferee becomes entitled to claim protection of the provisions of Section 53-A of the Transfer of Property Act, he has to satisfy certain conditions. Those conditions are
(i) there must be a contract for transfer for consideration of any immoveable property;
(ii) the contract must be in writing, signed by the transferor, or by someone on his behalf;
(iii) the writing must be in such words from which the terms necessary to construe the transfer can be ascertained;
(iv) the transferee must in part-performance of the contract take possession of the property, or of any part thereof;
(v) the transferee must have done some act in furtherance of the contract; and
(vi) the transferee must have performed or be willing to perform his part of the contract;
7. For the purpose of deciding this reference we are proceeding on the basis that the plaintiff, transferee, has complied with all these conditions which are necessary to be complied with in terms of the provisions of Section 53-A of the Transfer of Property Act for the transferee to be entitled to claim the equity under Section 53-A of the Act to protect his possession of the suit property.
8. Therefore, the only controversy to be considered is whether the transferee is entitled to maintain the suit seeking a decree of perpetual injunction restraining the transferor from disturbing his possession.
9. Perusal of the above quoted Section 53-A shows that the provision does confer right on the transferee if the conditions of that Section are fulfilled. The right that is conferred on such a transferee is to have the transferor or any person claiming under him barred from enforcing against the transferee and person claiming under him any right in respect of the property of which the transferee has taken or continued in possession. Thus the right that is conferred on the transferee is that as against the transferor or any person claiming under him the transferee can protect his possession. The purpose behind Section 53-A is thus to provide a shield of protection to the proposed transferee to remain in possession against the original owner who has agreed to sell the land to the transferee if the proposed transferee satisfies other conditions of Section 53-A. That protection is available to the transferee as a shield against the transferor and would disentitle the transferor from disturbing the possession of the proposed transferee who is put in possession pursuant to such agreement. But this has nothing to do with the ownership of the proposed transferor who remains full owner of the land till it is legally conveyed by sale-deed to the proposed transferee. In other words on the basis of the provisions of Section 53-A, the proposed transferee, who is in possession, cannot claim title. On the basis of Section 53-A the transferee in possession cannot institute a suit for declaring himself as the owner of the land.
10. So far as the judgment of the learned Single Judge in Hussain Khan's case is concerned, the learned Single Judge has relied on the judgment of the Privy Council in the case of Probodh Kumar Das and Ors. v. Dantmara and Company Ltd. It appears that that judgment has been considered by the Division Bench of Allahabad High Court in the case of Pandit Ram Chander v. Pandit Maharaj Kunwar and Ors. , and the Division Bench has observed thus :--
It was contended for the plaintiff that in the present suit he was merely seeking the remedy which Section 53-A, T. P. Act, afforded debar the defendants from enforcing against him a right in respect of the property of which he had taken possession. It was maintained for the respondents on the other hand that the benefits of the provisions of Section 53-A were only available to a party in litigation who was a defendant. In support of this contention learned counsel for the respondents referred to the case in 41 C W N
54. This decision clearly supports the defendants' contention. The case is however distinguishable from the present because there the transferee sought a direct relief in support of his title. The decision appears to have been based upon certain observations of Lord Macmillan in the Privy Council case in 1934 ALJ 912. At page 916 of the judgment of the Board it is observed :
It remains to take note of the fact that since the present suit was brought the law in India has been altered by the Transfer of Property (Amendment) Act 20 of 1929 which has inserted a new Section 53-A in the principal Act, whereby a defendant in an action of ejectment may, in certain circumstances, effectively plead possession under an unregistered contract of sale in defence to the action. Their Lordships' views, as expressed in the present case, must therefore be understood to be referable to the state of law before this partial importation into India of the English equitable doctrine of part performance.
Learned Counsel for the defendants-respondents founded particularly upon the words whereby a defendant in an action of ejectment may, in certain circumstances, effectively plead possession under an unregistered contract of sale in defence to the action.
