Delhi District Court
Sudhir Kalra vs Mohd. Danish on 31 July, 2025
INDEX
Sl. Heading Page No.
No.
1. Memo of parties 2
2. Brief Facts - Plaintiff's case 3-5
3. Defendant's case 6-8
Written statement of defendant no. 2
4. Replication to the written statement 8
5. Issues 8-9
6. Plaintiff's Evidence 9-10
7. Defendant Evidence 10-11
8. Arguments by Ld. Counsel for parties 11-12
9. Issues 12-15
Issue no. 1
Judgments and Section relied upon :
(i) Section 3 (1) of the Limitation Act
(ii) V.M. Salgaocar and Bros. Vs Board of Trustees of
Port of Mormugao and Another, (2005) 4 SCC 613
10. Issue no. 2 15-17
Judgments and Section relied upon :
(i) R.Hemalatha VS Kashthuri, SLP No.-014884/2022
(ii) Muruganandam Vs Muniyandi (Died) through LRs
SCC Online 1067
11. Issue no. 3 17-21
Judgments and Section relied upon :
(i) Aliji Momonji & Co. Vs Lalji Mavji & Ors. (1996)
5 SCC 379
12. Issue no. 4 21-22
13. Issue no. 6 and 7 22-44
Judgments and Section relied upon :
(i) Katta Sujatha Reddy Vs Siddamsetty Infra Projects
(P) Ltd. & Ors., (2023) 1SCC 355
(ii) Section 10,14, 16, 20 of Specific Relief Act
(iii) Kamal Kumar Vs Prem Lata AIR 2019 Supreme
Court 459
(iv) Vinod Infra Developers Ltd. Vs Mahaveer Lunia
& Ors., 2025 INSC 772
(v) Babasaheb Dhondiba Kute Vs Radhu Vithoba
Barde, 2024 INSC 122
14. Issue no. 5 44-47
Judgments and Section relied upon :
(i) Section 50 of the Registration Act
15. Relief 47-48
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SANDEEP Digitally
by SANDEEP
signed
KUMAR KUMAR SHARMA
Date: 2025.07.31
SHARMA 17:05:14 +0530
IN THE COURT OF DISTRICT JUDGE- 02,
CENTRAL DISTRICT: TIS HAZARI COURTS, NEW DELHI
Presided by - Sh. Sandeep Kumar Sharma, DHJS
In the matter of-
CS DJ No. 611249/16
CNR No. : DLCT01-000679-2014
Sudhir Kalra
S/o Sh. Ram Prakash Kalra
R/o D-6/16, Second Floor,
Rana Pratap Bagh,
Delhi - 110007
............... Plaintiff
VERSUS
1. Mohd. Danish
S/o Sh. Abdul Matin,
R/o 9963, Khalil Wali,
Nawab Ganj, Azad Market,
Delhi - 110006
2. Sh. Rajan Bhasin
S/o Sh. Radhey Shyam Bhasin,
R/o 176, First Floor, Gali No. 1,
Padam Nagar, Near Sarai Rohilla,
Delhi
............... Defendants
Date of Institution of suit : 16.04.2014
Date of Reservation of judgment : 03.07.2025
Date of Pronouncement of judgment : 31.07.2025
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SANDEEP Digitally
by SANDEEP
signed
KUMAR KUMAR SHARMA
Date: 2025.07.31
SHARMA 17:05:23 +0530
SUIT FOR SPECIFIC PERFORMANCE AND PERMANENT
INJUNCTION
JUDGMENT
1. This court is rendering the present judgment to adjudicate
the suit filed by Sh. Sudhir Kalra (hereinafter to be referred to
as the ‘plaintiff’) on 16.04.2014 against the defendant Mohd.
Danish (‘hereinafter to be referred to as ‘defendant’) for
specific performance and permanent injunction.
Case of the plaintiff (In brief)
2. The plaintiff has filed this suit in order to obtain a decree
of specific performance of the agreement to sell dated
19.04.2008 and agreement dated 15.04.2011 entered into
between the parties and calling upon the defendant to receive
the balance consideration from the plaintiff and to execute and
register the Sale Deed in respect of the property bearing entire
roof above the second floor with further roof rights of
property bearing no. D-6/16, Rana Pratap Bagh, Delhi-110007
admeasuring 138 sq. yds. (henceforth referred to as ‘the suit
property’) or in alternative directing the defendant to pay
double the amount of earnest/advance sum of ₹.6 lacs
alongwith interest @ 18% p.a. in terms of agreement to sell
dated 19.04.2008 and to pass a decree for permanent
injunction in favour of the plaintiff and against the defendant.
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SANDEEP Digitally
by SANDEEP
signed
KUMAR KUMAR SHARMA
Date: 2025.07.31
SHARMA 17:05:30 +0530
3. It is averred by the plaintiff that the defendant represented
and assured the plaintiff that the defendant is the absolute
owner-occupier of the entire roof above the second floor with
further roof rights of the suit property, along with the freehold
ownership rights of the land beneath the same, along with
common rights of entrance, passage, and stairs in the property
as shown in the site plan. The defendant offered to sell the
roof above the second floor with further rights in the suit
property.
4. Upon representation and assurance, the plaintiff entered
into an agreement to sell dated 19.04.2008 for a total sale
consideration amount of ₹.16,84,000/-. Further, in pursuance
of the agreement to sell dated 19.04.2008, the plaintiff paid a
sum of ₹.6,00,000/- to the defendant, and the defendant
undertook to register a Sale Deed in faovur of the plaintiff on
or before 19.05.2008.
5. Further, the physical vacant possession of the suit property
was given to the plaintiff by the defendant. The plaintiff,
along with the balance sale consideration, approached the
defendant on 13.05.2008; however, the defendant showed his
inability to register the sale deed/sale documents on or before
the 19.05.2008 in favour of the plaintiff, and at the request of
the defendant, the date of registration of the sale deed was
extended up to 30.07.2008.
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Digitally signed
SANDEEP by SANDEEP
KUMAR
KUMAR SHARMA
SHARMA Date: 2025.07.31
17:05:41 +0530
6. It has also been averred that the plaintiff, along with the
balance sale consideration, approached the defendant for
registration of the sale deed/sale documents on various dates;
however, the same was extended to 30.03.2011. Instead of
executing a sale deed in pursuance of the agreement to sell,
the defendant again executed a fresh agreement to sell on
15.04.2011, and the defendant undertook and promised the
plaintiff to complete the sale transaction on or before
18.04.2012 in respect of the suit property in favour of the
plaintiff. The defendant also allowed a concession of
₹.50,000/- in sale price on account of the inordinate delay on
the part of the defendant to execute the sale deed in favour of
the plaintiff, thereby leaving a balance sale consideration of
₹.10,34,000/- to be paid by the plaintiff to the defendant on
execution of the sale deed.
7. When the defendant had failed to execute the necessary
sale document in favour of the plaintiff on 18.04.2012, then at
the request of the defendant, the time for execution of the sale
documents was extended to 30.12.2012, 30.06.2013, and
31.12.2013. The defendant, however, has failed to execute the
sale documents in favour of the plaintiff. Keeping in view the
inaction of the defendant, the plaintiff had issued a legal
notice on 24.03.2014 to the defendant calling upon him to
execute the sale deed as per agreements dated 19.04.2008 and
15.04.2011, and since no response was received from the
defendant, the plaintiff has filed the present suit.
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Digitally signed
SANDEEP by SANDEEP
KUMAR
KUMAR SHARMA
SHARMA Date: 2025.07.31
17:05:48 +0530
Proceedings of the case
8. It is pertinent to mention over here that despite being duly
served, the defendant no. 1 did not file the written statement,
and therefore the Ld. Predecessor of this Court vide order
dated 18.05.2015 struck off his defence. Though, further, an
application under Order I Rule 10 CPC was filed by Sh. Rajan
Bhasin on 04.07.2014 for his impleadment in the present suit,
which was allowed vide order dated 21.05.2015, and the
defendant was directed to file the written statement.
Facts pleaded in written statement of defendant no. 2 (In brief)
9. In the written statement, the defendant no. 2 refuted all the
allegations and claims of the plaintiff and contended that the
suit property belonged to Sh. Ajit Kumar S/o Late Sh. Dule
Chand R/o C-1/11, Rana Pratap Bagh, Delhi-7, prop of M/s
Ajit Kumar Dheeraj Kumar at 4052/8, Naya Bazaar, Delhi-6,
who had purchased the same from one Sh. Raj Baboo Nischal
through a registered sale deed dated 21.06.2006, registered
with the Sub-Registrar, Sub Distt. no. 6(A), with the sale deed
bearing registration no. 8914 in addl. Book No. 1, Vol. 448 on
Pg. No. 37-44. Defendant no. 2 purchased the suit property
from Sh. Ajit Kumar through a registered sale deed dated
24.04.2014, and Sh. Ajit Kumar delivered vacant, peaceful,
and physical possession of the suit property to defendant no.
