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

(Para 12)

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

(Para 17, 18)

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

(Para 14, 15)

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

(Para 5, 6)

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

(Para 6-8)

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

(Para 6)

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

(Para 6-8)

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

(Para 4, 5)

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

(Para 9-17)

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

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

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

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

(Para 12-14)

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

(Para 7)

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

(Para 11-20)

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

(Para 25)

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

(Para 26)

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

(Para 29)

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

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

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

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

(Para 30-32)

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

(Para 32)

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

(Para 35)

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

(Para 44)

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

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

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

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

(Para 12-24)

A. Constitution of India, Article 226 -- Encroacher of government land – Discretionary relief in writ -- Any person, who approaches High Court seeking a discretionary relief, should come with clean hands -- Petitioners, pertinently, have no title to the land which they have occupied, and are illegally occupying the government property – Court will not lend its hands, and come to protection of such persons, who are encroaching and illegally occupying the government property – High court cannot pass orders to protect or advance an illegality.

(Para 4)

B. Limitation Act, 1963 (36 of 1963), Section 27 -- Encroachment over government land – Adverse possession -- Plea of adverse possession could not have been raised by the petitioners, as they are occupying government land, i.e. public land, wherein each member of the public has an interest, including the petitioners -- They cannot claim hostile possession over such land, hostile to themselves, and to the public at large -- When the encroached land is a public land, mere inaction on the part of the public functionaries, who have the responsibility of taking action for removal of encroachment, cannot take away the right of public at large over public property -- Public functionaries discharge a public trust in their official functioning -- They act as trustees qua public assets, in respect whereof they have authority to protect -- The breach of trust by the trustee, cannot be the detriment of the beneficiary.

(Para 8)

A. Code of Civil Procedure, 1908 (V of 1908), Order 8 Rule 6A -- Limitation Act, 1963 (36 of 1963), Section 27 -- Adverse possession – Counter claim for possession -- Adverse possession can be claimed only against true owner -- Plaintiff having taken the plea of adverse possession could not have denied the title of defendants -- Plaintiff having failed to prove issue No.1 (adverse possession) in his favour, was bound to fail in his pursuits to contest the claim put forth by defendants No.1 and 2 by way of counter claim.

(Para 4, 10, 11)

B. Code of Civil Procedure, 1908 (V of 1908), Section 11 -- Limitation Act, 1963 (36 of 1963), Section 27 -- Adverse possession – Res-judicata -- Finding that the plaintiff had failed to prove acquisition of title over the suit land by way of adverse possession will operate as res judicata between the same parties in all other proceedings in which the same issue arises.

(Para 9)

Specific Relief Act, 1963 (47 of 1963), Section 34 – Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11, Section 54 -- Suit for partition – Rejection of plaint -- Consequential relief of possession not claimed – Maintainability of suit -- When the property belongs to one co-sharer, it shall be deemed to be held by that co-sharer on behalf of the other co-sharers – Held, it is not required by the plaintiff-co-sharer to specifically claim possession as well, and thus, the suit shall not be barred under proviso to u/s 34 of the Specific Relief Act, 1963 – Suit cannot be rejected under Order 7 Rule 11 of CPC.

(Para 8)

A. Transfer of Property Act, 1882 (4 of 1882), Section 52 -- Collusive proceedings -- Principle of lis pendens – Finding that Section 52 of the Transfer of Property Act dealing with doctrine of lis pendens is not applicable as proceedings were collusive in nature, upheld.

(Para 11)

B. Indian Succession Act, 1925 (39 of 1925), Section 67, 68, 217 – Probate of Will – Consent of parties – Observation that until and unless the Will is proved, no grant of probate can be made merely by the consent of the parties, upheld.

(Para 12)

Code of Civil Procedure, 1908 (V of 1908), Order 39 Rules 1 and 2 – Temporary injunction -- Photographs to show the possession of the plaintiff-petitioners is wholly misplaced as photographs can never be proof of possession.

(Para 1, 5)

Limitation Act, 1963 (36 of 1963), Section 27 -- Adverse possession – Onus to proof -- It is trite law that once the title of the property has been upheld namely a finding has been recorded by a judgment and decree in the name of plaintiff in an earlier suit, in such circumstances, the onus to prove acquisition by adverse possession lay on the defendant.

