# Subhash Verma v. Narendra Kumar and others

- **Citation:** (2012) 2 ILRA 566
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-05-11
- **Case number:** First Appeal From Order No. 1312 of 2012
- **Bench:** Sheo Kumar Singh, Ram Surat Ram (Maurya
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/subhash-verma-v-narendra-kumar-and-others-42303
- **Pages:** 8

## Headnote

Code of Civil Procedure, Order XXXIX
Rule-I-Grant of temporary Injunctionsuit based upon un registered deed of
agreement to sale-even in plaint no
specific portion of property claimeddispossession-held-suit
based
upon
unregistered
agreement
itself
not
maintainable-in absence of these three
ingrediance-injunction rightly refused.

Held: Para 22

Since admittedly, the property in dispute
was a joint property in which there were
various co sharers, it was not possible
for
respondents-1
and
2
to
give
possession to the plaintiff over any
specific portion of the property. Neither
in the alleged deed dated 15.11.2009,
nor in the plaint, any specific portion of
the property has been shown, over which
the possession of the plaintiff is being
claimed. In the plaint, the plaintiff
claimed 1/3rd western portion, while
share of defendants-1 and 2 is less than
1/3rd as such, they were not able to
hand over possession of 1/3rd share. In
view of the aforesaid discussion, the suit
of the appellant being based upon an
unregistered
document,
is
not
maintainable. The plaintiff has no prima
facie case and accordingly not entitled
for interim injunction. The order of the
trial court does not suffer from any
illegality. The appeal has no merit and is
accordingly dismissed.

## Text

566 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
consumed, that too, a lion's share, by
frivolous and bogus litigations which is
bound to take away the time which could
have been utilised for needy litigants.

39. In the result, the petition is
dismissed. The applicant/ petitioner is
saddled with costs of Rupees One Lakh
(Rs.1,00,000/-) for filing a frivolous
petition. The cost shall be deposited by the
applicant/petitioner within a month from
today before the Registrar of the Court.
The Registry shall transmit Rs. 50,000/- to
the Mediation and Conciliation Center of
this Court and the remaining amount of Rs.
50,000/- will go to the Library of Oudh
Bar Association for purchase of Books. If
the cost is not deposited by the applicant
within the aforesaid period, the Registrar
of this Court will proceed to get the same
recovered as arrears of land revenue from
the applicant/petitioner.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.05.2012

BEFORE
THE HON'BLE SHEO KUMAR SINGH, J.
THE HON'BLE RAM SURAT RAM (MAURYA), J.

First Appeal From Order No. 1312 of 2012

Subhash Verma

 ...Petitioner
Versus
Narendra Kumar and others

 ...Respondents

Counsel for the Appellant:
Sri Mohan Srivastava

Counsel for the Respondent:
Sri Ashish Kumar Singh

Code of Civil Procedure, Order XXXIX
Rule-I-Grant of temporary Injunctionsuit based upon un registered deed of
agreement to sale-even in plaint no
specific portion of property claimeddispossession-held-suit
based
upon
unregistered
agreement
itself
not
maintainable-in absence of these three
ingrediance-injunction rightly refused.

Held: Para 22

Since admittedly, the property in dispute
was a joint property in which there were
various co sharers, it was not possible
for
respondents-1
and
2
to
give
possession to the plaintiff over any
specific portion of the property. Neither
in the alleged deed dated 15.11.2009,
nor in the plaint, any specific portion of
the property has been shown, over which
the possession of the plaintiff is being
claimed. In the plaint, the plaintiff
claimed 1/3rd western portion, while
share of defendants-1 and 2 is less than
1/3rd as such, they were not able to
hand over possession of 1/3rd share. In
view of the aforesaid discussion, the suit
of the appellant being based upon an
unregistered
document,
is
not
maintainable. The plaintiff has no prima
facie case and accordingly not entitled
for interim injunction. The order of the
trial court does not suffer from any
illegality. The appeal has no merit and is
accordingly dismissed.

(Delivered by Hon'ble. Ram Surat Ram
(Maurya), J.)

