Specific Relief Act, 1963 (47 of 1963), Section 41(h) -- Suit for mandatory injunction for possession and registration of lease agreement -- Plaintiff-appellant had ample opportunity to file a suit for specific performance but failed to do so – Suit as well as First Appeal dismissed in view of bar of Section 41(h) of Specific Relief Act -- A duty is cast on a plaintiff to show and satisfy the Court that the suit brought by him is property constituted and maintainable in law – No illegality or irregularity in the impugned judgments and decrees -- Appeal dismissed.

(Para 3, 8-10)

Transfer of Property Act, 1882 (4 of 1882), Section 54 – General Power of Attorney/ GPA – Sale – Consent decree – Legality of -- Words ‘bay’ i.e. to sell is specifically mentioned in the GPA, which means attorney was authorized to sell, but by suffering the decree he did not sell the land and rather, he transferred the suit land in favour of his sons by admitting some purported family settlement -- Said decree did not amount to sale.

(Para 11, 12)

Indian Contract Act, 1872 (9 of 1872), Section 11 -- Sale deed by minor – Challenge to – In school record plaintiff’s name is P.K -- In the Jamabandi/ revenue record, plaintiff’s name is P.K. daughter of K – In both the sale deeds assailed by the plaintiff her name is mentioned as P.K. and she claimed herself to be major -- Birth certificate (Ex.P1/A), on which the plaintiff placed reliance, pertains to R.K -- Plaintiff failed to produce any document to reveal that apart from P.K., she was ever known by the name of R.K. -- Mother and two brothers of plaintiff not examined – Held, it cannot be stated that birth certificate of R.K. pertains to the plaintiff – Suit dismissed.

(Para 2, 10-13)

A. Transfer of Property Act, 1882 (4 of 1882), Section 52 -- Doctrine of lis pendens -- Object underlying the doctrine of lis pendens is for maintaining status quo that cannot be affected by an act of any party in a pending litigation -- The objective is also to prevent multiple proceedings by parties in different forums -- The principle is based on equity and good conscience.

(Para 16)

B. Transfer of Property Act, 1882 (4 of 1882), Section 1, 52 -- Doctrine of lis pendens – Applicability of -- By virtue of Section 1 of the Transfer of Property Act, 1882 the provisions of the said Act are not applicable in the States of Punjab, Delhi or Bombay; subject, of course to certain exceptions -- In the case of Kanshi Ram v. Kesho Ram, AIR 1961 P&H 299 the Punjab and Haryana High Court has held that since the explanation to Section 52 is based on equity and good conscience this principle can be applicable -- Even if Section 52 of T.P Act is not applicable in its strict sense then too the principles of lis pendens, which are based on justice, equity and good conscience, would certainly be applicable.

(Para 17)

C. Transfer of Property Act, 1882 (4 of 1882), Section 52 -- Doctrine of lis pendens – Pendency of a suit shall be deemed to have commenced from the date on which the plaintiff presents the suit -- Such pendency would extend till a final decree is passed and such decree is realised.

(Para 18)

D. Transfer of Property Act, 1882 (4 of 1882), Section 52 -- Doctrine of lis pendens – Suit for permanent injunction was filed prior to the execution of release deed -- Since the release deed is executed after the suit for temporary injunction was filed by the appellant, the alienation made would be covered by the doctrine of lis pendens.

(Para 19)

E. Transfer of Property Act, 1882 (4 of 1882), Section 41, 52 -- Doctrine of lis pendens – Bonafide purchaser -- Once it has been held that the transactions executed by the respondents are illegal due to the doctrine of lis pendens the defence of the respondents 1-2 that they are bonafide purchasers for valuable consideration and thus, entitled to protection under Section 41 of the Act of 1882 is liable to be rejected.

(Para 21)

Specific Relief Act, 1963 (47 of 1963), Section 37 -- Suit for permanent injunction -- Admission – Photocopy of sale  deed – Evidential value -- Once the defendants had categorically admitted that plaintiff was the owner of the land on which she had raised the construction of a building, there was no question to doubt the title of the plaintiff in this regard simply for the reason that only the copy of the sale deed was produced and not the original sale deed.

(Para 13)

A. Code of Civil Procedure, 1908 (V of 1908), Section 39 Rule 1, 2 & 3 – Temporary injunction – Notice to opposite party – Requirement of -- It is mandatory for the Court to direct notice of the application filed under Rules 1 and 2 of Order 39 to be given to the opposite party except where it appears to the Court that object of granting injunction would be defeated by delay -- Notice mandated under Rule 3 cannot be a mere formality -- It has to be reasonable notice and the opposite party is entitled to make itself response within reasonable period.

(Para 26)

B. Code of Civil Procedure, 1908 (V of 1908), Section 39 Rule 1, 2 & 3 – Interim mandatory injunction – Installation of electric connection as interim relief -- Ld. trial Court hastened to pass an interim order in mandatory form which in fact is peri-materia to the prayer as made in the main suit -- Impugned order does not record any reason as to what urgency was seen by the learned trial Court in passing the impugned order on the same day on which the application was filed -- Thus, there is serious non-compliance of Rule 3, Order 39 of the CPC and the manner in which learned trial Court has conducted itself definitely is not confirming to the basis principles of judicial procedure and propriety -- Impugned order set aside with direction to the parties to maintain status quo ante as on the date of passing of the impugned order with respect to the installation of electricity connection.