(Para 7)

Punjab Town Improvement (Utilization of Land and Allotment of Plots) Rules, 1983, Rule 4, 8, 12 -- Constitution of India, Article 14, 226 -- Discretionary quota plot – Direction by High Court to allot – Challenge to -- Allotment of residential plots under discretionary quota declared illegal by Full Bench.

Letter dated 11.02.1987 stated that the Government had merely approved the allotment of a residential plot admeasuring 500 square yards and directed the Trust to allot an identified plot to respondent under Rule 4 of the Rules of 1983 -- Therefore, the act of identifying and allotting a specific plot was to be undertaken by the Trust -- Allotment of an identified plot in favour of respondent did not crystallize by the date of the Full Bench judgment in the year 2003 and remained stagnant at the stage of the Government’s approval.

Directions issued by High Court to allot plot contrary to the said Full Bench judgment, which practically stood affirmed by Supreme Court, cannot now be accepted or acted upon -- Civil appeal allowed, the impugned orders by the High Court set aside.

(Para 7-19)

Specific Relief Act, 1963 (47 of 1963), Section 16 -- Suit for specific performance – Power of attorney – Readiness and willingness -- Power of attorney executed on 28.02.2001 and the agreement to sell is dated 27.03.1998 – Power of attorney holder who stepped into the witness box on behalf of the plaintiff-appellant was not competent to depose qua acts done by the principal -- The only person competent to have deposed qua the readiness and willingness could have been the plaintiff-respondent who preferred not to step into the witness box -- In the absence of evidence qua readiness and willingness, the suit for specific performance could not have been decreed -- Judgments and decrees of the Courts below are erroneous -- Suit for specific performance of agreement to sell dismissed -- Defendant-appellant to refund Rs.11,00,000/- along with interest @ 6% per annum to the plaintiff-respondent from the date of the agreement to sell till payment.

(Para 12-15)

Registration Act, 1908 (16 of 1908), Section 17(1)(g) (as amended by Tamil Nadu Amendment Act No.29 of 2012), 17(1A), 49 -- Suit for specific performance – Unregistered agreement to sell – Admissible in evidence -- Section 17(1)(g) of the Registration Act made agreement to sale of immovable property of the value of Rs.100/- and upwards compulsorily registrable – No corresponding amendment made to Section 49 of the Registration Act – Held, unregistered document may be received as evidence of a contract in a suit for specific performance 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 -- High Court rightly observed and held that the 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.

(Para 5-13)

Delhi Co-operative Society Rules, 1973, Rule 36(2) – Allotment of Flat to Society member – Non-payment of due amount -- Expulsion of Membership – High Court upheld the order for expulsion of membership -- Challenge to – Ground that prescribed procedure for expulsion of a society member has not been followed – Held, procedural law is subservient to justice -- Only issue is regarding default of payment of dues of the society for construction of flats, which the late husband of appellant no.1 was not ready and willing to pay at any stage, despite opportunities given, firstly by the Society, secondly by the Joint Registrar (II), Cooperative Societies and thereafter by the Financial Commissioner -- Even before the High Court, at the time of issuance of notice, the statement of late husband of appellant no.1 was that he is ready and willing to deposit the amount due with interest but still nothing was paid – Appeal dismissed.

(Para 8-9)

East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (50 of 1948), Section 18, 23-A – Haryana Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 13 -- Consolidation proceedings – Jumla Mustarka Malkan Wa Digar Haqdaran Hasab Rasad -- Vesting of – Suit lands became reserved for the common purposes, of the panchayat deh for the benefit of the entire village proprietary body -- Finalized consolidation scheme remained unchallenged nor is challengeable at this belated stage -- Cultivating possession of such lands outside the domain of their permissible lawful title thereons – Held, petitioners do not hold any valid title thereto, either as owners or as individual cultivators.

(Para 4, 5)

Limitation Act, 1963 (36 of 1963), Section 27 -- Adverse possession – No evidence by defendant No.2-appellant to prove that her possession was nec vi, nec clam, nec precario, i.e. peaceful, open and continuous -- A person seeking to establish his adverse possession has to show that his possession is adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner -- It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period – Defendant No.2-appellant failed to lead any substantial evidence to prove her plea of adverse possession -- Appeal dismissed.