1. Heard Sri Mohan Srivastava,
counsel for the appellant and Sri Ashish
Kumar Singh for the respondents.

2. This appeal has been filed from
the order of Civil Judge, (Senior
Division),
Hapur,
Ghaziabad
dated
28.1.2012, passed in Suit No. 89 of 2011,
by which the application for interim
injunction filed by the appellant has been
rejected.

3. The appellant filed a suit
(registered as O.S. No. 89 of 2011) for
2 All] Subhash Verma V. Narendra Kumar and others
567
permanent injunction restraining the
respondents from interfering with his
possession and ejecting him from the
land in dispute and transferring it to any
other person. It has been stated in the
plaint that Narendra Kumar (defendant1) has 6.25% share and Pawan Kumar
(defendant-2) has 12.5% share in the
land of which total area was 2,700 sq.
yard, situated in mohalla Feezganj Road,
Hapur, district Ghaziabad. On 12.6.2009,
defendant-1 took Rs. 10,000/- in cash
and a cheque of Rs. 50,000/- and
executed an agreement in favour of the
plaintiff for selling his share in the
aforesaid land for sale consideration of
Rs. 8,50,000/- He agreed to execute the
sale deed before 11.9.2009. Defendant-2
also took Rs. 10,000/- in cash and a
cheque of Rs. 50,000/- and agreed to sell
his 12.5% share for Rs. 17 lakhs before
11.9.2009 and executed an agreement to
sell dated 12.6.2009 in favour of the
plaintiff. Defendants-1 and 2 have not
executed the sale deed within the
aforesaid period in compliance of the
agreement dated 12.6.2009. The plaintiff
therefore sent a notice dated 29.10.2009
through post office under certificate of
posting. On service of the aforesaid
notice, defendants-1 and 2 informed that
since a dispute between the co sharers
was going on, as such, it was not
possible for them to execute the sale
deeds. Accordingly, defendants-1 and 2
executed a receipt dated 15.11.2009
acknowledging the agreement dated
12.6.2009 and further taking of earnest
money of Rs. 2,40,000/- and Rs.
4,40,000/-, respectively and time for
executing the sale deed was extended up
to 14.10.2010 and the plaintiff was given
possession over the property to be
transferred. The dispute between the cosharers of defendants-1 and 2 has been
settled through family settlement dated
4.8.2010, but defendants-1 and 2 have
not turned up for executing the sale deed.
Therefore, the plaintiff gave a notice
dated 27.9.2010 to defendants-1 and 2
for executing the sale deed. The
plaintiffs came to know that Narendra
Kumar (defendant-1) and his family
members, executed an agreement to sell
dated 4.9.2010 in favour of Ajay Goyal
(defendant-3). Pawan Kumar (defendant2), his brother Praveen Kumar and his
mother Smt Nirmala Devi, executed an
agreement dated 6.9.2010 in respect of
their share in the property in dispute in
favour of defendant-3. On coming to
know about the aforesaid agreements, the
plaintiff served another notice dated
20.11.2010 for getting the aforesaid
agreement canceled. In spite of service of
notice, defendants-1 and 2 have not taken
any
step
for
cancellation
of
the
agreements
executed
in
favour
of
defendant-3. The plaintiff came to know
that in the meantime, Narendra Kumar
(defendant-1) has executed a sale deed
dated 25.9.2010 in respect of his share in
favour of defendant-3. The defendants
are trying to dispossess the plaintiff from
the property in dispute. The plaintiff is
ready and willing to perform his
obligations under the agreements dated
12.6.2009 and 15.11.2009 and get the
sale deed executed in his favour. As
such, he is entitled to protect his
possession over the property in dispute.
On these allegations, the suit for
permanent injunction has been filed.