2.
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Digitally signed
SANDEEP by SANDEEP
KUMAR
KUMAR SHARMA
SHARMA Date: 2025.07.31
17:05:54 +0530
10. The defendant no. 2 further contended that when the
defendant no. 2 went to the suit property on 12.05.2014, he
found that on the entry gate to the roof of the 2nd floor there
was some other lock. The plaintiff quarrelled with the
defendant no. 2, and a complaint was filed by him in the PS
Bharat Nagar vide diary no. 17 PP dated 12.05.2014. It is
contended that the defendant no. 2 filed a suit bearing no. 158
of 2014 for permanent and mandatory injunction, which was
subsequently amended as a suit for possession, permanent and
mandatory injunction seeking relief of possession of the suit
property, and other reliefs.
11. It is also contended that Sh. Ajit Kumar entered into an
agreement to sell dated 11.05.2007 with defendant no. 1,
whereby defendant no. 1 was to build the ground, first, and
second floors, and after completion of the building, the
defendant no. 1 was to hand over the ground floor (except the
shops on the ground floor). Defendant no. 1 was also to give
₹. 80,00,000/- to Sh. Ajit Kumar minus ₹. 25,00,000/-, which
had been valued as the cost of the ground floor.
12. It has further been contended that when the disputes and
differences arose between Sh. Ajit Kumar and defendant no.
1, defendant no. 1 filed suit for permanent and mandatory
injunction wherein, in the amended plaint, defendant no. 1
prayed for permanent injunction against Sh. Ajit Kumar from
selling, transferring, and creating third-party interest in the
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SANDEEP Digitally
by SANDEEP
signed
KUMAR KUMAR SHARMA
Date: 2025.07.31
SHARMA 17:06:01 +0530
suit premises, i.e., six shops on the ground floor and the roof
of the second floor of the suit property.
13. It has further been asserted by the defendant no. 2 that Sh.
Ajit Kumar filed a written statement in the said suit and had
taken objection that out of ₹.80,00,000/-, a sum of
₹.24,50,000/- was still to be received by him. Further, vide
order dated 22.07.2013, the suit of the defendant no. 1 was
dismissed for non-prosecution. When no appeal was preferred
by the defendant no. 1/Mohd Danish, it was only thereafter
that Sh. Ajit Kumar executed a sale deed dated 24.04.2014 in
favour of defendant no. 2, therefore, defendant no. 1 has no
rights to offer the sale of the suit property to the plaintiff.
Hence, it is prayed that the suit of the plaintiff may be
dismissed.
Replication
14. The plaintiff has not filed replication to the written
statement filed by the defendant no. 2
Issues
15. After completion of pleadings, the Ld. Predecessor of this
Court vide order dated 01.08.2015, framed the following
issues for adjudication in the present suit:
1. Whether the suit is barred by limitation?
OPD
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SANDEEP Digitally
by SANDEEP
signed
KUMAR KUMAR SHARMA
SHARMA Date: 2025.07.31
17:06:09 +0530
2. Whether the suit is liable to be dismissed
because it is based upon unregistered &
improperly stamped documents? OPD
3. Whether the suit is bad for non-joinder of
necessary parties and is accordingly liable to
be dismissed under Order I Rule 9 CPC?
OPD
4. Whether the suit of the plaintiff has not been
properly valued for the purpose of court fee
& jurisdiction and on that account the same
is liable to be dismissed ? OPP
5. Which party is having the ownership rights
of roof of second floor of the premises? OP
Parties.
6. Whether the plaintiff is entitled for decree
of specific performance of the contract dated
19.04.2008 with defendant no. 1 or the
alternative relief as claimed in the plaint?
OPP
7. Whether the plaintiff is entitled to a decree
of permanent injunction, as prayed in the
plaint? OPP
8. Relief.
9. Costs.
Plaintiff’s Evidence
16. In PE, plaintiff has examined himself as PW1, who
entered into witness box and tendered his evidence affidavit as
Ex. P-1 and relied upon the following documents-
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Digitally signed
SANDEEP by SANDEEP
KUMAR
KUMAR SHARMA
SHARMA Date:
2025.07.31
17:06:15 +0530
S.No Exhibit/ Mark No. Description of Documents
1. Ex. PW-1/1 Site Plan
2. Ex. PW-1/2 (Colly) Photocopy of agreement to sell
(OSR) dated 19.04.2008
3. Ex. PW-1/3 (OSR) Photocopy of receipt
4. Ex. PW-1/4 (Colly) Photocopy of agreement dated
(OSR) 15.04.2011
5. Ex. PW-1/5 Legal notice dated 24.03.2014
6. Ex. PW-1/6 Postal receipt
7. Ex. PW-1/7 Envelope
17. PW1 was cross-examined by the Ld. Counsel for the
defendant on the aspects of the execution of the alleged
agreement dated 12/14/2008, where PW1 has deposed in sync
with the contents of the pleadings and asserted that the present
suit was filed on the basis of the agreement dated 12/14/2008
and not on the basis of oral agreement, and no oral agreement
was made between him and defendant no. 1.
18. Thereafter, Sh. Kamal Bajaj was examined as PW2, who
tendered his evidence affidavit as Ex. P-2 and submitted that
the documents Ex. PW1/2 and Ex. PW1/3 were executed in
his presence. Thereafter, PE was closed on 07.08.2018.
Defendant’s Evidence
19. It is pertinent to mention over here that the defendant no.
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SANDEEP Digitally
by SANDEEP
signed
KUMAR KUMAR SHARMA
Date: 2025.07.31
SHARMA 17:06:21 +0530
2 did not lead separate evidence in the present matter. He
opted the evidence as led in the suit no. 611350/2016 titled as
“Rajan Bhasin VS Sudhir Kalra”. The documents as
mentioned and tendered in the affidavit of the Defendant no. 2
are mentioned as under :
S.No Exhibit/ Mark No. Description of Documents
1. Ex. PW1/A (OSR) Certified copy of the sale deed
dated 24.04.2014 registered on
26.04.2014
2. Ex. PW1/B Site plan
3. Ex. PW1/C (OSR) Certified copy of the sale deed
dated 21.06.2006
4. Ex. PW1/D Copy of the complaint dated
12.05.2014.
Final arguments addressed by the Ld. Counsel for the parties
20. This Court has heard the final arguments of the Ld.
Counsel for the parties at length and perused the record
carefully. The Ld. Counsel for the plaintiff has argued that by
the virtue of the agreement to sell, he had purchased the
property in question from the defendant no. 1; therefore, the
defendant no. 2 has no right in the suit property; hence, the
relief of specific performance ought to be granted to the
plaintiff, or in the alternative, the amount of ₹.6 Lacs, which
was paid as an earnest money to the defendant no. 1, should
be returned to the plaintiff with interest.
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Digitally signed
SANDEEP by SANDEEP
KUMAR
KUMAR SHARMA
SHARMA Date: 2025.07.31
17:06:28 +0530
21. Per-contra Ld. Counsel for the defendant no. 2 has argued
that the defendant no. 1 had no right in the suit property, as
the owner of the same is Sh. Ajit Kumar; therefore, he could
not sell it further to the plaintiff; therefore, the suit should be
dismissed as being without cause of action. It has also been
argued that the suit of the plaintiff is barred by the law of
limitation; therefore, it may simply be dismissed on this
ground only, without examining the merits of the case.
Analysis and Conclusion
Issue no.1
1. Whether the suit is barred by limitation?
OPD
22. The onus to prove this issue was upon the defendants. It is
argued by the Ld. Counsel for the defendants that since it is
evident from the averments of the plaint, the claim of the
plaintiff is barred by the law of limitation, as the suit was filed
on 16.04.2014 for which the cause of action was started on
19.04.2008 when the first alleged agreement to sell was
executed between the plaintiff Ex.PW1/2 (colly) (OSR) and
the defendant no.1, and a fresh agreement to sell was also
executed on 15.04.2011 Ex.PW1/4 (colly) (OSR).
