Patna High Court
Nagar Khan And Ors. vs Gopi Ram Agarwala on 25 April, 1975
Equivalent citations: AIR1976PAT2, AIR 1976 PATNA 2
JUDGMENT H.L. Agrawal, J.
1. The plaintiffs appellants in this second appeal had instituted a suit for possession after declaration of their title with respect to a small strip of land measuring 1 1/2 decimals only appertaining to Plot No. 420, Khata No 130 of village Ramgarh, described in Schedule A of the plaint.
2. The plaintiffs' case is that they purchased the suit land for, a consideration of Rs. 4,000/- under two registered sale deeds dated the 18th July. 1960 (Exts. 1 and 1-a) from one Lakhan Sao in pursuance of an agreement dated the 11th November, 1959 and claim to have come in possession over the same. In each of the two sale deeds, although the boundary is the same, the area mentioned is 3/4 decimal. According to the finding recorded by the Courts below, on the basis of the materials on the record, particularly a pleader commissioner's report, the area of the land within the boundaries, as mentioned in Schedule A of the plaint as well as in the sale deeds, is approximately 6 decimals. The land has been shown to be bounded on the north by Gola Road, on the south by the land of the plaintiffs, on the east by the house of the defendant, Gopi Ram Agarwala, and on the west by a lane and thereafter the land of the plaintiffs. In this way, although the northern and the southern boundaries are fixed, the disputed land has yet to be fixed east to west at any place within the boundaries of the area of 6 decimals mentioned above. I have mentioned these facts in some detail as the plaintiffs' suit has been dismissed on the ground of vagueness in the description of the land in suit also.
3. A proceeding under Section 144 of the Code of Criminal Procedure was started between the plaintiffs, on the one hand, and the defendant, on the other, which, according to the plaintiffs' case, was although decided in their favour, the defendant later on took forcible possession of the suit land and demolished the hut which was standing on a part of the land. The claim of the plaintiffs is being resisted by the defendant on the ground that the owners of the plot in question had entered into a written agreement with him on the 2nd April. 1960 (Ext. E) to fell 4 1/2 decimals of land, out of the aforesaid plot, and in pursuance of the agreement. he purchased three, decimals of land under two sale deeds executed by two of the owners, namely. Malo Sao and Pemlal Sao. on 23-4-1960 and 14-6 1960 respectively which were duly registered. Another sale deed, which was executed by Lakhan Sao on 23 4-1960 (Ext. F/3), which was also presented for registration, could not be registered as Lakhan Sao did not turn up to admit execution and subsequently he purported to sell the land to the plaintiffs in the name of plaintiff No. 2 which was wholly illegal and the plaintiffs did not derive any title there under. According to the further case of the defendant, the area covered by the two sale deeds (Exts. 1 and 1/a) in favour of the plaintiffs is only 3/4 decimal. In the written statement itself, uncertainty and vagueness in the description of the suit land was pleaded by the defendant.
4. Both the Courts below have dismissed the suit on the finding that the defendant being a transferee from the vendor of the plaintiffs, having already taken possession of the disputed land in part performance of the contract, the plaintiffs claiming through the defendant's transferor, namely, Lakhan Sao were debarred from enforcing any right in respect of the property in pursuance of the provision contained in Section 53-A of the Transfer of Property Act and that the description of the suit land given in the plaint as well as in the sale deeds was quite vague and uncertain. The Court of appeal below has also recorded a clear finding that the agreement for sale deed 11-11-1959 (Ext 3) set up by the plaintiffs to meet the sale deed of the defendant, being earlier in point of time to their sale deeds, was a forged and fabricated document and that the plaintiffs were never put in possession in pursuance of the same.
5. According to the provision of Order 7, Rule 3 of the Code of Civil Procedure, where the subject-matter of the suit is immovable property, the plaintiff has to describe the same with sufficient particulars to identify it with boundaries or particulars in the record of settlement or survey, so that the decree, if passed, will be capable of execution. Both the courts below have devoted considerable attention on this question and have recorded a clear finding, as already pointed out above, that the description of the property was insufficient and it was difficult to fix up the same with definite-ness within the four boundaries mentioned above. Mr. R. S. Chatterji, who appeared for the appellants in this Court, when confronted with this situation could not satisfactorily meet the point. He, however, simply contended that if it could be held that the defendant was not entitled to resist the claim of the plaintiffs, it would be a matter between the plaintiffs, on the one hand, and their vendor, on the other, to fix up the area. There is hardly any substance in this contention as it is the duty of the Court to pass only such decree which can be executed under the machinery provided by Order 21 of the Code of Civil Procedure with all precision and without any confusion or embarrassment either to the executing Court or to any other person. However, on this ground a suit cannot be dismissed, nor a plaint-rejected, and in such cases the Court may call upon the plaintiffs to furnish more particulars, even to the extent of allowing the amendment at the plaint.
