Bangalore District Court
Jayaram E vs Kalyani S on 18 February, 2025
KABC010160472002
IN THE COURT OF THE X ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU (CCH-26).
Dated this the 18th day of February, 2025.
Present
Sri Vijaya Kumar Rai, B.Com., LL.B.,
X Addl. City Civil & Sessions Judge,
Bengaluru.
O.S.No.5037/2002
Plaintiff: Sri E. Jayaram
(Dead by his LR)
Smt.Hemavathi
w/o Late Jayaram
aged about 35 years
r/at No.737, 2nd Main Road
Mathikere, Bengaluru-65.
(By Sri H.V. Rajaram, Adv.)
Vs.
Defendant: Smt.S. Kalyani
w/o Sheshadri
Aged about 50 years
r/at No.269, 11th Cross
M.S.R.Nagar, Bengaluru-54.
(By Sri Abhinav, R., Adv.)
Date of institution of the suit 01.08.2002
Nature of the suit For recovery of possession
Date of the commencement 27.03.2007
of recording of evidence
2 O.S.No.5037/2002
Date on which the judgment 18.02.2025
Pronounced
Total duration Years Months Days
22 06 17
(Vijaya Kumar Rai)
X Addl. City Civil & Sessions Judge,
Bengaluru.
JUDGMENT
This suit is filed by the plaintiff to direct the defendant to vacate and handover the vacant possession of the suit schedule property on the ground that the suit schedule property is the property fallen to the share of the plaintiff and he is the owner of the suit schedule property. Initially, the suit was filed by Sri Jayaram, who died during the pendency of the suit. Thereafter his wife Smt.Hemavathi prosecuted the suit.
2. The case of the plaintiff in brief is as hereunder:-
Originally, the lands in Sy.No.24/1B belonged to the joint family of the plaintiff. In the partition, the mother of the plaintiff Smt.Muniyamma got 9 ½ guntas of land in the year 1980 and she became the absolute owner of it. Muniyamma died during the year 1986. During the lifetime of Muniyamma she was enjoying it and after her death in a family settlement dated 08.02.2001, the suit schedule property consisting of sites No.12 and 13 formed in Sy.No.24/1B fallen to the share of the deceased plaintiff. Earlier 3 O.S.No.5037/2002 the defendant had instituted OS No.4725/1986 before the Court of CCH 18 for recovery of a sum of ₹12,500/-, which came to be dismissed for non-prosecution on 14.06.1986. Subsequently, the defendant has filed another suit in OS No.206/1997 for the specific performance of a sale agreement said to be executed by Muniymma on 16.11.1983 by suppressing the dismissal of earlier suit filed O.S.No.4725/1986. In O.S.No.206/1997, the plaintiff filed an application under Order VII Rule 11 CPC for rejection of plaint which came to be allowed and the plaint was rejected on 29.01.1998. As against the same, the defendant has preferred appeal before the Hon'ble High Court Court in RFA No.276/1998, which also came to be dismissed on 02.08.2001. Later the defendant has assured to handover the possession of the property to the plaintiff, but did not keep up her promise and therefore, without any alternative, the plaintiff has instituted this suit.
3. The defendant entered appearance and filed the written statement. In the written statement, the defendant has strongly objected the claim of the plaintiff for possession of the suit schedule property. It is specifically pleaded by the defendant that Smt.Muniyamma, who is the mother of the deceased plaintiff and mother-in-law of the present plaintiff agreed to sell the suit schedule property for a total consideration amount of ₹6,000/- 4 O.S.No.5037/2002 and delivered the possession to the of the suit schedule property to the defendant by receiving the entire sale consideration of ₹6,000/-. Further, Smt.Muniyamma had executed an agreement of sale dated 16.11.1983 in favour of the defendant in respect of two sites No.12 and 13, which is suit schedule property. It is also pleaded that on 04.11.1980 an application was submitted to Urban Land Ceiling Authority for permission of the same, but Government of Karnataka banned the registration of revenue sites and therefore the sale deed could not be executed. It is further pleaded that Smt.Muniyamma had agreed that she would execute the sale deed as soon as the Government opens the registration of revenue sites. The defendant was always ready and willing to perform her part of the contract to get the sale deed executed in her favour. It is also stated that unfortunately Muniyamma passed away during the year 1986 and later the deceased plaintiff E.Jayaram had received a sum of ₹10,000/- on 20.01.1987 as extra amount from the defendant. It is also pleaded that in the sale agreement dated 16.11.1983, Muniyamma had acknowledged the receipt of entire sale consideration amount and clearly mentioned that the defendant can deal with the suit schedule property in any manner she deems fit. It is further contended that in the sale agreement, it was specifically mentioned that Smt.Muniyamma nor her legal 5 O.S.No.5037/2002 heirs have any manner of right, title and interest over the suit schedule property and the defendant was permitted to put up construction and reside in the suit schedule property. It is further contended that the deceased plaintiff and his brother Seetharam were the witnesses to the agreement of sale dated 16.11.1983 and the plaintiff is debarred and estopped from claiming possession of the suit schedule property from the defendant. It is also contended that pursuant to the sale agreement, the defendant has put up construction as early as in the year 1986 in the suit schedule property by utilizing all her savings and therefore, she became the absolute owner and in possession of the building constructed over the suit schedule property. It is specifically pleaded that the plaintiff is debarred from recovering possession of the suit schedule property by virtue of the protection given to the defendant under Section 53A of Transfer of Property Act, 1882 and the defendant has performed all her obligations of the sale agreement.