(Para 7)

A. Agricultural Marketing Board -- Allotment of site in market area – Right of Licensee -- To do business in the shop and to carry on business on the auction platform, are both different and distinct -- Merely because a person is having a licence and doing business in a particular shop, he is not entitled to the auction platform as a matter of right and that too, in front of and/or adjacent to his shop -- No such rule and/or regulation and/or guideline supporting such a claim brought to the notice of the Court –Petition/ Appeal dismissed.

(Para 6.6, 8)

B. Agricultural Marketing Board -- Allotment of preferential site in market area -- Right of -- Appellant is claiming shed/auction platform which is just adjacent to and/or in front of shop No. 27 and/or at any other place -- Appellant is to be treated at par and equally with other persons doing business in the market and on the auction platform -- In absence of any specific rule/regulation to the contrary and when the allotment of the sheds is made as per the principles/guidelines of the Secretary, Agriculture, and in absence of any specific rule in favour of appellant(s), right to claim the allotment just in front of his shop and/or adjacent to the same and when the allotment in favour of respondent No. 5 is made as per the policy and guidelines, both the learned Single Judge and Division Bench of the High Court have rightly held against the appellant and have rightly dismissed the writ petition(s) and appeal(s) – Appeal dismissed.

(Para 6.1-6.5, 7, 8)

Specific Relief Act, 1963 (47 of 1963), Section 28 -- Code of Civil Procedure, 1908 (V of 1908), Section 148 -- Ex-parte decree for specific performance of agreement – Non-deposit of balance consideration -- Delay of 853 days in moving application for extension of time -- Rs. 8,00,000/- was paid as advance, balance sale consideration of Rs. 15,00,000/- was directed to be deposited/paid by the plaintiff under the ex-parte judgment and decree dated 12.10.2013, within two weeks from the said date – Application u/s 148 CPC and Section 28 of the Specific Relief Act on 7.6.2017/19.06.2017 with a huge delay of 853 days, seeking extension of time to deposit the balance sale consideration – Power u/s 28 of the Specific Relief Act is discretionary and the Court has to pass an order as the justice may require -- Trial Court erred in exercising the discretion in favour of the plaintiff and erred in extending the time in favour of the plaintiff to deposit the balance sale consideration of Rs. 15,00,000/- by condoning the huge delay of 853 days, which has not been explained sufficiently at all – However, at the same time, to strike the balance between the parties the amount of Rs. 8,00,000/- paid by the plaintiff as an advance is to be returned to the plaintiff with 12% interest per annum from 9.5.2012 till the actual payment, within a period of six weeks from today, failing which it shall carry interest @ 18% per annum.

(Para 5-8)

Code of Civil Procedure, 1908 (V of 1908), Order 21 Rule 32 -- Decree for permanent injunction – Execution of – Warrant of possession – Permissibility of -- Defendants were restrained from demolishing the Rasta/Gohar in illegal and forcibly manner – Executing court was to ensure that the rasta was made available to the plaintiff without any obstruction and not to deliver possession of Rasta/Gohar to the decree holder/plaintiff – Warrant of possession by Executing Court, order is not sustainable, set aside -- Trial Court directed to proceed in light of Order 21 Rule 32 CPC.

(Para 10)

Specific Relief Act, 1963 (47 of 1963), Section 38 -- Suit for permanent injunction -- Planted/ nourished trees by State – Right of landowner upon trees – Once it is found that the plaintiff/respondents are the owners of the land it follows that the trees growing/standing thereon belong to them.

(Para 14)

Haryana Special Economic Zone Act, 2005 (9 of 2006), Section 11 – Indian Stamp Act, 1899 (2 of 1899), Section 3(3), 49, 54 – Constitution of India, Article 265 -- Special Economic Zone – Exemption from stamp duty – Refund of stamp duty -- Stamp duty collected from respondent No.7 while registering the lease deed of plot situated in SEZ whereas charging of stamp duty in such a case is specifically exempted u/s 3(3) of the Indian Stamp Act and Section 11 of the SEZ Act – Held, and once the said instrument is exempted, charging of stamp duty for purposes of registration is without any authority of law and, therefore, would be violative of Article 265 of the Constitution of India – Action of the respondents No.1 to 6 in charging of stamp duty and thereafter illegally retaining the same is contrary to the provisions of law -- In case the stamp duty is not refunded, said respondent is held entitled of the same along with interest @ 7% per annum from the date, the same was deposited till the said amount is refunded.

