Punjab-Haryana High Court
Dalip Singh And Others vs Bachan Singh (Dead) Through Lrs. on 15 September, 2000
Author: K.C. Gupta
Bench: K.C. Gupta
JUDGMENT K.C. Gupta, J.
1. This Regular Second Appeal is directed by the defendants against the judgment and decree dated 31.10.1980 passed by the Additional District Judge, Amritsar, whereby their appeal was dismissed.
2. Briefly stated the facts are that Bachan Singh respondent-plaintiff (now deceased represented through his legal representatives) was an Ex-army personnel. He being an Ex-army personnel was allotted land measuring 52 kanals 9 marlas situated in village Anaitpur Tehsil Ajnata, District Amritsar, as detailed in the heading of the plaint. It was next averred by him that the appellants (defendants) took illegal possession in spite of repeated requests and as such, the appellants were trespassers. With these allegations suit for possession was filed on 16.1.1978.
3. The appellants contested the suit and filed written statement on 28.3.1978. They denied the allegations of the respondents and stated that Bachan Singh was not allotted the land in question and even if it is proved that he was allotted the land as alleged, then the period of allotment has excited and as such, he has no right, title or interest in the suit property. They further stated that they have been in possession of the suit land for the last 20 years. It was further stated that about two years ago Bachan Singh approached them and told that he was the permanent allottee of the suit land and executed two agreements on 7. 1. 1974 and 24.6.1974 in their favour to sell the land and after execution of the agreements, they were in possession of the suit property in performance of their part of the contract. They also stated that they have paid Rs. 47,0000/- to Bachan Singh who had agreed to transfer the suit property in their favour. Accordingly, they prayed that the suit be dismissed.
4. On these pleadings, following issues were framed :
1. Whether the suit land was allotted to the plaintiff as an ex-army personnel ? OPP
2. Whether the defendants are in possession of the suit land by virtue of agreements dated 7.1.1974 and 24.6.1974 ? If so, to what effect ? OPD.
3. Whether the plaintiff is entitled to the possession of the suit land? OPD.
4. Relief.
The parties adduced their evidence. The learned Subordinate Judge, Ajnata, after hearing counsel for the parties vide judgment dated 29.3.1979 decreed the suit of Bachan Singh for possession of the suit land by holding under issue No. 1 that the suit land was allotted to Bachan Singh as Ex-army personnel and under issue No. 2, that the appellants were not in possession of the suit land by virtue of the agreements dated 7.1.1974 and 24.6.1974 and further the said agreements were void agreements under Section 20 of the Indian Contract Act and Section 53A of the Transfer of Property Act, was not applicable. It was further held under issue No. 3 that Bachan Singh was entitled to the possession of the suit land.
5. Aggrieved by the said judgment and decree, the defendants filed an appeal which was heard by the Additional District Judge, Amritsar. However, he dismissed the appeal vide his judgment dated 31.10.1980. Being still dissatisfied, the defendants have filed the present Regular Second Appeal.
