Karnataka High Court
Smt Mumtaz Begum vs Sri M Balaji on 23 September, 2020
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF SEPTEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE N.K. SUDHINDRARAO
RFA No.1677/2011
BETWEEN:
1. SMT. MUMTAZ BEGUM
W/O V ZAILABUDDIN
AGED ABOUT 42 YEARS,
R/AT No.66, 4TH CROSS,
P & T COLONY, VENKATESHPURAM,
BANGALORE - 560 045.
2. SMT. GULNAZ BEGUM,
W/O R HABEEBULLA,
AGED ABOUT 40 YEARS,
R/AT No.96, DHARMARAJA,
KOIL STREET, SHIVAJINAGAR,
BANGALORE.
3. SMT. SHANAZ BEGUM,
W/O ASKAM BASHA,
AGED ABOUT 36 YEARS,
R/AT No.66, 4TH CROSS,
P & T COLONY, VENKATESHPURAM,
BANGALORE-560 045.
4. SMT. DILSHAD BEGUM,
W/O SRI RIZWAN BASHA,
AGED ABOUT 32 YEARS,
R/AT No.1562,
INAM MOSQUE STREET,
PRASHAD NAGAR,
2
ARABIC COLLEGE POST
BANGALORE - 560 045.
5. SMT. SULTANA BEGUM
W/O SHRI SHAKEEL AHMED
AGED ABOUT 30 YEARS
No.171, 6TH CROSS,
8TH MAIN, PILLANA GARDEN,
III STAGE, BANGALORE - 560 044.
...APPELLANTS
(BY SRI D R SUNDARESHA, ADVOCATE
FOR A-1, 3, 4 & 5
SRI SREEVATSA, SENIOR COUNSEL FOR
SREEVATSA ASSOCIATES FOR A-2)
AND:
1. SRI M. BALAJI
No.138, DHARMARAJA KOIL STREET,
1ST FLOOR, SHIVAJINAGAR,
BANGALORE - 560 001.
2. SRI K.P. HARISH,
S/O K.S. PANDURANGA SHEETY,
MAJOR, R/AT No.138, DHARMARAJA
KOIL STREET, SHIVAJINAGAR
BANGALORE - 560 001.
...RESPONDENTS
(BY SRI SRINIVASA P. DHONDALE, ADVOCATE
FOR R1 & R2)
THIS RFA IS FILED UNDER SECTION 96 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED:27.06.2011
PASSED IN O.S.No.26594/2007 ON THE FILE OF THE
XXVI-ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
MAYO HALL UNIT, BANGALORE, DISMISSING THE SUIT
FOR THE EJECTMENT.
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THIS APPEAL COMING ON FOR FURTHER DICTATION
THIS DAY, THE COURT THROUGH VIDEO CONFERENCE
DELIVERED THE FOLLOWING:
JUDGMENT
Heard learned counsel Sri. D.R. Sundaresha for appellant Nos.1,3,4 and 5 and Sri.Sreevatsa, Senior counsel for Sreevatsa Associates for appellant No. 2 and Sri.Srinivasa P.Dhondale, Advocate for respondent Nos.1 and 2.
2. This appeal by the plaintiffs/appellants is directed against the judgment and decree passed in O.S.No.26594/2007 wherein the suit filed by the plaintiffs for ejectment came to be dismissed by the learned XXVI Addl. City Civil Judge, Mayo Hall Unit, Bengaluru, on 27.06.2011.
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3. In order to avoid confusion and overlapping, the parties herein are referred in accordance with the rankings as held by them before the trial Court.
4. O.S.No.26594/2007 was presented by the Power of Attorney Holder J. Mohammed Saleem on behalf of the plaintiffs for ejectment of defendants claiming that they are the owners of the schedule property bearing No.138, Dharmaraja Koil Street, Shivajinagar, Bangalore-1, comprising ground, first and second floors, by virtue of they being declared as owners in a suit for partition and that the defendants are the tenant in a portion that fell to the share of the plaintiffs. The rent payable by the defendant No.1 was stated to be at Rs.2,000/- p.m. The area of the property under the possession of the defendants is stated to be 400sq.ft. The plaintiffs also claim that the lease has been terminated by notice dated 5 09.07.2007 which was replied by defendant taking untenable contentions.
5. Defendant No.1 resisted the suit of the plaintiffs by filing written statement by denying the plaint averments and contending that, Final Decree Proceedings No.15001/2004 was not followed by registration and the same cannot be taken cognizance. The plaintiffs are debarred from enforcing their right and estopped from seeking possession of the property as the suit is bad for non joinder of necessary parties as K.P.Harish and Kailash Jain are necessary parties. There is no relationship of landlords and tenants between plaintiffs and defendants and termination notice is issued against non existing tenant.
6. It is contended that defendant No.1 is not a tenant of schedule property and plaint is not in 6 conformity with order VII of CPC and the suit is in violation of interim order of status quo granted in OS No.25720/2007. It is further contended that there are two shops formed in part of the property No.138 and they were agreed to be sold to the defendant No.1 under the agreement dated 2.11.1992 and in part performance of contract, defendant No.1 was put in possession and enjoyment of the same and plaintiffs received entire consideration amount, but they did not executed conveyance deed. It is further contended that he has assigned his right under the Deed of Assignment dated 12.9.2003/1.10.2003 to one K.P.Harish and he is in possession of one shop and other shop is in possession of one Kailash Jain as a mortgagee under defendant. The suit OS No.25720/ 2007 in respect of said shop is pending adjudication and the suit is not maintainable. After filing of OS 25720/2007 defendant No.1 received notice from K.P. 7 Harish and they have executed appropriate documents.
7. During the pendency of the suit, K.P.Harish is impleaded as defendant No.2 and he has filed his written statement taking a specific contention that in view of assignment deed dated 12.9.2003/1.10.2003 he has been in possession and enjoyment of one shop and other shop was in possession of one Sri. Kailash Jain as a mortgagee under defendant No.1 and he has paid consideration under assignment deed. Defendants are in possession of the property under the agreement of sale deed dated 2.11.1992 which was delivered by plaintiffs and other heirs of S. Jamal Saab by way of part performance and he is also ready and willing to obtain registered sale deed as they have paid full consideration amount and prayed to dismiss the suit.