4. Along with the plaint, the
plaintiff has also filed an application for
interim
injunction
restraining
the
defendants
from
taking
forcible
possession over the property in dispute
during the pendency of the suit.
568 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

5. The trial court issued notices in
the application for temporary injunction
and summons in the suit. On service of
the summons and notices, the defendants
appeared and filed their written statement
in the suit as well as objection and
counter affidavit in the application for
temporary injunction. In the joint written
statement
filed
on
behalf
of
the
defendants, they have admitted execution
of the deed dated 12.6.2009 and taking
Rs. 60,000/- each as earnest money. But
they have stated that defendant-1 has
1/80 share while defendant-2 has 1/24
share in the property in dispute. Since the
dispute between the co sharers was going
on, as such, it was not possible to
execute the sale deed by them in favour
of the plaintiff. Accordingly after the
notice dated 29.10.2009, there was a
settlement between the parties before the
Panches on 10.8.2010, in which earnest
money received by defendants-1 and 2
had been returned to the plaintiff.
However, the plaintiff did not return the
deeds dated 12.6.2009 executed by
defendants-1 and 2 on the pretext that
these documents were not brought by
them at that time. He assured that it
would be returned later on as at that
time, these documents were not with the
plaintiff. The defendants have stated that
the alleged documents dated 15.11.2009
are forged document. Neither the amount
mentioned in this document has been
paid to the defendants, nor they gave
possession to the plaintiff over the
property of their share. Since the
property was joint and their share was
not partitioned, as such, it was not
possible to give possession to the
plaintiff over the property of their share.
As the contract between the parties has
already been broken before the Panches
on 10.8.2010 and earnest money has
been returned, as such, the plaintiff has
no right to file any suit and the suit is
misconceived and is liable to be
dismissed.

6. The application for interim
injunction was heard by Civil Judge,
(Senior Division), Hapur who by order
dated 28.1.2012 held that in the alleged
agreement
dated
12.6.2009,
no
identifiable land has been mentioned.
However, in the suit, the plaintiff has
mentioned his possession over 1/3rd
share towards west side of the land in
dispute which is also not identifiable.
Accordingly, prima facie, title and
possession of the plaintiff is not proved.
On these finding, the application for
interim injunction has been rejected.
Hence, the present appeal has been filed
by the plaintiff.

7. The counsel for the appellant
submits that defendants-1 and 2 have
entered into a written contract dated
12.6.2009 by which they have agreed to
sell their share to the plaintiff. At that
time, they also took an earnest money of
Rs. 60,000/- each. Later on, they
executed another deed dated 15.11.2009
by which they further took Rs. 2,40,000/-
and Rs. 4,40,000/- respectively and
extended the time for executing the sale
deed
up
to
14.10.2010
and
simultaneously
they
handed
over
possession over the property in dispute.
As in part performance of the contract,
the plaintiff was put in possession over
the property in dispute and the plaintiff is
ready to perform his obligations under
the contract, for that purpose, he has also
given several notices to the defendants
for getting the sale deed executed, but
the defendants have not turned up,
therefore, the plaintiff is entitled to
2 All] Subhash Verma V. Narendra Kumar and others
569
protect his possession under Section 53A of Transfer of Property Act. In support
of his contentions, he has placed reliance
on the judgments passed by Hon'ble
Supreme Court in the case of Hamzabi
vs. Syed Karimuddin, reported in 2000
LAWS (SC) Pg. 114 and Nathulal vs.
Phoolchand, reported in AIR 1970 SC
546. He submits that the language of
Section 53-A of Transfer of Property Act
is mandatory, and if the conditions are
fulfilled, then "notwithstanding that the
contract,
though
required
to
be
registered, has not been registered, or,
where there is an instrument of transfer
and 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 is debarred from
enforcing any right in respect of the
property of which, the transferee has
taken or continued in possession, against
the transferee, other than a right
expressly provided by the terms of the
contract". He further submits that at the
stage of grant of interim injunction,
prima facie case is required to be
examined. The court below has illegally
gone in to title at this stage and held that
title of the plaintiff is not proved over the
property in dispute. The court below has
illegally confused with 'prima facie case'
as 'prima facie title'. He relied upon the
judgment of Hon'ble Supreme Court in
the case of Dalpat Kumar and Another
vs. Prahlad Singh and Others, reported in
RD 1991 Pg. 210, in which it has been
held that 'prima facie case' is not to be
confused with 'prima facie title', which
has to be established on the evidence at
trial and not at the time of grant of
interim injunction.

