# Irfan Qureshi v. Up State Industrial Development Auth. & Anr

- **Citation:** (2024) 10 ILRA 607
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-10-18
- **Case number:** First Appeal from Order No. 1648 of 2024
- **Bench:** Kshitij Shailendra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/irfan-qureshi-v-up-state-industrial-development-auth-anr-51066
- **Pages:** 7

## Headnote

Civil Law - Registration Act, 1908 (As
amended in U.P) - Section 17 - Specific
Relief Act, 1963 - Section 39 - Transfer of
Property Act, 1882 - Sections 49, 53-A &
54 - Plea of mandatory injunction -
Maintainability - Father of respondent
no.2, agreed to sell property to appellant
for a certain amount - Subsequently part
payment was paid by appellant - When
sale deed was not executed, the suit was
filed claiming a decree for mandatory
injunction directing respondent no.2 to
execute sale deed after receiving balance
amount of consideration - Application
seeking temporary injunction was filed by
appellant for restraining defendants from
interfering in possession of appellant -
Application rejected - Except an alleged
oral understanding between both the
parties, there was no written contract or
even any other document by which it
could be inferred that property was
agreed to be sold by father of respondent
no.2, except certain photostat copies of
bank drafts on which some notings were
made - In absence of any written or
registered or unregistered agreement for
sale, the appellant's claim for injunction
can't be accepted. (Para 4, 5, 18, 19)

Appeal Dismissed. (E-13)
List of Cases cited:

## Text

10 All. Irfan Qureshi Vs. Up State Industrial Development Auth. & Anr.
607
the deceased used to get the salary after
deduction of TDS.

42. In view of above, the
department admitted that the salary shown in
Paper No.C4/7, which is copy of Form-16,
Part-B is the arrears of salary amounting to
Rs.6,93,043/- and total gross salary of April,
2014 was Rs.34,351/- and accident had
occurred on 08.05.2014 . He has not deposed
that the appellant used to get the over time
regularly and it was part of salary, therefore,
the contention of learned counsel for the
appellant for enhancement is misconceived
and not tenable. Thus the judgments relied by
the learned counsel for the respondent in this
regard are of no help to the claimants. The
appeal for enhancement has been filed on
misconceived and baseless grounds, which is
liable to be dismissed.

43. In view of above, both the
appeals filed by the insurance company as
well as the claimants are liable to be
dismissed being devoid of merit. The First
Appeal From Order No.333 of 2023 and First
Appeal From Order No.18 of 2023 are,
accordingly, dismissed. No order as to costs.

44. The statutory deposit and any
other amount, if any, deposited before this
court in aforesaid appeals shall be remitted to
the concerned tribunal expeditiously and in
any case within four weeks from today to be
adjusted towards the payments to be made to
the claimant-respondents. The lower court
record shall also be remitted within the
aforesaid period.
----------
(2024) 10 ILRA 607
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.10.2024

BEFORE

THE HON'BLE KSHITIJ SHAILENDRA, J.

First Appeal from Order No. 1648 of 2024

Irfan Qureshi ...Appellant
Versus
Up State Industrial Development Auth. &
Anr. ...Respondents

Counsel for the Appellant:
Aditya Kant Sharma

Counsel for the Respondents:
Adarsh Bhushan, Vibhu Rai

Civil Law - Registration Act, 1908 (As
amended in U.P) - Section 17 - Specific
Relief Act, 1963 - Section 39 - Transfer of
Property Act, 1882 - Sections 49, 53-A &
54 - Plea of mandatory injunction -
Maintainability - Father of respondent
no.2, agreed to sell property to appellant
for a certain amount - Subsequently part
payment was paid by appellant - When
sale deed was not executed, the suit was
filed claiming a decree for mandatory
injunction directing respondent no.2 to
execute sale deed after receiving balance
amount of consideration - Application
seeking temporary injunction was filed by
appellant for restraining defendants from
interfering in possession of appellant -
Application rejected - Except an alleged
oral understanding between both the
parties, there was no written contract or
even any other document by which it
could be inferred that property was
agreed to be sold by father of respondent
no.2, except certain photostat copies of
bank drafts on which some notings were
made - In absence of any written or
registered or unregistered agreement for
sale, the appellant's claim for injunction
can't be accepted. (Para 4, 5, 18, 19)