(Para 11-12)

Code of Civil Procedure, 1908 (V of 1908), Order 39 Rule 1 and 2 – Suit for declaration and mandatory injunction – Grant of temporary Injunction against co-sharer -- Electricity connection existing in the joint land, originally in the name of common ancestor -- Mandatory injunction sought to retransfer the said connection in the name of plaintiffs and other co-sharers of land -- Temporary injunction granted by the trial Court only facilitates its joint use -- Discretion vested in the trial Court has been validly exercised on sound principles of law by granting the temporary injunction.

(Para 1-2, 10-13)

Specific Relief Act, 1963 (47 of 1963), Section 34 -- Limitation Act, 1963 (36 of 1963), Article 65, 113 -- Suit for declaration and possession -- Limitation – Limitation to file a suit for possession on the basis of title is twelve years -- Declaratory relief for title of the property is sine qua non for seeking possession over it -- The former, therefore, cannot be held to take away the essential characteristics of a suit for possession -- One of the reliefs sought of declaration will not mean that the prescribed period of limitation will not be applicable.

(Para 2, 8-10)

Indian Contract Act, 1872 (9 of 1872), Section 202 -- Sale deed by Power of attorney after death of Principal – Legality of -- Allotee/ Principal received stated to receive Demand draft and cash – Court not find any merit in the argument that the agency would lapse after the death of the principal -- It has been specified in Section 202 of the Indian Contract Act, 1872 that the agency where the agent has an interest in the subject matter cannot be terminated either by insanity or at the death of the principal.

(Para 4, 5)

Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11, Order 39 Rule 1 & 2 -- Suit for specific performance -- Rejection of plaint -- Agreement to sell dated 24.01.2001 -- No date or period has been fixed for performance of the agreement or for execution of sale deed – After the death of vendor, defendant first time on 08.11.2021 by way of reply to the notice denied from the agreement -- Plaintiff claiming himself to be in possession of the disputed land, has also prayed relief of permanent injunction restraining the defendants from making interference in possession of the plaintiff -- At the present stage of suit, the plaint cannot be rejected under Order 7 Rule 11(d) CPC.

(Para 7, 8)

A. Transfer of Property Act, 1882 (4 of 1882), Section 51 – Ownership -- Encroachment – Transferee -- Encroacher cannot be treated as a ‘transferee’ within the meaning of the TP Act and seek benefit of Section 51 -- He cannot legally require the respondent either to pay the value of improvements and take back the land or to sell out the land to him at the market value of the property, irrespective of the value of the improvements.

(Para 11)

B. Transfer of Property Act, 1882 (4 of 1882), Section 51 – Suit for possession against encroacher -- Once plaintiff establishes his title, merely because some structures are erected by the opposite party ignoring the objection, that too without any bona fide belief, denying the relief of recovery of possession would tantamount to allowing a trespasser/encroacher to purchase another man’s property against that man’s will.

(Para 21)

Specific Relief Act, 1963 (47 of 1963), Section 38 -- Suit for permanent injunction from raising construction in the suit land which will cause irreparable damage -- Suit land is shared jointly by the appellant/ plaintiff and not partitioned – In the suit, the nature of construction, which is being carried out by the respondents, has not been set out -- Suit has rightly been dismissed by the Courts below as nothing has come on record which would indicate that the respondents are carrying out any construction which would endanger the land and cause irreparable damage.

(Para 4, 5)

Specific Relief Act, 1963 (47 of 1963), Section 16 -- Agreement to sell – Suit for specific performance after 18 years -- Entire sale consideration stood paid at the time of entering into the agreement to sell in 1994 -- Suit for specific performance in the year 2012 -- It does not sound to reason as to why somebody, who is alleged to have paid the entire sale consideration in the year 1994 at the time of agreement to sell itself, would wait till 2012 to file the suit – Suit dismissed.

(Para 2-7)

A. Code of Civil Procedure, 1908 (V of 1908), Order 21, Rule 4 – Cancellation of allotment of flat – Refund of amount -- Denial to receive Pay order -- Complainant cannot claim interest from the developer, who had returned the Pay Order -- Complainant’s argument that on account of the omission of the developer, she was wronged, and was thus entitled to receive interest, cannot prevail.