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8. During pendency of the suit, plaint was amended twice and defendants have filed their additional written statement.
9. Before the trial court, as per the order parties have adduced common evidence in OS No.26585/2007. Power of Attorney holder of plaintiffs is examined himself as PW1 and got marked 61 documents as Exs.P1 to P61 on behalf of plaintiffs. On behalf of the defendants, power of attorney holder of defendants one Sri K.P.Harish is examined as DW1 and examined three witnesses as DWs 2 to 4 and got marked 100 documents as Exs.D1 to D 101 and Ex.C1 is marked through DW3.
10. The trial Judge adjudicated the matter considering oral and documentary evidence produced 9 on both sides and dismissed the suit of the plaintiffs. The same is challenged by the plaintiffs in this appeal.
11. Learned counsel Sri D.R. Sundaresha for plaintiffs/appellants-1,3,4 and 5 and Sri Sreevatsa, senior counsel for appellant No.2 would submit that defendant No.1 colluded with defendant No.2 only to knock off the schedule property and claim regarding assignment agreement is false, bald and vague. Defendant No.1 had no right to assign interest over the schedule property nor defendant No.2 gets any claim. Rights under the lease agreement was terminated in accordance with law and there is no relationship subsisting between the plaintiffs and defendants, by virtue of termination of tenancy.
12. The only aspect is evicting defendant No.2 from the possession of the schedule property. Learned counsel would further submit that there is no notion of 10 Doctrine of part performance and defendant No.1 is not entitled for claiming part performance of the contract.
13. Learned counsel for the defendants/ respondents Sri. Shrinivas P. Dhondale submits that the suit is bad in law for non-joinder of necessary parties viz., K.P. Harish and Kailash Jain.
14. There is no jural relationship of landlord and tenant between the plaintiffs and defendants. Defendant No.1 was never a tenant in respect of the plaint schedule property or any portion therein. The plaint is not in accordance with Order 7 CPC. The defendants further contend that there are two shops formed in suit property bearing No.138 Dharmaraja Koil Street, Shivajinagar, Bengaluru facing Lubbay Masjid Street on the south western side. Said shops were agreed to be sold by plaintiffs to defendant No.1 11 under the Agreement to sell dated 02.11.1992 and defendant No.1 continued in possession of the suit schedule property in part performance of the contract.
15. The defendant No.1 further contends that the plaintiffs have received total consideration of the schedule property and that defendant No.1 was just short of executing the registered sale deed. It is further contended that S. Jamal Saab (plaintiffs No.1's husband) put defendant No.1 in possession and enjoyment of portion of the property, received the entire consideration amount and registered sale deed was not executed.
16. Thus defendant No.1 merely has assigned his right under the agreement dated 12.09.2003 and 01.10.2003 to one K.P.Harish and presently defendant No.1 is in possession of one shop and another shop is 12 in possession of one Kailash Jain as a mortgagee under defendant No.1.
17. During the pendency of the suit, said K.P. Harish is impleaded. The contention of defendant No.2 is that in view of assignment, he gets rights over the property and he stepped into the shoes of Assignor Balaji in respect of rights under the Agreement to Sell what defendant No.1 earlier had in respect of the schedule property during the pendency of the suit, Schedule 'B' property has been amended by deleting first floor and by adding two shops in ground floor all measuring 400ft and other related amendments were also made. After amendment of the plaint, rejoinders were submitted. Defendant No.1 further claims that without seeking cancellation of the Sale agreement, suit is not maintainable. Learned Trial Judge 13 considered the matter on various aspects of the claim of termination of tenancy, possession of the schedule property and related reliefs.
18. Further by way of additional one, the trial Court framed the issue as under:
"Whether plaintiffs proves that defendant No.1 illegally inducted defendant No.2 into the schedule property?"
19. It is under these circumstances, Section 53A of the Transfer of Property Act is worth to be mentioned which reads as under.
53A. Part performance.--Where any person contracts 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, and 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 and has done some act in furtherance of the contract, and the transferee has performed or is willing 14 to perform his part of the contract, then, notwithstanding that where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefore by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract:
Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof."
(a) The Core point or matter for consideration would be as to whether the plaintiff are entitled for passion of the SSP or whether they are debarred from recovery the same from
(b) the defendant by virtue of Section 53-A Transfer of property Act. Further the title of the plaintiff remain in fact to recover possession of the schedule property from the defendants.
20. Learned counsel for plaintiffs would submit that the plaintiffs deny the agreement and rights over it by the defendants and also would submit that even in case if it is assumed that the sale agreement was 15 duly executed and is in existence, that has nothing to do with that of duties of the defendants to vacate the schedule property under the agreement.
21. It was also submitted that defendant No.1 has transgressed his right and inducted one person by name K.P.Harish-defendant No.2 into the schedule property and Kailash Jain was inducted by the latter. Regard being had that learned counsel would further submit that when once defendant No.1 is evicted from the leased premises, all those who are inducted later would be bound by the order as they cannot claim independent right over the schedule property.
22. Learned counsel for respondents/defendants Sri. Shrinivas P. Dhondale would also submit that the plaintiffs has raised points which are neither available to holder of agreement nor the tenant. He would further submit that under the Doctrine of part 16 performance, defendants are entitled for protection. Further, the moment defendant No.1 assign a part to defendant No.2, even if there are remnants of part performance, they get withered and then defendant No.1 would have no option except to vacate the schedule property.
23. Learned counsel Sri. Srinivas P. Dhondale for defendants would submit that the suit filed by the plaintiffs is not maintainable and there is a threshold bar for entertaining the suit as primary and mandatory aspect of jural relationship of landlord and tenant do not exist between the parties nor was there any valid termination. Moreover, said question do not arise for consideration and defendants have acquired full title over the property.
24. Learned counsel would also submit that under the sale agreement dated 02.11.1992, entire 17 cash consideration of Rs.4,75,000/- was paid and what was remained is only a formality of execution of the registered sale deed. Defendant No.1 however was asked to continue in possession of the property in part performance of the contract. Moreover, defendant No.1 fulfilled all the criteria of part performance in order to secure his possession and as a shield against dispossession having received the sale consideration, plaintiffs have no right over the schedule property.