23. At the time of the tendering of the evidence, Ld. Counsel
for the defendant no. 1 raised an objection to the mode of
proof of Ex. PW1/2 and Ex. PW1/4. The objection is liable to
be dismissed as both the documents were produced in court in
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SANDEEP Digitally
SANDEEP
signed by
KUMAR KUMAR SHARMA
Date: 2025.07.31
SHARMA 17:06:35 +0530
original at the time of the tendering of them in evidence, and
PW1, being one of the parties to the same, deposed regarding
the execution of the same. Therefore, objection as to mode o
proof doesn’t have any substance.
24. Further, though, the onus to prove the issue was on the
defendant, and no evidence has been led by the defendant, but
this Court cannot overlook Section 3(1) of the Limitation Act,
which mandates that the court is bound to examine the issue
of limitation even though the same has not been taken by the
defendant. The Section 3 (1) of the Limitation Act is
reproduced here as under,
“3. Bar of limitation.–(1) Subject to the provisions
contained in sections 4 to 24 (inclusive), every suit
instituted, appeal preferred, and application made
after the prescribed period shall be dismissed,
although limitation has not been set up as a
defence.”
xxx.
25. It is lucidly manifest from the bare perusal of the
abovementioned provision that it is imperative upon the court
to verify as to whether the suit has been filed within the period
of limitation, notwithstanding the fact as to whether the
limitation has been set up as a defence or not, and if it is found
that the suit has been filed beyond the period of limitation,
then the only option available to the court is to dismiss the
suit, solely on the ground that the suit is barred by limitation.
26. To support the abovementioned view, reliance may be
placed on the judgment of the Hon’ble Supreme Court, titled
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SANDEEP Digitally
by SANDEEP
signed
KUMAR KUMAR SHARMA
SHARMA Date: 2025.07.31
17:06:41 +0530
as ‘V.M. Salgaocar and Bros. vs Board of Trustees of Port of
Mormugao and Another, (2005) 4 SCC 613’ (para-20 and 21) ,
where in it has been held that,
“20. The mandate of Section 3 of the Limitation Act
is that it is the duty of the court to dismiss any suit
instituted after the prescribed period of limitation
irrespective of the fact that limitation has not been
set up as a defence. If a suit is ex facie barred by the
law of limitation, a court has no choice but to
dismiss the same even if the defendant intentionally
has not raised the plea of limitation.
21. This Court in Manindra Land & Building
Corpn. Ltd. v. Bhutnath Banerjee [(1964) 3 SCR
495 : AIR 1964 SC 1336] held (AIR para 9):
“Section 3 of the Limitation Act enjoins a court to
dismiss any suit instituted, appeal preferred and
application made, after the period of limitation
prescribed therefore by Schedule I irrespective of
the fact whether the opponent had set up the plea of
limitation or not. It is the duty of the court not to
proceed with the application if it is made beyond
the period of limitation prescribed. The Court had
no choice and if in construing the necessary
provision of the Limitation Act or in determining
which provision of the Limitation Act applies, the
subordinate court comes to an erroneous decision, it
is open to the court in revision to interfere with that
conclusion as that conclusion led the court to
assume or not to assume the jurisdiction to proceed
with the determination of that matter.
(Emphasis Supplied)
27. From the above-cited judgment it is evident that even if
the plea of limitation is not set up as a defence, the Court has
to dismiss the suit if it is barred by limitation. In the present
case the defendant has failed to lead any cogent evidence to
prove the issue; however, perusal of the record of the case
lucidly manifest shows that the agreements to sell Ex. PW1/2
and Ex. PW1/4, respectively, were executed on 19.04.2008CS DJ No. 611249/16 CNR No. : DLCT01-000679-2014 Sudhir Kalra VS Mohd. Danish & Anr. Page No. 14 of 48
SANDEEP Digitally
by SANDEEP
signedKUMAR KUMAR SHARMA
Date: 2025.07.31
SHARMA 17:06:47 +0530
and 15.04.2011, and the suit was filed on 15.04.2014, which is
sufficient to hold that the suit has been filed within the period
of limitation and hence is not barred by the law of limitation.
28. The limitation period for seeking specific performance on
the basis of the agreement to sell is three years, which means
the plaintiff could have sought the specific performance on the
basis of Ex. PW1/2 till 19.04.2008, though, prior to the expiry
of the said period, a fresh agreement to sell was executed (Ex.
PW1/4) between the parties on 15.04.2011, and the suit was
filed on 15.4.2011, which is within three years of the
limitation period; hence, the suit is within the limitation
period, and accordingly, the issue is decided against the
defendants and in favour of the plaintiff.
Issue no. 2
2. Whether the suit is liable to be dismissed
because it is based upon unregistered &
improperly stamped documents? OPD
29. The onus to prove this issue was also upon the defendant.
Though no evidence has been led by the defendant for proving
the issue, the issue is also liable to be adjudicated in favour of
the plaintiff, as there is no requirement in law to register the
agreement to sell in the case of specific performance. The
plaintiff in the present case is not claiming its possession on
the basis of the doctrine of part performance under Section
53A of the Transfer of Property Act, but the plaintiff is merely
seeking the performance of the agreement to sell Ex. PW1/2CS DJ No. 611249/16 CNR No. : DLCT01-000679-2014 Sudhir Kalra VS Mohd. Danish & Anr. Page No. 15 of 48
Digitally signed
SANDEEP by SANDEEP
KUMAR
KUMAR SHARMA
SHARMA Date: 2025.07.31
17:06:54 +0530
and Ex. PW1/4; therefore, the question of the registration of
both the agreements to sell does not arise. The reliance may
be placed on the judgment of the Hon’ble titled as ‘R.
Hemalatha vs Kashthuri, SLP(C) No.-014884 / 2022,
(para-13)’ wherein, it has been held that
“Under the circumstances, as per proviso to Section
49 of the Registration Act, an unregistered
document affecting immovable property and
required by Registration Act or the Transfer of
Property Act to be registered, may be received as
evidence of a contract in a suit for specific
performance under Chapter-II of the Specific Relief
Act, 1877, or as evidence of any collateral
transaction not required to be effected by registered
instrument, however, subject to Section 17(1A) of
the Registration Act. It is not the case on behalf of
either of the parties that the document/ Agreement
to Sell in question would fall under the category of
document as per Section 17(1A) of the Registration
Act. Therefore, in the facts and circumstances of the
case, the High Court has rightly observed and held
relying upon proviso to Section 49 of the
Registration Act that the unregistered document in
question namely unregistered Agreement to Sell in
question shall be admissible in evidence in a suit for
specific performance and the proviso is exception to
the first part of Section 49.”
30. Further, reliance may be placed on the judgment of the
Hon’ble Supreme Court ‘Muruganandam vs Muniyandi
(Died) through LRs 2025 SCC OnLine SC 1067 (para-9 and
10)’ where it has been held that,
“9. Having considered the matter in detail, we are of
the opinion that the prayer of the appellant in the
interlocutory application falls under proviso to
Section 49 of the Registration Act which provides
that an unregistered document affecting immovable
property may be received as evidence of a contract
in a suit for specific performance. The proviso also
enables the said document to be received in
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SANDEEP Digitally
SANDEEP
signed by
KUMAR KUMAR SHARMA
Date: 2025.07.31
SHARMA 17:07:02 +0530
evidence of a collateral transaction. Section 49
reads as follows:
“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, to be
registered shall –
(a)affect any immovable property
comprised therein, or
(b)confer any power to adopt, or
(c)be received as evidence of any
transaction affecting such property or
conferring such power, 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 to
be registered may be received as
evidence of a contract in a suit for
specific performance under Chapter II
of the Specific Relief Act, 1877 or as
evidence of any collateral transaction
not required to be effected by
registered instrument.”
10. In Kaladevi (supra), this Court has held that an
unregistered document may be received as evidence
of a contract in a suit seeking specific performance.
…”
31. On the basis of the discussion above and the mandate of
the judgment referred to above and the proviso to Section 49
of the Registration Act in view, this Court is of the considered
opinion that there is no requirement for the plaintiff to register
the agreement to sell prior to seeking the specific performance
of Ex. PW1/2 and Ex. PW1/4; hence, this issue is decided in
favour of the plaintiff and against the defendant.
Issue no. 3
Whether the suit is bad for non-joinder of
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Digitally signed
SANDEEP by SANDEEP
KUMAR
KUMAR SHARMA
SHARMA Date: 2025.07.31
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necessary parties and is accordingly liable to
be dismissed under Order I Rule 9 CPC?
