Bombay High Court
Adinath Limbaji Navale And Anr. vs Policeman Housing Society And Anr. on 5 October, 1990
Equivalent citations: (1991)93BOMLR448
JUDGMENT A.A. Desai, J.
1. These appeals and cross-objection arose out of the judgment dated 25.8.1977 by which claim for recovery of possession has been decreed by the Civil Judge, Senior Division, Beed.
2. Respondents Nos. 3, 4 and 5 (original plaintiffs) claimed that surveys Nos. 30/a and 31 of Mouza Beed being their ancestral property they are the owners. According to them, Adinath Limbaji Navale (appellant No. 1) filed Civil Suit No. 98/69 against the respondent No. 4 for relief of injunction simpliciter. This suit subsequently on 26.3.1971 was withdrawn. In the meanwhile, i.e. in the third week of June 1970, the appellants-original defendants had dispossessed them of the suit fields. They, therefore, on 11.5.1973 filed a civil suit for recovery of possession and mesne profit.
Their claim for possession was resisted by the defendants Nos. 1 to 8 (appellants) contending that the respondent No. 4 Abdul Jabarkhan for self and on behalf of the respondent No. 5 executed in November 1949 an agreement of sale (Exh. 107) for the entire suit land in favour of deceased Limbaji Navale (appellants Nos. I to 7 are his legal heirs) and appellant No. 8 Gyandev Navale for a total consideration of Rs. 3,500/-. As per the terms of the agreement, the sale deed was to he executed after grant of permission to sell by the Collector, in pursuance of the agreement, they had paid earnest money. On 26.6.1951 vide Exh. 93, they made further payment as a part consideration. They were then placed in possession of the suit land. Their possession over the suit land was protected ill view of the provisions laid down under Section 53-A of the Transfer of Property Act (hereinafter referred to as "the Act"). They alternatively claimed that being continously and adversely holding the possession for a period of more than 12 years i.e. right from 1951 the title has perfected in them. Consequently, the plaintiffs had lost the title and as such, the civil action for recovery of possession could not be maintainable at their instance.
On 22.8.1970 the appellants vide Exh. 118 sold part of the suit land in favour of respondent No. 2 Society (original defendant No. 10). Similarly, vide Exh. 120 dated 28.3.1973 they had sold another piece of the suit land in favour of the respondent No. 2 Society (original defendant No. 9). These respondents set up a plea that they are bona fide purchasers for valuable consideration and as such, they could not be deprived of the possession.
3. The learned trial Judge framed necessary issues which are enumerated in para 18 of the impugned judgment. Taking into consideration evidence as led, the learned Judge has held that the plaintiff No. 2 in part performance of the contract placed late Limbaji and the defendant No. 8 in possession of the suit land, however, the plaintiff No. 2 has no right to execute the agreement on behalf of the plaintiff No. 1. The learned Judge has further held that the defendants are not entitled to the protection under Section 53-A of the Act. He rejected the plea of adverse possession, holding that the possession of the defendants was permissive. By the impugned decree, the learned trial judge directed the defendants to put' the plaintiffs Nos. 1 and 2 in possession of the suit land.
The claim for mesne profit was, however not considered.
4. Appellant-original defendants Nos. 1 to 8 challenged the decree by First Appeal Nos. 748/77, whereas the original defendants Nos. 9 and 10 filed first Appeal No. 618/79.
Plaintiff No. 3 Fatma Begum (respondent No. 5) did not get relief of possession though she jointly claimed with other plaintiffs. She, has, therefore, presented First Appeal No. 257/79.
Original plaintiffs filed cross-objection in First Appeal No. 748/77 claiming the relief of mesne profit.
All these appeals and cross-objection since arose out of the common judgment, are heard together and being decided by this judgment.
5. Shri Deshmukh, the learned Counsel appearing for the appellants in First Appeal No. 748/77, has vehemently urged that the appellants were placed in possession of the suit land as a part performance of the agreement of sale. As such, in view of Section 53-A of the Act, their possession is protected and they could not legally be dispossessed. It is further urged that since the plaintiffs have not revoked the agreement, they are not entitled to seek a relief of recovery of possession. Even otherwise they are entitled to retain possession of the suit land to the extent of the share of plaintiff No. 1 who was the executor of the agreement. Shri Deshmukh relying on a decision of a Single Judge in Maruti Gurappa and Anr. v. Krishna Bala and Anr. , urged that even if defendants-vendees' claim for specific performance is beyond the period of limitation, they are still entitled to seek protection under Section 53-A of the Act. It is urged that the appellants have specifically expressed their willingness to perform their part under the Agreement.