25. It is also submitted that defendant No.1 earlier had filed a suit for permanent injunction to restrain the plaintiffs from dispossessing him from the schedule property. However, said suit came to be withdrawn by defendant on 28.09.2010. Learned counsel for defendants would further submit that the agreement of sale conferred vested rights to defendant No.1 in respect of possession of the 18 schedule property and also provide solid defence against evils of illegal dispossession.
26. Learned counsel for defendants in his parting submissions would submit that the defendants do have every right, title and interest though sans registration of the sale deed by plaintiffs to defendant No.1 and that he is no way less than a full-fledged owner of the schedule property.
27. Here four suits assume significance. First one is O.S.No.6852/2000 that is stated to be a suit for partition, however, among family members of plaintiffs wherein the schedule property is stated to have been fallen to the share of the plaintiffs and defendants claims that the final decree was not full- fledged proceedings. Here it is pertinent to note that the defendant No.1 recognised the title of the plaintiffs when he once entered into sale agreement in 19 respect of the suit schedule property and not culmination of the said suit in final decree proceedings looses significance.
28. The next suit is O.S.No.257/2007 for permanent injunction filed by the defendants against their dispossession. The defendants in the case are Balaji and others. At this stage, it is necessary to clarify that the said suit was filed by Sri. K.P. Harish- defendant No.2 seeking protection against interference and possession of the suit schedule property by the plaintiffs. However, said suit came to be dismissed as withdrawn on 28.09.2010.
29. Apart from above cases, there are other three original suits. They are O.S.Nos.26585/2007, 26586/2007 and 26587/2007. Said suits were stated to have been filed by the plaintiffs against other tenants. The parties in the said three suits are stated 20 to have compromised the matter, wherein tenants are reported to have surrendered the possession of rest and the respective properties.
30. The present suit is stated to be last one pending in the line. The plaintiffs claim that the schedule property was originally their family property and there was partition of the family properties and the schedule property in its entirety fell to the share of the plaintiffs. Defendant No.1 claims that he is the purchaser of the schedule property for a sum of Rs.4,75,000/- under the sale agreement dated 02.11.1992 which is marked as Ex-D81 during the proceedings. The contention of the plaintiffs is that defendant No.1 was the tenant earlier and that by virtue of lending of ownership of the property into the hands of the plaintiffs, they wanted possession of the property. Hence, notice was given by terminating tenancy and defendant No.1 had to do only one work 21 that is of complying with the duty of the tenant, whose tenancy is terminated to vacate the schedule property and deliver the possession. Further inducting third party into the schedule property does not confer separate right to such inducted person.
31. Per-contra, the defendants claim that even if they are assumed to be tenants, their possession gets submerged with that of a purchaser in possession and not as tenant. In the light of non-existence of jural relationship, defendants are absolutely protected from the proceedings of eviction based on termination of tenancy. In this connection, reliance is placed by the defendants under Section 53A of the Transfer of Property Act.
32. The basic point is as under:
"Whether the protection under section 53A of the Transfer of Property Act is available to the defendants as against the plaintiffs in respect of the schedule property?"22
33. Doctrine of part performance provides protection to a person in possession under surrounding circumstances. The pre-requisites are:
(1) where the agreement is required to be in writing duly signed by the parties;
(2) The purchaser under the agreement was put in possession of the subject matter or if he is already in possession under different connection, acknowledging him to continue in possession under the Sale agreement and that the purchaser's acts in furtherance of the contract and he is ready and willing to perform his remaining duties under the agreement.
In such a case, a protection is available for possession which is also recorded as protection under Section 53A of Transfer of Property Act as a shield and not as a sword.
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34. In the circumstances, defendant No.1 had also claimed that his entry into the schedule property for the first time was as an intended purchaser, who was fortified with the sale agreement and contended that the sale agreement was in pursuance of the part performance of the contract.
35. This aspect is to be visualized where lease is governed by Section 106 of Transfer of Property Act and other special statutes, such as, the Karnataka Rent Control Act, 1961, the Karnataka Rent Act, 1990 and related, wherein the relief available to the landlord including the material one of eviction of the tenant proceeds on the premise of existence of relationship of landlord and tenant where it is absent, naturally, the owner of the property has to go for recovery of possession.
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36. In this angle, it is necessary to mention the denial of title cannot be vague or bald or ambiguous but it must be a substantial one, wherein the defendant relies on the documents showing rightlessness of the plaintiffs.
37. Thus, formal or evasive denial need not be considered seriously. As stated above, the features of the suit is that, it is filed on the basis of the termination of the tenancy, may be area of the schedule property being 400 sq.ft. and the plaintiffs claim that defendants were paying the rent of Rs.2,000/-. Regarding the title over the schedule property, on the basis of the sequence of events upto to the date of sale agreement, the title of plaintiffs over the schedule property is admitted.
38. The defendants denied the ownership of the plaintiffs but claim that sale agreement was 25 executed on 2.11.1992 as per Ex.P81-Ageement of sale. The substance of the said agreement marked as Ex.P81 is:
"It is between (1) Asmathunissa, 45 years, wife of late S. Jamal; (2) Mumtaz Begum, 29 years wife of V. Zailabdeen; (3) Gulnaz Begum, 27 years wife of K.R. Habveebulla; (4) Mr. J. Md.Rafiq, 25 years son of Jamal (5) Shainaz Begum, 22 years wife of Amman (minors represented by Smt. Asmathunissa; minors are:
(6)Dilshad Begum, 18 years; Sultana Begum, 16 years; (8) Mohammed Saleem, 13 years sons and daughters of late S. Jamal and (1) Balaji son of M. Krishnama Chetty, and (2) B.S.Suryanarayana son of B.S. Ramaiah,. The sale consideration under the said sale agreement isRs.4,75,000/- as on the date of the agreement and the advance amount paid was Rs.1.00 lakh on that day.
Para-8 of the said agreement reveals that the possession of the schedule property was delivered to the purchasers.
The description of the schedule property is, 26 All that part and parcel of the constructed property in corporation bearing No.138, Dharamaraja Koil street, Bangalore 560 001 only Ground Floor consisting of two shops with shutter doors, facing Lubbay Masjid Street, bvangalroe-1, measuring approximately 18.5 feet (eighteen feet five inches) East to West and North to South 2- feet (Twenty feet) and bounded on the East by: remaining portion of the property; West by: Lubbay Masjid Street, Bangalore.; North: by passage and stair case and South by: Private property.