(Para 32-34)

B. Code of Civil Procedure, 1908 (V of 1908), Order 21, Rule 4 – Deposit made in Judicial Forums, Tribunal, Court, Authority, Agency etc. – Directions issued to frame rules -- All courts and judicial forums should frame guidelines in cases where amounts are deposited with the office / registry of the court / tribunal, that such amounts should mandatorily be deposited in a bank or some financial institution, to ensure that no loss is caused in the future -- Such guidelines should also cover situations where the concerned litigant merely files the instrument (Pay Order, Demand Draft, Banker’s Cheque, etc.) without seeking any order -- These guidelines should be embodied in the form of appropriate rules, or regulations of each court, tribunal, commission, authority, agency, etc. exercising adjudicatory power.

(Para 35)

A. Transfer of Property Act, 1882 (4 of 1882), Section 6 -- Self-acquired property – Spes successonis – Heir apparent -- Right of -- A chance of an heir apparent succeeding to an estate, the chance of a relation obtaining a legacy on the death of a kinsman or other mere possibility of a like nature cannot be transferred -- A living man has no heir -- Equally, a person who may become the heir and entitled to succeed under the law upon the death of his relative would not have any right until succession to the estate is opened up -- Unlike a co-parcener who acquires right to joint family property by his mere birth, in regard to the separate property of the Hindu, no such right exists.

(Para 10)

B. Transfer of Property Act, 1882 (4 of 1882), Section 6 -- Spes successonis – Heir apparent -- Release deed by heir apparent -- Transfer by an heir apparent being mere spes successonis is ineffective.

(Para 14)

C. Transfer of Property Act, 1882 (4 of 1882), Section 6 – Hindu Minority and Guardianship Act, 1956 (32 of 1956), Section 8(a) -- Release deed by heir apparent/ spes successonis – Estopple -- Despite the fact that what was purported to be released by father of appellant was a mere spec successonis or expectation his conduct in transferring/releasing his rights for valuable consideration, would give rise to an estoppel -- Effect of the estoppel cannot be warded off by persons claiming through the person whose conduct has generated the estoppel.

(Para 23)

Code of Civil Procedure, 1908 (V of 1908), Order 6 -- Pleadings – Agreement to sell – Fraud alleged – Suit for specific performance decreed by Trial Court and lower Appellate Court -- Agreement to sell attested by three attesting witnesses, who deposed in favour of the plaintiff-respondent – No evidence to the contrary – Defendant-appellant himself in cross-examination admitted the execution of the agreement to sell, his signatures as well as photograph on it and admitted his signatures on both pages of the stamp-paper – An ambiguous statement cannot per se make a document fraudulent – It is trite that a person raising the plea of fraud needs to plead and prove its ingredients – Using the word fraud/fraudulent without any material particulars would not tantamount to pleading of fraud -- Regular second appeal being devoid of any merit, dismissed.

(Para 8-10)

Specific Relief Act, 1963 (47 of 1963), Section 16 -- Agreement to sell – Suit for specific performance – Part performance -- There can be no hindrance in granting the decree for specific performance of the agreement with respect to the suit property to the extent of the three defendants’ share in it, i.e., 1/4th each.

(Para 15)

Powers of Attorney Act, 1882 (7 of 1882), Section 3 -- Registration Act, 1908 (16 of 1908), Section 17 -- Cancellation of power of attorney – Sale by attorney holder – Effect of -- In the absence of notice of cancellation of power of attorney either to the attorney or to the purchaser of termination of the agent’s authority, the validity of sale deed executed by the agent would not be affected.

(Para 4-5)

Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1973 (31 of 1973), Section 4, 5, 7 --  Constitution of India, Article 226, 227 -- Eviction from Jumla Mushtarka Malkan land – Dismissal of Gram Panchayat petition – Appeal also dismissed -- Appellate Authority while passing impugned order ignored the relevant record and material documents presented before it and not adverted to the arguments raised before it – Order set aside and the matter remitted to the Joint Development Commissioner (I.R.D), to decide the same afresh after affording due opportunity of hearing to all concerned and taking into consideration the entire relevant record and aspects.

(Para 15, 16)

Specific Relief Act, 1963 (47 of 1963), Section 38 -- Suit for permanent injunction -- Demarcation report – Absence of opposite party -- Report of the Naib Tehsildar sought to be relied upon by the plaintiff-appellant would be of no avail inasmuch as it has come in evidence that the said demarcation was done in the absence of the defendant-respondents.