Appeal Dismissed. (E-13)
List of Cases cited:

1. Smt. Prabha Awasthi Vs Nisha Richharia &
anr., 2012 (8) ADJ 557
608 INDIAN LAW REPORTS ALLAHABAD SERIES
2. FGP Limited Vs Saleh Hooseini Doctor &
anr.(2009) 10 SCC 223 (Para 24 to 30)

3.
Nanjegowda
&
anr.Vs
Gangamma
&
ors.(2011) 13 SCC 232 (Para 9 to 12)

4. Shrimant Shamrao Suryavanshi & anr. Vs
Prahlad Bhairoba Suryavanshi (D) by Lrs. &
ors.JT 2002(2) SC 24

5. M/s Chaudhary Properties & 2 others Vs
Laxmi Devi, Second Appeal No.318 of 2023,
dated 10.05.2023
(Delivered by Hon'ble Kshitij Shailendra, J.)

1. Counter and rejoinder affidavits
have been exchanged between the parties,
therefore, with the consent of learned
counsel for the parties, the instant appeal is
being finally decided.

2. Heard Sri Samir Sharma,
learned Senior Counsel, assisted by Ms.
Ananya Shukla, for the appellant, Sri
Anoop Trivedi, learned Senior Counsel,
assisted by Sri Vibhu Rai, for the
respondent no.2 and Sri Ajay Kumar Patel,
learned counsel holding brief of Sri Adarsh
Bhushan, for the respondent no.1.

3. The instant appeal is directed
against the order dated 31.05.2024 whereby
Judge, Small Causes Court, Bulandshahr
has rejected the injunction application
Paper 6-C2 under Order 39 Rule 1 CPC in
Original Suit No.1054 of 2022.

4. Assailing the order impugned,
Sri Samir Sharma, learned Senior Counsel,
submits that father of the defendantrespondent no.2, namely, Sri C.D. Bajpai
was owner of an Industrial Plot No.C-4 and
he had agreed to sell the same to the
appellant for a sum of Rs.70,00,000/-
(rupees seventy lac only). It is pleaded in
the plaint that a sum of Rs.35,00,000/-
(rupees thirty five lac only) was paid by the
appellant to the father of defendantrespondent no.2 and despite assurances
given by him, when sale deed was not
executed, the suit in question was filed
claiming a decree for mandatory injunction
directing the respondent no.2 to execute the
sale deed after receiving balance amount of
consideration. During the pendency of the
suit, an application seeking temporary
injunction was filed with a prayer that the
defendants be restrained from interfering in
possession of the appellant, inasmuch as,
according to the appellant, in lieu of part
payment, he had been delivered possession
of the property.

5. The trial court has rejected the
injunction application by observing that, in
fact, the suit was filed in the nature of a suit
for specific performance of an alleged
agreement, however, in order to avoid
liability to pay court fees, the relief has
been cleverly couched in the form of
mandatory
injunction.
After
placing
reliance on various authorities, the trial
court has observed that in absence of a
written agreement and for want of its
registration, as per the law applicable in the
State of U.P., the appellant has no case.
Submission of appellant, however, is that
once possession was delivered to the
appellant, he was entitled to protect his
possession and, therefore, rejection of
injunction application is not according to
law and Section 53-A of Transfer of
Property Act, 1882 would apply in favour
of the appellant.

6. Per contra, Sri Anoop Trivedi,
learned Senior Counsel, submits that there
being no written agreement between the
appellant and the father of the defendantrespondent no.2, the suit for mandatory
injunction is not maintainable. He further
10 All. Irfan Qureshi Vs. Up State Industrial Development Auth. & Anr.
609
submits that, at the most, the appellant
might have a claim for refund of money in
case he could succeed in establishing that
the money had been paid in relation to the
transaction of proposed sale, however,
according to the Sri Trivedi, it was in
respect of certain business transactions as
disclosed in the objections against the
injunction application and not concerning
transfer of property.