4. The defendant has denied the contention of the plaintiff that the plaintiff and his brother Seetharam have entered into a family settlement on 08.02.2001 and thereby the suit schedule property is allotted to the share of the plaintiff. On these contentions, the defendant has sought for dismissal of the suit. 6 O.S.No.5037/2002
5. During the pendency of the proceedings, the defendant has brought amendment to the written statement and thereafter the plaintiff has filed rejoinder to the amended written statement. In the rejoinder, the plaintiff, while reiterating the contentions raised in the plaint, has pleaded that neither the sons of late Muniyamma nor her daughters are signatories to the sale agreement dated 16.11.1983. It is also contended that when the defendant has instituted the suit, the plaintiff herein contested the suit and the defendant has even admitted that the suit schedule property belongs to the plaintiff. It is also contended that when the suit filed by the defendant came to be dismissed and as the defendant has not challenged the judgment passed in RFA No.276/1998, the plaintiff is not entitled to protect her possession over the suit schedule property.
6. On the basis of the above pleadings, this court has framed the following issues and additional issues:-
ISSUES
1) Whether the plaintiff proves that he is entitled for possession of the schedule property from the defendant?
2) What order or decree ?
ADDITIONAL ISSUES
1) Whether the plaintiff proves the lawful title over the suit schedule property?7 O.S.No.5037/2002
2) Whether the plaintiff proves that the possession of the defendants over the schedule property is illegal?
3) If so, whether the plaintiff is entitled to seek the relief of possession of the suit property from the defendant?
4) Whether the defendant proves her lawful possession over the suit schedule property under part performance of contract u/s 53A of TP Act?
7. Earlier in the judgment dated 14.11.2007, this court decreed the suit in favour of the plaintiff. As against it, the defendant preferred RFA before the Hon'ble High Court in RFA No.194/2008, which came to be allowed on 14.07.2023 and the case is remanded to this court by setting aside the judgment with a direction to frame additional issue in respect of the suit schedule property. Accordingly, additional issues are framed casting burden on the plaintiff to prove title over the suit schedule property. After the amendment, the Court has framed one more additional issue No.5 on 06.08.2024:-
5) Whether the defendant proves that in view of the permission granted by Muniyamma to put up construction in the suit schedule property and as the defendant has acted upon on the basis of the sale agreement and put up construction in the suit schedule property, the 8 O.S.No.5037/2002 possession of the defendant is protected and the plaintiff is debarred from recovering the possession of the suit schedule property from the defendant?
8. In support of the case of the plaintiff, the present plaintiff Smt.Hemavathi is examined as PW1 and produced Ex.P1 to 35 documents. On behalf of the defendant, she herself examined as DW1 and one witness by name Vijay Kumar is examined as DW2 and Ex.D.1 to D.34 are marked.
9. Heard the arguments.
10. Findings of this Court on the above issues are as under:
Issue No.1 : In the negative Addl. Issue No.1: In the negative Addl. Issue No.2: In the negative Addl. Issue No.3: In the negative Addl. Issue No.4: In the affirmative Addl. Issue No.5: In the affirmative Issue No.2: As per final order, for the following:
REASONS
11. Additional Issue No.1:- This is the suit filed by the plaintiff for possession of the suit schedule property, claiming that the deceased plaintiff is the owner of the suit schedule property 9 O.S.No.5037/2002 having been acquired the same through a family settlement dated 08.02.2001 and after the death of the husband of the present plaintiff, she became owner of suit schedule property. The suit schedule property is described as sites No.12 & 13, totally measuring 40x60 feet in an extent of 2.2 guntas in Sy.No.21/1B situated at Chikkamarenahalli, Kasaba Hobli, Bengaluru north taluk.
12. It is not in dispute that one Muniyamma, who is the mother of the deceased plaintiff E. Jayaram acquired the same through a registered partition deed dated 24.09.1980 produced at Ex.P6. It is contended by the plaintiff that after her death, the deceased plaintiff E. Jayaram and his brother Seetharam entered into a family settlement deed dated 08.02.2001 and the suit schedule property was fallen to the share of the deceased plaintiff Jayaram in the said family settlement and therefore deceased plaintiff became the owner of the suit schedule property. Earlier this suit was decreed in the judgment and decree dated 14.11.2007 which is challenged before the Hon'ble High Court by filing RFA No.194/2008(RES) which came to be allowed by the Hon'ble High Court on 14.07.2023 and remanded the case to this court with a direction to frame additional issue in respect of the title to the suit schedule property and dispose the case in accordance with law. In the judgement, the Hon'ble High Court 10 O.S.No.5037/2002 has observed that the court should have given a finding with regard to the title of the property. Therefore, this additional issue No.1 with regard to the title is framed.
13. As stated above, it is the specific case of the plaintiff that in the family settlement deed dated 08.02.2001, suit schedule property was fallen to the share of the deceased plaintiff E.Jayaram. But, inspite of framing specific issue with regard to the title and even after leading evidence, the plaintiff has not produced the family settlement deed dated 08.02.2001. On the other hand, it is brought on record that the mother of the deceased plaintiff Muniyamma had died in the year 1986, leaving behind her five daughters and two sons. As per the case of the plaintiff, the family settlement dated 08.02.2001 was entered between the deceased plaintiff E.Jayaram and his brother Seetharam. It is admitted that the other five daughters of Muniyamma were not parties to the family settlement. Admittedly, Muniyamma was the absolute owner of the suit schedule property by virtue of the partition deed dated 24.09.1980 and she died intestate. Therefore, on her death, the suit schedule property shall be devolved in accordance with Section 15 of Hindu Succession Act among all her children including five daughters.