8. In reply to the aforesaid
arguments,
the
counsel
for
the
respondent submits that under the law, an
agreement to sell can only be executed
through a registered document. Since the
alleged agreements dated 12.6.2009 and
15.11.2009 are unregistered documents,
these documents are not admissible in
evidence. Apart from these documents
there is no evidence regarding possession
of the plaintiff. The land in dispute was
in joint possession of several co sharers,
therefore, without partition, it was not
possible to hand over possession over
any specific portion to the plaintiff. The
subsequent document dated 15.11.2009
are forged documents and has been
denied by the defendants. Therefore, the
plaintiff has neither a prima facie case
nor balance of convenience is in his
favour. The trial court has rightly
rejected his application for interim
injunction. Counsel for the respondents
relied upon judgment of Division Bench
of this Court in Vijay Kumar Sharma Vs.
Devesh Behari Saxena, 2008 (1) AWC
664.

9. In view of the aforesaid
arguments,
the
points
arise
for
consideration
are
(i)
whether
any
unregistered agreement can be made
basis for a claim under Section 53-A of
the Transfer of Property Act? (ii) In
order to decide prima facie case, what
exercise is required to be done by the
court?

10. In U.P., U.P. Civil Laws
(Reforms and Amendment) Act, 1976,
(U.P. Act No. 57 of 1976) has been
enforced, w.e.f. 1.1.1977. By virtue of
Section 30 of this Act, Section 54 of
Transfer of Property Act has been
amended as follows:
570 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

30. Amendment of Section 54 of
Act 4 of 1882 - In Section 54 of the
Transfer
of
Property
Act,
1882,
hereinafter in this Chapter referred to as
the principal Act, -

(a) In the second paragraph, the
words "of the value of one hundred
rupees and upwards" shall be omitted;

(b) the third and fourth paragraphs
shall be omitted;

(c) after the last paragraph, the
following paragraph shall be inserted,
namely: -

"Such contract can be made only by
a registered instrument."

11. Similarly, by Section 32 of this
Act, Section 17 of the Registration Act
has been amended and Clause (f) has
been inserted in it.

32. Amendment of Section 17 of
Act 16 of 1908 - In Section 17 of the
Registration Act, 1908, hereinafter in
this Chapter referred to as the principal
Act -

(a) In Sub Section (1) -

(i) In clause (b) the words "of the
value of one hundred rupees and
upwards", shall be omitted;

(ii) In clause (e) the words "of the
value of one hundred rupees and
upwards", shall be omitted;

(iii)after clause (e), the following
clause shall be inserted, namely:

(f) any other instrument required by
any law for the time being in force, to be
registered."

12. By virtue of the aforesaid
amendments
w.e.f.
1.1.1977,
an
agreement to sell of the immovable
property is a compulsorily registrable
document in U.P. and no un-registered
agreement to sell can be executed nor it
can be taken in evidence in view of
Section 49 of the Registration Act.

13. Similarly, Parliament passed the
Registration and Other Related Laws
Amendment Act, 2001 (Act No. 48 of
2001), which has come into force on
24.9.2001. By Section 3 of this Act,
Section 17 of the Registration Act has
been amended as follows: -

3. Amendment of Section 17-In
Section 17 of the Registration Act-

(a)
after
sub-section
(1),
the
following sub-section shall be inserted,
namely: -

"(1-A) The documents containing
contracts to transfer for consideration,
any immovable property for the purpose
of Section 53-A of the Transfer of
Property Act, 1882 (4 of 1882) shall be
registered if they have been executed on
or after the commencement of the
Registration and Other Related Laws
(Amendment) Act, 2001 and if such
documents are not registered on or after
such commencement, then, they shall
have no effect for the purpose of the said
Section 53-A",

(b) In sub-section (2), in clause (v),
for the opening words "any document",
the words, brackets, figure and letter
2 All] Subhash Verma V. Narendra Kumar and others
571
"any document other than the documents
specified in sub-section (1-A)" shall be
substituted.

14. By Section 6 of this Act,
Section 49 of the Registration Act has
been amended as follows: -

6. Amendment of Section 49 - In
Section 49 of the Registration Act, in the
proviso, the words, figures and letter "or
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)," shall be omitted.