In the first place it is to be noted that the above observations of the Board are obiter, and, secondly, it does not at all follow from these observations that their Lordships intended to lay down that the only remedy which was open to a transferee under Section 53-A, T. P. Act, was to plead as a defendant in possession under an unregistered or invalid document. We would note further that the above observation concludes with the statement that the views of the Board, as expressed in the case, must be understood to be referable to the state of law before the introduction of Section 53-A, into the T. P. Act in 1929. In our judgment, that part of Section 53-A, T. P. Act, under consideration presents little difficulty. The words appear to us to be perfectly simple and straightforward. Where a person has been party to a transfer which is invalid because the formalities of the law have not been complied with, then that person is to be debarred from enforcing, as against his transferee, any right in respect of the property of which the transferee has taken or continued in possession. In other words, the intention of the Legislature plainly was that the transferor was not to be entitled merely because the transfer was invalid as the result of a non-compliance with the formalities of the law to enforce, as against the transferee, a right which the deed of transfer was intended to convey.
It is clear from the above observations that in the case that was considered by the Privy Council the proposed transferee in possession had instituted a suit seeking transfer of title in his favour and in those circumstances the Privy Council observed that the proposed transferee in possession can only take benefit of the provisions of Section 53-A to protect his possession.
11. In our opinion, in view of the judgment of the Supreme Court in the case of Patel Natwarlal Rupji (supra) really speaking the question that has been referred stands answered. The Supreme Court in that case was considering the rights that are conferred on the proposed transferee in possession by the provisions of Section 53-A of the Act. The observations of the Supreme Court in paragraphs 6 and 7 of that judgment, in our opinion, are relevant. They read as under :--
6. Though the doctrine of part performance embodied in Section 53-A of the Act is part of equitable doctrine in English law. Section 53-A gives statutory right which is available to the transferee for consideration in possession of the property had under the contract. In terms of the section, so long as the transferee has done and is willing to perform his part of the contract or, in other words, is always ready to abide by the terms of the contract and has performed or is always ready and willing to perform his part of the contract, the transferee is entitled to avail of this statutory right to protect his possession as a shield but not as a sword. The right to retain possession of the property rests on the express provisions 6f the Act and on his compliance thereof. A person who pleads equity must come to the Court with clean hands and he alone is entitled to the benefit of this section. The section does not create a right or title in the defendant. It merely operates as a bar to the plaintiff to assert his title. The transferor is barred from enforcing his rights other than those expressly provided by the contract. The section, therefore, imposes a bar on the transferor, when the conditions mentioned in the section are fulfilled by the transferee, and the section also bars the transferor to enforce his rights against such transferee or person deriving right, title and interest from such transferee. It would, therefore, be clear that Section 53-A confers a right on the transferee, to the extent it imposes a bar on the transferor, to protect the transferee's right to retain possession of the property had under the contract. It would thus be clear that Section 53-A confers no title on the transferee but imposes a statutory bar on the transferor to seek possession of the immovable property from the transferee. Equally, Section 53-A does not confer any title on the defendant in possession or can he maintain a suit on title, 7. In Ram Gopal Reddy v. Addl. Custodian Evacuee Property, a Constitution Bench of this Court had held that the benefit of Section 53-A cannot be taken aid of by the plaintiff to establish his right as owner of the property. Therefore, Section 53-A can be used as a shield but not as an independent claim either as a plaintiff or as a defendant. In Delhi Motor Co. v. U.A. Basrurkar, a Bench of three Judges had held that Section 53-A is meant only to bring out a bar against the enforcement of a right by a lessor in respect of the property of which the lessee had already taken possession but does not give any right to the lessee to claim possession or to claim any other right on the basis of an unregistered lease. Section 53-A is available only as a defence to a lessee and not as conferring a right on the basis of which the lessee can claim rights against the lessor. In that case the appellants had put forward certain documents as a lease which was admittedly beyond 11 months and, therefore, It was held that the company was not entitled to avail of the statutory right under Section 53-A. In Sardar Govindrao Mahadik v. Devi Sahai, this Court had held that the Court would look at the writing that is offered as a contract for transfer for consideration of any immovable property, then examine the acts said to have been done in furtherance of the contract, and find out whether there is a real nexus between the contract and the acts pleaded as a part performance so that to advantage or benefit of the contract, backs out and pleads nonregistration as a defence, a defence analogous to Section 4 of the Statute of Frauds. In that case it was held that the mortgagee in possession was not entitled to claim title of ownership against suit of mortgagor for redemption. Therefore, the doctrine of part performance in Section 58(3) was held not available to establish title to the property. In Sheth Maneklal Mansukhbhai v. Hormusji Jamshedji Ginwalla and Sons, this Court had held that Section 53-A of the Act is only a partial importation of English doctrine of part performance.