OPD
32. The onus to prove this issue was upon the defendant. It is
the stand of the defendant no. 2 that the suit is bad for the non-
joinder of Sh. Ajit Kumar as a defendant in the suit, as he is
admittedly the previous owner of the property, and in the
absence of Sh. Ajit Kumar, the suit cannot effectively be
decided. Per contra, the Ld. Counsel for the plaintiff has
argued that his presence is not necessary, as the agreement to
sell was executed between the plaintiff and defendant no. 1,
and hence, in the suit for specific performance, his
impleadment as a defendant is not necessary.
33. Insofar as the plea relating to the proposition of law that a
suit can be dismissed for non-joinder of necessary parties is
concerned, there cannot be any dispute with regard to the
same since Order 1 Rule 9 CPC provides that a suit can be
dismissed if the same is bad for non-joinder of necessary
parties; however, before applying the said provision, it has to
be scrutinised that the parties, which are claimed to be the
necessary parties, are actually necessary or not for the
adjudication of the disputes raised between the parties in the
present case.
34. The Hon’ble Supreme Court in the case titled ‘Aliji
Momonji & Co. vs Lalji Mavji & Ors. (1996) 5 SCC 379′ has
laid down the test to ascertain whether a party is a necessary
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party to a suit or not. The test of whether a party is a necessary
party or not is twofold, i.e., (1) where the presence of a party
is necessary for complete and effectual adjudication of the
disputes, though no relief is sought, he is a proper party, and
(2) if, in the absence of the said party, no effective and
complete adjudication of the dispute could be made and no
relief could be granted, then the said party is a necessary
party.
35. Having discussed the scope, ambit, and principles that are
to be kept in mind while dealing with the issue of Order I Rule
9 CPC, now the facts of this case need to be examined. It is an
admitted position of fact that the suit property initially
belonged to Sh. Ajit Kumar, and he had executed an
agreement to sell with defendant no. 1, dated 11.05.2007,
Mark X. In para 06 of the Mark X, it has been mentioned that
the first party, i.e., Sh. Ajit Kumar, is in favour of defendant
no. 1.
36. It is also an admitted position of facts that on the day of
execution of Ex.PW1/2 and Ex.PW1/4, no registered sale deed
was executed in favour of the defendant no.1 by the owner,
Sh. Ajit Kumar, which means the date on which the alleged
cause of action arose in favour of the plaintiff, Sh. Ajit
Kumar, was the owner of the suit property, and the plaintiff is
seeking the specific performance of the agreement to sell
Ex.PW1/2 and Ex.PW1/4, which were executed on the basis
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of the agreement to sell Mark X, to which Sh. Ajit Kumar was
the party and through whom the defendant no.1 was claiming
his right in the suit property. Sh. Ajit Kumar is the necessary
party in the suit for the reason that to adjudicate whether he
actually gave any authority to defendant no. 1 to transfer the
suit property on his behalf through the Mark X.
37. It is beyond comprehension how the real owner of the suit
property is not a necessary party in the suit for specific
performance because the ownership may only be transferred
by the person who has the competency, and the title to the suit
property may further be conferred on someone else.
Therefore, it is lucid that in the absence of Sh. Ajit Kumar, no
effective judgment may be passed; therefore, the presence of
Sh. Ajit Kumar in the suit is inevitable, and the failure of the
plaintiff to implead him as a defendant goes to the root of the
case and is hence fatal for his case.
38. Furthermore, it is pertinent to mention that during the
cross-examination dated 03.08.2017, the PW1 admitted that
defendant no.1 had shown the agreement to sell dated
11.05.2007 Mark X to him at the time of execution of the
agreement to sell dated 19.04.2008, Ex. PW1/2; therefore, it is
evident that the plaintiff had the knowledge that defendant
no.1 did not have the absolute title to the suit property and his
right is contingent on fulfilling the condition of the entire
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payment prior to the execution of the sale deed by Sh. Ajit
Kumar in favour of defendant no.1.
39. When it is admitted by the PW1 that no other documents
were shown by the defendant no.1 at the time of the execution
of Ex.PW1/2 except Mark X, then even a person with a simple
understanding, on seeing such a condition, would definitely
ask the defendant about the payment of the entire sale
consideration and also about whether the original owner has
executed a registered sale deed in favour of the defendant no.1
because without it, it is written in Mark X that defendant no.1
could not have done the sale deed in favour of the plaintiff. In
view of the above, this Court is of the view that the suit of the
plaintiff is bad for non-joinder of Sh. Ajit Kumar and
therefore liable to be dismissed on this ground only;
accordingly, the issue is decided in favour of the defendant
and against the plaintiff.
Issue No. 4
Whether the suit of the plaintiff has not been
properly valued for the purpose of court fee
& jurisdiction and on that account the same
is liable to be dismissed ? OPD
40. The defendant has alleged the same in the written
statement that the plaintiffs have not properly valued the suit
for the purposes of court fees and jurisdiction; hence, they
were obliged to prove the same. However, it is a settled law
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that the plaintiff is the master of his case, and he is free to
value the suit property at his will; however, such a valuation
should not be arbitrary and illegal or against the rules.
41. In the present case, instead of making bald averments in
the written statement, nothing has been brought on record by
the defendant that may counter the valuation as done by the
plaintiff in the plaint. Even in para 30 of the reply on the
merits of the written statement, defendant no. 2 merely stated
that the suit has not been valued correctly for the purposes of
the court fees and jurisdiction, nor were proper court fees
annexed; however, the defendant has failed to prove what
should be the correct valuation of the suit and how much court
fees were to be paid by the plaintiff.
42. Since the defendant has failed to lead any cogent evidence
regarding the contention that the suit is being undervalued.
Accordingly, in the absence of evidence to the contrary, this
court has no reason to doubt the valuation given by the
plaintiffs as wrong or undervalued. Hence, the issue is decided
in favour of the plaintiff and against the defendant.
Issue no. 6 and 7
6. Whether the plaintiff is entitled for decree
of specific performance of the contract dated
19.04.2008 with defendant no. 1 or the
alternative relief as claimed in the plaint?
OPP
7. Whether the plaintiff is entitled to a
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decree of permanent injunction, as prayed in
the plaint? OPP
43. The onus to prove these issues was upon the plaintiff. As
both of the issues are interconnected and may be decided with
the common findings, therefore, this Court is taking up both
of the issues together for adjudication. Though this Court
already held while deciding issue no. 3 that the suit of the
plaintiff is bad for the non-joinder of the necessary party, i.e.,
the owner of the suit property, Sh. Ajit Kumar, the issue of
specific performance is the central issue upon which the entire
controversy is based; therefore, this Court deems it
appropriate to adjudicate it on merits.
44. Before delving into the broader issue of whether the
plaintiff has been able to prove the said issue, it is apposite to
briefly deal with the necessary ingredients that are required to
be pleaded and proved before the discretionary relief of the
specific performance may be granted in favour of the plaintiff.
45. At the outset, it requires to be clarified and made clear
that in the instant case the amendment brought about in the
Specific Relief Act, 1963 (hereinafter to be referred to as
‘SRA’) in the year 2018, would be inapplicable. The
amendments are prospective in nature and cannot be applied
to those transactions that took place prior to the said
amendments. It is necessary to note this fact inasmuch as, by
way of amendment in the SRA, the relief of specific
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by SANDEEP
signed
KUMAR KUMAR SHARMA
SHARMA Date: 2025.07.31
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performance remains no more discretionary, and once the
concluded contract and the other ingredients are found to be
established, the courts are bound to grant the requisite relief.
46. To substantiate the above finding this court may draw
support for this proposition from the decision of the Hon’ble
Supreme Court in the case of ‘Katta Sujatha Reddy vs
Siddamsetty Infra Projects (P) Ltd. & Ors., (2023) 1 SCC 355
(para- 48 to 51), wherein the Hon’ble Supreme Court
undertook a detailed examination of the nature and effect of
the 2018 amendments to the SRA particularly in relation to
the remedy of specific performance. The relevant paras of the
said decision are reproduced herein for ready reference
“48. In any case, the amendment carried out in 2018
was enacted to further bolster adherence to the
sanctity of contracts. This approach was radical and
created new rights and obligations which did not
exist prior to such an amendment. Section 10, after
amendment, reads as under,
10. Specific performance in respect of
contracts.–The specific performance of a
contract shall be enforced by the court subject
to the provisions contained in subsection (2)
of section 11, section 14 and section 16.
49. This provision, which remained in the realm of
the Courts’ discretion, was converted into a
mandatory provision, prescribing a power the
Courts had to exercise when the ingredients were
fulfilled. This was a significant step in the growth of
commercial law as the sanctity of contracts was
reinforced with parties having to comply with
contracts and thereby reducing efficient breaches.