14. It is true that normally a suit for ejectment can be instituted by a co-owner if other co-owners have no objection for 11 O.S.No.5037/2002 the institution of the suit. But, in the present case, the circumstances are different for several reasons. Firstly, there is no evidence on record to show that the other children of Muniyamma are aware of the institution of this suit. Secondly, the plaintiff has produced a certified copy of the plaint in O.S.No.5966/2005 at Ex.P26 which reveals that the five daughters of Muniyamma have instituted a suit against their brother E. Seetharam and the present plaintiff Smt.Hemavathi after the death of her husband- E.Jayaram. Though the certified copy of the order sheet produced at Ex.P 27 shows that subsequently, the daughters of Muniyamma have filed a memo to withdraw the suit as settled out of court, the terms of settlement are not placed before the court. Apart from that, even if it is held that the parties have settled the said suit filed in O.S.No.5966/2005, it was filed in respect of some other property and not in respect of this property. Therefore, there is nothing on record to show that the other children of Muniyamma have concurrence for the institution of this suit in which the plaintiff claims that she is the absolute and sole owner of the suit schedule property. If this suit is filed contending that the plaintiff is the co-owner of the suit schedule property, the circumstances would have been different. But, in the suit the plaintiff has asserted right on the basis of a family settlement said to be 12 O.S.No.5037/2002 executed on 08.02.2001 and not produced it. Though PW1 during the course of cross-examination stated that it was misplaced, there is nothing on record to show that such a document was executed at any point of time. If that document was really executed, it would have reflected in some of the revenue records. Therefore, having regard to the facts and circumstances of the case, neither the plaintiff is able to show that there was a family settlement dated dated 08.02.2001 nor probablise that the other co-owners of the suit schedule property have consented for the institution of the suit. There is nothing on record to show that the children of Muniyamma were informed about this suit at any point of time and hence in the absence of the concurrence of other heirs of Muniyamma, the court cannot declare that the plaintiff is the owner of the suit schedule property. Consequently, issue No.1 is answered in the negative.
15. Addl. Issue No.4 and Addl. Issue No.5:- The case of the plaintiff is that the defendant has instituted O.S.No.4725/1986 on the file of CCH-18 for recovery of a sum of ₹12,500/- as per Ex.P.1 contending that Muniyamma had executed a sale agreement dated 04.11.1983 agreeing to sell the suit schedule property and received the entire agreed sale consideration of ₹6,000/- and thereafter, inspite of receiving the amount did not execute the sale deed and therefore filed a suit for recovery of 13 O.S.No.5037/2002 ₹12,500/- which came to be dismissed for non-prosecution and later filed another suit in OS No.206/1997 for specific performance of the sale agreement dated 16.11.1983, wherein the court has rejected the plaint and it is confirmed by the Hon'ble High Court in RFA No.276/1998 on 02.08.2001 and therefore the possession of the defendant over the suit schedule property is illegal and she is liable to quit and deliver the vacant possession of the suit schedule property to the plaintiff. On the other hand, the contention of the defendant is that late Muniyamma being the owner of the suit schedule property executed a sale agreement dated 16.11.1983 agreeing to sell the suit schedule property to the defendant by receiving the entire sale consideration amount of Rs.6,000/- and the sale deed could not be executed as there was a prohibition for registration of the sale deed in respect of revenue sites. The defendant has taken further contention that the sale agreement dated 16.11.1983 is attested by the deceased plaintiff and his brother Jayaram as consenting witnesses and in the sale agreement, Muniyamma had authorized the defendant to enjoy the same as its absolute owner and deal with the suit schedule property in any manner, she deems fit. It is further contended by the defendant that in the sale agreement Muniyamma had permitted her to put up construction and reside in the suit schedule property and therefore she has put up 14 O.S.No.5037/2002 constructions in the suit schedule property, invested amount and therefore by virtue of Section 53A of T.P. Act, 1882, the plaintiff is debarred from seeking recovery of possession from her.
16. It is the contention of the plaintiff that even if there is a sale agreement when the suit filed by the defendant for recovery of the amount as well as for the specific performance of the suit came to be dismissed, the defendant cannot seek protection under Section 53A of T.P. Act. On the other hand, the defendant has taken up a contention that when the defendant has paid the entire sale consideration amount and fulfilled all her obligations and ready and willing to perform her part of contract, merely because the sale deed was not registered, the plaintiffs are not entitled to recover the possession as the protection under Section 53A of T.P. Act is available to the defendant. Both the learned counsels have relied upon various decisions to put forward their respective contentions. In so far as the legal position is concerned way back in the year 1969 itself, the Hon'ble Supreme Court in the case of Nathulal v/s Phoolchand (1969)3 SCC 120 has laid down the conditions necessary for making out the defence of part performance to an action in ejectment by owner. The Hon'ble Supreme Court has summarised the conditions and held that the buyer is required to show that the contract entered 15 O.S.No.5037/2002 for transfer of the immovable property for consideration in writing and the possession was delivered pursuant to the agreement or being already in possession, continued in possession in part performance of the contract and the transferee has done some act in furtherance of the contract and he was willing to perform his part of contract.
