Orissa High Court
Nilamani Behera And Ors. vs Pyarilal Saha on 1 February, 2002
Equivalent citations: 2002(I)OLR303
Bench: Chief Justice, A.S. Naidu
JUDGMENT P.K. Balasubramanyan, C.J.
1. Legal heirs of the plaintiff are the appellants. The plaintiff filed Title Suit No. 16 of 1972 in the Court of Subordinate Judge, Baripada for declaration of her title over the plaint schedule property and recovery of possession on rescission of a contract for sale entered into by her in favour of defendant. The suit was resisted by defendant. He inter alia pleaded that he was entitled to the protection of Section 53-A of the Transfer of Property Act. The trial Court dismissed the suit on the ground that the plaintiff had not established that the defendant committed the breach of contract and that the suit was not maintainable. On appeal by the plaintiff, the learned Single Judge dismissed the appeal taking the view that time was not of the essence of the contract, and that the plaintiff had not established that the defendant was not ready and willing to perform his part of the contract. It is thus being aggrieved by the dismissal of the suit that the legal representatives of the plaintiff have filed this appeal under Clause 10 of the Letters Patent, as they had got themselves impleaded in the First Appeal on the death of the plaintiff.
2. The plaint schedule property including a partially constructed building, belonged to the plaintiff. There was pressure on the property since it was proceeded against for recovery of a debt and sold in auction. The plaintiff had sought the setting aside of the sale. On 13.9.1965, the plaintiff and the defendant entered into an agreement for sale of that property for a consideration of Rs. 13,500/-. On 15.9.1965 according to the defendant, he purchased the requisite stamp paper for execution of the sale deed. On 13.9.1965, a sum of Rs. 8,000/- was paid as advance by the defendant to the plaintiff. The defendant was put in possession on the basis of agreement for sale. The sale held in enforcement of the liability on the property was set aside on 8.11.1965 by the Certificate Court. The plaintiff called upon the defendant to pay the balance and perform the contract. The defendant pointed out that the setting aside of the sale had not become final and the matter was pending in appeal. The appeal filed by the purchaser in the auction was allowed and the original authority's order setting aside the sale was reversed and the sale was confirmed by the appellate authority. The plaintiff filed a revision before the Board of Revenue challenging the decision of the appellate authority. On 12.10.1966, the revision filed by the plaintiff was allowed by the Board of Revenue, which set aside the sale. Thus, on the terms of the agreement for sale, the plaintiff became liable to execute the sale deed and the defendant became entitled to have the sale deed executed immediately.
3. According to the plaintiff, though she made various demands of the defendant to tender the balance purchase price and to take the sale deed, the defendant did not fulfil his part of the contract. The plaintiff ultimately issued a notice dated 30.8.1971. The defendant sent reply contending that in addition to the sum of Rs. 8,000/- paid by him as advance on 13.9.1965, he had paid a further sum of Rs. 500/- to the plaintiff and he was ready and willing to take the sale deed on tendering the sum of Rs. 5,000/- which remained to be paid towards the purchase price. In this situation, the plaintiff came forward with the present suit for the reliefs referred to above.
4. The defendant contended that the plaintiff was not ready and willing to perform her part of the contract. It was contended that in addition to the sum of Rs. 8,000/-, he had paid a sum of Rs. 500/-, and he was willing to tender the balance purchase price of Rs. 5000/-. He also pleaded that in case it was found that the sum of Rs. 500/- had not been paid by him to the plaintiff, he was willing to pay the sum of Rs. 500/- also, and to take the sale deed. Significantly, no counter claim for specific performance was made by the defendant.