7. Having heard the learned
counsel for the parties, I find that
mandatory injunctions can be granted under
Section 39 of the Specific Relief Act, 1963.
The said provision finds place in Chapter
VIII and it applies when, in order to
prevent breach of an obligation, it is
necessary to compel performance of certain
acts which the court is capable of enforcing
and grant of injunction to prevent such
breach is always in the discretion of the
court. In the instant case, admittedly, the
suit in question has not been filed claiming
a decree for specific performance of an
agreement, probably for the reason that
there is no written agreement between the
parties. Appellant's claim for relief of
mandatory injunction based upon oral
understanding requires to be dealt with in
the light of law of the land.

8. Considering the arguments of
Sri Samir Sharma, learned Senior Counsel,
in relation to Section 53-A of Transfer of
Property
Act,
this
Court
thinks
it
appropriate
to
deal
with
the
legal
proposition in that regard.

9. Section 17 of Registration Act,
1908 provides for documents, registration
whereof is compulsory. There is an
amendment made by U.P. Act No.57 of
1979 by inserting clause (f) in Section
17(1). The relevant provision i.e. Section
17(1), (as amended in U.P.), reads as under:

"17. Documents of which
registration is compulsory.- (1)
The following documents shall be
registered, if the property to which
they relate is situate in a district in
which, and if they have been
executed on or after the date on
which, Act No. XVI of 1864, or the
Indian Registration Act, 1866(XX
of 1866), or the Indian Registration
Act, 1871 (VII of 1871, or the
Indian Registration Act, 1877(III of
1877), or this Act came or comes
into force, namely:-
.........
(b) other non-testamentary
instruments
which
purport
or
operate to create, declare, assign,
limit or extinguish, whether in
present or in future, any right, title
or interest, whether vested or
contingent, to or in immovable
property;
(c)
non-testamentary
instruments, which acknowledge
the receipt or payment of any
consideration on account of the
creation, declaration, assignment,
limitation or extinction of any such
right, title or interest;
..........
(f) any other instrument
required by any law for the time
being in force, to be registered."

10. There is also a corresponding
amendment in sub-section (2) of Section
17, inasmuch as, Clause (v), as it stood
before Central Act 48 of 2001 was
substituted partially vide Section 3 of
Central Act 48 of 2001, w.e.f. 24th
610 INDIAN LAW REPORTS ALLAHABAD SERIES
September, 2001. Sub-section (2)(v) of
Section 17 reads as under :-

"(2) Nothing in clauses (b)
and (c) of sub-section (1) applies to
-
.........
(v) any document other
than contract for sale not itself
creating,
declaring,
assigning,
limiting or extinguishing any right,
title or interest to or in immovable
property, but merely creating a
right to obtain another document
which will, when executed, create,
declare, assign, limit or extinguish
any such right, title or interest; or"

11. An amendment was also made
in Transfer of Property Act, 1882 by
Section 30 of U.P. Act No.57 of 1976, w.e.f
1.1.1977. Section 54, as amended in U.P.,
reads as under:

"54.
"Sale"
defined.-
"Sale" is a transfer of ownership in
exchange for a price paid or
promised or part-paid and partpromised.
Sale how made.- Such
transfer, in the case of tangible
immovable property of the value of
one hundred rupees and upwards,
or in the case of a reversion or
other intangible thing, can be made
only by a registered instrument.
Contract
of
sale.-
A
contract for the sale of immovable
property is a contract that a sale of
such property shall take place on
terms settled between the parties.
It does not, of itself, create
any interest in or charge on such
property.
Such contract can be made
only by a registered instrument."

12.

Consistent
with
the
amendments referred to above, Section 49
of Act, 1908 was also simultaneously
amended by Section 34 of U.P. Act No.57
of 1976 w.e.f. 1.1.1977 and the amended
Section 49, as applicable in U.P. reads as
under:

"Section 49. Effect of
non-registration of documents
required to be registered.- No
document required by section 17 or
by any provision of the Transfer of
Property Act, 1882 (4 of 1882) or
of any other law for the time being
in force, to be registered shall-
(a) affect any immovable
property comprised therein, or
(b) confer any power or
create any right or relationship, or
(c) be received as evidence
of any transaction affecting such
property or conferring such power
or
creating
such
right
or
relationship,
unless
it
has
been
registered:
Provided
that
an
unregistered document affecting
immovable property and required
by this Act or the Transfer of
Property Act, 1882 (4 of 1882), to
be registered may be received as
evidence of part-performance of a
contract for the purposes of Section
53-A of the Transfer of Property
Act, 1882 (4 of 1882), or as
evidence
of
any
collateral
transaction not required to be
effected by registered instrument."
10 All. Irfan Qureshi Vs. Up State Industrial Development Auth. & Anr.
611
13. The aforesaid provisions make
it clear that an agreement to sell in respect
of immovable property lying in State of
U.P. required registration necessarily i.e.
compulsorily. Section 17 of Act, 1908 read
with Section 54 of Act, 1882, as applicable
in U.P., makes it very clear that a contract
of sale, as defined in Section 54, can be
made only by a registered instrument. By
omission of explanation to sub-section (2)
of Section 17 of Act, 1908, the legislature
has made it very clear that in State of U.P.,
an agreement to sell immovable property
would also require compulsory registration
so as to create any right, title or interest in
immovable property,. This view finds
support from a decision of this Court in
Smt.
Prabha
Awasthi
Vs.
Nisha
Richharia & Anr, 2012 (8) ADJ 557,
wherein a Division Bench referring to
Section 17 of Act, 1908, as amended in
U.P. w.e.f. 1.4.1977, read with Section 49,
has observed as under:

"Section
17
of
the
Registration Act, 1908 has been
amended in the State of U.P. vide
U.P. Act No.57 of 1976 w.e.f. 1st of
April, 1977 by amending clause (b)
of sub section (2) and by omitting
the Explanation thereto of section
17 of the Registration Act. It
follows
that
after
the
commencement of the aforesaid
Amending Act, an agreement to sell
in respect of immovable property
lying
in
the
State
of
U.P.
necessarily requires registration. A
document
which
necessarily
requires
registration
being
unregistered one cannot be read in
evidence in view of section 49 of
the aforesaid Act. It deals with the
effect of non registered document
required
to
be
registered.
Noticeably, section 49 of the
Registration Act was also amended
by the U.P. Act No.57 of 1976 vide
section 34 simultaneously."

14.

Though
dispute
before
Division Bench in Prabha Awasthi (supra)
related to an agreement executed in 2005
but while having a retrospect of the
provisions of Act, 1908, as amended in U.P.
in 1977, and the situation as had arisen, the
Court has made above observations.
However, since proviso to Section 49 of
Act,
1908
permits
an
unregistered
document to be received as evidence of
part-performance of a contract for the
purpose of Section 53-A of Act, 1882, this
Court finds that permitting a document to
be received in evidence for limited purpose
as such would not have the effect of
influencing the rights of the parties vis a vis
the immovable property concerned. The
general legislative policy under Section 49
of Act, 1908 is contained in three clauses
i.e. (a), (b) and (c) and proviso carves out
an exception in respect to clause (c) only
and not (a) and (b) thereof. The inevitable
conclusion qua the immovable property is
that, an unregistered document shall not
result in affecting the right etc. over the
immovable property in any manner and
also shall not confer any power to adopt it.
To the extent the proviso operates, it
permits that an unregistered document
affecting immovable property may be given
in evidence i.e. where a document remains
unregistered and title does not pass, the
agreement between the parties which
preceded the ineffective document shall
remain and may be received in evidence to
look into the terms thereof. This by itself,
would not confer any right since no such
right has been conferred under the
substantive law. Receiving in evidence does
not mean conferment of substantive right.
612 INDIAN LAW REPORTS ALLAHABAD SERIES
The rule of evidence cannot enlarge or alter
the provisions of substantive law. It cannot
confer rights, if there are none under the
substantive law.

15. The Court finds that even
Section 53-A would have no application in
the present case. Section 53-A of Act, 1882
reads as under:

"Part
performance.-
Where any person contracts to
transfer
for
consideration
any
immovable 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
the contract, though required to be
registered, has not been registered,
or, 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.