(Para 10, 26, 27)

Code of Civil Procedure, 1908 (V of 1908), Section 39 Rule 1 & 2 – Specific Relief Act, 1963 (47 of 1963), Section 16 -- Suit for specific performance – Interim relief -- Status quo -- Plaintiff seeking specific performance of contract against defendant No.1 -- Defendant No.1 had sold parts of suit land to defendants No.2 and 3/ during pendency of the suit proceedings -- Defendant No.1 had admitted the execution of the agreement in favour of plaintiff, but his case was that sale deed can be executed only after the partition of the suit land -- Balance of convenience and prima facie case existed in plaintiff’s favour -- To preserve the suit property and to avoid multiplicity of litigations, the order for maintaining status quo qua possession, alienation or creating further third-party interest in the suit land till the disposal of the suit was just and proper.

(Para 4)

A. Right to Manage property – Electricity connection in name – Relevancy of -- Electricity bill at the most shows that there is an electric connection issued by the Electricity Board or Supply Company in favour of an individual -- However, it does not establish the rights to manage the property of the religious institution.

(Para 5.2)

B. Indian Evidence Act, 1872 (1 of 1872), Section 114 – Withholding of evidence -- Adverse inference – Presumption -- Failure of the plaintiff to step into the witness box to testify may enable the court to draw adverse inference if sufficient evidence has not been led -- Court may presume that the evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it -- However, it is not necessary to draw adverse inference in each and every case, even when sufficient evidence has been led.

(Para 5.3)

Constitution of India, Article 226 -- Transfer of Property Act, 1882 (4 of 1882), Section 100 – Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 2002), Section 13 -- Himachal Pradesh Electricity Regulatory Commission (Distribution Performance Standards) Regulations, 2010 -- Electricity dues of previous owner -- Auction purchaser under SARFAESI -- Recovery from auction purchaser/ transferee – Permissibility of – Electricity Bill due are attributable to the consumer – No Charge u/s 100 of TP Act created -- Order demanding dues of previous owner from auction purchaser quashed.

(Para 3, 8, 9)

Transfer of Property Act, 1882 (4 of 1882), Section 106 – Notice – Termination of tenancy – Eviction suit as notice u/s 106 TP Act – When  eviction suit is filed under the general law in the State of Haryana, this in itself is a notice to quit -- No prior notice u/s 106 of the TP Act to quit is required to be given in order to get a decree of eviction against the tenant.

(Para 11)

Indian Stamp Act, 1899 (2 of 1899), Section 47A – Deficient stamp duty – Limitation -- Sale deed was registered and the reference was made by the Sub-Registrar to the Collector pertaining to alleged deficiency in stamp duty after a period of 9 years – Writ petition allowed and impugned orders quashed.

(Para 1-6)

Specific Relief Act, 1963 (47 of 1963), Section 16 -- Suit for specific performance – Agreement to sell -- Forfeiture of earnest money -- Ready and willing to perform -- Earnest money is a payment towards security for performance of the contract on the part of the proposed buyer -- Once, the buyer fails to prove that he was ready and willing to perform his part of the contract, the amount of earnest money is liable to be forfeited.

(Para 16)

A. Code of Civil Procedure, 1908 (V of 1908), Order 39 Rule 1 & 2 – Temporary injunction against co-sharer -- Plaintiffs and defendants are joint owners in possession over land and nobody has been shown to be in the exclusive possession over the suit land -- It is trite law that the no injunction is to be granted against the other co-sharer.

(Para 9)

B. Code of Civil Procedure, 1908 (V of 1908), Order 39 Rule 1 & 2 – Temporary injunction against co-sharer -- Co-sharer cannot be restrained from raising construction over the joint land except when co-sharer results in ousting of other co-sharer or is detrimental to the rights of other co-sharers -- Possession of one co-sharer is possession of all in the eyes of law -- So, even if the respondents raise construction over some portion, it will be subject to partition and respondents cannot claim any preferential right over a particular chunk of land due to raising of construction over it.

(Para 10)

Court Fees Act, 1870 (7 of 1870), Section 7 -- Ad-valorem court fee -- Suit for declaration qua the suit property to be coparcenary property of Joint Hindu Family of the parties and also challenged to the transfer deed -- Relief of permanent injunction also sought – Transfer deed was not executed by the petitioners/ plaintiffs and possession was not sought -- No ad valorem Court fee, is required to be filed.

(Para 2, 12, 13)

Specific Relief Act, 1963 (47 of 1963), Section 22 – Interpretation of Section 22 of Specific Relief Act, 1963 --  Suit for specific relief – Alternative relief -- It enshrines the over-riding effect of this section over the provisions of the Code of Civil Procedure, 1908 – It enabled any person suing for specific performance of a contract to also seek additional relief of possession, partition and any other relief to which he may be entitled to including refund of earnest money or deposit, paid or made by him – Such alternative relief does not in any way adversely impact the primary relief i.e. specific performance of the agreement to sell -- Alternative relief is granted by the Court only in a case where the Court does not find it appropriate to grant the primary relief -- However, the alternative relief does not substitute the primary relief -- Language of Section 22 brings forth the clear intention of the legislature to enable the plaintiff to seek additional as well as alternative relief in the same suit.