The balance sale consideration amount was to be paid by the purchasers/defendant within two months from the date of the agreement and time was considered the essence of the contract."
39. Nodoubt, the time would be considered as essence of the contract depending upon the nature of the transaction and the circumstances. It is also stated that the balance amount shall be paid at the time of registration and the registration expenses shall be borne by the purchasers.
40. The total consideration is paid to the tune of Rs.4,80,000/- as contended by the defendants. 27 Thus, final instalment of Rs.30,000/- was being paid on 21.3.1994. It is in this connection, defendant No.1 claims that his possession is as a purchaser and he never entered the schedule property as a tenant. In this connection, the legal position would be, applicability of Section 53A of Transfer of Property Act. In case the possession of the subject matter is handed over in pursuance of the agreement and other aspects would be if the purchaser is already in possession in any other capacity, the possession would be acknowledged under agreement. The specific contention of the defendant No.1 is that, he was in possession till the date of sale agreement i.e. till 2.11.1992.
41. Learned Senior counsel Sri. S. Sreevatsa would submit that there are totally four properties that includes the schedule property and the suits were filed in respect of all the four properties. The other 28 suits against the respective tenants in occupation came to be ended in compromise and accordingly, the tenants have handed over the possession of the schedule property. Fourth one is in respect of the the suit schedule property. Defendant No.2 Harish K.P. is in occupation. As claimed by him he is the assignee under the agreement dated 12.8.2007. The said deed of Assignment cannot add further rights over and above the agreement of the purchaser. In this connection, learned counsel for defendants would submit that shop No.138 was given to one Kailash Jain (not a party to the suit) by way of Possessory mortgage. However, no document is produced in the Court. On an enquiry, learned counsel for defendants would submit that he has not brought the documents nor filed the same in the court. However, according to him, the terms of mortgage are: the mortgage money was Rs.7,10,000/- and it is a possessory mortgage 29 dated 17.2.2003. The defendants in this case are two in number. They are : (1) Balaraj and (2) K.P.Harish.
42. Learned counsel for defendants further submits that defendant No.2 was inducted into possession by virtue of deed of assignment Ex.D88 dated 10.8.2007. This is the area wherein the Assignment Deed and mortgage appear to be exceeding from sale consideration under the sale agreement of Rs.4,75,000/- as a shop was mortgaged to Kailash Jain stated to be orally for Rs.7,10,000/-. Learned counsel for defendants submits that Assignment deed or agreement is also not produced. The date of said agreement is stated to be during the year 2003. The court has no occasion to read the said documents so far.
43. Now to a query regarding the source of claiming the property, the answer by the learned 30 counsel for defendants is, he is the agreement holder and has possessory rights against every body including the plaintiffs and the same is justified by taking the support of Section 53A of the Transfer of Property Act. I have already stated the scope and effect of Section 53A of the Transfer of Property Act. In the circumstances, it is necessary to mention the sale agreement is dated 2.11.1992. It has been entered into on 2.11.1992 for consideration of Rs.4,75,000/- in respect of the portion of the schedule property over an area of 370 feet.
44. In para-5 of the plaint in O.S.No.25720/2007, it is averred that defendant No.1 and another purchaser have uninterrupted actual and physical possession of the said matter of the sale agreement were entitled to deal with the same in any manner they deemed and proper fit and in exercise of said right defendant No.1 herein received a sum of 31 Rs.2,00,000/- from defendant No.10 therein under the lease agreement dated 17.2.2003.
45. Thus, defendant Nos.1 and 2 in para 5 of their plaint have reason to believe that they were in uninterrupted possession of the schedule property and were entitled to deal with the same. However, the term adverse possession is not directly mentioned.
46. Thus, the possession of the property was delivered by the defendants in this case to defendant in the said case. To a query by the court regarding the status of the defendant, the answer is, defendant has become complete holder of the property with the possessory rights. To another query as to why suit for specific performance was not filed, the answer by the learned counsel for the defendants is to the effect that the agreement was entered into and sale consideration amount was paid in full and as such, 32 there was no necessary for going for the execution of the registered sale deed and the defendant No.1 would be the person who is having possession of the schedule property permanently ever. This explanation or opinion does not bear legal basis. It appears that the defendant No.1 has reason to believe that the ownership and possession of the schedule property is split in this case, wherein the defendant No.1 is having possession with all its rights and ownership with the plaintiffs.
47. As pointed out by me earlier, the denial of title is not a formal denial. On the other hand, defendant No.1 claims that he is in possession of the schedule property by way of sale agreement and there is no question of he being a tenant in the schedule property and thereafter entering into a sale agreement. The possession of the schedule property according to the learned counsel for defendants was 33 delivered to defendant No.1 on 17.2.2003. He entered into possession as a purchaser. Now the claim and contentions of the plaintiffs and defendants is that, the ownership is admitted by the defendants. As a matter of fact, as on the date of the sale agreement Ex.P1 dated 2.11.1992, plaintiffs were the owners of the scheduled property and hence, he entered into an agreement to purchase the same. Thus, another factor that comes into consideration herein, is the resistance of the defendants in the suit for ejectment of the plaintiffs and sale agreement dated 2.11.1992 marked as Ex.P1 for a cash consideration of Rs.4,75,000/- and the plaintiffs allowed the defendant No.1 to enter possession under the agreement with all protection under Section 53A of the Transfer of Property Act.
48. Defendant No.1 on his own has mortgaged the property to one Kailash Jain for Rs.7,10,000/- however, orally. Further, the rights under the 34 agreement was assigned to defendant No.2- K.P.Harish under the assignment deed.