50. Under the pre amended Specific Relief Act , one
of the major considerations for grant of specific
performance was the adequacy of damages under
Section 14(1)(a) . However, this consideration has
now been completely done away with, in order to
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provide better compensation to the aggrieved party
in the form of specific performance.
51. Having come to the conclusion that the 2018
amendment was not a mere procedural enactment,
rather it had substantive principles built into its
working, this Court cannot hold that such
amendments would apply retrospectively.”
(Emphasis Supplied)
47. From the perusal of the highlighted portion, it is quite
clear that the Hon’ble Supreme Court categorically held that
the amendments brought about a substantial change in the
character of the relief of specific performance. Prior to the
amendment, this relief was discretionary in nature, meaning
the courts could decide whether to grant it based on equitable
considerations, such as the availability of damages and a few
other conditions, as a sufficient remedy.
48. However, post-amendment, the position of law underwent
a significant shift. Once the statutory prerequisites or essential
ingredients for specific performance are met, the court is now
obligated to grant the relief, thus converting what was
previously a discretionary remedy into a mandatory one.
49. The judgment also addressed the temporal applicability,
i.e., whether it can be applied to past actions or events, of the
amendments. The Hon’ble Supreme Court made it clear that
since the changes introduced by the 2018 amendment were
substantive in nature, affecting the legal rights and obligations
of the parties, they could not be applied retrospectively. As a
result, these amendments apply only to contracts and
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transactions executed after the commencement of the
amendment and not to those that were already in existence or
to legal proceedings that were pending before the amendment
came into force.
50. This decision serves as a binding clarification that the
2018 amendments to the SRA cannot affect past or pending
cases and firmly establishes that specific performance has
become a legal right, not merely an equitable remedy, in all
future cases where the statutory conditions are fulfilled.
51. Thus, in the present matter, since the suit was already
pending at the time when the 2018 amendments to the SRA
came into force, the legal regime as it existed prior to the
amendment shall govern the case. In other words, the Court is
not bound by the mandatory framework introduced by the
amended Act but is rather guided by the pre-amendment
provisions of the SRA, which treated specific performance as
a discretionary equitable remedy.
52. Accordingly, while adjudicating upon the claim for
specific performance, this Court is well within its authority to
exercise judicial discretion, as permitted under the unamended
law. This includes a holistic assessment of whether granting
such relief would be just and equitable in the facts and
circumstances of the case and whether monetary
compensation would serve as an adequate alternative remedy.
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signed
KUMAR KUMAR SHARMA
Date: 2025.07.31
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53. Having taken note of the temporal applicability and the
substantive changes introduced by the 2018 amendments to
the SRA and their corresponding legal effect, this Court now
proceeds to examine the essential requisites that the plaintiff is
required to plead and establish in order to be entitled to the
relief of specific performance under the legal framework that
existed prior to the said amendments. In this context, it
becomes imperative to analyse the conditions and legal
standards that governed the grant of specific performance
under the unamended provisions of the Specific SRA. At this
stage, it will be apposite to reproduce the relevant sections
applicable to the issue at hand. The same are as follows:
10.Cases in which specific performance of contract
enforceable.–
Except as otherwise provided in this Chapter,
the specific performance of any contract may,
in the discretion of the court, be enforced–
(a)when there exists no standard for
ascertaining actual damage caused by the non
performance of the act agreed to be done;
or(b)when the act agreed to be done is such
that compensation in money for its non
performance would not afford adequate relief.
Explanation.–Unless and until the contrary is
proved, the court shall presume–
(i)that the breach of a contract to transfer
immovable property cannot be
adequately relieved by compensation in
money; and(ii)that the breach of a
contract to transfer movable property
can be so relieved except in the
following cases:
(a)where the property is not an
ordinary article of commerce, or
is of special value or interest to
the plaintiff, or consists of
goods which are not easily
obtainable in the market;
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(b)where the property is held by
the defendant as the agent or
trustee of the plaintiff.
14. Contracts not specifically enforceable.–
(1)The following contracts cannot be
specifically enforced, namely:–
(a) a contract for the non-performance of
which compensation in money is an
adequate relief;
(b)a contract which runs into such
minute or numerous details or which is
so dependent on the personal
qualifications or volition of the parties,
or otherwise from its nature is such, that
the court cannot enforce specific
performance of its material terms;
(c)a contract which is in its nature
determinable;
(d)a contract the performance of which
involves the performance of a
continuous duty which the court cannot
supervise.
(2)Save as provided by the Arbitration Act,
1940 (10 of 1940), no contract to refer present
or future differences to arbitration shall be
specifically enforced; but if any person who has
made such a contract (other than an arbitration
agreement to which the provisions of the said
Act apply) and has refused to perform it, sues in
respect of any subject which he has contracted
to refer, the existence of such contract shall bar
the suit.
(3)Notwithstanding anything contained in
clause (a) or clause (c) or clause (d) of sub
section (1), the court may enforce specific
performance in the following cases:–
(a)where the suit is for the
enforcement of a contract,–(i)to
execute a mortgage or furnish any
other security for securing the
repayment of any loan which the
borrower is not willing to repay at
once:Provided that where only a part
of the loan has been advanced the
lendor is willing to advance the
remaining part of the loan in terms ofCS DJ No. 611249/16 CNR No. : DLCT01-000679-2014 Sudhir Kalra VS Mohd. Danish & Anr. Page No. 28 of 48
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the contract; or(ii)to take up and pay
for any debentures of a company;
(b) where the suit is for,–(i)the
execution of a formal deed of
partnership, the parties having
commenced to carry on the business
of the partnership; or(ii)the purchase
of a share of a partner in a firm;
(c) where the suit is for the
enforcement of a contract for the
construction of any building or the
execution of any other work on land:
Provided that the following
conditions are fulfilled, namely:–
(i)the building or other work
is described in the contract in
terms sufficiently precise to
enable the court to determine
the exact nature of the
building or work;
(ii) the plaintiff has a
substantial interest in the
performance of the contract
and the interest is of such a
nature that compensation in
money for non performance
of the contract is not an
adequate relief; and
(iii)the defendant has, in
pursuance of the contract,
obtained possession of the
whole or any part of the land
on which the building is to be
constructed or other work is
to be executed.
16. Personal bars to relief- Specific performance of
a contract cannot be enforced in favour of a person-
(a) who would not be entitled to
recover compensation for its breach;
or
(b) who has become incapable of
performing, or violates any essential
term of, the contract that on his part
remains to be performed, or acts in
fraud of the contract, or wilfully acts
at variance with, or in subversion of,
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the relation intended to be
established by the contract; or
(c) who fails to aver and prove that
he has performed or has always been
ready and willing to perform the
essential terms of the contract which
are to be performed by him, other
than terms of the performance of
which has been prevented or waived
by the defendant.
Explanation- For the purpose of
clause (c), (i) where a contract
involves the payment of money, it is
not essential for the plaintiff to
actually tender to the defendant or to
deposit in court any money except
when so directed by the court; (ii)
the plaintiff must aver performance
of, or readiness and willingness to
perform, the contract according to its
true construction.”
xxxxxxxxx
20.Discretion as to decreeing specific performance
(1)The jurisdiction to decree specific
performance is discretionary, and the court
is not bound to grant such relief merely
because it is lawful to do so; but the
discretion of the court is not arbitrary but
sound and reasonable, guided by judicial
principles and capable of correction by a
court of appeal.
(2)The following are cases in which the
court may properly exercise discretion not to
decree specific performance:–
(a) where the terms of the
contract or the conduct of the
parties at the time of entering
into the contract or the other
circumstances under which the
contract was entered into are
such that the contract, though not
voidable, gives the plaintiff an
unfair advantage over the
defendant; or (b)where the
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would involve some hardship on
the defendant which he did not
foresee, whereas its non-
performance would involve no
such hardship on the plaintiff; or
(c) where the defendant entered
into the contract under
circumstances which though not
rendering the contract voidable,
makes it inequitable to enforce
specific performance.
Explanation1.– Mere
inadequacy of consideration,
or the mere fact that the
contract is onerous to the
defendant or improvident in
its nature, shall not be
deemed to constitute an
unfair advantage within the
meaning of clause (a) or
hardship within the meaning
of clause (b).
Explanation 2.–The
question whether the
performance of a contract
would involve hardship on
the defendant within the
meaning of clause (b) shall,
except in cases where the
hardship has resulted from
any act of the plaintiff
subsequent to the contract, be
determined with reference to
the circumstances existing at
the time of the contract.