(Para 15)

A. Punjab Courts Act, 1918 (6 of 1918), Section 41 – Code of Civil Procedure, 1908 (V of 1908), Section 100 – Regular Second Appeal – Interference in finding on facts – Sub-clause No.(c) of Section 41 (1) of the Punjab Courts Act, 1918, enables the High Court for the States of Punjab, Haryana and Union Territory, Chandigarh, to reappreciate the evidence, if the decision is suffering from substantial error or defect resulting in defect in the decision of the case -- Consequently, it is permissible for the Court while deciding second appeal to re-appreciate the evidence if the decisions of the Courts suffer from perversity --  However, it is not permissible to interfere if two views are possible -- Interference in the second appeal has to be restricted to rare and exceptional cases where the court finds that the findings of fact stand vitiated by erroneous approach based on miss application of evidence or reliance on inadmissible evidence.

(Para 14, 15)

B. Indian Evidence Act, 1872 (1 of 1872), Section 45, 73 – Agreement to sell – Handwriting expert -- It is well settled that invariably the Handwriting and Finger Print Expert gives a favourable opinion to the person who has engaged him – U/s 73 of the Indian Evidence Act, 1872, the Presiding Judge is not debarred from carefully comparing the signatures and finger prints on various documents -- Adverse inference could not be drawn against the defendants for failure to examine Handwriting and Fingerprint Expert.

(Para 27(17))

C. Indian Evidence Act, 1872 (1 of 1872), Section 32, 33 – Code of Criminal Procedure, 1973 (2 of 1974), Section 313 -- Statement u/s 313 Cr.P.C was neither relevant nor admissible in evidence as the plaintiff failed to fulfill the requirements of Section 32 and 33 of the Indian Evidence Act, 1872.

(Para 27(18))

D. Agreement to sell -- Examination of the regular scribe was important.

(Para 27(21))

Code of Civil Procedure, 1908 (V of 1908), Section 9 – Limitation Act, 1963 (36 of 1963), Section 27 -- Suit/ Plea by plaintiff for adverse possession – Maintainability of -- High Court allowed the second appeal only on the ground that a plea of the adverse possession cannot be taken by the plaintiff -- Review application also dismissed – Settled law is that a plaintiff can seek declaration of title by adverse possession -- Judgment and order of the High Court in RSA and Review Application set aside – Appeals allowed.

(Para 4-6)

Code of Civil Procedure, 1908 (V of 1908), Order 14 Rule 5 -- Suit for specific performance and possession – Agreement alleged to be forged and fabricated document -- Issue “Whether the agreement to sell dated 14.02.2014 and its endorsement dated 18.02.2014 are forged and fabricated and result of fraud? OPD”, onus to prove was on the defendants – To prove her case, the petitioner moved an application for permission to inspect the file and Handwriting and Fingerprints Expert be allowed to take photographs of the signatures and thumb impressions -- Ld. ACJ rejected the application – Held, this would amount to rejecting the petitioner to prove his case – Impugned order set aside, application allowed.

(Para 3-6)

A. Limitation Act, 1963 (36 of 1963), Section 27 -- Adverse possession -- Defendant-respondents were tenants and therefore their possession was permissive as against the then landlords -- There was no question of them claiming any adverse possession.

(Para 9.4)

B. Limitation Act, 1963 (36 of 1963), Section 27, Article 65 Sch-I -- Adverse possession -- Plaintiff-appellants got their ownership/title under the registered sale deed on 21.01.1966 -- Dispute for possession vis-à-vis the defendant-respondents would arise only after the said date and not on any date prior to it -- Suit was filed within the period of 12 years in May, 1975 -- Period of 12 years for perfecting rights on the basis of adverse possession would commence from 1966 and the suit having been filed in 1975 was well within time -- Even if it is assumed that the defendant respondents were in possession from prior to 1944, their possession could not have been adverse even to the Zamindars as they were tenants and their tenancy would be permissible in nature and not adverse.

(Para 8-9.5)

A. Code of Civil Procedure, 1908 (V of 1908), Order 26 Rule 9 – Appointment of Local Commissioner – Evidence -- Petitioner/ plaintiff has to stand on his own legs by adducing cogent, independent and reliable evidence and he could not invoke the provisions of Order 26 Rule 9 CPC to ask the Court concerned to collect, garner or generate evidence for him.

(Para 10)

B. Code of Civil Procedure, 1908 (V of 1908), Order 26 Rule 9 – Appointment of Local Commissioner – Evidence -- Plea of the petitioner/ plaintiff  is that he is the owner of the suit property but the same is in illegal possession of the respondents who are having no right, title or interest in the said property -- Possession of the site in dispute is a matter to be decided by the Court on the basis of oral and documentary evidence to be adduced by the parties -- The exercise cannot be relegated to the Court Commissioner to find out as to who is in possession and who has encroached the property in question and to what extent.

(Para 11-13)

A. Code of Civil Procedure, 1908 (V of 1908), Section 100 – Punjab Courts Act, 1918 (6 of 1918), Section 41 – Regular Second Appeal – Substantial question of law -- In the States of Punjab and Haryana, it is the provisions of the Punjab Courts Act, 1918 would be applicable and, therefore, Section 100 CPC would not hold the field -- There would be no requirement of framing substantial questions of law in second appeal.

(Para 15)

B. Hindu Succession Act, 1956 (30 of 1956), Section 6, 8 – Ancestral property – Once the property had been acquired by way of succession, it would lose its ancestral character.