(Para 7)

Code of Civil Procedure, 1908 (V of 1908), Order 21 -- Specific Relief Act, 1963 (47 of 1963), Section 16 -- Execution of decree for specific performance -- Delay in deposit balance sale consideration – Ground of -- Decree for executing the sale deed within a period of three months from the date of the judgment/decree 01.02.2011 -- Interim stay vacated only with dismissal of appeal on 24.12.2013 -- Decree holders filed the execution application, dated 25.01.2014, along with an application to deposit the balance sale consideration -- No specific order to deposit the balance sale consideration was passed on that application -- Judgment debtor’s application for rescission of the agreement to sell was finally dismissed by the Court on 04.04.2022 -- Thereupon, the objections were also dismissed by the impugned order, dated 12.07.2022, allowing the decree holders to deposit the balance sale consideration, which was accordingly deposited by them soon thereafter on 20.07.2022 – Held, it cannot be said there was any delay or failure on the part of decree holders in seeking execution of the decree in question – Therefore, the decree in question is executable, and the Executing Court has validly permitted deposit of balance sale consideration.

(Para 10-13)

A. Limitation Act, 1963 (36 of 1963), Section 27, Article 65 -- Adverse possession – Permissive possession -- Hostile possession -- A person in permissible possession over the suit land cannot become owner only on the basis of long possession -- However, in case the said person starts proclaiming to be owner to the knowledge of the true owner, even if his possession in the beginning was permissive, it will become adverse, the moment he starts proclaiming to be in hostile possession.

(Para 25)

B. Limitation Act, 1963 (36 of 1963), Section 27, Article 65 -- Adverse possession – Permissive possession -- Hostile possession -- Sale by attorney when owner already died – Moment the sale deeds in favour of defendants executed by the attorney of the owner, became null and void, on account of the fact that owner had already expired, the possession of the defendants became hostile, as they no longer could be stated to be in permissive possession on the basis of the prior mortgage -- Defendants were still continuing to be in possession on the basis of these null & void sale deeds, they perfected their title on the expiry of statutory period of limitation, as their possession was open, continuous, hostile and adverse to the title to the true owners/natural heirs owner.

(Para 26)

A. Specific Relief Act, 1963 (47 of 1963), Section 16 -- Suit for specific performance -- Readiness and willingness – In the legal notice, the plaintiff asked the defendant to receive the balance amount and execute the sale deed – In reply, defendant denied the execution of agreement to sell itself – In suit for specific performance it was specifically averred that he was ready and willing to perform the agreement – In his deposition, the plaintiff specifically stated that he was ready and willing to perform his obligations – He further stated that he approached the defendant in the month of June, 2007 and again in July, 2007 with the balance sale consideration – There is no cross-examination in this regard – Plaintiff also examined two witnesses, who were attestors to agreement to sell dated 13.03.2007, who specifically stated that in July, 2007, the plaintiff approached the defendants and asked them to accept the balance sale consideration in cash, to that also there is no cross-examination – Receipt of Rs. 3 lakhs by way of earnest money, has been held to be proved by both the courts below – Within a period of one month from passing of the decree, the plaintiff deposited the balance sale consideration i.e., Rs. 9,74,000/- before the learned Trial Court --  High Court has materially erred in reversing the decree and by reversing the findings of the Trial Court on readiness and willingness of the appellant.

(Para 6)

B. Specific Relief Act, 1963 (47 of 1963), Section 16 -- Suit for specific performance -- Readiness and willingness – Necessity of passbook -- Unless the plaintiff was called upon to produce the passbook either by the defendant or, the Court orders him to do so, no adverse inference can be drawn.

(Para 6.2)

C. Specific Relief Act, 1963 (47 of 1963), Section 16 -- Suit for specific performance – Additional amount other than agreement -- Suit decreed -- Agreement to sell dated 13.03.2007 in favour of the appellant/ plaintiff – Sale consideration fixed at Rs. 12,74,000/- -- Rs. 3 lacs paid at the time of agreement – Rs. 9,74,000/- deposited before the Trial Court after decree -- To do complete justice, plaintiff directed to pay a further sum of Rs. 10 lakhs and on such payment, defendant No. 1 is directed to execute the sale deed in favour of the original plaintiff-appellant.