50. Learned counsel for defendant Nos. 1 and 2/ respondent Nos. 1 and 2 has relied on the following decisions:
1. Bacchaj Nahar Vs.Nilima Mandal A.I.R. 2009 S.C. 1103 (Para 8, 9, 17)
2. Nalini Sundar Vs.G.V.Sundar A.I.R. 2003 KAR 86 (Para 9)
3. Mahadeva vs. Tana Bai A.I.R. 2004 S.C. 3854 (Para 8)
4. Radhabai Vs. Sangawwa 2009 (1) KCCR 845:Laws (KAR) 2008 (3) 69 (Para 28-33)
5. N.Basavaraj vs.Sridhar I.L.R. 2009 KAR. 1534 (Para 22, 24 to 28)
6. B.Paramashivaiah Vs.M.K.Shankar A.I.R. 2009 KAR 88 (Para 15,16,20)
7. Pratibha Singh Vs. Shanti Devi Prasad (2003) 2 S.C.C.330 (para 15)
8. T.L.Nagendra Babu Vs Manohar Rao Pawar I.L.R.2005 KAR.884.35
9. Anatula Prabhakar Vs.P.Bucchi Reddy 2008 A.I.R. S.C.W. 2692 (Para 17 a)
10. Karnataka High Court (Dharwad Bench) W.P.65614/2012 D/D:27.09.2012 Satyeppa Yadappa Teradal Vs.Dareppa Latte.
11. Supreme Court of India Civil Appeal 6197/200 D/D 17.12.2008 Alka Bose Vs.Pramatha Devi (Para 7, 8)
12.Supreme Court of India Civil appeal No.857/1998 Shyam Singh Vs.Daryaeo Singh.
13. Dattatreya Vs.Rangnath Gopal Rao A.I.R. 1971 S.C.2548 (Para 5)."
51. The above references relied upon by the defendants are of no avail to them.
52. In the circumstances, defendant No.1 also claims that his entry into schedule property for the first time was as an intended purchaser which was fortified with the sale agreement. Thus another factor that comes into consideration herein is the resistance 36 of the defendant in the suit for ejectment of the plaintiffs which is as under:
(i) Sale agreement dated 2.11.1992 marked as Ex.P1 for cash consideration of Rs.4.75 thousand;
(ii) Plaintiffs allowed the defendant No.1 to enter possession under the agreement with all protection under section 53-A of Transfer of Property Act. The defendant No.1 on his own mortgaged the property to one Kailash Jain or Rs.7.10.000/- however, orally. Further rights under the agreement was assigned to 2nd defendant - Harish K.P. under assignment deed.
(iii) The agreement according to defendant No.1 was conferred title on the defendant No.1.
53. Basically suit came to be filed for ejectment of defendant No.1 from the suit schedule property on the premise of lease basis under Section 106 of the Transfer of Property Act.
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54. The prime contention of the defendant No.1 is that, he is no more was a tenant in the suit schedule property and his possession was that of a purchaser under the sale agreement and his possession was no part performance of the contract dated 2.11.1992. The original defendant is one M. Balaji and it is his case that, defendant No.2- K.P. Harish is stated to be assignee as defendant No.1 claims that right under sale agreement which he holds over the schedule property as against the plaintiffs are assigned by him to defendant No.2. Regard being had to the fact that one person by name Kailash Jain is contended to be in possession of the schedule property under defendant No.1.
55. It is quite clear by this time that as per the contention of the defendants the protection which defendant No.1 claims is under Section 53A of the Transfer of Property Act which is extracted above. 38
56. Counter advanced to this by the plaintiffs is that it is a suit not for seeking protection of possession as being countered by the defendants taking shield under Section 53A of Transfer of Property Act. On the other hand, suit is one filed for recovery of possession based on termination of tenancy/lease.
57. In this connection, learned counsel for defendants contend on the basis of Para-12 of the decision of this Court in the case of Mahadeva Vs. Smt. Rangamma and another - reported in ILR 2013 Karnataka 128, wherein it is held that protection is available to the holder of an agreement for possession and protection is statutory and cannot be diluted by limitation. The relevant para-17 reads as under:
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"17. It is well settled that the right of the transferee to retain his possession envisaged under Section 53-A of the T.P.Act is statutory in nature and it has not been subjected to any limitation either express or implied. This provision does not forbid a transferee from taking a plea in his defence to protect his possession over the suit property obtained in part performance of a contract even though the period of limitation for bringing a suit for specific performance has expired. The law of limitation does not apply to defence raised under the said provision since the Section does not provide for any limitation on expiry thereof. Notwithstanding the fact that a transferee in possession pursuant to a contract of sale fails to file a suit for specific performance within the prescribed period of limitation, still in law, the contract remains valid and operative entitling him to exert his right to retain the possession over the property in exercise of his statutory right conferred by Section 53A of the Act by way of defence in a suit brought against him by his transferor, for recovery of possession (see NARASIMHASETTY VS. PADMASETTY - ILR 1998 KAR 3230 and SHRIMANT SHAMRAO SURYAVANSHI & ANOTHER VS. PRALHAD BHAIROBA SURYAVANSHI & ANOTHER VS. PRALHAD BHAIROBA SURYAVANSHI (DEAD) BY LRs & OTHERS)."
58. Learned counsel Sri. Srivatsa for appellant No.2 submits that defendant No.1 cannot claim the benefit or protection under Section 53A of Transfer 40 to property Act for the very reason that his right to claim protection under said Section gets absolved with the contention of assignment deed stated to have been entered into between defendant Nos. 1 and 2 wherein defendant No.1 has assigned the rights of agreement in favour of defendant No.2. The contention of learned counsel for appellant No.2 is that protection under Section 53A cannot change the office from purchaser to that of successor. The moment the assignment is effected protection under Section 53A of T.P. Act gets absolved.
59. Insofar as title of the plaintiffs is concerned, it is denied. However the claim and contentions are that the plaintiffs claims that they are the landlords and that defendant No.1 was a tenant, but defendant No.1 accepts, the title of the plaintiffs which as against his earlier contention that he was never a tenant but in possession of the schedule 41 property under Section 53A of Transfer of Property Act. Assignment deed is not produced before the court. Thus, insofar as title of the plaintiffs is concerned there is no dispute. However the question thereafter arises is regarding possession. The question remains to be adjudicated is, whether defendant No.1 is entitled for continuation of possession as contended by him?