(Para 16)

A. Possession of property -- For possession of property, a person is not required to stay in such property for 24x7 -- A person residing at one place, but having right to own and possess the property at another place, is not only in deemed or constructive possession but in actual possession of such property -- For absence of a person for a long time, he cannot be deprived from his property by treating him to be dispossessed from his property owned and possessed by him.

(Para 10)

B. Specific Relief Act, 1963 (47 of 1963), Section 34 – Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 – Bar of Section 34 of SRA – Rejection of plaint -- Suit claiming plaintiffs as owners in possession of the suit property -- Suit filed by the respondents-plaintiffs is not a suit merely for declaration, but consequential relief, as considered necessary and fit, including suit for permanent prohibitory injunction and damages, has also been sought --  Therefore, it is wrong to allege that it is a suit for mere declaration without consequential relief – Such issue is to be decided at the time of conclusion of trial -- Provisions of proviso to Section 34 of the Act are not attracted -- Plaint is not liable to be rejected under Order 7 Rule 11 (d) CPC.

(Para 11-14)

A. Specific Relief Act, 1963 (47 of 1963), Section 20 -- Limitation Act, 1963 (36 of 1963), Article 54 – Agreement to sell – Suit for specific performance -- Limitation -- Period of limitation in a suit for specific performance of contract when a specific date is fixed for performance is three years and if no such date is fixed when the plaintiff has notice that performance is refused.

(Para 11)

B. Specific Relief Act, 1963 (47 of 1963), Section 20 -- Limitation Act, 1963 (36 of 1963), Article 55 -- Agreement to sell -- Compensation for the breach of any contract -- Limitation -- Period of limitation is three years when the contract is broken or when there are successive breaches when the breach is in respect of which the suit is instituted occurs or when it ceases -- There is concealment of material fact on the part of appellants/ defendants that their land was already under the master plan thus covered under R Zone, Green Belt and National Highway – Respondent/ plaintiff came to know about this condition subsequently and period of limitation will start from the said contingency.

(Para 11)

Specific Relief Act, 1963 (47 of 1963), Section 16, 28 -- Decree of specific performance – Extension of time – Rescinding of agreement -- Court can grant extension of time after passing decree for specific performance of agreement and the Trial Court has its power and jurisdiction to deal with such matters till the decree is fully satisfied -- Petitioner did not give notice to the judgment-debtor to receive the balance sale consideration -- He did not move any application for permission to deposit the balance sale consideration -- Petitioner failed to pay the balance sale consideration despite getting so many adjournments -- Although order of rescinding the contract for sale of immovable property, the specific performance of which has been decreed, is a harsh order but decree-holder intentionally failed to pay the balance amount of consideration – Held, the learned Court below is justified to rescind the agreement – Order upheld.

(Para 12, 13)

Limitation Act, 1963 (36 of 1963), Section 17 – Limitation – Fraud – Suit for possession/ joint land -- Judgment and decree of 1982 – Challenged in 2014 -- It is a positive case of the plaintiffs that they got the knowledge of the alleged fraudulent decree in the year 2013 -- Defendants failed to lead the evidence to prove that the plaintiffs had prior knowledge of the decree --  Both the Courts, on appreciation of evidence, had found that the suit filed by the plaintiff was not barred by limitation -- Plaintiffs are co-sharers/ co-owners with the defendants, can be granted a decree for joint possession and can apply for delivery of the actual possession after the land is partitioned – Decree modified.

(Para 5-13)

A. Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (56 of 2007), Section 23 -- Senior citizen case – Cancellation of transfer  deed – Subsequent purchaser during pendency of proceedings -- In case a person is a purchaser of the suit property during the pendency of a case then the said purchase is hit by the doctrine of lis pendens and the said person, at best, can only raise pleas which are available to the seller(s) in whose shoes he has stepped into.

(Para 7)

B. Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (56 of 2007), Section 23 -- Senior citizen case – Cancellation of transfer deed – Plea that petitioners are now ready to take care of respondent No.3 is apparently an afterthought -- Once the necessary ingredients of Section 23 of the Senior Citizens Act, are met and the order is passed in accordance with law, the said plea of the petitioners would not call for setting aside the said order.

(Para 8)

Specific Relief Act, 1963 (47 of 1963), Section 20 -- Suit for specific performance – Re-conveyance deed -- In the plaint, the appellants have asserted that notwithstanding the execution of the sale deed and release deed, no right, title and interest in the suit property was transferred to the respondent and rights of the first appellant in respect of the suit property continued to exist and the appellants continued to be in possession -- Held, there was no occasion for the appellants to seek specific performance compelling the respondent to execute re-conveyance deed inasmuch as, even according to the case of the appellants as pleaded in the plaint and in evidence that the respondent had no right, title and interest in the suit property -- High Court was right in holding that the discretion under Section 20 of the 1963 Act ought not to have been exercised in favour of the appellants – Appeal dismissed.

(Para 13-17)

Code of Civil Procedure, 1908 (V 0f 1908), Order 21 Rule 97 -- Suit for possession -- Execution of decree -- Third party objection – Framing of issues – Requirement of -- It is not necessary that in each and every case, irrespective of the merits of the objections, the Executing Court is required to frame issues -- After evaluating the objections and the reply filed by the parties, the Court is required to form an opinion as to whether any triable issue is involved in the given case or not.

