Andhra Pradesh High Court - Amravati
K Jaya Kumar vs D Parvathamma on 28 February, 2020
Author: G.Shyam Prasad
Bench: G.Shyam Prasad
1
IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
****
SECOND APPEAL No. 764 of 2019
Between:
Gaddam Raju S/o.Late sowriyya
....Petitioner.
And
Gotikala Mary Kamala & others
....Respondents
DATE OF ORDER PRONOUNCED : 28.02.2020
SUBMITTED FOR APPROVAL:
THE HON'BLE SRI JUSTICE G.SHYAM PRASAD
1. Whether Reporters of Local Newspapers
may be allowed to see the order? Yes/No
2. Whether the copy of order may be
marked to Law Reporters/Journals? Yes/No
3. Whether His Lordship wish to
see the fair copy of the order? Yes/No
______________________________
JUSTICE G. SHYAM PRASAD
2
* THE HON'BLE SRI JUSTICE G.SHYAM PRASAD
% 28.02.2020
# Between:
Gaddam Raju S/o.Late sowriyya
....Petitioner.
And
Gotikala Mary Kamala & others
....Respondents
! Counsel for the Appellant : Sri Kambhampati Ramesh Babu
^ Counsel for the Respondents : NIL
< Gist:
> Head Note:
? Cases referred:
1. AIR 1990 SC 553
This court made the following :
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HON'BLE SRI JUSTICE G.SHYAM PRASAD
SECOND APPEAL No. 764 OF 2019
ORDER:
This second appeal arises out of the Decree and Judgment dated 16.10.2019 passed in AS No.3 of 2016 on the file of the court of Judge Family Court-cum-VII Additional District Judge, West Godavari Eluru in confirming the Decree and Judgment dated 26.10.2015 passed in OS No.303 of 2007 on the file of the court of Additional Senior Civil Judge, Eluru.
2. The appellant is the defendant in the suit. Aggrieved by the concurrent findings of both the courts below, has preferred this Appeal on various grounds enumerated below.
3. At request of both the counsel, the matter is heard on the point of substantial questions of law on merits and passed the following order.
4. Learned counsel for the appellant submits that both the courts have failed to see that the appellant herein is entitled to protect his possession as per the provision under Section 53-A of the Transfer of Property Act, 1882 (for short 'the Act') though the time for enforcement of Ex.B2-agreement of sale is barred by limitation. It is further argued that where there is part performance of agreement of sale, the appellant is entitled for protection of his possession subject to the conditions under Section 53-A of the Transfer of Property Act. It is further submitted that the law of limitation is not applicable 4 where the appellant had taken a defence under Section 53A of the Act.
5. Admittedly, the appellant is the defendant in the suit in OS No.303 of 2007 filed by the respondents herein seeking for recovery of possession of schedule property, and for compensation and damages by way of mesne profits from the date of suit till the date of delivery of suit schedule property. The suit in OS No.303 of 2007 has been decreed with costs by directing the defendants to vacate and deliver the vacant possession of the schedule property to the plaintiffs within three months failing which the plaintiffs are entitled to obtain the same through Court. The relief of damages is concerned, the plaintiffs are entitled to claim the same by way of filing separate application by paying court fee.
6. Aggrieved by the said Judgment, the appellant/defendant preferred an appeal in AS No.3 of 2016 on the file of the Court of Judge, Family Court-cum-VII Additional District Judge, West Godavari, Eluru. The lower appellate Court had dismissed the appeal confirming the decree and Judgment in OS No.303 of 2007 on the file of learned Additional Senior Civil Judge, Eluru. The appellant was directed to vacate and deliver the vacant possession of the schedule property to the plaintiffs within three months from the date of the order. Aggrieved by that, the appellant/ defendant has come up with the present second appeal.
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7. Learned counsel for the appellant firstly contended that he has purchased the schedule property under Ex.B2-Agreement of sale, dated 25.5.1991, and since then he has been continuing his possession and enjoyment over the schedule property. The appellant got examined himself as DW-1 and one more witness on his behalf as DW-2 and got marked Exs.B1 to B27 of which Ex.B2 is the sale agreement executed in favour of the defendant dated 25.5.1991. The other documents are ration Card, pass book for electricity charges, caste certificate, house tax receipts etc., filed to show that he has been in possession and enjoyment of the schedule property having purchased the same from the respondents under Ex.B2. On this ground it is argued that the respondents are not entitled for the relief of evicting him from the schedule property and for the delivery of possession.