5. On the pleadings in the case, the facts admitted and in the light of the plea by the defendant that he was entitled to the protection of Section 53-A of the Transfer of Property Act, the only issue that really arose was whether the defendant was entitled to that protection. Obviously, the burden to establish that he was entitled to the protection of Section 53-A of the Transfer of Property Act, was on the defendant. As held by the Supreme Court in Nathulal v. Phoolchand : AIR 1970 SC 546, the defendant had to establish that the transferor had contracted to transfer for consideration an item of immovable property by writing signed by her from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty; that the transferee had, in part performance of the contract, taken possession of the property; that the transferee had done some act in furtherance of the contract; and that the transferee had performed or is willing to perform his part of the contract. We find that the trial Court completely misdirected itself in the line of enquiry it made. It asked itself the wrong question. It did not consider whether the defendant had established that he was and he had always been ready and willing to perform his part of the contract as it was, though it found that the defendant had not paid the additional sum of Rs. 500/- as claimed by him. The learned Single Judge in appeal, in our view, fell into the same error and did not consider the question whether the defendant had established that he was and had always been ready and willing to perform his part of contract from the inception of the contract at least till the date of the suit, if not till the date of the decree. The learned Single Judge also went into an enquiry whether the plaintiff had proved that the defendant had refused to perform his part of the contract.
6. Thus, the question that arose for decision in the case was whether the defendant had established the elements that would enable him to claim protection of Section 53-A of the Transfer of Property Act. The title was admittedly with the plaintiff. The plaintiff had agreed to convey the property to the defendant. The contract was in writing and signed by the parties. Advance had been paid by the defendant, being part of the purchase price agreed upon, and the plaintiff had put the defendant in possession of the property on 13.9.1965. Thus, all other ingredients to get the protection of Section 53-A of the T.P. Act had been satisfied in this case. The only other element that had to be established by the defendant was whether he was and had always been ready and willing to perform his part of the contract. The defendant had established that he had purchased stamp papers on 15.9.1965, i.e. two days after entering into the agreement for sale, thus doing something in furtherance of the contract. It is in this context that the only question that fell to be decided on the materials was whether the defendant was and had always been ready and willing to perform his part of the contract on its terms.
7. In this context, we must first notice that the sale of the property was finally set aside on 12.10.1966 by the Board of Revenue, which allowed the revision filed by the plaintiff. Normally, therefore, on the terms of the agreement here, the defendant became entitled to enforce specific performance of the agreement on 12.10.1966. The time for suing for specific performance expired, on the expiry of three years from 12.10.1966. From 12.10.1966 until the filing of the suit on 22.3.1972 (filed as indigent suit sometime in 1971), the defendant made no attempt to call upon the plaintiff to receive the balance consideration and to execute the sale deed. In this context, the defendant had to show that he was always ready and willing to perform his part of the contract at least from 12.10.1966, till the date of the suit. Of course, there is a question whether the defendant can be said to be ready and willing when he had allowed a suit for specific performance to enforce the agreement for sale to become barred by limitation. In that context, reliance placed on the decision of the Supreme Court in Raj Kishore Giri and Ors. v. Purendra Giri and Ors. : 1997 (I) OLR (SC) 1 may not be of much use to the defendant. The question that has to be answered is whether the defendant has established that he was ready and willing to perform his part of contract as indicated above.
8. D. W. 1, the witness examined on behalf of the defendant very clearly gave evidence to the effect that the revision before the Board of Revenue was filed at the instance of the defendant, who had spent Rs. 500/- towards the Advocate's fee for filing of the revision, and that he had accompanied the defendant to the concerned Advocate's office to make arrangement for filing of the revision. The defendant in his evidence did not say anything regarding the reason why he did not take steps for performance of the agreement for sale from 12.10.1966 till the date of the suit by the plaintiff. In fact, even in the written statement the defendant did not give any reason for not taking steps. But in an earlier reply issued to the plaintiff, the defendant took the stand that he had paid a further sum of Rs. 500/- in addition to the sum of Rs. 8,000/- paid as advance and he was willing to take the sale deed only by tendering the sum of Rs. 5000/- towards the sale consideration and not the sum of Rs. 5,500/- as demanded by the plaintiff. Even in the written statement, the defendant reiterated that every plea. But, he took an alternative contention that in case the Court found that the sum of Rs. 500/- had not been paid as claimed by him, he was willing to pay that sum also towards the balance purchase price due from him and take the sale deed.