17. Both the learned counsels have relied upon the decision of Hon'ble Supreme Court rendered in the case of Shrimant Shyamrao Suryavanshi and another v/s Prahlad Bhairoba Suryavanshi (Dead) by LRs and others (2002)3 SCC
676. In this judgement, the Hon'ble Supreme Court has clearly laid down the conditions which are required to be fulfilled if a transferee wants to defend or protect his possession under section 53A of Transfer of Property Act in the following terms:-
"16. But, there are certain conditions which are required to be fulfilled if a transferee wants to defend or protect his possession under Section 53-A of the Act. The necessary conditions are:
(1) there must be a contract to transfer for consideration of any immovable property; (2) the contract must be in writing, signed by the transferor, or by someone on his behalf;
(3) the writing must be in such words from which the terms necessary to construe the transfer can be ascertained;16 O.S.No.5037/2002
(4) the transferee must in part-performance of the contract take possession of the property, or of any part thereof; (5) the transferee must have done some act in furtherance of the contract; and (6) the transferee must have performed or be willing to perform his part of the contract.
17. We are, therefore, of the opinion that if the conditions enumerated above are complied with, the law of limitation does not come in the way of a defendant taking plea under Section 53-A of the Act to protect his possession of the suit property even though a suit for specific performance of a contract is barred by limitation".
18. The observations made in the aforesaid judgment is reaffirmed by the Hon'ble Supreme Court in the recent judgment of the Hon'ble Supreme Court rendered in the case of Giriyappa and another v/s Kamalamma and others (2024 SCC OnLine SC 3849) In the light of the above guidelines issued by the Hon'ble Supreme Court, the court is required to consider the case of defence raised by the defendant seeking protection under section 53-A of Transfer of Property Act and fulfilment of the above six conditions laid down by the Hon'ble Supreme Court.
(1) Execution of the sale agreement in writing:- The defendant has produced the sale agreement dated 16.11.1983 as per Ex.D12. Ex.D.12 sale agreement is in writing and the recitals 17 O.S.No.5037/2002 of the agreement shows that Muniyamma being the owner of the suit schedule property had agreed to sell the suit schedule property and received the entire agreed sale consideration of Rs.6,000/- on 04.11.1980 and delivered the possession of the suit schedule property to the defendant. The recital further show that as there was a bar for registration of the sale deed, the same could not be executed and she had undertaken to execute the sale deed immediately when the bar is lifted for the registration of the sale deeds. Further, in the sale agreement, she had authorised the defendant to put up construction in the suit schedule property and enjoy it as its absolute owner. She has further made it clear that neither to her or her any legal heirs have no right over the suit schedule property.
(1)(a). In so far as the proof of this sale agreement is concerned, though the defendant had earlier filed a suit for specific performance of the sale agreement, in the entire plaint, the plaintiff has not seriously disputed the execution of the sale agreement as per Ex.D12 by late Muniyamma. On the other hand, in the cross-examination dated 17.07.2007, the present plaintiff Smt.Hemavathi, who is examined as PW1, has admitted the signature of her husband Jayaram, which is marked as Ex.D1 in Ex.D12. She has also admitted the signature of her husband E. Jayaram in a receipt produced at Ex.D.13 wherein her husband 18 O.S.No.5037/2002 said to have received ₹10,000/- in respect of these two sites. In the subsequent cross-examination, she has pleaded her ignorance about the execution of Ex.D.12 sale agreement. The defendant herself examined as DW1 and one witness by name Vijaya Kumar is examined as DW2, who is stated to be an attesting witness to Ex.D12. They have reiterated the execution of Ex.D12 sale agreement in favour of the defendant. Added to this, the plaintiff has admitted the possession of the defendant over the suit schedule property which supports the recitals made in the agreement and execution of the sale agreement. Therefore, the execution of Ex.D12 sale agreement dated 16.11.1983 by the owner Muniyamma in respect of the suit schedule property in favour of the defendant is established. In this way, the first condition is complied.
(2) The contract must be in writing signed by the transfer or by someone on his behalf:- In order to seek protection under Section 53A of T.P. Act, the contract of sale must be in writing and it shall be signed by the transferer or by someone on his behalf. In the present case, Ex.D12 sale agreement is signed by Smt.Muniyamma, who was admittedly the owner of the suit schedule property. The plaintiff has not disputed the signature of Muniyamma in Ex.D12 sale agreement. Added to this, as observed earlier, PW1 herself has admitted the signature 19 O.S.No.5037/2002 of her husband E Jayaram in Ex.D12, which is marked as Ex.D.1.
Therefore, the second requirement of the existence of contract in writing signed by the transferer is also established by the defendant.
(3) Terms of the contract:- The third requirement is that the terms of the contract must clearly indicate the intention of the transferer to transfer the suit schedule property in favour of the buyer. The recitals of Ex.D12 sale agreement reflects in clear terms that Muniyamma wanted to sell the suit schedule property for her necessities and received the agreed consideration amount of ₹6,000/-. Further, the recital shows that though the amount was received on 04.11.1980 itself, she had waited for permission for the registration of the sale deed and as the permission could not be received as there was a ban for the execution of the sale deed. Ex.D12 agreement clearly reveals that after the date of execution of the agreement the defendant was entitled to enjoy the suit schedule property as its owner by putting up construction in the suit schedule property. Therefore, the third requirement is also fulfilled.