6. The difficulty of the plaintiffs, however, is on the second question, namely. Section 53-A of the Transfer of Property Act. Mr. Chatterji in order to meet this point raised the following contentions: (i) the contract for sale relied upon by the defendant was not enforceable as the consideration was not paid in praesenti and. (ii) possession was not delivered to the defendant by his vendor, but he took forcible possession of the land and therefore the defendant was not entitled to the protection of this provision.
7. Let me consider the contentions in seriatim. The first contention of Mr. Chatterji' that under the contract to transfer under Section 53-A of the Transfer of Property Act, the consideration mentioned for the transfer of the property must pass, in praesenti as, according to him, it was a special provision; does not appear to have any substance. All that is necessary is that the contract must be a lawful and enforceable contract. In other words, it, must be capable of being specifically performed, as has been held by a Bench decision of this Court in Raju Roy v. Kashinath Roy, AIR 1956 Pat 308. Section 54 of the Act defines 'sale' as a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. A 'contract for sale' has also been defined in the said section as follows:
"A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties." According to these definitions, therefore, it is manifest that it is open to the parties to settle the terms with respect to the payment of the consideration which can be agreed by parties to be paid either at the time of (i) the agreement itself, (ii) execution of the sale deed, (iii) registration of the sale deed, (iv) exchange of equivalent or by several other modes or at any future time subsequent to the execution and the registration of the document itself. If the title has been intended to pass on the execution of the sale deed, the only remedy in case of non-payment of the consideration available to a vendor is to bring a suit for recovery of the consideration. It is, therefore, not possible to read the expression "contracts to transfer for consideration" occurring in Section 53-A of the Act in violation of the provision contained in Section 54 just referred to. There is also enough indication in Section 53-A of the Act itself in the express provision a little later that "the transferee has performed or is willing to perform his part of the contract."
8. Mr. Chatterji failed to cite any authority in support of his proposition. The Supreme Court in the case of Nathulal v. Phoolchand, AIR 1970 SC 546 while laying down the conditions necessary for making out the defence of part performance to an action in ejectment by the owner, has indicated the following four conditions; (1) that the transferor has contracted to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty; (2) that the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession continues in possession in part performance of the contract; (3) that the transferee has done some act in furtherance of the contract; and, (4) that the transferee has performed or is willing to perform his part of the contract. All that is required, therefore, with respect to the validity of a contract contemplated under Section 53-A of the Act, to be used as a shield to the action against him by a defendant, is to prove the contract. It is not disputed that the contract in question was for a mentioned consideration of Rs. 2,000/-, and according to the finding, a sum of Rs. 1,000/- had already been received by Lakhan Sao from the defendant. It is also evident that the defendant took possession of the land in question, and when the document was presented for registration, the defendant's vendor, namely, the aforesaid Lakhan Sao did not turn UP. It is evident, therefore, that the contract relied upon by the defendant was quite valid and satisfies all the conditions of Section 53-A. The first contention raised by Mr. Chatterji has, therefore, no substance and is overruled.
9. Coming to the second contention of Mr. Chatterji that the delivery of possession contemplated under Section 53-A must be at the instance of the vendor in part performance of the contract in furtherance of his intention to complete the contract, is also of no force. Section 53-A was brought on the statute book in the year 1929 in order to protect the purchaser from any fraudulent intention of the vendor after a contract was completed and to give him relief on the principle that if a man has made bargain with another and allowed that man to act on it be will have created an equity himself which he cannot resist by setting up want of any infirmity (sic) and to meet situations like that as one in the present case, that a vendor having already contracted with the defendant to sell the property for Rs. 2,000/- later on turns round when he finds in the plaintiffs a purchaser for double the amount. Advisedly, the legislature has used the expression with regard to possession in Section 53-A of the Act as "and the transferee has, in part performance of the contract, taken possession of the property or any Dart thereof." The act of giving possession has not been left at the mercy and option, of the transferor, but of taking possession by the transferee himself, as in a given case, the dishonest intention may set in on the part of the transferor even before the stage for delivery of possession arrives. The second contention is not supported from the provision of the section itself, rather it is in contrast with the specific provision as already, "indicated above. Reference may again be made in this context to the case of Nathulal AIR 1970 SC 546 (supra) of the Supreme Court with respect to the second condition mentioned thereunder, namely:
"that the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee being already in possession continues in possession in part performance of the contract."
10. The facts found by the Courts below, which cannot be disputed, satisfy all the conditions for application of the doctrine of part performance of the contract as provided in Section 53-A of the Act, which forms part of a substantive law. In other words, there was a contract for sale of the land to the defendant by its admitted owner Lakhan Sao, who also came in possession in Dart performance of the said agreement, which is for consideration and enforceable in law, and the defendant has also established that he has not (sic) always willing to perform his part of the contract. The Courts below have, therefore, taken a correct view of the case and have rightly dismissed the suit.
11. This appeal, therefore, has got no merit and is, accordingly, dismissed with costs.