8. The trial court in OS No.303 of 2007 has framed the following issues for trial.
1. Whether the defendant gained possession of plaint schedule property as a licensee or under an agreement for sale dated 25.05.1991 ?
2. Whether the plaintiffs are entitled to seek eviction of the defendant and recovery of vacant possession of the plaint schedule property ?
3. Whether the plaintiffs are entitled for present and future profits and if so at what rate ?
4. To what relief ?
9. The trial court has answered all the issues in favour of the plaintiffs and against the defendant/appellant and dismissed the suit.
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10. The lower appellate court in AS No.3 of 2016 has framed the following points for consideration and answered all the points in favour of the respondents.
1. Whether the defendant gained possession of plaint schedule property as permissive occupant as licensee or under an agreement of sale dated 25.5.1991 ?
2. Whether the plaintiffs are entitled to seek eviction of the defendant and to recover vacant possession of the schedule property ?
3. Whether the plaintiffs are entitled for mesne profits from the defendant as prayed for ?
4. Whether there are any grounds to interfere with the Decree and Judgment of the Court below ?
11. The trial court at para-11 of its Judgment has observed as under:
"11. The defendant has been claiming right over the schedule property by way of sale agreement and also adverse possession. The plaintiffs counsel argued that the defendant cannot take ;both pleas by way of sale agreement and adverse possession. The plaintiffs relied upon the citation of Hon'ble Supreme Court in a case between Achal Reddi Vs.Ramakrishna Reddiar1, wherein it was held by the Hon'ble Supreme Court that both the above pleas cannot go together. In this case also, the defendant though has taken both adverse possession as well as the possession in pursuance of sale agreement, the defendant has been paying all usual taxes in the name of the plaintiffs father David Raju and therefore, still the defendant paid taxes since then regularly in the name of Deceased David Raju by reiterating the title of the plaintiffs father. At the time of the evidence of the defendant as DW1, he admitted before the court as if he has been in the schedule property by way of permissive 1 .AIR 1990 SC 553 7 possession. Though the defendant has taken claim under sale agreement, he also examined one of the attestors as DW2 who corroborated as to execution of sale agreement by the father of the plaintiffs. Even as seen from the sale agreement, the possession of the same would be delivered as on the date of its registration. ...."
12. Learned counsel for plaintiff mainly argued that even though there is an agreement of sale, the possession has not been delivered as per the terms of the agreement; It is further contended that the plaintiffs have denied the execution of sale agreement contending that it was a forged one.
13. Learned counsel for appellant mainly relied on Section 53-A of the Act in respect of part performance of agreement of sale and argued that by virtue of the said provision, the possession of the appellant has to be protected and the appellant is able to establish that he has been in possession and enjoyment of the schedule property and therefore, the respondents are not entitled to seek for eviction and for recovery of possession.
14. It is appropriate to refer to the provision under Section 53-A of the Act and it reads as under:
"Section 53-A -Part Performance: Where any 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, 8 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 where there is an instrument of transfer that the transfer has not been completed in the manner prescribed therefor 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."
15. Admittedly, the defendant has not filed any suit for specific performance of agreement of sale Ex-B2. The defendant is only claiming rights under Section 53-A of the Transfer of Property Act.
16. In the ratio laid down in Nathulal Vs.Phoolchand2 it was held as follows:
"that the conditions 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
2.
AIR 1970 SC 546 = 1969 (3) SCC 120 9 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."
17. In Maneklal Mansukhbhai Vs.Hormusji Jamshedji Ginwalla & Sons3 it was observed that the Section 53-A is a partial importation in the statute law of India of the English Doctrine of part performance. It furnishes a statutory defence to a person who has no registered title deed in his favour to maintain his possession if he can prove a written and signed contract in his favour and some action on his part in part performance of that contract.
18. In Sardar Govindrao Mahadik and another V.Devi Sahai and others4 it was held that to qualify for the protection of doctrine of part performance it must be shown that there is a contract to transfer for consideration immovable property and the contract is evidenced by a writing signed by the person sought to be bound by it and from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty.
19. In Ramchhoddas Chhaganlal Vs.Devaji Supdu Dorik and others5 it was held that one of the limbs of part performance is that the transferee has in the part performance of contract taken possession of the property. The most important consideration here is the contract.
3.AIR 1950 SC 1
4.AIR 1982 SC 989 = 1982 (1) SCC 237 5 .AIR 1977 SC 1517 = 1977(3) SCC 584 10 The true principle of the operation of the acts of part performance seems to require that the acts in question must be referred o some contract and must be referred to of sale of immovable property the alleged one; that they prove the existence of some contract, and are consistent with the contract alleged. The doctrine of a part performance is a defence. It is a sword and not a shield. It is a right to protect his possession against any challenge to it by the transferor contrary to the terms of the contract.