(Para 7)

Specific Relief Act, 1963 (47 of 1963), Section 28 – Code of Civil Procedure, 1908 (V of 1908), Section 96, Order 9 Rule 13 -- Recession of agreement to sell -- Ex-parte decree for specific performance on 12.3.2011 -- Amount to be deposited in the Court within 3 months -- Balance amount deposited by respondent/ plaintiff with the Court on 6.8.2011 – Petitioner/ defendant neither filed any appeal against ex-parte judgment nor filed any application under Order 9 Rule 13 CPC for setting aside of ex-parte decree, meaning thereby that he accepted the ex-parte decree – Application u/s 28 of the Act after more than 2 years of the passing of the ex-parte decree and after about 1½ year of the deposit of balance sale consideration by the respondent --  Held, there was no inordinate delay in depositing the balance sale consideration -- Delay in deposit was rightly condoned by the learned trial Court -- Application filed by the petitioner u/s 28 of the Act for recession of agreement dismissed.

(Para 7, 8)

Specific Relief Act, 1963 (47 of 1963), Section 34 -- Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 – Advalorem court fees – Suit for declaration to the effect that the plaintiff is owner in possession over the suit property and sale deed is null and void and same be set aside with consequential relief of permanent injunction -- Dismissal of application under Order 7 Rule 11 by Trial court without noticing the law laid down by the Hon’ble Apex Court in Suhrid Singh @ Sardool Singh’s case -- Impugned order is bad in law -- Revision allowed, impugned order set aside and the learned Trial Court directed to decide the application under Order 7 Rule 11 CPC afresh, in the light of the law laid down by Hon’ble Supreme Court in Suhrid Singh @ Sardool Singh’s case 2010 (12) SCC 112 = 2012(2) L.A.R. 333 = (2010) Law Today Live Doc. Id. 12547.

(Para 5, 6)

Code of Civil Procedure, 1908 (V of 1908), Order 1 Rule 10 -- Specific Relief Act, 1963 (47 of 1963), Section 16 -- Suit for specific performance – Impleadment as party – An application for impleadment as a party/ defendant on the ground that respondent no.2/ defendant had executed an agreement to sell with regard to the same land with petitioner also -- Application was dismissed by way of impugned order – Held, remedy with the petitioner would be to file a separate suit for specific performance – Petitioner is not a necessary party and not even a proper party and it would be for the dominus litis to decide as to who is to be impleaded as a party in the civil suit -- No relief claimed against the petitioner -- Revision petition dismissed.

(Para 2, 5-7)

A. Registration Act, 1908 (16 of 1908), Section 17, 49 – Transfer of Property Act, 1882 (4 of 1882), Section 107 -- Unregistered lease deed – Collateral purpose -- Nature and character of possession contained in a flawed document (being unregistered) in terms Section 107 of the 1882 Act and Sections 17 and 49 of the Registration Act can form collateral purpose when the “nature and character of possession” is not the main term of the lease and does not constitute the main dispute for adjudication by the Court.

(Para 13)

B. Registration Act, 1908 (16 of 1908), Section 17, 49 – Transfer of Property Act, 1882 (4 of 1882), Section 107 -- Unregistered lease deed – Nature of possession – Primary dispute -- Nature and character of possession constitutes the primary dispute -- Court excluded by law from examining the unregistered deed for that purpose.

(Para 13)

Specific Relief Act, 1963 (47 of 1963), Section 16 -- Limitation Act, 1963 (36 of 1963), Article 54 -- Suit for specific performance – Limitation -- Earnest money of Rs.1,000/- was paid out of the total sale consideration of Rs.6,000/- -- Appellants was to apply for permission to sell in 8 days of ATS – From the ninth (9th) day onwards a right accrued to the respondents to move Court -- ATS is dated 31.07.1975 and the suit was filed on 01.01.1981 -- Limitation for filing a suit for specific performance, as per Article 54 of the Schedule to The Limitation Act, 1963 is 3 years – Suit dismissed -- Lump-sum refund quantified at Rs.1,50,000/-.

(Para 5-14)

A. Code of Civil Procedure, 1908 (V of 1908), Order 39 Rule 1 & 2 – Temporary injunction -- Before grant of temporary injunction, the plaintiff is required to satisfy three tests namely:-

i. Prima facie in his favour;

ii. Balance of convenience in this favour; and

iii. Irreparable loss and injury, if the injunction is not granted.

(Para 10)

B. Code of Civil Procedure, 1908 (V of 1908), Order 39 Rule 1 & 2 – Specific Relief Act, 1963 (47 of 1963), Section 41(h) – Transfer of Property Act, 1882 (4 of 1882), Section 52 -- Temporary injunction against Karta --  Appellate court held that plaintiff cannot restrain the karta (his father) to alienate the property -- Moreover, the defendant No.1 disputes the fact that plaintiff is his biological son -- It would not be appropriate to restrain the defendant No.1 from alienating the property particularly when the doctrine of lis pendens is applicable in view of Section 52 of the Transfer of Property Act, 1882 and the plaintiff shall not suffer any prejudice if alienation is made during the pendency of the suit -- No ground to interfere is made out – Revision dismissed.

(Para 12, 13)

Hindu Succession Act, 1956 (30 of 1956), Section 6, 8 – Co-parcenery property – Notional partition -- Testamentary or intestate succession -- When a male Hindu died after the commencement of the Act of 1956, having at the time of his death an interest in Mitakshara coparcenary property, his interest in that property shall devolve by survivorship upon the surviving members of the coparcenary -- If the deceased left behind him a surviving female relative specified in Class I of the Schedule or a male relative specified in that class who claimed through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under the Act of 1956 and not by survivorship -- Interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim such partition or not.