It is clear from the observations of the Supreme Court quoted above that Section 53-A of the Act imposes a statutory bar on the transferor to seek possession ok the immovable property from the transferee in possession. In other words, therefore, it disentitles the transferor from seeking possession from the proposed transferee in possession. Therefore, if the transferor, though he has been denied that right by Section 53-A, tries to take possession forcibly, the proposed transferee in possession would be entitled to institute a suit to enforce the bar of Section 53-A against the transferor. In such a situation, when the proposed transferee in possession comes to the Court seeking a decree of perpetual injunction restraining the transferor from disturbing his possession, he does not come to the Court for enforcement of any rights conferred on him, but he comes to the Court for enforcement of the bar created by Section 53-A against the transferor. If the proposed transferee in possession is denied the right to institute a suit for enforcing the bar against the transferor enacted by Section 53-A so as to protect his possession, then the proposed transferee in possession would be rendered remedyless. In our opinion from the observations of the Supreme Court quoted above it is clear that when it is said that the proposed transferee in possession can use Section 53-A as a shield, but not as a sword, it means that he can use Section 53-A either as a plaintiff or as a defendant to protect his possession, but he cannot use Section 53-A either for getting title or for getting possession if he is not actually in possession. To put it in other words, when the transferee in possession comes to the Court as a plaintiff seeking a decree of perpetual injunction against the transferor he is using Section 53-A as a shield to protect his possession. It is thus clear that the proposed transferee in possession cannot use Section 53-A to sue the transferor for a declaration of title, but he can avail of benefits of Section 53-A as a shield to retain his possession.
12. Insofar as the judgment of the Supreme Court in the case of Delhi Motor Co, referred to above is concerned, it becomes clear from the observations of the Supreme Court in paragraph 7 of that judgment that the Supreme Court has referred to the judgment of the Allahabad High Court in the case of Ram Chander v. Maharaj Kunwar, as also the judgment of the Privy Council in the case of Probodhkumar Das. It is clear from those observations that the Supreme Court has also read the judgment of the Privy Council referred to above in Probodhkumar Das's case to lay down the law that the proposed transferee in possession, on the basis of the provisions of Section 53-A cannot claim title or any other right. So far as the judgment of the Division Bench in the case of Yashwantrao Mukane is concerned, perusal of that judgment shows that there was a dispute in that case in relation to nature of possession of the plaintiff. In fact, in paragraph 9 a finding has been recorded that the plaintiff did not enter into possession in part performance of the agreement of sale. Thus the controversy that was decided by the Division Bench was totally different.
13. The question whether a suit of particular nature is maintainable or not has to be decided with reference to the provisions of Section 9 of the Code of Civil Procedure. Section 9 of Civil Procedure Code reads as under:--
9. Courts to try all civil suits unless barred.-- The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.
Explanation (I).-- A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.
Explanation (II).-- For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place.