(4) Delivery of possession in part performance:- One of the requirement to invoke Section 53-A of Transfer of Property Act is the possession must have been delivered and the buyer should take the possession pursuant to the agreement. Section 20 O.S.No.5037/2002 53-A makes it clear that the requirement is either taking possession pursuant to the agreement or continuation of the possession in part performance of the contract who is already in possession. The terms of the sale agreement shows that the possession was delivered on 04.11.1980 by receiving the entire sale consideration amount and since the permission could not be obtained for the registration of the sale deed, subsequently executed this sale agreement on 16.11.1983. Therefore, this is a case wherein the defendant was put in possession of the property on 04.11.1980 and later continued in possession of the property pursuant to the sale agreement dated 16.11.1983. There is no dispute that the defendant is in possession of the suit schedule property even now. In the entire plaint, the plaintiff has not pleaded as to when the defendant took the possession of the suit schedule property. As observed above, inspite of knowing the specific defence of the defendant with regard to this sale agreement, the plaintiff has not chosen to plead how the defendant came into possession of the suit schedule property. Therefore, the evidence on record clearly supports the stand of the defendant that she was put in possession of the suit schedule property on 04.11.1980 and continued in possession of the suit schedule property pursuant to the agreement dated 16.11.1983. In this way, the fourth requirement is also fulfilled. 21 O.S.No.5037/2002
(5) Acts done in furtherance of the contract:- The defendant can defend her possession only if she is able to show that she has acted upon the sale agreement and done some act in furtherance of the sale agreement. In this regard, in the written statement, the defendant has specifically pleaded that after taking the possession of the suit schedule property, she had to put up construction in the suit schedule property as early as in the year 1986 by utilising her savings. The plaintiff has filed the suit describing the suit schedule property as vacant sites. But, defendant has produced the tax paid receipts and letters at Ex.D.18 to 21 for having commenced a small scale industry in the suit schedule property. Apart from that, though PW1 in the course of cross examination has made an attempt to contend that it is still an agricultural land and vacant, in the cross-examination dated 17.07.2007, she has categorically admitted Ex.D4 to 11 photographs confronted to her, which clearly reflects the existence of houses/sheds in the suit schedule property. Further, she has admitted that the defendant inducted some tenants in it. The photographs clearly reflect the same. In this regard, the admission given by PW1 in her cross-examination dated 17.07.2017 is extracted for ready reference:-
"It is true that in the buildings of the photographs with the negatives confronted to me as 22 O.S.No.5037/2002 per Ex.D4, Ex.D5, Ex.D6, Ex.D7, Ex.D8, Ex.D9, Ex.D10 and Ex.D11 are occupants are inducted by Kalyani defendant".
(5)(a). The evidence on record clearly shows that defendant Smt.Kalyani had inducted tenants to the building constructed in the suit schedule property. The documents produced by the defendant and the admission of PW1 shows that pursuant to the part performance of the agreement, the defendant has put up construction in the suit schedule property. This is pleaded by the defendant and proved. Therefore, it is established that pursuant of the delivery of the possession, the defendant has invested the amount in the suit schedule property and put up construction in it. Hence this requirement is also established.
(6) Readiness and willingness:- In order to claim protection under Section 53-A of T.P. Act, the defendant is required to establish that she has done all the obligations imposed on her part and she has been ready and willing to perform her part of the contract. In this regard, it is the specific case of the defendant that the sale consideration amount for the suit schedule property property was ₹6,000/- and entire amount was paid at the time of delivery of possession itself. This is specifically recited in this Ex.D12 sale agreement. The plaintiff has also not seriously disputed that Muniyamma had received the 23 O.S.No.5037/2002 entire sale consideration amount. PW1 has merely pleaded her ignorance. Admittedly, PW1 has married the deceased plaintiff- E.Jayaram in the year 2001 and the sale agreement is of the year 1983. Therefore, she cannot have the personal knowledge over it. On the other hand, it is important to note that during the lifetime of Muniyamma, she has neither questioned the possession of the defendant nor sought for recovery of possession. Further, though the defendant was put in possession of the suit schedule property in the year 1983 itself, neither the plaintiff nor her deceased plaintiff her husband or any of the legal heirs of Muniyamma have chosen to seek possession from the defendant until the present suit is filed in the year 2002. The defendant has specifically pleaded in the written statement that she was always ready and willing to perform her part of the contract. Though she had filed two suits earlier in both the suits, her defence was consistent and initially she had filed a suit for recovery on the ground that the legal heirs of the Muniyamma have not come forward to execute the sale deed. Therefore, nothing was left to be performed by the defendant. The institution of two suits by the defendant itself indicates that she was ready to get the sale deed registered in her favour by spending amount for the registration of the sale deed. Therefore, the defendant has even able to establish that she was ready and willing to perform her part of the contract. 24 O.S.No.5037/2002 When Muniyamma had received the entire sale consideration amount and again the husband of the plaintiff had received further amount of Rs.10,000/- in respect of the suit site as per Ex.D13, the readiness and willingness of the defendant is very clear and therefore this requirement is also proved by the defendant.
19. It is true that by virtue of the amendment brought to Section 53-A of Transfer of Property Act with effect from 24.09.2001 and corresponding amendment brought to Section 17-A of Registration Act, any sale agreement entered between the parties after 24.09.2001 is required to be registered to seek protection under Section 53-A of Transfer of Property Act. But this is the agreement of the year 1983. Therefore, registration of the agreement was not compulsory at the time of the execution of the sale agreement in the present case. This is approved by the Hon'ble Supreme Court in the decision rendered in the case of Maneklal Mansukhbhai v/s Hormusji Jamshedji Ginwalla and Sons (1950 SCC 83) relied upon by the learned counsel appearing for the defendant.