(Para 11)

Haryana Urban Development Authority Act, 1977 (13 of 1977), Section 15(2) – Haryana Urban Development (Disposal of Land and Buildings) Regulations, 1978, Regulation 6 – Auction sale – Rejection of higher bid – Challenge to -- Hotel sites were not properly depicted in the advertisement and the sectors were not mentioned – Three bidders for Hotel Site No.II – Administrator had wisely cancelled the bid by noticing that there was a difference in reserve price also and secondly that the advertisement was not clear as the location and sectors were not shown – Refund of deposited amount with interest @ 8 % p.a ordered.

(Para 9, 10)

Specific Relief Act, 1963 (47 of 1963), Section 34 -- Suit for Declaration – Consequential relief of possession not claimed – Maintainability of suit -- Plaintiffs-appellants are not in possession of the suit property and they did not seek possession of the suit property -- A simple suit for declaration without seeking further relief of partition or joint possession is not maintainable under Section 34 of the Specific Relief Act.

(Para 5)

A. Transfer of Property Act, 1882 (4 of 1882), Section 54 -- Transfer of property -- Sale deed – Non-entering of  mutation – Effect of -- Mutation is merely an entry in the revenue record, which reflects the factum of transfer of property, however, the ownership is transferred by way of sale deed -- Hence, failure on the part of the plaintiff to get the land mutated in his favour would not be relevant.

(Para 7)

B. Limitation Act, 1963 (36 of 1963), Article 65, Section 27 – Suit for possession – Limitation -- Owner can file a suit for possession as per Article 65 of the Limitation Act, 1963 till the time, the defendant proves his title by way of the adverse possession.

(Para 8)

C. Transfer of Property Act, 1882 (4 of 1882), Section 54 – Suit for possession -- Sale deed – Purchase of residential plot -- Requirement of the plaintiff to file a suit for partition – Property is not an agricultural land -- It is in the form of residential plots -- Plaintiff as well as defendant have purchased the specific plots -- Plaintiff has claimed possession of plot, which has been decreed by both the Courts below -- No ground to interfere – Appeal dismissed.

(Para 10-14)

A. Registration Act, 1908 (16 of 1908), Section 17 -- Pre-existing rights – Declaration of -- Registration of document -- If document is regarding declaration of the pre-existing rights, the same is not compulsorily registerable in view of Section 17 of the Registration Act, 1908.

(Para 9)

B. Registration Act, 1908 (16 of 1908), Section 17 – Indian Evidence Act, 1872 (1 of 1872), Section 65 -- Objection to insufficiently stamped document – Evidence to prove – Secondary evidence -- Court can allow the document to be read with the condition to pay the stamp duty along with some penalty -- If the Court finds at the final stage that the objection so raised is sustainable, the Court can keep such evidence excluded from consideration -- There is no illegality in adopting such a course -- If the objection relates to deficiency of stamp duty of a document, the Court has to decide the objection before proceeding further -- Application moved by the plaintiff-petitioner seeking permission to lead secondary evidence by producing a photocopy of settlement (Iqrarnama) regarding domestic oral partition allowed, subject to proof of its existence and not in his possession.

(Para 9, 10)

A. Transfer of Property Act, 1882 (4 of 1882), Section 54 -- Sale deed – Charge of seller on property for unpaid consideration -- A sale deed of an immovable property is executed in accordance with Section 54 of the T.P. Act -- Normally, on the execution of a registered Sale Deed by the owner of the property, the title in the property subject matter of the Sale Deed stands transferred to the purchaser -- Considering the principles laid down in sub-section (4)(b) of Section 55 of the 1882 Act, the seller will have a charge over the property subject matter of the sale for unpaid consideration and he can enforce the charge by filing a suit.

(Para 12)

B. Transfer of Property Act, 1882 (4 of 1882), Section 54 -- Sale deed – Cancellation of – Unpaid consideration -- Unilateral cancellation deed was not binding on the plaintiff/ vendee -- As the ownership of the plaintiff is proved, the decree for possession must follow -- There was no counter-claim made by the first or second defendant for claiming alleged unpaid consideration -- Decree passed by the Trial Court in Title Suit restored.

(Para 17, 18)

Specific Relief Act, 1963 (47 of 1963), Section 34 – Code of Civil Procedure, 1908 (V of 1908), Section 100 -- Suit of the plaintiff was not maintainable without asking for possession alongwith the declaration -- Concurrent findings on facts and law of both courts below -- Appeal dismissed.

(Para 14, 15)

Specific Relief Act, 1963 (47 of 1963), Section 34 – Code of Civil Procedure, 1908 (V of 1908), Order 1 Rule 3, 10, Section 96 -- Suit for declaration that plaintiff is owner in possession -- Plaintiff while filing the suit did not implead the registered owners of the property as party defendants -- On an application by registered owner, Appellate Court ordered remanding the case back to the trial Court – Held, it would not be appropriate to decide such suit without giving opportunity to the registered owners to contest the same -- No ground to interfere.