Thus, the Civil Court has jurisdiction to try all suits except where the jurisdiction of the Civil Court to entertain a particular type of suit is either expressly barred by law or it is barred by necessary implications. Insofar as the judgments of the learned Single Judges, who decided the Hussain Khan's case as also the Mathurabai Koli 's case, we do not find any reference made to the provisions of Section 9 of Civil Procedure Code, in order to hold that a suit filed by the prospective purchaser in possession claiming a decree of perpetual injunction restraining the transferor from disturbing his possession, relying on the provisions of Section 53-A of T. P. Act, is not maintainable. We will have to find whether there is any law by which the jurisdiction of the Civil Court to take cognizance of such a suit is either expressly barred or it is barred by necessary implications. No provision of any law is pointed out to us which expressly bars the jurisdiction of the Civil Court to entertain such a suit. Perusal of the judgment of the learned Single Judge in Mathurabai Koli's case shows that in that case agreement was entered into on 1-11-1978, possession of the property was handed over to the prospective purchaser, the entire consideration was also paid, but the sale-deed was not executed, because it was to be executed after obtaining permission from the Revenue authorities. The learned Single Judge found that no steps were taken by the plaintiff in that case to get the sale-deed executed, the plaintiff did not institute a suit for specific performance of the contract and then the learned Single Judge observed in paragraph 4 of the judgment as follows :--
4. No doubt, the present plaintiff/respondent No. 1 has obtained the possession of the suit land by way of a part performance of an agreement on 1-11-1978 and that the amount of consideration has been paid by the plaintiff. However, the sale deed was to be executed after obtaining the necessary permission from the revenue authorities for executing the said sale deed as per the agreement to sell. These facts point out that since 1978 if the plaintiff/respondent No. 1 is in possession of the land, as to why the permission was not obtained for a period of ten years and if there was avoidance on the part of the defendants to get such a permission. The plaintiff/respondent No. 1 should have insisted for the performance of the said contract. It appears that till 1988 no progress was made. And the averments in respect of this aspect have not been made. However, the moment the plaintiffs possession was questioned in 1988, in fact, that amounted to denial of and/or breach of the agreement to sell and, therefore, the cause of action which takes place on such a occasion is not a cause of action simpliciter for suit of injunction, but a cause of action for filing the suit for specific performance and, therefore, such a plaintiff is supposed to file a suit for specific performance and perpetual injunction. It is very difficult to digest that there will be a separate cause of action for the purpose of suit of injunction and for suit of specific performance of contract. If the cause of action in that eventuality is one and the same, namely, the denial of agreement or violation of breach of agreement, then to permit the filing of two suits on the same cause of action is against the principles of the Code of Civil Procedure, "because the law requires that all those reliefs based on same cause of action should be pleaded and claimed in the same suit and shall not be claimed by separate suit. One more aspect is that Section 41(h) of the Specific Relief Act, states that the Court shall not grant perpetual injunction when there is an equally efficacious remedy available to a party. Equally efficacious remedy in which the injunction can be claimed is a full-fledged suit for specific performance with perpetual injunction. This Court in 1986 Mh.LJ. 659 : 1986(1) BCR 533 (supra) has observed thus:
"Clause (e) of Section 41 of the Specific Relief Act is relevant to the extent and in the context of the provisions of Section 53-A of the Transfer of Property Act, which requires the plaintiff to satisfy that he was ready and willing to perform his part of the contract. It is only when such readiness and willingness is there that the contract or agreement for sale can be specifically enforced. If this basic readiness and willingness is not established, then the performance could not be specifically enforced. It follows, therefore, that by reason of the principle underlying Section 41(e) of the Specific Relief Act, when the plaintiff seeks injunction so as to prevent breach of a contract whose performance cannot be specifically enforced, such an application has to be refused. Similarly, when a suitor of such a type would have equally efficacious relief available so as to enforce the contract by taking appropriate remedy, without recourse to it, it would be indeed difficult to extend the discretionary relief of permanent injunction. It is not as if that in a suit to enforce the agreement itself, such a relief is sought. On the other hand, although the plaintiff came to the Court with the allegation that the other party has repudiated the agreement for sale, he has omitted to seek its enforcement and is trying to hold the property obviously without seeking to complete his title by enforcing the agreement for sale. To such a case, the principle underlying Clause (h) of Section 41 of the Specific Relief Act can be extended so as to refuse such an ancillary relief."
The above referred judgment has been followed by the Single Judge of this Court in 1988(4) BCR 60 : 1988 Mh.LJ. 55 (supra), wherein it has been observed that the suit filed simpliciter for injunction where the claim is founded purely to claim the protection under Section 53-A of the Transfer of Property Act is not maintainable. Such a suitor is not entitled to claim relief in view of the provisions of Section 41(h) of the Specific Relief Act.
