Can a person maintain a simplicator suit for injunction basis the agreement to sell against another person who claims to be in possession of the suit property over 100 years?

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Shubham Budhiraja[1]

 


A (Purchaser of suit property) filed a suit for permanent injunction against B seeking retainment against B for creating 3rd party rights in respect of land in question. The basis of suit was an agreement to sell entered between A&C. B filed an application under Order 7 Rule 11 for rejection of plaint on basis that the agreement to sell gives no right to A. They are not the owners. The Trial Court rejected the application. The High Court also dismissed it in revision jurisdiction. The Hon’ble Supreme Court allowed the Order 7 Rule 11 and held as under[2]:

 

1.    The protection under Section 53-A is not available against a third party who may have an adversarial claim against the vendor. Therefore, unless and until the sale deed is executed, the purchaser is not vested with any right, title or interest in the property except to the limited extent of seeking specific performance from his vendor. An agreement for sale does not confer any right to the purchaser to file a suit against a third party who is either the owner or in possession, or who claims to be the owner and to be in possession. In such cases, the vendor will have to approach the court and not the proposed transferee.

 

2.     First, there is no privity between the parties. The agreement to sell, is not between the parties to the suit. According to Section 7 of the Transfer of Property Act, 1882, only the owner, or any person authorised by him, can transfer the property.

 

3.    Any right, until the sale deed is executed, will vest only with the owner, or in other words, the vendor to take necessary action to protect his interest in the property.

 

4.    According to A the property belongs to the vendors and according to the B, the property vests in them. Since the A is not divested any right by virtue of the agreement, they cannot sustain the suit as they would not have any locus. Consequently, they also cannot seek any declaration in respect of the title of the vendors.

 

5.    The suit at the instance of the plaintiffs is not maintainable and only the vendors could have approached the court for a relief of declaration. In the present case, strangely, the vendors are not arrayed as parties to even support any semblance of right sought by the respondents/plaintiffs, which we found not to be in existence.

 

6.    Where the plaintiffs are not in possession and the defendant is in settled possession for over a century, a suit for bare injunction by a proposed transferee is clearly not maintainable. Section 41(j) of the Specific Relief Act, 1963 prohibits grant of injunction when the plaintiff has no personal interest in the matter.

 

7.    In the present case, the A, being mere agreement holders, have no personal interest in the suit schedule property that can be enforced against third parties. The “personal interest” is to be understood in the context of a legally enforceable right, as when there is a bar in law, the mere existence of an interest in the outcome cannot give a right to sue. As held by us above, no declaratory relief has been sought as contemplated under Section 34 of the Specific Relief Act, 1963. This principle was clearly established in Jharkhand State Housing Board (supra), in which, this Court emphasized that where title is in dispute, a mere suit for injunction is not maintainable.

 

8.    Though an agreement to sell creates certain rights, these rights are purely personal between the parties to the agreement and can only be enforced against the vendors or, in limited circumstances, under Section 53A of the Transfer of Property Act, 1882, against a subsequent transferee with notice, as held by us above. They cannot be enforced against third parties who claim independent title and possession.

 

9.     


[1]Advocate, Delhi High Court [LLB, ACS, BCOM(H)], Budhirajalawchambers@gmail.com

[2] Civil Appeal No. 5200 of 2025 (Arising from SLP (C) No. 13679 of 2022)

 

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