15. By Section 10 of this amending
Act, Section 53-A of Transfer of
Property Act has been amended as
follows: -

10. Amendment of Section 53-A of
Act 4 of 1882 - In Section 53-A of the
Transfer of Property Act, 1882, the
words "the contract, though required to
be registered, has not been registered,
or," shall be omitted.

16. Thus, w.e.f. 24.9.2001, even for
the purposes of claiming right under
Section 53-A of the Transfer of Property
Act, an agreement to sell is required to
be a registered. Documents being unregistered are not admissible in evidence
in view of Section 49 of the Registration
Act. As in this case documents were
allegedly executed on 12.06.2009 and
15.11.2009, therefore, the case laws
relied upon by the counsel for the
appellant are not applicable in this case.

17. Order 39 Rule 1 (c) provides
that temporary injunction may be granted
where, in any suit, it is proved by the
affidavit or otherwise, that the defendant
threatens to dispossess the plaintiff or
otherwise cause injury to the plaintiff in
the suit to any property in dispute. The
court may by an order grant a temporary
injunction to restrain such act or make
such other order for the purpose of
staying
and
preventing
injury
or
dispossession
of
the
plaintiff
or
otherwise causing injury to the plaintiff
in relation to any property in dispute as
the court thinks fit until the disposal of
the suit or until further orders. Pursuant
to the recommendation of the Law
Commission clause (c) was brought on
statute by Section 88 (i) (c) of the
Amending Act 104 of 1976 with effect
from 1.2.77. Earlier there was no express
power except the inherent power under
Section 151 C.P.C. to grant ad-interim
injunction against dispossession. Rule 1
primarily concerns with the preservation
of the property in dispute till legal rights
are adjudicated. Injunction is a judicial
process by which a party is required to
do or refrain from doing any particular
act. It is in the nature of preventive relief
to a litigant to prevent future possible
injury. In other words, the court, on
exercise of the power of granting ad
interim injunction, is to preserve the
subject matter of the suit in the status
quo for the time being. It is settled law
that the grant of injunction is a
discretionary relief.

18. Order 39 Rule 3 C.P.C. requires
to issue notice to the defendant and hear
him before passing any order of interim
injunction except in cases of urgency
where reasons are required to be
recorded for passing exparte injunction.
Purpose of issuing notice to the other
party is to examine relative strength of
the cases of the both the parties. The
word 'prima facie' means 'at first sight'.
572 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
The existence of the right of the plaintiff
is be adjudicated on the first sight on
comparative consideration of pleadings
and evidence of the parties. The Court
has to form his opinion as to who has a
better case. If the defendant has better
case and evidence in his favour then the
Court cannot ignore it only on the basis
of good drafting of the plaint. It is in this
view it has been held that 'prima facie
case' and not 'prima facie title' has to be
examined at the time of granting interim
injunction.

19. Even if, the plaintiff may not
have title of the property in dispute at the
time of filing of the suit but from the
rival contention of the parties, the court
is satisfied that the plaintiff is on better
footing, and on trial relief may be
granted to him in all probabilities. Then
it can be said that prima facie case of the
plaintiff has been established. It is in this
context, it has been held that prima facie
case shall not mean frima facie title.
Thus finding in respect of the 'prima
facie case' is not required to be recorded
only by examining a good drafting of the
plaint but by examining rival contention
of the parties and their supporting
evidence.

20. The exercise to be done by the
court grant of interim injunction to
record satisfaction that (i) there is a
serious disputed question to be tried in
the suit and there is probability of the
plaintiff being entitled to the relief asked
in the suit; (ii) the court's interference is
necessary to protect the party from the
species of injury. In other words,
irreparable injury or damage would
ensue, before the legal right would be
established at trial; and (iii) that the
comparative hardship or mischief or
inconvenience which is likely to occur
from withholding the injunction will be
greater than that would be likely to arise
from granting it.