20. In D.S.Parvathamma Vs.A.Srinivasan6 it was held that where a person claiming benefit of part performance of contract is already in possession of the property prior to the contract, court would expect something independent of the mere retention of possession to evidence the part performance and some act done in furtherance of the contract.
21. In Mahadeva and others Tanabai7 it was held that where the singular reason assigned by the High Court for denying the benefit of Section 53-A is not a sound reason by itself in view of the decision in Shrimant Sharmrao Suryavanshi V.Pralhad Bhairoba Suryavanshi8 wherein it was held that merely because the suit for specific performance at the instance of the vendee has become barred by limitation that by itself is not enough to deny the benefit of the plea of part-performance of agreement of sale to the person in possession, the Judgment of the High Court was held to be one of reversal. 6 . 2003(5) ILD 411 (SC) 7 . (2004) 5 SCC 88 = AIR 2004 SC 3854 8 .(2002) 3 SCC 676 11
22. In the light of the above decisions, the contention raised by the appellant relying on the appellant is relying on the provision under Section 53-A of the Act as a shield to protect his possession over the schedule property by virtue of Ex.B2 agreement of Sale, though he is not claiming title over the schedule property by way of specific performance of agreement of sale. Therefore, there is a substantial question of law that arise in the suit with regard to the rights of the appellant by virtue of an agreement of sale under Ex.B2 in the light of the provision under Section 53-A of the Act. The findings of the trial court and appellate court in this regard are to be considered in the light of the substantial question that would arise in this case.
23. Learned counsel for respondents however contended that both the courts below have properly appreciated the evidence on record and reached a just and reasonable conclusion that the possession of the appellant is that of a permissive possession and therefore, he is liable to be evicted from the schedule premises. The trial court has neither framed the issue with regard to Section 53-A of the Act in respect of part performance of the agreement of sale, nor considered the same. The appellant is said to be in possession of the schedule property, and his possession is a permissive possession. Even after execution of the agreement of sale Ex.B2, he continued in possession of the property. The payment of property tax and electricity bills, he is able to prove that he is in continuous possession even as per the findings of both the courts below.
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24. Therefore, it is obvious that the trial court has not considered all these aspects in the light of the provision under Section 53-A of the Act. Since the said fact has not been considered by both the courts below as per the provisions under Section 53-A of the Act, both the Judgments of the courts below are set aside and the matter is remitted to the trial court for consideration on the question of Section 53-A of Transfer of Property Act as part performance of the contract under Ex.B1 Agreement of Sale.
25. The contention of the learned counsel for respondent is that the courts below have come to a conclusion that the appellant is in permissive possession of the schedule property and therefore, he is liable to be evicted and given liberty to collect the compensation and damages for use and occupation of the scheduled premises in permissive possession by way of separate proceedings.
26. The back ground of the case clearly reveals that the appellant has been in possession and enjoyment of the schedule property even prior to the execution of Ex.B2-agreement of sale and even after execution of the agreement of sale, he continued in possession of the schedule property by paying property taxes and electricity bills though in the name of the father of the plaintiff but both the courts below have failed to consider the defence of the appellant under Section 53-A of the Act.
27. On consideration of submissions of both the counsel and in view of the fore going reasons, since both the courts below have not 13 considered the issue with regard to the defence of the appellant under Section 53-A of the Act, which is a mixed question of fact and law, the matter is remitted back to the trial court for consideration of the same in the light of the provisions under Section 53-A of the Act in respect of the defence of the appellant.
28. Hence, the Judgments of both the courts are set aside and the matter is remitted to trial court for fresh disposal in accordance with law, in the following issue:
Whether the appellant is entitled to protect his possession of the schedule property basing on the provision under Section 53-A of the Transfer of Property Act.
29. Hence, the matter is remitted to trial court for fresh consideration of the above issue. The trial court shall give an opportunity to both the parties for adducing evidence and hear the matter, and pass appropriate orders in accordance with law within two months from the date of receipt of the copy of this Order.
30. With the above observations, the second appeal is disposed of. No costs.
Miscellaneous petitions pending if any, shall stand closed.
____________________________ JUSTICE G.SHYAM PRASAD 28.02.2020 Mjl/* LR copy to be marked 14 HON'BLE SRI JUSTICE G.SHYAM PRASAD ` SECOND APPEAL No. 764 OF 2019 (disposed of ) 28.02.2020 Mjl/*