9. The learned counsel for the defendant contended that the defendant hadnot sought specific performance of contract from the plaintiff from 12.10.1966 till filing of the suit by the plaintiff, only because he was not aware of the setting aside of the sale by the Board of Revenue on 12.10.1966. This argument by the learned counsel for the defendant cannot be accepted for more reasons than one. First of all, there is no such plea in the written statement. Secondly, in his evidence as D.W.2 even in examination in chief, the defendant had no such case. Thus, this is a case where the defendant could not adduce any evidence to show that he had been ready and willing to perform his part of contract during the period from 12.10.1966 till filing of the suit. It may also be noted that in his reply notice (Ext.3) he had taken the stand that he was only willing to pay Rs. 5000/- towards the balance sale consideration, and not Rs. 5,500/- on the terms of the agreement since he had already paid a further sum of Rs. 500/- to the plaintiff. This indicates that the defendant was not ready and willing to perform his part of the contract on its terms. It is to be noted that the defendant never got prepared the sale deed and never called upon the plaintiff to execute the sale deed. No notice even was sent calling for performance. No counter claim for specific performance was made even in the suit. Thus, the pleadings and the evidence disclose that the defendant had failed to prove that he was and had always been ready and willing to perform his part of contract. Since, one most essential elements for seeking protection of Section 53-A of the Transfer of Property Act has not been established by the defendant, it has necessarily to be held that the defendant has failed to prove that he was entitled to protection of Section 53-A of the Transfer of Property Act.
10. Once it is found that the defendant has failed to prove that he was entitled to the protection of Section 53-A of the Transfer of Property Act, the plaintiff has necessarily to be given the decree for recovery of possession of the suit property on the strength of her title. There is no case of any adverse possession possible or pleaded in the case. Thus, the trial Court and the learned Single Judge were in error in refusing a decree for recovery of possession to the plaintiff by making an erroneous approach to the question falling for decision. We are, therefore., constrained to interfere with the judgment and decree of the learned Single Judge.
11. We may notice that even though the defendant had not made a counter claim for specific performance, the trial Court purported to grant him a decree directing the plaintiff to execute the sale deed in his favour. That was clearly illegal and uncalled for. The learned Single Judge even though noticed that illegality, proceeded to confirm the same on the ground that the plaintiff would not be prejudiced by such a decree. We are not in a position to agree with the learned Single Judge. Even if the suit is to be dismissed the defendant would not be entitled to such a decree. The learned Single Judge ought to have in any event interfered with that part of the decree. This part of the decree has also to be set aside.
12. The plaintiff had received a sum of Rs. 8000/- towards the sale consideration. The defendant had enjoyed the possession of the property all these years. In this situation, while granting the plaintiff a decree for recovery of possession, we think that it would be just and proper to impose a condition on the plaintiff to deposit of sum of Rs. 8000/- in Court before seeking delivery of the property in execution of the decree. Since the defendant had been in enjoyment of the property all these years, we do not think it necessary and proper to award any interest to the defendant on the sum of Rs. 8000/-.
13. In the result, we allow this appeal and set aside the judgments and the decrees of the learned Single Judge and that of the trial Court, and we decree Title Suit No. 16 of 1972 by declaring the title of the plaintiff over the suit property and by granting a decree for recovery of possession of the property. We direct that the legal representatives of the plaintiff would be entitled to seek delivery of possession in execution of the decree only on deposit of the sum of Rs. 8000/- received by the plaintiff from the defendant as part of the sale consideration. In the circumstances of the case, we award the plaintiff her costs in the trial Court and in the first appeal before this Court and direct the parties to suffer their respective costs in this appeal.
A.S. Naidu, J.
14. I agree.