Sale Deed Cancellation Alone Doesn't Permit Dispossession Without Eviction Order: Allahabad High Court

The Allahabad High Court has held that a decree which only cancels a sale deed, and carries no direction for eviction or delivery of possession, does not authorise the decree-holder to remove the occupant from the property.

It held that a person in long and settled possession makes out a prima facie case for temporary injunction even where the sale deed on which his claim of title rests stands cancelled.

Justice Prashant Kumar held,

“.. this court has no embargo to hold that even where the person in long standing possession and is alleged to be a trespasser, the majesty of law cannot be supplanted by the impulse of force. Due process of law must be followed for his eviction; the rightful owner, however strong his title or just his claim, must seek the aid of law and cannot take the law into his own hands. Possession can only be disturbed only by due procedure sanctioned by law i.e., any direction or order for eviction or dispossession from competent court.”

A registered power of attorney was executed on 02.06.1987 in favour of one Augustine Paul, authorising him to sell the property in dispute, and was stated to have been cancelled on 18.09.1987. On 22.09.1987 Augustine Paul executed a sale deed under it in favour of Late Savitri Srivastava, mother-in-law of appellant no.1, who was unaware of the cancellation, and a house was built on the land. The cancellation was registered on 29.09.1987.

Respondents filed Original Suit No.100 of 1991 before the Civil Judge, Raebareli seeking cancellation of the sale deed on the ground that the power of attorney had been revoked and the revocation registered. The suit was later amended to add prayers for removal of the construction and delivery of possession, but when it was decreed ex-parte on 21.04.2001 the relief granted was confined to cancellation of the sale deed and a permanent injunction against further construction. No relief of possession or removal was granted.

The decree was drawn up only on 07.04.2023, and on its strength the respondents sought to evict the appellants, who claimed possession through their predecessor-in-interest since 1987. Faced with a threat of eviction in September 2023, the appellants filed Regular Suit No.238 of 2023 for permanent injunction before the Civil Judge (Senior Division), Raebareli, with an application under Order XXXIX Rules 1 & 2 CPC for temporary injunction.

The Trial Court rejected the application on 03.07.2025, holding that the appellants had to establish ownership as well as possession. That order was challenged in appeal under Order XLIII Rule 1(r) read with Section 104 CPC.

Appellants argued that on the date of the sale deed there was no registered cancellation of the power of attorney which could defeat the purchaser's rights, that the suit for cancellation of a 1987 sale deed was time barred, and that the Trial Court had ignored their long and peaceful possession. Counsel also submitted at the bar that the lines the Trial Court attributed to the Supreme Court do not appear in the judgments it cited.

Opposing the appeal, reliance was placed on Section 47 of the Registration Act, 1908 and on State of Karnataka v. Ragini Narayan to contend that a registered document operates from the date of execution and not of registration, so that the revocation related back and Augustine Paul had no authority left on 22.09.1987. It was argued that no material showing actual physical possession had been filed, and that no prima facie case could rest on a sale deed already cancelled.

The Court held that at the stage of a temporary injunction it is not expected to decide disputed questions finally. On the facts, the ex-parte judgment of 21.04.2001 cancelled the sale deed and restrained further construction but said nothing about eviction.

Relying on Samir Sobhan Sanyal v. Tracks Trade (P) Ltd., where the Supreme Court held that a person cannot be put out of premises without a decree or order of eviction, and on Rame Gowda v. M. Varadappa Naidu, where it was held that even a rightful owner must take recourse to law against a person in settled possession, the Court observed,

“Coming to the facts of the present case, the judgment dated 21.4.2001 which was passed by the Trial Court only pertains to the cancellation of the sale deed and any further constructions on the disputed land in question, but do not contain any direction or order for eviction or dispossession.”

The respondents' argument on prima facie case could not be sustained, the Court held, because the appellants' claim rested on their possession since 1987 and not on the cancelled sale deed. It noted that the respondents had themselves, in paragraphs 37 and 38 of their counter affidavit, made averments showing the appellants to be in possession.

“The balance of convenience also lies in favour of the appellants. Their possession for more than three decades, appellant no.1 being a widow and appellant no.2 being a minor daughter and the property in dispute is their residential house, thus, if disturbed during the pendency of the suit, would cause them irreparable injury and loss which cannot be adequately compensated in terms of money or subsequently cannot be restored if they wins the suit.”

Declining to examine the validity of the power of attorney at this stage, and clarifying that its observations were confined to the prayer for temporary injunction, the Court set aside the order dated 03.07.2025, allowed the appeal and granted a temporary injunction in favour of the appellants during the pendency of the suit.