6. Section 53-A of the Act protects the possession of a vendee if he has acquired the same by way of part performance of the contract on the part of the vendor. Such protection continues if amongst others, the vendee is willing to perform his part under the Contract. The security to the possession flows from the doctrine of equity. The doctrine extends protection against the vendor or any person claiming through him. Such challenge to the possession by the vendor as laid down in Ranchhoddas Chhaganlal v. Devaji Supdu Dorik and Ors. AIR 1977 SC 1517 must be contrary to the terms of contract.
We find that the provisions which have codified the doctrine of equity cast necessary obligation on the vendee to perform his part under the contract. Such performance must be in accordance with the terms of contract. It could not be a passive declaration of willingness, but must be positive steps as required by the contract.
7. The agreement in question was executed in November 1949. As per the terms, sale deed was to be executed after obtaining the permission from the Collector. The same was obtained on 10.8.1955. However, it is not disputed before us that even thereafter the vendees did not offer the balance payment and pressed for execution of the sale deed. And in case of refusal by the vendors, they did not seek legal remedy to secure specific performance of the contract. Even in Civil Suit No. 98 of 1969 which was filed after 14 years from the time when execution of sale deed became due as per the agreement, they have merely claimed injunction simpliciter without seeking relief of specific performance. This could not be a gesture of willingness to perform the contract as envisaged by Section 53-A of the Act.
The agreement could not be enforced in law since relief of specific performance is beyond the period of limitation. The agreement in question met with its legal death. As a result, the protection under Section 53-A of the Act which flows from such agreement cannot survive beyond its life time which is the source of the protection.
8. The defendants were merely prospective purchasers and the title has not vested in them : Once the remedy for acquiring title through specific performance is lost to the vendee, equitable relief of protection to possession comes to end. Such protection is coterminus and does not survive beyond the span of the agreement. It is no doubt held that Section 53-A is a shield for the vendee and not a sword. Limitation has also nothing to do with defence. However, the right asserted must subsist as per the limitation prescribed by law. Legally non-existent right cannot oust the claim of vendor to recover possession, which was delivered in part performance of the contract. To allow the vendee to hold the possession even if the contract is not enforceable would lead to very anomalous, legal and factual situation. It would be paying dividends to vendee whose gesture suffers from laches and who lost the right to claim the transfer of title. It would be defeating the doctrine of equity which has been codified in Section 53-A of the Act. Learned Single Judge in case of Maruti Gurunappa cited supra has not laid down a correct law. We, therefore, overruled the authority.
In the instant case even if the defendants-vendees in Civil Suit No. 14 of 1973 filed for their eviction, pleaded or deposed the willingness to perform their part under the agreement which was executed in 1949, it would not be in accordance with the terms thereof. Willingness ought to have been shown and legal remedy ought to have been taken within the legally permissible period. Grant of protection to possession by Section 53-A arises out of the part performance made by the vendor. Such protection extinguishes in the eventuality if either vendee fails to perform his part in terms of the agreement or agreement itself becomes unenforceable. In any of the eventuality, the vendee cannot defend his possession by asserting the right of protection under Section 53-A of the Act.
9. Shri Deshmukh then contended before us that the agreement to sell was executed by respondent No. 4. It was a property jointly owned by him with the respondents Nos. 3 and 5. The respondent No. 3 has specifically denied the agreement as well as Exh. 91. In the result, the possession of the defendants since 1951 is adverse so far as share in suit property of the respondent No. 3 is concerned. It resulted in perfecting the title of the defendants. He. therefore, contended that the plaintiffs have lost the title and as such, there could not be a relief for recovery of possession from the defendants in whose favour the title has perfected.
The defendants as pleaded have secured the possession through document marked as Exh. 93. According to them, they have been placed in possession by the respondent No. 4 on his behalf and on behalf of the respondent No. 3. As such, it is evident that the possession as they were holding was only in pursuance of Exh. 93. The defendants never considered that they held the possession in their own right. The learned trial Judge has considered this aspect in great detail in paras 54 to 56 of the impugned judgment. The learned trial Judge was justified in holding that the possession of the defendants was permissive. It is further held that the possession if adverse did not mature in ownership. Reasonings and conclusion as drawn are factually and legally correct. The learned Counsel could not point out any legal or factual infirmity. The pertinent aspect of the venture of the defendants in asking for specific performance of the agreement as pleaded goes to show that the defendants were aware and conscious of the fact that they were holding possession not in their own right or title, but as permitted by the respondent No. 4. As such, the possession in whatever form of the defendants was for and on behalf of the original plaintiff-owner. The learned trial Judge was right in rejecting the plea of adverse possession.