21. The word 'prima facie case' has
been interpreted time to time by the
courts. Hon'ble Apex Court, in United
Commercial Bank Vs. Bank of India,
AIR 1981 S.C. 1426 held that 'prima
facie case' means in the facts and
circumstances of the case, there is a
bonafide contention between the parties
and a serious question is to be decided.
This court in the case of National
Textiles Corporation (U.P.) Ltd. Vs.
Swadeshi Cotton Mills, 1987 A L J 1266
(D.B.) held that in order to pass an
interim order, the Court is to take
immediate decision, estimating relative
strength of the each parties case. If the
plaintiff has a week case or is meat by a
strong defense the Court may refuse an
injunction. In that case, it was found that
the plaintiff has frivolous, vexatious and
not even stateable case, the Court
therefore
rejected
the
injunction
application.

22. Since admittedly, the property
in dispute was a joint property in which
there were various co sharers, it was not
possible for respondents-1 and 2 to give
possession to the plaintiff over any
specific portion of the property. Neither
in the alleged deed dated 15.11.2009, nor
in the plaint, any specific portion of the
property has been shown, over which the
possession of the plaintiff is being
claimed. In the plaint, the plaintiff
claimed 1/3rd western portion, while
share of defendants-1 and 2 is less than
1/3rd as such, they were not able to hand
over possession of 1/3rd share. In view
of the aforesaid discussion, the suit of the
2 All] United India Insurance Co. Ltd.V. Smt. Geeta Devi and others
573
appellant
being
based
upon
an
unregistered
document,
is
not
maintainable. The plaintiff has no prima
facie case and accordingly not entitled
for interim injunction. The order of the
trial court does not suffer from any
illegality. The appeal has no merit and is
accordingly dismissed.

23. However, it is made clear that
the various observations and findings in
this order were made only for deciding
the application for interim injunction.
The trial court will not be prejudiced
while deciding the suit on merit by the
findings and observations made by this
court or in the impugned order.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.05.2012

BEFORE
THE HON'BLE RAJES KUMAR, J.
THE HON'BLE ANIL KUMAR SHARMA, J.

First Appeal From Order No. - 2147 of 2012

United India Insurance Co. Ltd.

...Petitioner
Versus
Smt. Geeta Devi and others

 ...Respondents

Counsel for the Petitioner:
Sri Saurabh Srivastava

Counsel for the Respondents:
...................................

Motor Vehicle Act-Section 173-Insurer
Appeal-at the time of accident deceased
was 45 years old-addition of 30%
compensation-for
future
prospect
of
deceased-not excessive-nor the income
of salary of compassionate appointee,
and pension etc.-shall be taken into
consideration-while
awarding
compensation-Appeal dismissed.
Held: Para 7

As regards the addition of 30 percent for
future prospects of the deceased the
Tribunal has placed reliance on the case
of Sunil Sharma (supra). Learned counsel
for the appellant has tried to distinguish
this case on the premise that in the case
before the Apex Court the deceased was
aged about 45 years and was a Class-III
employee, so there is no parity of this
case with the instant one. No doubt in
the present case the deceased was
Khalasi
(Class-IV
employee
of
N.E.
Railway
Gorakhpur)
and
was
aged
between 45-50 years but in our opinion
the addition of 30 percent pay for
calculating the amount of compensation
as future prospects of the deceased is
not excessive at all. The deceased was
having 12 years of service and during
this period his pay would have revised at
least once apart from hike in D.A. every
year which on average is 10 percent or
more. It is noteworthy that in the case of
Sarla Verma vs. Delhi Road Transport
Corporation, reported in 2009(2)TAC 699
(SC) the Apex Court has laid down as a
'rule of thumb' with respect to addition
in income due to future prospects
observing that addition should be only
30 percent if the age of the deceased
was 40-50 years. As such we find that
learned Tribunal has not committed any
illegality in adding 30 percent in income
due to future prospects of the deceased
for
calculating
just
and
reasonable
compensation.
Case law discussed:
2008 (3) TAC 661 (SC); 2011 (3) TAC 629
(SC); (2002) (6) SCC 281; 1962 (1) S.C.R.
929; 2009 (7) ADJ 575 (DB); AIR 1983 Punjab
& Haryana 94; AIR 1983 Madhya Pradesh 24;
1998 (1) TAC 14 (Karnataka); 2009 (2) TAC
699 (SC)

(Delivered by Hon'ble Anil Kumar
Sharma, J.)

1. This is an insurer appeal
challenging the award dated 31.01.2012