6. The appellants have produced on file the agreements Ex. D1 dated 7.1.1974 and Ex, D 2 dated 24.6.1974. These are duly proved by PW3 Krishan Partap Deed-writer and PW4 Vir Bhan, Deed-writer and PW5 Bawa Chanan Singh who is the attesting witness of both these agreements. There is no dispute about it that Bachan Singh had executed these agreements. However, there is no evidence that the appellants had taken possession of the suit land in pursuance of these agreements. There is no recital in the agreement that the appellants had taken possession in pursuance of these agreement or they were already in possession of the suit property for the last 20 years and they were allowed to remain in possession in pursuance of these agreements. It is simply mentioned in Ex. D1 that Bachan Singh was the Fauji allottee of the suit land. It was not mentioned in it that he had been vested with ownership of the suit property by any Sanad allotment or by any other conveyance deed. On the other hand, it is mentioned in Ex. D2 that Bachan Singh had not got permanent rights in the suit land. Parchi allotment Ex. P1 shows that it was an allotment of agricultural land on lease for a period of 10 years to Bachan Singh son of Santa resident of village Anaitpur. Copy of the Roznamcha Ex. P2 for the year 1963-64 shows that the possession was delivered somewhere in the month of July 1964 to Bachan Singh. Ex. P4 the copy of the Khasra Girdawari shows that Bachan Singh has been shown in the cultivating possession of the suit land upto 1977 but later on the since, the year 1975, the name of one Joginder Singh son of Santa Gair-Marusi Bawaza Bae has been mentioned in Khasra Nos. 15/6 and 15/7, There is no documentary evidence on the file as to how these entries had come into existence. There is no Roznamcha report to the effect that the Patwari had found Joginder Singh in possession of the aforesaid Khasra numbers at the spot and as such had made entry in the Roznamacha which was attested by Numberdar, Panch or Sarpanch of the village and as such, this has to be ignored. This shows that the appellant did not come into possession of the suit land in pursuance of the agreements Exs. D1 and D2. According to copy of the Jamabandi for the year 1973-74 the Provincial Government has been shown to be the owner of the suit land and it has been allotted to Bachan Singh Fauji. Further in some Khasra Numbers Balkar son Dalip Singh Gair Marusi, in some other Khasra Numbers Joginder Singh son of Santa Singh Gair-Marusi Bawaza Bae etc. have been shown in possession of the suit land on account of Bae. These entries are certainly wrong because there is no evidence that aforesaid persons had purchased the suit land.
7. Section 53A of the Transfer of Property Act, reads as under:
"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 to perform his part of the contract, then notwithstanding that the contract, though required to be registered, has not been registered, or 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."
8. Learned counsel for the appellants contended that the aforesaid provisions of Section 53A of the Transfer of Property Act protected their possession because they were in possession of the suit land in pursuance of the agreements to sell Exs. D1 and D2. In my opinion, the contention of the learned counsel is not tenable. The aforesaid provision contains an equitable doctrine. It pre-supposes the existence of a valid contract to transfer immovable property. There is no evidence that Bachan Singh had any right much less the right of ownership in the suit land. But on the other hand, the allotment parchi Ex. P1 shows that he was given the said land being Fauji on lease for 10 years and as such no ownership rights vested in him in the suit land. Thus, he had no valid title in himself which he could convey to the appellants. Hence the contract in favour of the appellants was not enforceable. Otherwise also, it appears that both the parties were under the wrong impression. Bachan Singh was thinking that he had been allotted the land as owner and its title vested in him whereas the appellants also thought that Bachan Singh had a valid title of ownership in the suit land which he could transfer to them. Thus, there was a mistake and as a matter of fact no legal contract came into existence under Section 20 of the Contract Act.
9. Learned counsel for the legal representatives of Bachan Singh (deceased) contended that it was required on the part of the appellants to aver that they have done some act in furtherance of the contract and they were willing to perform their part of the contract. A persual of the written statement shows that no such plea had been taken. On the other hand they even denied the allotment of suit land to Bachan Singh and stated that Bachan Singh had no right, title or interest in the suit property and they had been in possession of the suit land for the last 20 years. It has been observed by Hon'ble the Supreme Court in Nathulal v. Phoolchand, AIR 1970 S.C. 546 as under: "The condition necessary for making out the defence of part performance to an action in ejectment by the owner are:
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.
If these conditions are fulfilled then notwithstanding that the contract, though required to be registered, has not been registered or, 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 is debarred from enforcing against the transferee 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. Section 70(8) of the M.B. Land Revenue and Tenancy Act creates no bar to defence of part performance."
Since in the present case it has not been proved that there was a valid contract between the parties and further that the appellants (transferees) had performed or were willing to perform their part of the contract, so they cannot take shelter under Section 53A of the Transfer of Property Act.
No other point has been urged before me.
The offshoot of the above discussion is that this Regular Second Appeal fails and the same is dismissed with costs.
10. Appeal dismissed.