60. Learned counsel for defendants would further submit that assignment deed is not produced before the court as it was subsequently cancelled through an agreement. The date of assignment agreement is not mentioned. It is stated that it was in the year 1993 and it is stated to have been cancelled on 10.8.2007 vide Ex.D88 which is subsequent to the suit and the suit is filed on 7.9.2007. 42
61. So far as sale agreement as contended by defendants is dated 2.11.1992. The sale consideration is Rs.4.75 thousand. Full consideration was paid in the form of advance considering Rs.5,000/- deposited that was already with the tenant. The due date for execution of the sale deed is 2.1.1993. It is an admitted fact that the suit for specific performance is not filed by defendant No.1. It is the further contention of the defendants that defendant No.1 was already in possession of the schedule property under the said sale agreement Ex.D81 and full consideration is already reached the sellar formality of registration did not cause the difference.
62. Another suit that makes sound is OS 25720/2007 that was filed for the relief of permanent injunction by the defendants. However that was dismissed as withdrawn. Learned counsel for defendants would submit that in the light of the 43 present suit being filed the defendant No.1 felt that the earlier suit would not necessary to be prosecuted.
63. Thus, the claims and contentions of the parties are as under:
(i) suit is filed for recovery of possession wherein defendant No.1 is treated as a tenant whose tenancy is terminated;
(ii) It is tooth and nail contended by the defendant No.1 that there is no question of termination of tenancy for the very reason tenancy was not existing;
(iii) Defendant No.1 was never a tenant under the schedule property and on the other hand, it is sale agreement Ex.D88 entered into by the plaintiffs in favour of defendant No.1, the sale of schedule property for a sum of Rs.4,75,000/-
and possession was handed over under the said agreement and the possession of the defendant No.1 is that of a purchaser in part performance of a contract;
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(iv) The further contention of the defendants is that, the rights under the sale
agreement Ex.D81 was assigned in favour of defendant No.2 K.P.Harish. However, assignment deed is not produced before the court and date of the agreement is not mentioned. However, it is stated that it is of the year 1993;
(v) Further contention of the defendants is that the said assignment deed was cancelled as per Ex.D88 as such now the present defendant No.2 is only a formality. So far as, the ownership or title of the plaintiffs is concerned, it is not disputed by the defendant No.1 in the light of the agreement as contended by the defendant No.1 which is dated 2.11.1992.
(vi) Sale agreement Ex.D81 did not see the light of the day in the form of registered sale deed. However defendant No.1 claims that suit was not filed in the light of the fact that total consideration was already reached the plaintiffs which is a sizable amount and possession was delivered and in the facts and circumstances, formality of the registration does not take away the right of the defendant No.1 to continue in possession of the property. The suit for 45 permanent injunction was filed by defendant No.1 in OS No.25720/2007 in respect of the possession of the property however that came to be dismissed as not pressed. The justification by the defendant No.1 is that in the light of the major suit for eviction being filed by the plaintiffs and pending for adjudication against the defendant No.1 continuation of suit for permanent injunction in the circumstances was not necessary.
64. The execution of the sale agreement appears to have not been seriously disputed by the plaintiffs, but they contend that it has no legs to stand. Further the defendants have slept over the schedule property for years.
65. The suit filed by defendant No.1 in O.S.No.25720/2007 came to be dismissed as withdrawn. It was suit for permanent injunction in respect of the schedule property. There is no obligation on his part to furnish reasons for 46 withdrawal. Insofar as the present suit is concerned, the transparency demands for defendant No.1 to explain the circumstances that drove him to withdrew because he is defending the suit claiming that he is in possession and plaintiffs have no right to evict him or recover possession and seeking protection to his possession on the basis of agreement.
66. In this connection, decision that is relied upon by learned counsel for defendents in the case of Mahadeva Vs. Smt. Rangamma and another - reported in ILR 2013 Karnataka 128, wherein, his Lordship has in detail dealt with the nature of possession under the sale agreement and the protection given to purchaser. The relief under Section 53A of Transfer of Property Act is considered as equitable one, the contract would be still valid and transferee can exercise his right to retain his possession and transferor to recover possession in a 47 separate suit. The said principles is recognized to prevent little power and illegal force regarding he recover of possession. As such, the moment the time limit under the sale agreement gets barred, the sellar cannot isolate the purchaser regarding possessory remedy. It is necessary to mention the Head Note A of the said case here which is as under:
"A) TRANSFER OF PROPERTY ACT, 1882 --
SECTION 53-A -- Right of the transferee to retain his possession -- The longer the possession in part-performance, the higher will be the equities -- Relief was available to the transferee even after the period of limitation for specific performance was over
-- The contract is still valid and the transferee can exercise his right to retain the possession -- Transferor to recover possession in a separate suit -- HELD. The right of the transferee to retain his possession envisaged under Section 53-A of the Transfer of Property Act is statutory in nature and it has not been subjected to any limitation either express or implied. This provision does not forbid a transferee from taking a plea in his defence to protect his possession over the suit property obtained in part-performance of a contract even though the period of limitation for bringing a suit for specific performance has expired. The law of limitation does not apply to defence raised under the said provision 48 since the Section does not provide for any limitation on expiry thereof.
Notwithstanding the fact that a transferee in possession pursuant to a contract of sale fails to file a suit for specific performance within the prescribed period of limitation, still in law, the contract remains valid and operative entitling him to exert his right to retain the possession over the property in exercise of his statutory right conferred by Section 53-A of the Act by way of defence in a suit brought against him by his transferor, for recovery of possession."
67. It is made clear that the possession in the suit could be recovered only through a separate suit. The scope of the present suit is one for recovery of possession and not for the injunction. The difference between two types of suit may be, that in case of suit for permanent injunction, plaintiff claim he is in possession which is lawful and seeks for preventive interference from the defendant. If any sale agreement is there which is barred by limitation, the plaintiff ignores it. But in case of recovery of possession plaintiffs prays to recover the possession 49 of the property from him. This is the hallmark difference between suit for permanent injunction wherein the plaintiff claims that he is in possession and in a suit for recovery of possession the plaintiff claims that he is the owner or the person entitled to possession it may be the possession with the defendant and seeks for recovery of the same irrespective of the nature of the possession. At this juncture what matters is to analyse about the suit for declaration of title.