(3)The court may properly exercise
discretion to decree specific performance in
any case where the plaintiff has done
substantial acts or suffered losses in
consequence of a contract capable of
specific performance.
(4)The court shall not refuse to any party
specific performance of a contract merely on
the ground that the contract is not
enforceable at the instance of the party.
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54. This court may also refer to the recent decision of the
Hon’ble Supreme court in ‘Kamal Kumar vs Prem Lata AIR
2019 SUPREME COURT 459′ wherein the Hon’ble Supreme
Court, while having considered the above referred pre
amendment statutory regime and in particular sections 16 (c),
20, 21, 22, 23 of the SRA and the forms 47/48 of Appendix A
to C of the Code of Civil Procedure)., which are also
applicable in present case, observed as under:
“10. It is a settled principle of law that the grant of
relief of specific performance is a discretionary and
equitable relief. The material questions, which are
required to be gone into for grant of the relief of
specific performance, are
First, whether there exists a valid and
concluded contract between the parties for
sale/purchase of the suit property;
Second, whether the plaintiff has been ready
and willing to perform his part of contract and
whether he is still ready and willing to
perform his part as mentioned in the contract;
Third, whether the plaintiff has, in fact,
performed his part of the contract and, if so,
how and to what extent and in what manner he
has performed and whether such performance
was in conformity with the terms of the
contract;
Fourth, whether it will be equitable to grant
the relief of specific performance to the
plaintiff against the defendant in relation to
suit property or it will cause any kind of
hardship to the defendant and, if so, how and
in what manner and the extent if such relief is
eventually granted to the plaintiff; and
Lastly, whether the plaintiff is entitled for
grant of any other alternative relief, namely,
refund of earnest money etc. and, if so, on
what grounds. (Emphasis Supplied)
55. As such, the above-referred-to issues are to be pleaded and
proved by the plaintiff with the aid of evidence in accordance
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with law. It is only then that the Court is entitled to exercise
its discretion and accordingly grant or refuse the relief of
specific performance depending upon the case made out by
the parties on facts.
56. Having discussed the basics, principles, and applicable
statutory provisions, now adverting to the present case, it is
noted that it is the specific case of the plaintiff that defendant
no. 1 had entered into an agreement to sell dated 19.04.2008
(Ex. PW1/2) with the plaintiff for selling the suit property for
the total consideration of ₹.16,84,000/- and an amount of
₹.6,00,000/- was given to the defendant as an earnest money.
57. The entire premise of the plaintiff’s case is that the
defendant no. 1 had executed an agreement to sell Ex. PW1/2
and Ex. PW1/4, where he agreed to sell the suit property to
the plaintiff. However, the claim of the plaintiff is straight
away liable to be rejected for the reason that it is a settled
principle of law that no one may pass a better title than he
himself has. Sh. Ajit Singh did not sell the property to the
defendant no. 1 by way of execution of Mark A, but it was
simply an agreement to sell wherein clause 6 specifically
mentioned that the sale deed will only be executed after the
payment of the entire sale consideration, which was never
paid, and in the absence of a registered sale deed, defendant
no. 1 did not have a valid title to convey the suit property to
the plaintiff, and hence, any right over the immovable
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property on the basis of an agreement to sell is not sufficient
and legally not tenable.
58. It is beyond anyone’s ken to fathom how a person may
become an owner of an immovable property merely by the
execution of the agreement to sell because it ipso facto
doesn’t create any right in the property but only gives a right
to execute a sale deed in his favour or to file a suit for seeking
specific performance. To substantiate the above mentioned
view it is apposite to mention the judgment of the Hon’ble
Supreme Court titled as ‘Vinod Infra Developers Ltd. vs
Mahaveer Lunia & Ors, 2025 INSC 772 (para-9.2, 9.3 and
9.4)’ wherein it has been held that in the absence of a suit for
specific performance of a contract, an agreement to sell
cannot be relied upon for claiming ownership or title over the
property. The relevant para is reproduced here as under,
9.2….Moreover, Respondent No. 1 has not filed
any suit for specific performance of the alleged
agreement to sell, which further renders his claim
untenable. In the absence of a suit for specific
performance, the agreement to sell cannot be relied
upon to claim ownership or to assert any
transferable interest in the property. This legal
position has been conclusively laid down by this
Court in Suraj Lamp & Industries (P) Ltd. v. State
of Haryana, wherein, it was held that unregistered
agreements to sell, even if coupled with possession,
do not convey title or create any interest in the
immovable property. It was further clarified that
such documents are insufficient to complete a sale
unless duly registered and followed by appropriate
conveyance. The relevant paragraphs of the said
judgment are extracted below:
“16. Section 54 of TP Act makes it clear that
a contract of sale, that is, an agreement ofCS DJ No. 611249/16 CNR No. : DLCT01-000679-2014 Sudhir Kalra VS Mohd. Danish & Anr. Page No. 34 of 48
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sale does not, of itself, create any interest in
or charge on such property. This Court in
Narandas Karsondas v. S.A. Kamtam and
Anr. (1977) 3 SCC 247, observed: (SCC
pp.254-55, paras 32-33 & 37)
“32. A contract of sale does not of itself
create any interest in, or charge on, the
property. This is expressly declared in
Section 54 of the Transfer of Property Act.
See Rambaran Prasad v. Ram Mohit Hazra
[1967]1 SCR 293. The fiduciary character of
the personal obligation created by a contract
for sale is recognised in Section 3 of the
Specific Relief Act, 1963, and in Section 91
of the Trusts Act. The personal obligation
created by a contract of sale is described in
Section 40 of the Transfer of Property Act as
an obligation arising out of contract and
annexed to the ownership of property, but not
amounting to an interest or easement therein.
33. In India, the word `transfer’ is defined
with reference to the word `convey’. The
word `conveys’ in Section 5 of Transfer of
Property Act is used in the wider sense of
conveying ownership…
37….that only on execution of conveyance,
ownership passes from one party to
another….”
17. In Rambhau Namdeo Gajre v. Narayan
Bapuji Dhotra [2004 (8) SCC 614] this
Court held:
“10. Protection provided under
Section 53-A of the Act to the
proposed transferee is a shield only
against the transferor. It disentitles
the transferor from disturbing the
possession of the proposed transferee
who is put in possession in
pursuance to such an agreement. It
has nothing to do with the ownership
of the proposed transferor who
remains full owner of the property
till it is legally conveyed by
executing a registered sale deed in
favour of the transferee. Such a right
to protect possession against theCS DJ No. 611249/16 CNR No. : DLCT01-000679-2014 Sudhir Kalra VS Mohd. Danish & Anr. Page No. 35 of 48
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proposed vendor cannot be pressed
in service against a third party.”
18. It is thus clear that a transfer of immovable
property by way of sale can only be by a deed of
conveyance (sale deed). In the absence of a deed
of conveyance (duly stamped and registered as
required by law), no right, title or interest in an
immovable property can be transferred.
19. Any contract of sale (agreement to sell)
which is not a registered deed of conveyance
(deed of sale) would fall short of the
requirements of Sections 54 and 55 of the TP
Act and will not confer any title nor transfer any
interest in an immovable property (except to the
limited right granted under Section 53-A of the
TP Act). According to the TP Act, an agreement
of sale, whether with possession or without
possession, is not a conveyance. Section 54 of
the TP Act enacts that sale of immovable
property can be made only by a registered
instrument and an agreement of sale does not
create any interest or charge on its subject-
matter.”
9.3. This Court reaffirmed the same position in
Cosmos Co. Operative Bank Ltd v. Central
Bank of India & Ors , where it was reiterated
that title and ownership of immovable property
can only be conveyed by a registered deed of
sale. The following observations are significant:
“25. The observations made by this Court in
Suraj Lamp (supra) in paras 16 and 19 are also
relevant
…..
26. Suraj Lamp (supra) later came to be referred
to and relied upon by this Court in Shakeel
Ahmed v. Syed Akhlaq Hussain, 2023 SCC
OnLine SC 1526 wherein the Court after
referring to its earlier judgment held that the
person relying upon the customary documents
cannot claim to be the owner of the immovable
property and consequently not maintain any
claims against a third-party. The relevant paras
read as under:–
“10. Having considered the submissions at the
outset, it is to be emphasized that irrespective of
what was decided in the case of Suraj Lamps
and Industries (supra) the fact remains that no
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by SANDEEP
signed
KUMAR KUMAR SHARMA
Date: 2025.07.31
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title could be transferred with respect to
immovable properties on the basis of an
unregistered Agreement to Sell or on the basis
of an unregistered General Power of Attorney.
