In CIVIL REVISION No.2022 of 2022 (O&M)-PUNJ HC- P&H HC dismisses revision petition against rejection of application under Order 39 Rules 1 & 2 CPC where buyer claimed possession based on unregistered agreement to sell Justice Alka Sarin [26-05-2022]

Read Order: Phool Singh and Another v. Amit Kumar and Others

Monika Rahar

Chandigarh, May 27, 2022: While dealing with a revision petition by a buyer claiming possession of suit property on the strength of a recital contained in an unregistered agreement to sell, the Punjab and Haryana High Court, has held that besides the recital in the alleged agreement to sell, there was no documentary evidence on the record to show the possession of the plaintiff-petitioners and thus such an unregistered document cannot be accepted being in contravention of the provisions of the Registration Act, 1908. 

The Bench of Justice Alka Sarin also noted that the defendant-respondents had a registered sale deed in their favour to prove their title over the suit property. 

The present revision petition was filed impugning the order of Courts below dismissing the application under Order 39 Rules 1 and 2 of the Code of Civil Procedure, 1908 (CPC) filed by the plaintiff-petitioners herein.

The brief facts are that the plaintiff-petitioners filed a suit for permanent injunction averring therein that they were the owners in possession of a residential plot in Rohtak. It was averred in the suit that the first plaintiff- petitioner paid an amount of Rs. 35 lakhs on two different occasions to one Wazir Chand who thereafter executed a written agreement to sell in their favour in September 2015 for a total sale consideration of Rs. 66,98,000/- which included Rs. 35 lakhs as mentioned above.

Thereafter, as per the plaintiff’s case, the said Wazir Chand handed over possession to the plaintiff-petitioners who constructed a boundary wall and installed a gate on the plot in their possession. It was further averred that Wazir Chand did not execute the sale deed despite being requested numerous times and a suit for specific performance was also pending. 

The suit was contested by the defendant-respondents who took the plea that the suit property was initially owned by the Kitabo (third defendant-respondent) and Rajesh and Rakesh (fourth and fifth defendant-respondent) who sold the same to Sumitra Devi (second defendant-respondent) vide a registered sale deed. Sumita Devi further sold the property vide a registered sale deed in favour of the first defendant-respondent.

The Trial Court dismissed the application filed by the plaintiff-petitioners under Order 39 Rules 1 and 2 CPC vide the impugned order holding therein that the plaintiff-petitioners were unable to make out a prima facie case in their favour and nor the balance of convenience was in their favour. 

Aggrieved, an appeal was preferred by the plaintiff-petitioners which was also dismissed. Hence, the present revision petition. 

The counsel for the plaintiff-petitioners stated that their possession over the suit property, which is required to be shown in a suit for a permanent injunction, was clearly discernible from the recital in the agreement to sell executed by Wazir Chand in their favour. It was further the contention of the counsel that the plaintiff-petitioners purchased the suit property for consideration and hence became the owners in possession.

After considering the rival submissions, the Court observed that the defendant-respondents had a registered sale deed in their favour whereas the document which was relied upon by the plaintiff-petitioners was an agreement to sell.

On a pointed query by this Court as to how the possession of the plaintiff-petitioners was established, the counsel for the plaintiff-petitioners submitted that the same was discernible from the recital in the agreement to sell wherein it was stated that the possession had been handed over to the plaintiff- petitioners.

Regarding this claim, the Court observed that prima facie there was no sale deed in favour of Wazir Chand qua the suit property which was produced on the record, rather a registered sale deed in favour of the first defendant-respondent did exist, showing his purchase of the suit property from Sumitra Devi (second defendant-respondent) who was the owner of the suit property on the basis of another registered sale deed. 

Thus, the Court observed that besides the recital in the alleged agreement to sell, there was no documentary evidence on the record to show the possession of the plaintiff-petitioners. Moreover, the Court noted that the agreement to sell was also an unregistered document where under possession was purportedly handed over to the plaintiff-petitioners and thus such an unregistered document cannot be accepted being in contravention of the provisions of the Registration Act, 1908. 

Therefore, in the absence of any document showing the possession of the plaintiff-petitioners, the Court did not find any illegality or infirmity in the orders passed by the Courts below. Hence, Justice Sarin asserted that the plaintiff-petitioners were not able to make out a prima facie case for grant of injunction in their favour and neither was the balance of convenience in their favour. Accordingly, the revision was dismissed.