20. The main contention urged by the learned counsel appearing for the plaintiff is that when the suit filed by the defendant for the specific performance of the sale agreement came to be dismissed, the defendant cannot seek protection 25 O.S.No.5037/2002 under Section 53-A of Transfer of Property Act. In this regard, learned counsel appearing for the plaintiff strongly placed reliance on the decision of the Hon'ble Supreme Court in the case of Mohan Lal (deceased) through LRs Kachru and others v/s Mira Abdul Gaffar and another (AIR 1996 Supreme Court 910) wherein the Hon'ble Supreme Court has observed that when the transferee has failed to prove readiness and willingness and when the suit filed by him for specific performance came to be dismissed, he is not entitled to protect possession. This judgement relied upon by the learned counsel appearing for the plaintiff is not applicable to the present set of facts for two reasons. Firstly, in the said case, the Hon'ble Supreme Court has held that there was neither pleading nor proof for the readiness and willingness on the part of the transferee to get the sale deed registered in his favour. But, in the present case, as observed earlier, the readiness and willingness is established by the defendant. Secondly, in the said decision, the Hon'ble Supreme Court has observed that the agreed sale consideration amount was ₹1,000/- and the transferee had paid only ₹5,000/-. In the present case, it is proved that the defendant has paid the entire agreed sale consideration amount of ₹6,000/-. Therefore, the observation made by the Hon'ble Supreme Court in the above decision is not applicable to the present set of facts. 26 O.S.No.5037/2002
21. The other contention is in respect of the dismissal of earlier suit for recovery of money as well as the extinguishment of right of the defendant to claim for specific performance. In this regard, it is well settled law that the doctrine of part performance envisaged under Section 53-A of Transfer of Property Act is an equitable doctrine objected to prevent a transferer or his successor in interest from taking any advantage on account of non-registration of the document provided the transferee has performed his part of the contract and in pursuance thereof has taken possession of some immovable property and done some acts pursuant to the part performance. Whether the agreement is specifically enforceable is not a point to be considered while the transferee has taken up the defence under Section 53-A of TP Act. Therefore, even if the sale agreement is found unenforceable for any reason, except for want of readiness and willingness on the part of the buyer, still the protection under Section 53-A of T.P. Act is available to the buyer. In this regard, in the decision of the Hon'ble Jaipur Bench of the Hon'ble Rajasthan High Court rendered in the case of Durga Prasad v/s Kanhiyalal, Rajasthan Law Weekly 1979-212 relied upon by the learned counsel appearing for the plaintiff, the Hon'ble High Court has observed as hereunder:-
27 O.S.No.5037/2002
" I see no force in the contentions raised by the learned counsel for the appellants. In granting relief under Sec. 53(A) of the Transfer of Property Act, the question whether a contract is specifically enforceable or not, has no bearing at all. The provisions of Secs. 10 and 12 of the Specific Relief Act are quite distinct from Sec. 53(A) of the Transfer of Property Act. It has been laid-down in Rai Saheb Sharat Chandra Das Purkeyasthan vs. Md. Ramjan Choudhary(1) and Jahangir Begum vs. Gulam Ali - Ahmed (2), that Sec. 53(A) applies even when the specific performance of a contract is barred or the contract is other-wise un-enforceable. The doctrine of part performance embodied in Sec. 53(A) of the Transfer of Property Act is an equitable doctrine. The object of this section is to prevent a transferor or his successor in interest from taking any advantage on account of the non-registration of the document, provided, the transferee has performed his part of the contract and in pursuance thereof, has taken possession of some immoveable property. This right is available to the transferee as defence in order to protect his possession. Thus, a defendant in an action of ejectment may, in certain circumstances, effectively plead possession under an unregistered contract of sale in defence to the action. Thus, there is no force in the arguments of the learned counsel for the appellant that when no suit for specific performance could be filed by the defendants, they 28 O.S.No.5037/2002 were not entitled to any defence under Sec. 53(A) of the Transfer of Property Act".
22. The law do not make any distinction in a case wherein the transferee has failed to sue for specific performance and in a case wherein he has filed the suit for specific performance and the suit came to be dismissed on the ground of limitation. In this regard, in the decision of Hon'ble Maharashtra High Court rendered in the case of Balasaheb Manik Rao Deshmukh and another v/s Rama Lingoji Warthi AIR 2000 BOMBAY 337:2001(1) Mh.L.J 79, relied upon by both the parties, the Hon'ble High Court in paras No.14 & 15 observed as hereunder:-
"14. To sum up, there was agreement between the appellants and the respondent to sell and purchase the property. It was in pursuance of this agreement that the present appellants were put in possession of the property. There is finding that the present appellants were ready and willing to perform their part of the contract and that there remained nothing to be done by the plaintiffs. Under these circumstances, the protection under section 53-A could not be refused only because their suit was time barred.
15. Shri Kasliwal has one more contention to be advanced. He tried to distinguish a case where the suit of the transferee in possession has time barred but no proceedings have been filed by him 29 O.S.No.5037/2002 and where transferee in possession has filed a suit and it has been dismissed on the ground of limitation. I am afraid, there cannot be any distinction drawn between the two cases. The protection under the doctrine of part performance would be available in both the cases. Section 53-A does not confer any right upon a person in possession. What it purports to do is to prevent a plaintiff from recovering possession of the property already transferred to the defendant. It imposes upon the plaintiff a disability, the disability being of enforcing against the transferee in possession any right which a plaintiff may have in respect of the property. Even if the suit for specific performance by the defendant is barred by lapse of time, defendant is nevertheless entitled to resist the plaintiff's suit for ejectment and to defend his own possession. Further it has been made clear that what section 53-A seeks to do is to protect the possession of the defendant even where the defendant's right to obtain specific performance of the agreement has been barred by time. No such distinction can be made between a case where the purchaser has filed suit for specific performance and has failed on the point of limitation and a case where purchaser has not filed any case but, the suit has become time barred".