68. Suit for declaration of title is one wherein plaintiffs makes declaration or a statement that the defendant is squatting over the properties without any right and has specifically denied the title of the plaintiffs with the help of documents from other circumstances which are not binding on the plaintiffs. Further, in such a case, defendant also denied the title of the plaintiffs by tooth and nail. Thus, the essential 50 ingredients of the suit for declaration of title is denial of the title of the plaintiffs over the schedule property from the defendant. But in the present suit and circumstances, there is no denial of title of the plaintiffs over the schedule property, rather the defendant No.1 positively admits the title of the plaintiffs. Otherwise the sale agreement of the schedule property Ex.D81 stated to have been entered into by the plaintiffs is positively asserted by the defendant No.1 which invariably presupposes that defendant No.1 in unequivocal terms has recognized the plaintiffs as the owner of the suit schedule property.
69. By virtue of the fact that agreement of sale Ex.D81 became unenforceable and he ceases to enforce the right of specific performance. Further regarding the said sale agreement is concerned, defendant No.1 backs upon the doctrine of part 51 performance as contemplated under Section 53A of T.P. Act which is extracted above.
70. It is countered by learned counsel for plaintiffs that the protection under part performance is no more available to the defendant No.1 when there is transfer of interest (assignment in the present case) is created. The point which the learned counsel for plaintiffs wanted to drive is that, defendant No.1 claims the part performance contending that he was put in possession of the schedule property under the agreement dated 2.11.1992. The sale consideration of the said sale agreement for the schedule property is Rs.4,80,000/- and the amount paid by the defendant No.1 is Rs.4,75,000/- and Rs.5,000/- has to be adjusted in respect of the deposit made by the tenant. As stated above, the date of execution of the sale agreement Ex.D81 is dated 2.11.1992 entered into between the plaintiffs and defendant No.1 for the sale 52 consideration of Rs.4,80,000/-. The time limit under the sale agreement for performance is two months. Thus when the due date is the last day of second month, it would come to January 1993 from thereafter three years down to time i.e. by January 1996. The prescribed period of 3 years would be over. Agreement becomes time barred as there is no claim of specific performance. In other words, rights under the sale agreement are not enforced for getting the execution of the registered sale deed of the schedule property by the defendant No.1.
71. Learned counsel for defendants would submit that the agreement Ex.D81 did not become time barred during 1996 because the plaintiffs went on receiving part of the sale consideration at regular intervals and the last receipt of Rs.30,000/- is on 21.3.1994. Even if it is considered as 21.3.1994, for the renewal keeping aside the law applicable for 53 renewal, the due date would surge ahead to 21.3.1997. Meanwhile, the learned counsel for defendants also would submit that the schedule property was subjected to mortgage and it was not redeemed by the plaintiffs till 1994. (Ex.D54 dated 8-10-1993. Regarding redemption of mortgage the persons who may redeem the mortgage are stated under Section 3 of Transfer of Property Act and as such, if subjected to mortgage it would be stated that it is an encumbered property and title is subject to encumbrance. The fact of the matter is, the specific performance is not enforced till today. Further it has become unenforceable.
72. Learned counsel for defendants would submit that the assignment deed came to be cancelled during 2003. It is necessary to point out here that, the assignment deed is not filed before the court. The data given in this connection is, it was entered into 54 between defendant Nos. 1 and 2, wherein rights are assigned by defendant No.1. However, learned counsel would submit that the assignment deed was cancelled as per Ex.D88 dated 10.8.2007 wherein the assignment deed is stated to have been entered on 12.9.2003. In this connection, the contention of the defendants is on 10th day of August 2007 assignment deed came to be cancelled and the possession of the schedule property got reverted to defendant No.1 from defendant No.2. Thus, the period or duration of cacelled status of assignment deed is for nearly about 3 years 11 months.
73. Now comes the legal effect of cancellation of assignment deed. Firstly, assignment deed is not placed before the court to know the legality or relevance of the said document to the scope of this case. But fact remains that assignment is asserted by defendants. In this connection, it is necessary to go 55 back to the principles laid down by the judgment referred above at Head Note No.B which is as under:
"B) TRANSFER OF PROPERTY ACT, 1882 --
SECTION 53-A -- Right of a transferee to protect his possession against the proposed vendor -- Whether such a right can be pressed in to service by a third party who is not party to the transaction -- Agreement of sale in between plaintiff and the first defendant -- Execution of the sale deed by the first defendant infavour of the second defendant and the second defendant was put in possession -- Whether the second defendant can take shelter under Section 53-A of the Act to protect her possession -- HELD, The second defendant not being a transferee within the meaning of Section 53-A of the Act could not invoke the equitable doctrine of part performance to protect her possession against the plaintiff.-- FURTHER HELD, Section 53-A of the Transfer of Property Act provides for a shield of protection to the proposed transferee to remain in possession against the original owner who has agreed to sell to the transferee, if the proposed transferee satisfies other conditions of Section 53-A. That protection is available as a shield, only against the transferor, the proposed vendor, and would disentitle him from disturbing the possession of the proposed transferees who are put in possession pursuant to such an agreement. 56 The doctrine of part performance is an equitable doctrine. The right to protect possession under this provision cannot be pressed into service by a third party like the second defendant against the proposed vendor as there was no agreement between her and the plaintiff in relation to the suit schedule property. Since the first defendant has already transferred the land to the second defendant, whatever may be the nature of possession of the second defendant, she cannot protect the possession under this provision. -- Defendants are required to deliver possession of the suit schedule property to the plaintiff -- CODE OF CIVIL PROCEDURE 1908 -- SECTION 100 -- REGULAR SECOND APPEAL."
74. In the aforesaid decisions wherein his Lordship has found that the doctrine of part performance is an equitable doctrine of the right to protect possession and the said provision of law cannot be pressed into service by a third party like defendant No.2 in that case against the proposed vendor in that case.
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75. In this connection, when once the assignment deed is entered into, the relevant or the benefit of part performance is lost by the defendant No.1. He cannot kept in under suspended animation and catch it again under Ex.D88. The moment the assignment is entered into, efficacy of right of defendant No.1 is lost and vested rights go to the plaintiffs when again by the act of the parties, they cannot keep operation of provision of law at bay or under suspension.