(Para 2-2.2, 8)

Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 – Specific Relief Act, 1963 (47 of 1963), Section 34, 37, 39 -- Rejection of plaint -- Ad-valorem court fees -- Suit for declaration that the plaintiff-petitioners were entitled to get the respective sale agreements executed in their favour as well as for mandatory injunction and permanent injunction -- By impugned order Trial Court directed the plaintiff-petitioners to affix the ad valorem court fees treating it a suit for specific performance and for possession – Held, court fees is a matter between the plaintiff and the Court and in case at the time of final adjudication if the court fees is found to be deficit, the plaintiff-petitioners can always be asked to make good the court fees -- However, the case cannot be treated as a suit for specific performance at this stage -- Impugned order set aside.

(Para 2-6)

Specific Relief Act, 1963 (47 of 1963), Section 20 – Agreement to sell – Increase in price -- Contention that due to increase in price, hardship will be caused in case relief of specific performance is granted, has no merit -- No steps taken to get his share partitioned from other co-sharers; enjoyed major part of sale consideration i.e. Rs.7,99,500/- out of Rs.8 Lacs; and did not even deliver possession vendee-plaintiff of his share -- Even denied the execution of the agreement to sell, which found to be false by both the courts below – Learned First Appellate Court has rightly held respondent-plaintiff entitled to the relief of specific performance – Appeal dismissed.

(Para 30, 31)

Code of Civil Procedure, 1908 (V of 1908), Order 1 Rule 10 – Specific Relief Act, 1963 (47 of 1963), Section 20 -- Suit for specific performance of agreement to sell – Subsequent purchaser as party – It is in the interest of the plaintiff if the subsequent vendee is impleaded as a party so as to enable the Court to pass a comprehensive decree directing the subsequent vendee to join in the execution of the sale deed if the suit is decreed -- Subsequent vendee has a right of hearing and he is alleging that the original defendants are colluding with the plaintiff – Order permitting the purchaser to be impleaded as party upheld.

(Para 1, 4, 5)

Specific Relief Act, 1963 (47 of 1963), Section 10, 15, 19(b) – Code of Civil Procedure, 1908 (V of 1908), Order 21 -- Agreement to sell – Sale deed by Vendor in favour of third party – Subsequently suit for Specific performance --  Suit decreed – Execution of decree -- Held, once, by virtue of judgment and decree, it was proved on record that the agreement to sell was validly executed, any subsequent alienation/sale deed always governed and regulated by the rights conferred upon the petitioner-plaintiff under the agreement to sell – In the absence of objections by the purchaser from the respondent/judgment debtor, the executing court exceeded its jurisdiction while rendering the execution proceedings being infructuous -- The only protection to the persons having purchased suit property subsequent to execution of agreement to sell has been provided under Section 19(b) of the Specific Relief Act, 1963 -- Nothing on record to suggest that the subsequent transferee ever approached the executing court, invoking his rights under Section 19(b) of the 1963 Act – Impugned order set aside -- Executing Court directed to proceed with the execution proceedings based on the judgment and decree.

(Para 6-10)

A. Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (56 of 2007), Section 22, 23 -- Ex-parte proceedings -- It is categorically mentioned in the impugned order itself that several notices were sent to the petitioner and despite that; the petitioner had chosen not to appear before the authority to contest the proceedings -- Petitioner cannot take a somersault and start questioning the validity of the said order – Nothing wrong, petitioner being proceeded ex parte.

(Para 4)

B. Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (56 of 2007), Section 22, 23 -- House in lal dora – Eviction of son -- Petitioner/ son not purchased or acquired house by transfer of ownership – Parents of the petitioner had come in the world prior to the petitioner, therefore, if there is any ownership of the house within the family of the petitioner and the respondents, then obviously, it has to be with the parents of the petitioner – Senior citizen is entitled to protect any interest in property.

(Para 4)

C. Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (56 of 2007), Section 22, 23 -- Eviction of son -- Possession of parents -- Even if the parents were not the recorded owners, still, they can protect their possession – Petitioner/ son not pleaded that the house in question was either constructed or created by him -- Positive case of the respondents-parents gone uncontested, that they are the owner of the house in question -- If the petitioner is not having any other accommodation under his ownership then it is for him to arrange for another accommodation for himself -- For the convenience of the petitioner, the parents cannot be deprived of their right to live in their residential house.

(Para 4)