In view of the reasons stated above, the dismissal of earlier suits are of no consequence when the defendant has able to 30 O.S.No.5037/2002 show that she was put in possession of the suit schedule property in part performance of the contract made in writing and she has constructed building in it, acted upon it and always ready and willing to perform her part of the contract.
23. Learned counsel appearing for the plaintiff has relied upon the decision of the Hon'ble Andhra Pradesh High Court rendered in the case of Syed Burhan (deceased by LRs) v/s Mohammad Jahangir (AIR 2007 AP 225). In this judgement, the Hon'ble High Court has merely held that Section 53A of the Act will come into rescue of the person who are willing to perform and not to the person who were not willing to perform their part of the contract. But, in the present case, the readiness and willingness of the defendant is already established and therefore this judgment is not helpful to the case of the plaintiff.
24. Learned counsel appearing for the plaintiff has also relied upon the decision of Hon'ble Supreme Court rendered in the case of Ram Kumar Agarwal and another v/s Thawardas (Dead) through LRs [1999(7) SCC 303]. In this decision, the Hon'ble Supreme Court has merely held that proof of readiness and willingness on the part of the transferee is necessary. He has also relied upon decision of Hon'ble Kerala High Court rendered in the case of A.M.A. Sultan (deceased by LRs) and others v/s Seydu Zohra Beevi (AIR 1990 Kerala 186). It was a case wherein 31 O.S.No.5037/2002 there was no pleading that the possession was obtained pursuant to the sale agreement. He has also relied upon the decision of Hon'ble Madhya Pradesh High Court rendered in the case of Rajesingh Bhagirath v/s Leelabai Vikram Singh (AIR 2023 (NOC) 658 wherein the Hon'ble High Court has merely held that no claim for specific performance was initiated. It appears that in the said case the purchaser has not proved readiness and willingness. He has relied upon the decision of Hon'ble Madras High Court rendered in the case of S. Maruthai and another v/s Gokuldoss and four others [1999(3) CTC 724], wherein the Hon'ble High Court has held that there was overwhelming materials and established that the buyer was not ready and willing to perform of part of contract. He has also relied upon the decision of Hon'ble Himachal Pradesh High Court rendered in the case of Pawan Kumar v/s Sunita Rani (AIR 2023 (NOC) 815 (HP), it is a case wherein the agreement of the year 2008 and therefore the Hon'ble High Court has held that the agreement was not registered and further held that there was no readiness and willingness on the part of the transferee. Therefore, this decision is also not helpful to the case of the plaintiff. The other decision relied upon by the plaintiff is in the case of Sundaram Ammal v/s Gowriammal and another of Hon'ble Madras High Court in the case of 2002 0 Supreme(Mad) 713 wherein it was established 32 O.S.No.5037/2002 that the transferee came into possession as a tenant and not as an agreement holder. Therefore, the said decision is also not applicable.
25. In the present case, the suit schedule properties are described as sites No.12 & 13. There is no clear evidence as to whether the construction is put up in the entire area or part of it. In this regard, learned counsel appearing for the defendant has rightly placed reliance on the decision of Hon'ble Allahabad High Court rendered in the case of Bhajan Lal & another v/s Bai Govind & others (2007 SCC OnLine Allahabad 468). It is a case wherein the sale agreement was executed in respect of property measuring four biswas and construction was put up only in the area measuring two biswas. Still the Hon'ble High Court has held that the transferee is entitled for protection for the entire property.
26. Learned counsel appearing for the defendant has also relied upon the decision of the Hon'ble Supreme Court rendered in the case of Bishan Das & others v/s State of Punjab & others [(1962) 2 SCR 69:AIR 1961 SC 1570] and also the decision of our Hon'ble High Court rendered in the case of M/s Laxmi Enterprises v/s The Commissioner, BBMP (ILR 2012 Karnataka 5474) wherein Hon'ble Supreme Court and Hon'ble High Court has held that a person who has put up bonafide constructions on the land belonging to the others with their permission, not as a 33 O.S.No.5037/2002 trespasser, the principle of dual ownership will come into play. Therefore, as rightly contended by the learned counsel appearing for the defendant, in the present case, Muniyamma had authorized the defendant to put up construction in the suit schedule property and therefore, the defendant has been enjoying it by constructing building in it. She has put up construction by investing the amount and therefore, the plaintiff cannot claim ownership right over the constructions put up by the defendant in the suit schedule property. Hence, this is a case where there is dual ownership over the property.
27. Learned counsel appearing for the defendant has also relied upon the decision of Hon'ble Supreme Court in the case of H.R. Basavaraj (dead) by his LRs v/s Canara Bank & others (2010)12 SCC 458 to defend the claim of the plaintiff on the principle of estoppel. In the said decision, the Hon'ble Supreme Court has held that the principle of estoppel embodied under Section 115 of Evidence Act is applicable when one person induces another or intentionally causes the other person to believe something to be true and to act upon such belief as to change his or her position and in such a case, the former shall be estopped from going back on the word given. The Hon'ble Supreme Court has further held that the principle of estoppel, though a branch of law of evidence is also capable of being 34 O.S.No.5037/2002 viewed as a substantive rule of law in so far as it helps to create or defeat rights which would not exist or be taken away but for the doctrine. In the present case, transferer has permitted the defendant to put up the construction and enjoy it and therefore the plaintiff claiming to be the successor of the transferer is estopped from seeking possession of the property after making the transferee to act upon it and to invest the amount. This decision also helps to the defendant in addition to Section 53A of Transfer of Property Act.