16. In order to take shelter behind the
above provision, one has to satisfy the
following conditions, as are evident from
bare reading of Section 53-A:

(i) The contract should
have been in writing, signed by or
on behalf of transferor.
(ii) The transferee should
have got possession of immovable
property covered by contract as a
part-performance of the contract.
(iii) If the transferee is
already in possession and he
continues in possession in partperformance of the contract, he
further should have done some act
in furtherance of the contract.
(iv) The transferee has either
performed his part of contract or is willing
to perform his part of the contract.

17. It has been held repeatedly that
all the postulates of Section 53-A are sine
qua none and a party cannot derive benefit
by fulfilling only one or more conditions. It
must satisfy all the conditions altogether. In
taking the above view, I am fortified by
Apex Court decisions in FGP Limited Vs.
Saleh Hooseini Doctor & Anr. (2009) 10
SCC 223 (Paras, 24, 25, 26, 27, 28, 29 &
30), Nanjegowda & Anr. Vs. Gangamma
& Ors. (2011) 13 SCC 232 (paras 9 to 12
and Shrimant Shamrao Suryavanshi &
Anr. Vs. Prahlad Bhairoba Suryavanshi
(D) by Lrs. & Ors. JT 2002(2) SC 24.
10 All. Km. Cheenu Vs. Bishambhar Singh & Anr.
613
18. As far as the reliance placed
by Sri Sharma on the judgment of this
Court dated 10.05.2023 passed in Second
Appeal No.318 of 2023 (M/s Chaudhary
Properties & 2 others vs. Laxmi Devi), the
facts of the said case were entirely
different. In that case, a colony was
developed by the appellants, who were
colloniers/ builders and an advertisement
was issued for allotment of plots. Pursuant
to
the
advertisement,
the
plaintiffrespondent had applied for allotment and
deposited certain amount of money.
Pursuant to deposit of money, when a
request to execute the sale deed was made
in
the
light
of
some
letter
dated
30.12.2008 issued by the appellants
therein, a registered letter was sent by the
plaintiff to the builder to execute a
registered sale deed and then suit for
mandatory injunction was filed. Another
relief claimed through amendment was as
regards
cancellation
of
letter
dated
07.10.2011. The facts of the instant case
are entirely different, inasmuch as except
an alleged oral understanding between the
appellant and the father of the respondent
no.2, there is no written contract or even
any other document by which it can be
inferred that the property was agreed to be
sold by the father of the respondent no.2,
except certain photostat copies of the bank
drafts on which some notings were made.

19. Without
expressing
any
opinion as regards oral and documentary
evidence to be led in the original suit or its
maintainability,
at
this
stage,
while
analysing the claim for injunction based
upon a plea under Section 53-A of Transfer
of Property Act and in absence of any
written
or
registered
or
unregistered
agreement for sale, this Court is not
inclined to accept the appellant's claim for
injunction.
20. In view of the above, this
Court does not find any error in the order
impugned.

21. The appeal fails and is,
accordingly, dismissed.
----------
(2024) 10 ILRA 613
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.10.2024

BEFORE

THE HON'BLE VIPIN CHANDRA DIXIT, J.

First Appeal from Order No. 3075 of 2007

Km. Cheenu ...Appellant
Versus
Bishambhar Singh & Anr. ...Respondents

Counsel for the Appellant:
S.D. Ojha

Counsel for the Respondents:
Pankaj Rai

Civil Law - Motor Vehicles Act, 1988 -
Sections
166
-
Enhancement
of
compensation
- Claimant
- appellant
received grievous injuries in accident and
became permanent disable to extent of
75% - FIR lodged against truck driver u/s
279, 338, 304A I.P.C. - Claim petition was
filed
-
The
Claims
Tribunal
after
considering evidence found that drivers of
both vehicles were equally negligent,
responsible for accident and decided issue
no.1 in favour of claimant, whereas issue
nos.2 to 4 were decided in favour of
opposite parties - (Para 2, 3, 6, 8)

Civil law - Motor Vehicles Act, 1988 -
Claims Tribunal erred in deciding issue of
contributory negligence ignoring fact that
it was case of composite negligence -
Claimant can claim compensation either
from one vehicle or from both vehicles in
view of law laid down by Hon'ble Apex
Court in Khenyei (infra) - Since claim