76. It is necessary to mention here, just because defendant No.1 and 2 decide to cancel the assignment deed at their sweet will, it cannot apply brakes to the operation of law wherein the right of part performance get absolved. If the parties are allowed to veto the provisions of law or legal effects, no object of law would frustrate. In other words, there cannot be a process of missing the bus and going by 58 next bus after long time claiming the privileges of travel by the first bus which was got missed. Further, the relief sought by the defendant No.1 is dismissal of the suit and not a specific performance for the obvious fact that right of seeking for specific performance already got forfeited and barred by limitation.
77. Insofar as defendant No.1 is concerned, he has neither sought for enforcing of specific performance or refund of advance amount paid to the plaintiffs. In this connection, learned counsel for defendants would submit that he has paid the full amount. The transfer of title is conveyed as per the provisions of Transfer of Property Act under Section 7 and under Section 17 of the Registration Act, wherein the property worth Rs.100 or more than that requires to be effected by a registered instrument and here for any stretch of imagination one cannot expect the title 59 to be transferred on the basis of agreement only on the count of payment of full consideration.
78. Here it is necessary to extract Section 17 of the Registration Act, which reads as under:
"17. Documents of which registration is compulsory.--(l) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:--
(a) instruments of gift of immovable property;
(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;
(c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and
(d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent;
24 [(e) non-testamentary instruments transferring or assigning any decree or order of 60 a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property:] Provided that the 25 [State Government] may, by order published in the 26 [Official Gazette], exempt from the operation of this sub-section any lease executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees.
27 [(1A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A.] (2) Nothing in clauses (b) and (c) of sub-section
(l) applies to--
(i) any composition deed; or
(ii) any instrument relating to shares in a joint stock Company, notwithstanding that the assets of such Company consist in whole or in part of immovable property; or
(iii) any debenture issued by any such Company and not creating, declaring, assigning, limiting or extinguishing any right, title or interest, to or in immovable property except in so far as it entitles the holder to the security afforded by a registered instrument whereby the Company has 61 mortgaged, conveyed or otherwise transferred the whole or part of its immovable property or any interest therein to trustees upon trust for the benefit of the holders of such debentures; or
(iv) any endorsement upon or transfer of any debenture issued by any such Company; or
(v) 28 [any document other than the documents specified in sub-section (1A)] not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest."
79. Thus, it is clear that amount of payment of consideration alone would not conclude transfer. Defendant No.1 banks upon Section 53A of the Transfer of Property Act which is lost by him as stated above. Now that there could not be a further discussion regarding the advance amount in this case for the very reason that there is no issue on it nor the suit is for recovery of advance amount. Further defendants have reaped the fruits of possession of schedule property.
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80. Learned counsel for defendants would submit that full amount less Rs.5,000/- is paid to the plaintiffs. The defendant No.1 has assumed ownership right over the property. I find this is totally not acceptable as it has no recognition in law. The parties cannot have their own process of transfer of ownership of the property to ignore the mandatory effect of the statute stated above and to circumvent them one cannot forget the principles of that provision. The act of the parties cannot have a vetoing effect of unmaking the made law or making the unmade law. Insofar as recovery suit is concerned, it is the legal principles that follows and format of the suit or prayer is not the criterion to reduce the circumstances. In this connection, admittedly, plaintiffs are the owner of the property and defendant No.1 was designated as a tenant by the plaintiffs who filed the suit for eviction incidentally 63 that came to be dismissed, against which plaintiffs is in appeal and the operative portion is as under:
"xxxx In the circumstances the parties are directed to bear their costs.
The original judgment is kept in O.S.26585/2007 and copies of the judgment be kept in other suits.
Draw the decree separately in all the suits."
81. The deliberation need not be too much on technical aspects of format. The suit is for recovery of possession and the plaintiffs are the owners and the defendants have no rights continue in possession over the schedule property. It is necessary to clarify the intention of cancellation of assignment deed is to steal the legal right from the plaintiffs by an arrangement between defendant Nos.1 and 2 which is neither acceptable nor has legs to stand.
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82. The result of the suit is prayer of plaintiffs to recover possession from the defendant No.1 was not accepted and the plaintiffs are in appeal before this court.
83. Now the question is, should it be a suit for declaration of title. As I have discussed earlier, the suit for declaration of title eminates on the substantial denial of the defendants over the title of the plaintiffs in the schedule property. Here, the position is squarely opposite. Defendants do not deny the title of the plaintiffs which is apparent and obvious from the fact that defendant No.1 entered into an agreement to purchase the property from the plaintiffs which pre supposes that the defendant No.1 exclusively identifies the unfettered title of the plaintiffs over the schedule property. Regard being had to the fact that the said sale agreement has become unenforceable in the circumstances of the case, plaintiffs admits 65 possession of the defendant No.1 and seeks possession back.
84. Plaintiffs aver that defendant No.1 was a tenant and tenancyship was terminated and he is entitled for possession. In the circumstances, getting confused over different kinds of suit, nature of suits, or format it should have been filed, rights of the parties are to be adjudicated in the suit which is in hand considering the date of institution of the suit which is on 7.9.2007 now we are in 3/4th end of 2020. The question is peculiar, defendant No.1 is in possession according to him he is or was not a tenant but the plaintiffs are the owners whose simple principle would be defendants cannot question the right of the plaintiffs to recover the possession of the schedule property. I find the learned trial judge seriously erred in understanding the scope of law. In this connection, the claims and contentions, pleadings, 66 evidence are in accordance with their stance which reflects more questions of law than on facts. It is not on the basis of admissions or estoppel parties claim benefit. It is purely on question of law, whether the plaintiffs are the owners of the suit schedule property. Invariably that would be the moot question wherein the answer is 'yes' as admitted. Whether the defendant No.1 has the right of specific performance to resist the suit, it is apparently 'no'. In the circumstances of the case, the defendant No.1 is bound to deliver the possession of the schedule property to the plaintiffs.
85. In the circumstances, judgment and decree passed by the trial Judge is liable to be set aside. Accordingly, I pass the following:
ORDER The appeal is allowed with costs throughout.67
The judgment and decree dated 27.6.2011 passed in O.S.No.26594/2007 by the trial judge is hereby set aside. The suit of the plaintiffs is decreed.
Defendant No.1 is directed to vacate and handover the possession of the suit schedule property to the plaintiffs within a period of three months from the date of receipt of a copy of this judgment.
Sd/-
JUDGE tsn*