(Para 5, 6)

Code of Civil Procedure, 1908 (V of 1908), Order 39 Rule 1 & 2 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 133 -- Temporary injunction to restrain nuisance -- Passage was left by the respondent/ plaintiff for his ingress and egress of his house -- No material adduced on record by the petitioners/ defendants suggestive of the fact that passage was constructed and thereafter maintained by the Nagar Panchayat -- Defendants had filed complaint u/s 133 Cr. P.C against plaintiff,  but same was dismissed -- Now dirty and filthy water coming from the house of defendants flows towards the house of the plaintiff – For ad-interim stay three important factors required to take into consideration i.e. prima facie case, balance of convenience and irreparable loss and they all must co-exist in favour of the party seeking restraint order -- All the afore factors co-exist in favour of the plaintiff – Interim injunction granted by Lower Courts, upheld.

(Para 6-8)

A. Code of Civil Procedure, 1908 (V of 1908), Section 100 – Indian Evidence Act, 1872 (1 of 1872), Section 45 -- Specific performance of contract -- Regular Second appeal – Handwriting expert – Witness of scribe and marginal witness -- Report of the handwriting and finger print expert is an opinion which is not binding on the court -- Handwriting and finger print expert was engaged by the defendants -- Direct evidence namely the statement of the marginal witness as well as scribe proved the execution of the agreement to sell – In such circumstances, conclusion of the courts below while disbelieving the opinion does not require interference.

(Para 6)

B. Code of Civil Procedure, 1908 (V of 1908), Section 100 – Indian Evidence Act, 1872 (1 of 1872), Section 59, 60, 91 -- Regular Second appeal – Specific performance of contract -- Proof of payment of earnest money – Written agreement – Witness -- As regards the argument that there is a difference in the statement of the plaintiff and the scribe with regard to the payment of the amount, it may be noted that with the passage of time, the memory of a human is bound to get blurred -- There is a written contract between the parties acknowledging receipt of Rs.2,40,000/- -- Such written contract in the absence of any other evidence is required to be accepted -- Moreover, on appreciation of evidence, both the courts have already returned a finding of fact – Appeal dismissed.

(Para 6-8)

Code of Civil Procedure, 1908 (V of 1908), Order 6 Rule 17 – Adverse possession plea by way of amendment -- Civil Suit for possession was instituted in the year 2014 – Defendants/ petitioner had taken a specific stand in the written statement of their being owners in possession of the suit land on the basis of an oral sale -- Parties have already led evidence -- Application seeking amendment of the written statement at the stage of arguments, dismissed.

(Para 4, 5)

A. Transfer of Property Act, 1882 (4 of 1882), Section 53A, 54 -- Code of Civil Procedure. 1908 (V of 1908), Section 2(12), Order 20 Rule 12 -- Eviction – Mesne profit – Agreement to sell -- Possessory rights -- Legally agreement to sell may not be regarded as a transaction of sale or a document transferring the proprietary rights in an immovable property -- Agreement to sell and the memo of possession as well as the receipt of payment of sale consideration in favour of plaintiff-respondent is de-facto having possessory rights over the suit property in part performance of the agreement to sell not liable to be disturbed by the transferer, i.e., the defendant-appellant – Entry of the defendant-appellant over part of the suit property subsequently is simply as a licencee of the plaintiff-respondent, he does not continue to occupy it in capacity of the owner cannot be disturbed or disputed by the transferer -- Plaintiff-respondent has rightly been held to be entitled for a decree of eviction with mesne profits.

(Para 9-17)

B. Transfer of Property Act, 1882 (4 of 1882), Section 54 -- Transfer of ownership based upon Power of attorney and Will:

-- Non-execution of any document by the general power of attorney holder consequent to it renders the said general power of attorney useless.

-- Will, if any, comes into effect only after the death of the executant and not before it -- Said stage has not arrived in the case and, therefore, even the Will in no way confers any right.

In connection with the general power of attorney and the Will so executed, the practice, if any, prevalent in any State or the High Court recognizing these documents to be documents of title or documents conferring right in any immovable property is in violation of the statutory law. Any such practice or tradition prevalent would not override the specific provisions of law which require execution of a document of title or transfer and its registration so as to confer right and title in an immovable property of over Rs.100/- in value.

(Para 12-14)

Specific Relief Act, 1963 (47 of 1963), Section 38 – Suit for permanent injunction – Possession of suit property – Burden of proof -- In a suit filed u/s 38 of the Specific Relief Act, 1963, permanent injunction can be granted only to a person who is in actual possession of the suit property -- Burden of proof lies upon the plaintiff to prove that he was in actual and physical possession of the suit property on the date of suit -- Possession of the plaintiff cannot be based upon inferences drawn from circumstances -- Plaintiff has to prove actual possession for grant of permanent injunction.

(Para 7)

Specific Relief Act, 1963 (47 of 1963), Section 16 -- Suit for specific performance -- Denial of execution of agreement to sell by defendant – Readiness and willingness -- Forged and fabricated document alleged by defendant – Best course open to the plaintiff was to examine hand writing expert -- It was incumbent upon the plaintiff to get the disputed signatures of defendant on the agreement compared with his specimen/admitted signatures -- Without such examination, the case of the plaintiff suffered a big jolt – Suit dismissed.

(Para 11-20)

A. Waqf Act, 1995 (43 of 1995), Section 3(r) -- Wakf -- Under the Muslim law, a wakf can be created in several ways but primarily by permanent dedication of any movable and immovable property by a person professing Islam for any purpose recognized by Muslim law as pious, religious or charitable purpose and in the absence of such dedication, it can be presumed to have come into existence by long use.