10. Shri Deshmukh then tried to urge before us that the suit as filed by the plaintiffs is beyond the period of limitation. We may mention here that neither in the pleading nor in the argument, such plea was raised before the trial Court. Even accepting the possession of the defendants from 1951 it being without title and merely permissive, it was for and on behalf of the original vendor, namely, plaintiffs. The plea is misconceived and without any substance.
11. Shri Bhadekar,. the learned Counsel appearing for the societies (respondents Nos. 1 and 2) in First Appeal No. 618/79. has urged before us that they are the bona fide purchasers from the original vendee and as such, they could not be deprived of the possession. It is contended before us that the Societies before entering into the deal with the defendants made necessary enquiries and verified about the title and possession of their vendor. They being the bona fide purchasers, the suit claim could not be legally decreed against them. The defendant No. 9 (Chairman of the Society) entered into the witness box. It is admitted in the cross-examination that before finalising the sale deed of a suit land, they had not issued any public notice inviting any objection. It is also revealed that they have not made the necessary proper and desirable enquiries about the title of their vendor. The respondents Nos. 9 and 10, therefore, could not be bona fide purchasers. Since the defendants Nos. 1 to 8 themselves did not possess the title, they could not pass any valid title in favour of the defendants Nos. 9 and 10-Socicties. As such these respondent-Societies are bound to suffer the same consequences as suffered by their vendor. The appeal is, therefore, without any merit and bound to fail.
12. Shri Naik, the learned Counsel appearing for the original plaintiff No. 3 (Fatma Begum) in First Appeal No. 257/79, contended that she was a joint owner along with the original plaintiffs Nos. 1 and 2 who are her sons. However, the learned trial Judge by the impugned decree has placed only plaintiffs Nos. 1 and 2 in possession. The plaintiff No. 3 being a co-owner, was entitled to the same relief as plaintiffs Nos. 1 and 2, which the learned trial Judge has refused. The learned trial Judge has considered this aspect in para 62 of the impugned judgment and held that the plaintiff No. 3 failed to prove her interest and share in the suit land. Shri Naik tried to persuade us for some time that this reasoning of learned trial Judge is erroneous. However, he could not point out from the material placed on record, any illegality in the finding. Even otherwise as urged by the parties before us the impugned decree does not suffer from any illegality since it is passed in favour of plaintiffs Nos. 1 and 2 who are the sons of plaintiff No. 3. It is reported that plaintiff No. 3 (Fatma Begum) died during the pendency of the present appeal and as such, plaintiffs Nos. I and 2 being her legal heirs succeed to the interest whatever she had. In view of these events, the grievance as canvassed does not survive and the appeal is, therefore, liable to be dismissed.
13. Shri Vithal, the learned Counsel appearing for the original plaintiffs, invited our attention while arguing the cross-objection filed in First Appeal No. 748/77, to the fact that though the plaintiffs had specifically claimed relief of mesne profit, the learned trial Judge has not adverted to his aspect. The learned Counsel for the parties took us through the impugned judgment. It is revealed that even an issue on this point has not been framed. The parties had also not addressed on this aspect and the entire aspect was left without adjudication. It is, therefore, rightly urged by the learned Counsel that the matter needs to be remanded only for holding enquiry under Order XX, Rule 12 of the Code of Civil Procedure. We find considerable force in this submission, hence the following order
14. First Appeal No. 748/77, First Appeal No. 618/79 and First Appeal No. 257/79 are hereby dismissed. Impugned judgment and decree dated 25.8.1977 is hereby confirmed.
Cross-objections filed by the original plaintiffs are allowed. The matter is remanded to the learned trial Judge for holding enquiry into the claim of mesne profit as pleaded by the parties. The necessary enquiry be held as contemplated under Order XX, Rule 12 of the Code of Civil Procedure after granting necessary opportunity to all the parties concerned.
Taking into consideration the nature of dispute and pendency of litigation, we direct the learned trial Judge to decide the matter expeditiously.
Having regard to the circumstances as involved, the parties are directed to bear their own costs.