28. Learned counsel appearing for the plaintiff has pointed out that the conduct of the defendant is not blemishless for the reason that she had instituted O.S.No.206/1997 by suppressing the earlier suit filed by her for recovery of Rs.12,500/- in O.S.No.4725/1986. Even if it is considered that the conduct of the defendant in not disclosing the earlier suit filed by her in O.S.No.4725/1986 while filing subsequent suit in O.S.No.206/1997 is blameworthy, the right conferred under Section 53-A of Transfer of Property Act is a statutory right conferred to a transferee of an immovable property. When the transferee defends her possession by taking shelter u/s 53-A of T.P. Act, her conduct is insignificant if she is able to prove that she is legally entitled for protection of her possession u/s 53-A of 35 O.S.No.5037/2002 T.P.Act. Therefore, on this ground the Court cannot hold that the plaintiff is entitled to recover the possession from the defendant.
29. In view of the reasons stated above, this is a case wherein the possession of the defendant is statutorily protected under Section 53-A of Transfer of Property Act. Hence, the plaintiff cannot recover possession from the defendant. Consequently, additional issue No.4 & 5 are answered in the affirmative in favour of the defendant.
30. Additional Issue No.2:- In view of the answer given to issue Nos.4 & 5 as above, the possession of the defendant over the suit schedule property is in part performance of the contract and therefore the possession is not illegal. Her possession is protected under Section 53-A of Transfer of Property Act. Accordingly, addl. Issue No.2 is answered in the negative.
31. Issue No.1, 2 and Addl. Issue No.3 :- In view of the answer given to the issues as above, the plaintiff is not entitled to seek possession of the suit schedule property from the defendant. Consequently, the suit is liable to be dismissed. But, it appears that the plaintiff being a widow has prosecuted the suit under a misconception that she is entitled to seek possession as the suit filed by the defendant came to be dismissed. Therefore, while dismissing the suit, it is not proper to award cost. 36 O.S.No.5037/2002 Consequently, Issues No.1 & 2 and Addl. Issue No.3 are answered in the negative and the following order is passed:-
ORDER Suit is dismissed.
Draw decree accordingly.
(Judgment prepared through Speech to Text App with the assistance of Senior Sheristedar, carried out corrections, print out taken and then pronounced in the Open Court on this the 18th day of February, 2025) (Vijaya Kumar Rai) X Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of witnesses examined for the plaintiff:
PW.1 : Hemavathi List of documents exhibited for plaintiff: Ex.P1 : C/c of the plaint in OS 4725/1986 Ex.P2 : C/c of the order sheet Ex.P3 : C/c of the plaint in OS 206/1997 Ex.P4 : C/c of the order sheet in OS 206/1997 Ex.P5 : C/c of the decree in OS 206/1997 Ex.P6 : C/c of the partition deed Ex.P7 : C/c of the order in RFA 276/1998 Ex.P8 : RTC Ex.P9 C/c of gift deed dtd.02.08.2002 Ex.P10 C/c of gift deed dtd.25.07.2002 Ex.P11 to P15 Tax paid receipts Ex.P16 Tax details Ex.P17 EC 37 O.S.No.5037/2002 Ex.P18 Certificate issued by BBMP Ex.P19 Khatha Ex.P20 Endorsement given by BBMP Ex.P21 Death certificate of Jayaram Ex.P22 Invitation card Ex.P23 Ration card Ex.P24 Death certificate Ex.P25 Lagna Patrika Ex.P26 C/c of the plaint in OS 5966/2005 Ex.P27 Order sheet in OS 5966/2005 from 03.08.2015 Ex.P28 Memo of withdrawal filed in OS 5966/2005 Ex.P29 Plaint in OS 6890/2002 Ex.P30 Additional written statement in OS 6890/2002 Ex.P31 C/c of the sale agreement Ex.P32 C/c of application filed U/o 23 Rule 3 CPC in OS 6890/2002 Ex.P33 C/c of the decree passed in OS 6890/2002 Ex.P34 C/c of the sale deed dtd.23.06.2006 Ex.P35 C/c of the sale deed dtd.17.12.2014 List of witnesses examined for the defendant:
D.W1 : Kalyani D.W2 : S. Vijay Kumar List of documents exhibited for defendant:
Ex.D1 : Signature of husband of PW1 in Ex.D.12 Ex.D2 : Signature of husband of PW1 in Ex.D.13 Ex.D3 : C/c of sale deed Ex.D4 to 11: Building photographs with negative Ex.D12 : Agreement 38 O.S.No.5037/2002 Ex.D13 : Receipt Ex.D14 : Special notice Ex.D15 : Assessment extract Ex.D16 : Tax paid receipt Ex.D17 : Khatha certificate Ex.D18 to 21: Letters Ex.D22 to 33: Tax paid receipts Digitally signed Ex.D34 : Signature of DW2 VIJAYA by VIJAYA KUMAR RAI B KUMAR Date:
2025.02.19
RAI B 10:52:56
X Addl. City Civil & Sessions Judge,
+0530
Bangalore.