(Para 25)

B. Waqf Act, 1995 (43 of 1995), Section 3(r) -- Wakf -- Ordinarily, a wakf is brought into existence by any express dedication of movable or immovable property for religious or charitable purpose as recognized by Muslim Law -- Once such a dedication is made, the property sought to be dedicated gets divested from the wakif, i.e., the person creating or dedicating it and vests in the Almighty Allah -- The wakf so created acquires a permanent nature and cannot be revoked or rescinded subsequently -- The property of the wakf is unalienable and cannot be sold or transferred for private purpose.

(Para 26)

C. Waqf Act, 1995 (43 of 1995), Section 3(r) -- Wakf by usage – There is even no concrete evidence on record to prove that the suit land prior to the year 1900 or 1867 was actually being used as a burial ground (kabristan) – Therefore, the alleged use of the suit land as burial ground prior to 1900 or 1867 is not sufficient to establish a wakf by user in the absence of evidence to show that it was so used -- Thus, it cannot constitute a wakf by user.

(Para 29)

D. Waqf Act, 1995 (43 of 1995), Section 4, 5 -- Wakf Act, 1954 (29 of 1954), Section 4, 5-- Wakf property – Declaration of – Procedure of -- Argument that the suit land has been declared to be a wakf property vide notification dated 29.04.1959 -- In this regard, it has to be noted that such a declaration has to be in consonance with the provisions of the Wakf Act, 1954 or the Waqf Act, 1995 --  Both the aforesaid Acts lay down the procedure for issuing notification declaring any property as a wakf –

-- The Wakf Act, 1954, which actually is relevant for our purpose, provides that, first, a preliminary survey of wakfs has to be conducted and the Survey Commission shall, after such inquiry as may be deemed necessary, submit its report to the State Government about certain factors enumerated therein whereupon the State Government by a notification in the official Gazette direct for a second survey to be conducted. Once the above procedure of survey is completed and the disputes arising thereto have been settled, on receipt of the report, the State Government shall forward it to the Wakf Board.  The Wakf Board on examining the same shall publish the list of wakfs in existence with full particulars in the official Gazette as contemplated under Section 5 of the Act. Similar provisions exist under the Waqf Act, 1995.

-- A plain reading of the provisions of the above two Acts would reveal that the notification under Section 5 of both the Acts declaring the list of the wakfs shall only be published after completion of the process as laid down under Section 4 of the above Acts, which provides for two surveys, settlement of disputes arising thereto and the submission of the report to the State Government and to the Board.

Therefore, conducting of the surveys before declaring a property a wakf property is a sine qua non.

(Para 30-32)

E. Waqf Act, 1995 (43 of 1995), Section 4, 5 -- Wakf Act, 1954 (29 of 1954), Section 4, 5 -- Wakf property – Declaration of – Challenge to -- No material or evidence on record that before issuing notification u/s 5 of the Wakf Act, 1954, any procedure or the survey was conducted as contemplated by Section 4 of the Act -- In the absence of such a material, the mere issuance of the notification u/s 5 of the Act would not constitute a valid wakf in respect of the suit land -- Therefore, the notification is not a conclusive proof of the fact that the suit land is a wakf property.

(Para 32)

F. Waqf Act, 1995 (43 of 1995), Section 4, 5 -- Wakf Act, 1954 (29 of 1954), Section 4, 5-- Notification by Wakf Board – Gazette notification -- Wakf Board is a statutory authority under the Wakf Act -- Therefore, the official Gazette is bound to carry any notification at the instance of the Wakf Board but nonetheless, the State Government is not bound by such a publication of the notification published in the official Gazette merely for the reason that it has been so published -- Notification, if any, published in the official Gazette at the behest of the Wakf Act giving the lists of the wakfs is not a conclusive proof that a particular property is a wakf property especially, when no procedure as prescribed under Section 4 of the Wakf Act has been followed in issuing the same.

(Para 35)

G. Approbate and reprobate -- It is settled that law does not permit a person to both approbate and reprobate as no party can accept and reject the same instrument -- A person cannot be permitted to say at one time that the transaction is valid and to obtain advantage under it and on the other hand to say that it is invalid or incorrect for the purposes of securing some other advantage.

(Para 44)

Specific Relief Act, 1963 (47 of 1963), Section 16 -- Suit for specific performance -- Agreement to sell – Readiness and willingness – Escalation in price of property -- Specific performance of agreement to sell cannot possibly be denied to the plaintiff for the reason that necessary formalities with regard to the Housing Society are yet to be completed -- Those formalities can be completed after execution of the sale deed by the defendant in favour of the plaintiff

-- Plaintiff had been ready and willing to perform his part of contract and is even now ready and willing to do so, he has approached the Court on 8.9.2004 soon after expiry of the final date for execution of the sale deed fixed as 30.8.2004 and has prosecuting the litigation ever since at the level of High Court, beginning from the trial Court to the Ist Appellate Court and then in regular second appeal.

-- It would not be proper and appropriate to deny the relief of specific performance to the plaintiff, merely for the reason that prices of the property have escalated considerably in the meanwhile.

Held, no reason to deny the relief of specific performance to the plaintiff and grant of relief of refund of earnest money alongwith interest to him.

(Para 12-24)