In our opinion, even it is assumed that the cause of action for instituting a suit for a decree of specific performance had accrued and the plaintiff in that case omitted to institute the suit for specific performance, then also by virtue of the provisions of Order 2, Rule 2 of Civil Procedure Code the suit of the plaintiff for a decree of specific performance would be barred, but his suit for a decree of perpetual injunction for protecting his possession would not be barred. Insofar as the reference to the provisions of Section 41 of the Specific Relief Act is concerned, it does not operate on the jurisdiction of the Court to entertain a suit, but it relates to the exercise of that jurisdiction. Grant of relief of injunction is in the discretion of the Court and Section 41 lays down as to how that discretion is to be exercised. The learned Single Judge has relied on the judgment of the Division Bench in the case of Yeshwantrao v. Khushal referred to above. But perusal of that judgment as also the observations which have been quoted by the learned Single Judge in paragraph 4 of his Judgment shows that the Division Bench does not hold that because of the provisions of Section 41 of the Specific Relief Act such a suit is not maintainable. The Division Bench says that in such a situation the Court will not grant ancillary relief of injunction in favour of the plaintiff. In our opinion, occasion for a prospective purchaser in possession to institute a suit for perpetual injunction for protecting his possession may arise even when the cause of action for instituting the suit for specific performance has not arisen or where it is barred by the law of limitation. For example, there may be an agreement which allows time to the prospective purchaser, who has been placed in possession, to pay the balance amount of consideration if the possession of such a person is threatened even before the time that is allowed to him for paying the balance amount of consideration is over, in our opinion, he can institute a suit even though the cause of action for instituting a suit for specific performance has not arisen. The Full Bench of this Court in the case ofMahadeo Nathuji Patil v. Surjabai Khushalchand Lakkad and Ors., 1994 Mh.LJ. 1145 has held that the equity under Section 53-A is available to the prospective purchaser even after the period of limitation for instituting a suit for specific performance has expired. We find that the view taken by the Full Bench in Mahadeo Patil's case has been approved by the Supreme Court in its judgment in the case of Shrimant Shamrao Suryavanshi (supra). Paragraphs 20 and 21 of that judgment of the Supreme Court are relevant. They read as under:--
20. It is, therefore, manifest that the Limitation Act does not extinguish a defence, but only bars the remedy. Since the period of limitation bars a suit for specific performance of a contract, if brought after the period of limitation, it is open to a defendant in a suit for recovery of possession brought by a transferor to take a plea in defence of part-performance of the contract to protect his possession, though he may not be able to enforce that right through a suit or action.
21. In the present case, it is not disputed that the transferee has taken possession over the property in part-performance of the contract. It is also not disputed that the transferee has not brought any suit for specific performance of the agreement to sell within the period of limitation. It is also not disputed that the transferee was always and is still ready and willing to perform his part of the contract. Further, the view taken by the High Court in judgment under appeal was overruled by the Full Bench of the Bombay High Court in the case of Mahadeo Nathuji Patil v. Surjabai Khushalchand Lakkad which, according to our view, lays down the correct view of law. In that view of the matter these appeals deserve to be allowed.
It is thus clear that in such a situation where a suit for a decree for specific performance is barred by the Law of Limitation, the prospective purchaser in possession would not be in a position to institute a suit for decree of specific performance, but Section 53-A creates an equity in his favour, as a result of which he is entitled to continue in possession. If it is held that though his possession is protected, he cannot institute a suit in case he finds that his possession has been threatened would amount to denying a remedy for enforcing the equity which is created in his favour by Section 53-A. In a case where the prospective purchaser has a live cause of action for instituting a suit for specific performance, he omits to institute such a suit, and instead files a suit only for perpetual injunction for protection of his possession, in that situation it is for the Court to consider whether to grant him a decree of perpetual injunction or not But that will be in the realm of exercise of the jurisdiction. It will not be a case of absence of jurisdiction to entertain the suit. Therefore, we find that there is nothing in Specific Relief Act also which can be said to have barred the jurisdiction of the Civil Court to take cognizance of such a suit even by necessary implications.
14. From what has been observed above, it becomes clear that in view of the judgment of the Supreme Court now there can be no doubt that a proposed transferee in possession can institute a suit for protection of his possession, which is^ threatened.
15. We answer the reference accordingly.
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