Status of an Unregistered Agreement to Sell for Claiming Possession of the Property

Case Title: Phool Singh and Another versus Amit Kumar and Others

CIVIL REVISION NO. 2022 OF 2022 (O&M), Dated 26.05.2022

 Facts:

1. Plaintiff-Petitioners filed a suit for permanent injunction averring therein that they were the owners in possession of the property.
2. The plaintiff-petitioner No.1 has paid the consideration to one Wazir Chand who had thereafter executed a written agreement to sell in their favour on 03.09.2015 for a total sale consideration of Rs.66,98,000/-
3. The Wazir Chand handed over possession to the plaintiff-petitioners wherein the plaintiff-petitioners constructed a boundary wall on the plot and had installed a gate and the same was in their possession since then. However, the Wazir Chand did not execute the sale deed despite being requested numerous times and a suit for specific performance was also pending qua the same.
4. The suit was contested by the Defendant- Respondent that the suit property was owned by someone who sold the property vide a registered deed dated 17.07.2019 in favour of Defendant- Respondent.

Findings of the Court

The Trial Court dismissed the application filed by the plaintiff-petitioners under Order 39 Rules 1 and 2 CPC holding therein that the plaintiff- petitioners were not able to make out a prima facie case in their favour and nor the balance of convenience was in their favour.

The learned counsel for the plaintiff-petitioners states that in a suit for permanent injunction the plaintiff-petitioners were required to show that they were in possession of the suit property and their possession of the suit property was clearly discernible from the recital in the agreement to sell dated 03.09.2015 executed by Wazir Chand in their favour. It is further the contention that the plaintiff-petitioners had purchased the suit property for a consideration of Rs.66,98,000/- and had hence become the owners in possession.

However, the court held that since the plaintiff-petitioners had become owners in possession of the suit property on the basis of the agreement to sell dated 03.09.2015 but a suit for specific performance of the said agreement to sell is pending.

The defendant-respondent have a registered sale deed in their favour whereas the document being sought to be relied upon by the plaintiff-petitioners is an agreement to sell.

Prima facie there was no sale deed in favour of Wazir Chand qua the suit property which has been produced on the record.

Besides the alleged agreement to sell dated 03.09.2015, there is no documentary evidence on the record to show the possession of the plaintiff-petitioners. The agreement to sell dated 03.09.2015 is also an unregistered document whereunder possession was purportedly handed over to the plaintiff-petitioners. Such an unregistered document cannot be accepted being in contravention of the provisions of the Registration Act, 1908.

The plaintiff-petitioners have not been able to make out a prima facie case for grant of injunction in their favour and neither is the balance of convenience in their favour.