Shri U.Mohammed Farid v. Shri K.Periyasamy

IN THE HIGH COURT AT CALCUTTA

[CIRCUIT BENCH AT PORT BLAIR] ...

SA/1/2023 IA No.CAN/1/2023 Shri U.Mohammed Farid Vs.

Shri K. Periyasamy Mr. Arul Prasanth ... for the appellant February 16, 2023 [SR] Item No.3 Heard learned counsel for the appellant.

The substantial questions of law raised here are:- (i) Whether decree of specific performance of contract and permanent injunction can be granted on the basis of an unregistered agreement to sale between the transferer and the transferee.

(ii) Whether the suit is barred by limitation.

So far as the first ground is concerned, it is a pure question of law and so far as the second ground is concerned it is mixed question of facts and law.

Though it is submitted by learned counsel for the appellant that he had taken the ground of limitation both before the Trial Court and orally before the Appellate Court, during arguments, the question of limitation has not been decided, it is found from the impugned orders that neither before the Trial Court nor before the Appellate Court, any

such point has been canvassed, and no issue has been framed by the Trial Court on the question. The appellant though congnizant about the issue framed in the Trial Court having not raised that point either before the Trial Court or in the memo or appeal before the Appellate Court, the second ground, being a mixed question of fact and law cannot be taken up for the first time in the second appeal. So far as the first ground is concerned, learned counsel for the appellant relies on two unreported decisions of the Hon'ble Supreme Court i.e Balram Singh vs. Kelo Devi (Civil Appeal No.6733 of 2022) disposed on 23.09.2022 and Suraj Lamp & Industries Pvt. Ltd vs. State of Haryana and another (Special Petition(Civil) No.13917 of 2009) to substantiate the aforesaid ground.

Perusal of the impugned order shows that learned Appellate Court has taken into consideration the decision rendered by Hon'ble Supreme Court in the case of Balram Singh supra.

From reading of the aforesaid two decisions, we are clear in our mind that decree for possession or decree of permanent injunction cannot be granted on the basis of an unregistered agreement to sale as it does not confer any right to possession as contemplated under section 54 of Transfer of Property Act. But, so far as the relief of specific performance of contract in a suit is concerned, such agreement can be used as evidence for collateral purpose.

In view of such provision of law and specially relief granted by Trial Court, we do not find the first ground to be a substantial question of law involved in this appeal. Accordingly, the appeal being SA/1/2023 and the connected application being CAN/1/2023 are dismissed. ( Chitta Ranjan Dash, J.) ( Md. Nizamuddin, J. )