The Registration Act, 1908 clearly provides that
a document which requires compulsory
registration under the Act, would not confer any
right, much less a legally enforceable right to
approach a Court of Law on its basis. Even if
these documents i.e. the Agreement to Sell and
the Power of Attorney were registered, still it
could not be said that the respondent would
have acquired title over the property in question.
At best, on the basis of the registered agreement
to sell, he could have claimed relief of specific
performance in appropriate proceedings. In this
regard, reference may be made to sections 17
and 49 of the Registration Act and section 54 of
the Transfer of Property Act, 1882.
11. Law is well settled that no right, title or
interest in immovable property can be conferred
without a registered document. Even the
judgment of this Court in the case of Suraj
Lamps & Industries (supra) lays down the same
proposition. Reference may also be made to the
following judgments of this Court:
(i). Ameer Minhaj v. Deirdre Elizabeth (Wright)
Issar (2018) 7 SCC 639 (ii). Balram Singh v.
Kelo Devi Civil Appeal No. 6733 of 2022
(iii). Paul Rubber Industries Private Limited v.
Amit Chand Mitra, SLP(C) No. 15774 of 2022.
12. The embargo put on registration of
documents would not override the statutory
provision so as to confer title on the basis of
unregistered documents with respect to
immovable property. Once this is the settled
position, the respondent could not have
maintained the suit for possession and mesne
profits against the appellant, who was
admittedly in possession of the property in
question whether as an owner or a licensee.
13. The argument advanced on behalf of the
respondent that the judgment in Suraj Lamps &
Industries (supra) would be prospective is also
misplaced. The requirement of compulsory
registration and effect on non-registration
emanates from the statutes, in particular the
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SANDEEP
signed by
KUMAR KUMAR SHARMA
Date: 2025.07.31
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Registration Act and the Transfer of Property
Act. The ratio in Suraj Lamps & Industries
(supra) only approves the provisions in the two
enactments. Earlier judgments of this Court
have taken the same view.”
9.4. Furthermore, in M.S. Ananthamurthy v. J.
Manjula, this Court undertook a comprehensive
analysis of the statutory provisions and
precedents, and reaffirmed that an unregistered
agreement to sell does not and cannot by itself
create or transfer any right, title, or interest in
immovable property. The following paragraphs
are pertinent in this regard
“47. It is a settled law that a transfer of
immovable property by way of sale can only be
by a deed of conveyance. An agreement to sell
is not a conveyance. It is not a document of title
or a deed of transfer of deed of transfer of
property and does not confer ownership right or
title. In Suraj Lamp (supra) this Court had
reiterated that an agreement to sell does not
meet the requirements of Sections 54 and 55 of
the TPA to effectuate a ‘transfer’.
…
51. Section 17(1)(b) prescribes that any
document which purports or intends to create,
declare, assign, limit or extinguish any right,
title or interest, whether vested or contingent, of
the value of one hundred rupees and upwards to
or in immovable property is compulsorily
registerable. Whereas, section 49 prescribes that
the documents which are required to be
registered under Section 17 will not affect any
immovable property unless it has been
registered.
….
53. Even from the combined reading of the POA
and the agreement to sell, the submission of the
appellants fails as combined reading of the two
documents would mean that by executing the
POA along with agreement to sell, the holder
had an interest in the immovable property. If
interest had been transferred by way of a written
document, it had to be compulsorily registered
as per Section 17(1)(b) of the Registration Act.
The law recognizes two modes of transfer by
sale, first, through a registered instrument, and
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by SANDEEP
signed
KUMAR KUMAR SHARMA
SHARMA Date: 2025.07.31
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second, by delivery of property if its value is
less than Rs. 100/-.”
59. From the above-referred-to judgments and the discussion
above, it is lucid that by an agreement to sell, no right or title
in the property may be conveyed to another person; therefore,
merely on the basis of Ex. PW1/2 or Ex. PW1/4, no right
could have been transferred to the plaintiff by the defendant
no. 1. Furthermore, Ex.PW1/2 contains that the defendant
no.1 claimed himself as the owner of the property, which is
not correct. Not only this, but on page 02 of the Ex.PW1/2,
the defendant no.1 has assured that the title of the property is
clear and there are no encumbrances on it whatsoever. The
same is reproduced here as under, in verbatim
“That the first party has assured the second party
that the property which is the subject matter of this
agreement is free from all sorts of encumbrances,
such as sale, gift, mortgage, transfer, lien, charges,
burden, decree, disputes, litigation, injunction,
notice, legal flaws, legal complications etc., in the
said property and there is no other legal defect in
the ownership and title of the First party in respect
of the said property and the first party is fully
empowered and competent to sell, convey and
transfer the same unto the second party….”
60. Moreover, perusal of the agreement to sell dated
11.05.2007, Mark X, though conveyed an authority to
defendant no.1 for entering into the agreement to sell, the sale
deed in favour of defendant no.1 was only to be executed after
the full payment of the remaining consideration. Neither is it
pleaded nor has it come on record that the defendant no. 1 had
made the entire remaining consideration for the purchase of
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KUMAR
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SHARMA Date:
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the property of which the suit property is a part of. Therefore,
it is absolutely clear that defendant no. 1 did not have any
right, title, or interest in the property.
61. The testimony of the PW1 also makes it clear that the
plaintiff was fully aware of the defect in the title of the
defendant no. 1 in the suit property from the very inception of
the transaction, as he himself has seen the agreement to sell
dated 11.05.2007, Mark X, executed between the defendant
no. 1 and Sh. Ajit Kumar, which specifically mentioned that
the owner of the suit property is Sh. Ajit Kumar and the sale
deed in favour of Mohd. Danish, i.e., defendant no. 1, shall
only be executed only after the full payment of sale
consideration. PW1 during the cross-examination dated
31.01.2018 (page 2) admitted that defendant no. 1 told me that
Sh. Ajit Kumar was the owner of the suit property. The
relevant portion of the same is reproduced here as under, in
verbatim
“Danish had told me and from the agreement also it
was clear that Mr. Ajeet Kumar is the owner of the
suit property.”
62. Further, on 03.08.2017, during cross-examination, PW1
admitted that prior to entering into the agreement to sell dated
19.04.2008, he saw the ownership documents of the suit
property, and he only made the payment of the earnest money
after it. The relevant portion of the same is reproduced here as
under, in verbatimCS DJ No. 611249/16 CNR No. : DLCT01-000679-2014 Sudhir Kalra VS Mohd. Danish & Anr. Page No. 40 of 48
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KUMAR
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SHARMA Date: 2025.07.31
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“I have seen the document of the ownership of the
defendant No.1 and after being satisfied of the
document, I paid the amount.”
“Mohd. Danish had shown me the title documents
of the suit property to me prior to entering the
document dated 19.04.2008. Mohd. Danish had
shown me an agreement which he had entered into
with one Mr. Ajeet Kumar.”
63. Moreover, during the cross-examination on 14.11.2017
the PW1 also admitted that in Mark X it has specifically been
mentioned that the owner of the property is Sh. Ajit Kumar.
The relevant portion of the same is reproduced here as under,
in verbatim
“It is correct that it is mentioned in the agreement
dated 11.05.2007 that firm Ajeet Kumar Dhiraj
Kumar is the absolute owner of the property bearing
number D-6/60, Rana Pratap Bagh, Delhi- 110007.”
64. The testimony of the PW1 makes it amply clear that the
plaintiff entered into the agreements to sell Ex.PW1/2 and
Ex.PW1/4 with full knowledge of the fact that defendant no. 1
did not have the absolute title to the suit property, as
admittedly the owner of the suit property was Sh. Ajit Kumar,
and hence, defendant no. 1 did not have any right or title to
the suit property that made him entitled to convey the same to
the plaintiff.
65. It is well-established that by an agreement to sell no right
or title may be conveyed in the immovable property to
someone else. 19. The Hon’ble Supreme Court in the
judgment tilted as ‘Babasaheb Dhondiba Kute vs Radhu
Vithoba Barde, 2024 INSC 122′ held that the conveyance by
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way of sale would take place only at the time of registration of
a sale deed in accordance with Section 17 of the Registration
Act, 1908. Till the time of such registration, no conveyance
could be said to have taken place. Therefore, it is abundantly
clear that the unregistered agreement to sell dated 19.04.2008
and 15.04.2011, Ex. PW1/2 and Ex.PW1/4 cannot, under any
circumstance, create or convey any right, title or interest in
favour of the plaintiff.
66. When Mohd Danish did not have a registered sale deed of
the suit property in his name and accordingly lacked any right
or interest in the suit property, then he could not have
transferred any interest to the plaintiff. Therefore, the relief of
specific performance cannot be granted to the plaintiff
because defendant no. 1 does not have any right or interest in
the property, as he merely has the agreement to sell the suit
property, which does not convey any right in the immovable
property; therefore, the law cannot mandate doing the
impossible. A person who himself doesn’t have any right or
interest in the immovable property cannot be asked to perform
the agreement to sell the property.
67. The defendant no. 1 could not have passed any right in
favour of the plaintiff qua suit property; it may also be
corroborated from the fact that the defendant no. 1 himself has
filed a suit against the admitted owner, Sh. Ajit Kumar, for the
specific performance of the agreement to sell dated
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KUMAR
KUMAR SHARMA
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11.05.2007. Mark A was dismissed by the court, and
defendant no. 1 did not file any appeal against the judgment of
dismissal of his suit; hence, it had attained finality. The filing
of suit by defendant no. 1 is sufficient to provide a basis to
hold that he did not have any right in the suit property, and his
attempt to obtain the same did not materialise; consequently,
defendant no. 1 remained as a person without right in the suit
property.
68. Keeping in view the discussion and above-referred-to
judgments this Court is of the considered opinion that the
agreement to sell doesn’t convey any right in the immovable
property, and therefore, the plaintiff cannot be given a right to
seek specific performance against a person who himself
doesn’t have any right in the suit property. Hence, Ex. PW1/2
and Ex. PW1/4 cannot be said legally enforceable documents
as the incompetency of Mohd. Danish goes to the root of the
subject matter of the litigation.
69. It is evident from the records of the case that the plaintiff
was well aware of the defect in the title of the defendant no. 1,
so he cannot pray for the applicability of the penalty clause of
returning the double amount in case the defendant no. 1 fails
to perform the obligations of the agreement to sell Ex. PW1/2.
It is not a case where the plaintiff wasn’t aware of the
ownership of Sh. Ajit Kumar of the suit property, and despite
that, he entered into the agreement to sell with Mohd. Danish,
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SANDEEP Digitally
by SANDEEP
signed
KUMAR KUMAR SHARMA
Date: 2025.07.31
SHARMA 17:10:14 +0530
which clearly makes him disentitled to invoke the penalty
clause, as no one may benefit from the wrong in which he is
also a party.
70. Therefore, specific performance cannot be granted to the
plaintiff, though the plaintiff has proved the payment of
₹.6,00,000/- as earnest money to the defendant no.1 by
Ex.PW1/3; therefore, the plaintiff is entitled to the same with
6% interest from the day of filing of the suit till the actual
payment of the same. The interest claimed is 18%, though the
plaintiff has failed to explain on what basis the interest of 18%
has been claimed. Therefore, in order to meet the ends of
justice, this Court is exercising its discretion and allowing 6%
pendente-lite and future interest. Moreover, when relief of
specific performance is denied to the plaintiff, then the relief
of permanent injunction also stands defeated. Accordingly,
both the issues are decided against the plaintiff and in favour
of the defendants.
Issue no-5
5. Which party is having the ownership
rights of roof of second floor of the
premises? OP Parties.
71. The onus to prove the present issue was upon the parties.
In the preceding paras it has already been held that the
defendant no. 1 did not have any right or title that may be
conveyed to the plaintiff by the Ex. PW1/2 and Ex. PW1/4, as
admittedly the owner of the suit property was Sh. Ajit Kumar,
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SANDEEP by SANDEEP
KUMAR
KUMAR SHARMA
SHARMA Date: 2025.07.31
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and no sale deed was executed neither in favour of defendant
no.1 nor in favour of the plaintiff by the original owner;
therefore, in the absence of any registered conveyance or sale
deed, no right of the suit property may be conferred to the
plaintiff.
72. To prove the issue, the defendant no. 2 has relied upon the
Ex. PW1/A registered sale deed dated 24.04.2014, registered
on 26.04.2014, executed between the defendant no. 2 and
admitted owner Sh. Ajit Kumar, and Ex. PW1/C, the
registered sale deed executed on 21.06.2006 between Sh. Raj
Baboo Nischal, through whom the suit property was
purchased by Sh. Ajit Kumar. In the preceding paras the
testimony of the PW1 has been reiterated, which lucidly
reveals that PW1 has admitted that Sh. Ajit Kumar was the
owner of the suit property when defendant no.1 had entered
the agreements to sell Ex. PW1/2 and Ex. PW1/4; therefore,
there is no dispute on the ownership of Sh. Ajit Kumar over
the suit property, and only Sh. Ajit Kumar had the right and
authority to convey the same to another person.
73. It is also well-established that any right in the suit
property may only be transferred by the registered sale deed
or conveyance deed; therefore, in the absence of any
registered deed, the plaintiff cannot claim any right, title, or
interest in the suit property. Though, there is a registered sale
deed (Ex. PW1/A) in favour of the defendant no. 2 executed
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KUMAR
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by the admitted owner of the suit property; therefore, Section
50 of the Registration Act provides that registered documents
relating to land shall have priority over the unregistered
documents. The same is reproduced here as under,
“50. Certain registered documents relating to land to
take effect against unregistered documents.–
(1) Every document of the kinds mentioned
in clauses (a), (b), (c) and (d) of section 17,
sub-section (1), and clauses (a) and (b) of
section 18, shall, if duly registered, take
effect as regards the property comprised
therein, against every unregistered document
relating to the same property, and not being
a decree or order, whether such unregistered
document be of the same nature as the
registered document or not.
xxxxx….
74. The agreement to sell Mark X could not have passed any
title to the defendant no. 1, and therefore, defendant no. 1 also
could not have conferred any right in the suit property to the
plaintiff, even otherwise, as per the mandate of Section 50 of
the Registration Act, sale deed Ex. PW1/A, being a registered
document, shall have priority over all the other unregistered
documents pertaining to the suit property. Thus, the sale deed
Ex.PW1/A was executed by the owner of the suit property in
favour of the defendant no. 2, and nothing has come on record
to prove that the sale deed Ex.PW1/A is not a genuine
document and was not registered as per the prescribed
procedure or law.
75. Thus, defendant no. 2 is having a registered sale deed in
his favour executed by a competent person before a competent
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SANDEEP by SANDEEP
KUMAR
KUMAR SHARMA
SHARMA Date: 2025.07.31
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officer, and the same is still in existence, which has not been
cancelled by any court of competent jurisdiction. Therefore,
there is no iota of doubt that defendant no. 2 is the registered
owner of the suit property and has priority over the right of
any other person in the same.
76. Keeping in view the discussion above and the principle of
the preponderance of probabilities, where the defendant no. 2
has a registered sale deed in his favour and the plaintiff has
nothing except two agreements to sell, Ex. PW1/2 and Ex.
PW1/4, which were executed by an incompetent person, i.e.,
defendant no. 1, in favour of the plaintiff, which have no
substance or validity in the eyes of the law for the purpose of
the conveyance of the right in the suit property, thus this
Court is deciding the above issue in favour of the defendant
no.2 and against the plaintiff.
Relief
77. On the basis of the finding of the issue no. 5, 6, and 7, this
Court is adjudicating the suit with the findings that the
plaintiff is not entitled to the relief of specific performance or
injunction, though he is entitled to the alternative prayer of
recovery of ₹.600,000/- along with 6% pendent-lite and future
interest against the defendant no. 1. Further, the defendant no.
2 is declared the owner of the roof rights of the second floor.
Hence, the suit of the plaintiff is partly dismissed and partly
decreed only to the extent of the recovery of ₹.6,00,000/- with
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SANDEEP by SANDEEP
KUMAR
KUMAR SHARMA
SHARMA Date: 2025.07.31
17:10:41 +0530
6% pendente-lite and future interest from the date of
institution of the suit till the realisation of the entire decreetal
amount only against the defendant no. 1.
78. No order as to costs as the parties shall bear their own
respective costs of the suit.
79. Decree sheet be prepared accordingly, after the payment
of deficient court fees (if any).
80. File be consigned to record room after due compliances.
SANDEEP Digitally
by SANDEEP
signed
KUMAR KUMAR SHARMA
Date: 2025.07.31
SHARMA 17:10:47 +0530
Pronounced in the open Court (Sandeep Kumar Sharma)
on July 31st , 2025 DJ-02/CENTRAL/THC/DELHI
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