Himachal Pradesh High Court
Sohan Singh And Anr. vs Gulzari on 12 January, 1996
Equivalent citations: AIR1997HP12
Author: R.L. Khurana
Bench: R.L. Khurana
JUDGMENT R.L. Khurana, J.
1. This regular second appeal has been filed by the plaintiff against the judgment and decree dated 22-8-1988 of the District Judge, Una allowing the appeal of the defendant and reversing the judgment and decree dated 17-8-1985 of the Senior Sub Judge, Una thereby dismissing the suit of the plaintiff.
2. The subject matter of the dispute between the parties is the land measuring 1 kanal 4 marlas comprising of Khasra Number 1099/842 and 1542/843 of village Changar, Mauza Thahra, Tehsil Bangana, District Una specifically described in the plaint and the jamabandi for the year 1979-80 and hereinafter to be referred as 'the land in dispute'.
3. The plaintiffs purchased the land in dispute for the previous owner Shri Charan Dass vide registered sale deed dated 21-10-1982. Since after such purchase the plaintiffs are coming in possession thereof as owners. The defendant, who is a head strong person, without any right, title or interest in the land in dispute has started interfering with the possession of the plaintiffs with threats to raise construction therein forcibly. The plain-tiffs accordingly filed a suit for injunction against the defendant for restraining him from interfering in any manner with the possession of the plaintiffs over the land in dispute as owners thereof. In the alternative, it was pleaded that in case the defendant is found to be in possession of the land in dispute or he succeeds in raising any consideration over the land in dispute, a decree for possession may be passed in favour of the plaintiffs by way of demolition of superstructure, if any.
4. The defendant resisted the suit. It was averred that the land measuring 13 marlas comprising of khasra number 1572/843 is in his possession whereon he has raised a residential house and cattle-shed. The case of the defendant is that Charan Dass, previous owner had agreed to sell the said 13 marlas of land for a consideration of Rs. 500/- on 23-12-1976. The said Charan Dass after having received the entire sale consideration of Rs. 500/- had delivered the possession of the land in dispute to the defendant. A residential house and a danga was raised by the defendant over the said land by spending about Rs. 15,000/ - to the knowledge of the previous owner Charan Dass and the plaintiffs. The sale made by Charan Dass in favour of the plaintiffs was denied. It was averred that Charan Dass had no right to sell the land in dispute in favour of the plaintiffs. The alleged sale, if any, in favour of the plaintiffs is fraudulent, collusive and not binding on the rights of the defendant.
5. On the pleadings of the parties, following issues were framed by the trial court:--
1. Whether the defendant was put in possession of the suit land by the previsous owner as a consequence of an agreement to sell in his favour and he is in possession of the suit land in that capacity, if so to what effect? .....OPD
2. If issue No. 1 is proved, whether the defendant has raised construction over the suit land? OPD
3. Whether the plaintiffs are estopped from filing this suit by their act and conduct? ....OPD
4. Whether the suit is bad for non-joinder of necessary parties? .....OPD
5. Relief.
6. The trial Court found all the issues against the defendant. It was held that the defendant was not put into possession of the and in dispute by the previous owner Charan Dass in pursuance of the agreement to sell. The defendant was held to be not in possession of the land in dispute. The suit of the plaintiffs was accordingly decreed by the trial Court on 17-8-1985 and a decree for permanent injunction was granted in favour of the plaintiffs and against the defendant thereby restraining the latter from interfering in any manner with the possession of the plaintiffs over the land in dispute.
7. On appeal, the learned District Judge vide the impugned judgment and decree dated 22-8-1988 reversed the findings of the trial Court. The appeal was, therefore, allowed and the suit of the plaintiff was dismissed. The learned District Judge came to the conclusion that the defendant was placed into possession of the land in dispute under the agreement to sell dated 23-12-1976 and that the possession of the defendant was liable to be protected under Section 53A, Transfer of Property Act.
8. The sole question for determination in the present case is whether the defendant is entitled to protection under Section 53A, Transfer of Property Act. Before a person can be held to be entitled to the protection of doctrine of part-performance in an action brought against him by the owner for possession of the land in question, the following conditions are necessary to be established:--
(i) that the transferor has agreed to transfer some immoveable property for consideration by means of a writing signed by him or on his behalf and such writing mentioned the terms necessary to constitute the transfer with reasonable clarity and certainty;
(ii) that the transferee has, in part performance of such contract, taken possession of the property or any part thereof, or, that 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
(iii) that the transferee has performed or is willing to perform his part of the contract.
9. The learned counsel for the plaintiffs-appellants at the very out set while challenging findings of the first appellate Court has contended that the protection under Section 53A, Transfer of Property Act could not have been given to the defendant in the absence of the pleadings. According to the learned counsel, the defendant never pleaded in his written statement that he was entitled to protection under Section 53 A of the Transfer of Property Act. Therefore, the lower appellate Court was not justified in applying the provisions of that section. "In support of his contention, the learned counsel has relied upon Sadhob Bhotra v. Hori Bhotra, AIR 1973 Ori 21.
10. A bare perusal of the written statement of the defendant shows that all the necessary ingredients under Section 53A, Transfer of Property Act have not been pleaded. Apart from the absence of the pleadings, such necessary ingredients for the application of Section 53A, Transfer of Property Act have also not been proved.
11. This Court in Sita Ram v. Smt. Kanta Devi, 1981 Sim LC 239: (AIR 1981 NOC 113) has held:--
"A person seeking protection of doctrine of part performance as enunciated in Section 53A of the Transfer of Property Act has thus to plead and prove inter alia that he has in part performance of the contract taken possession of the property or any part thereof and in case he was already in possession, he continues to be in such possession in part performance of the contract and has done some act in furtherance of the contract. In addition he has also to allege and prove that he has performed or is willing to perform his part' of the contract. Now these pleas do involve questions of fact and if they had been raised by the defendant before the trial Court, it was open to the plaintiff to counteract them by pleading and proving that the defendant had not taken possession of the property in part performance of the contract or if he was already in possession, he had done no act in furtherance of the contract and that the defendant had neither performed nor was willing to perform his part of the contract. In the absence of such pleas having been raised by the defendant, the plaintiff had been allowed no opportunity to counteract such pleas and under the circumstances if the defendant-appellant is now allowed for the first time in this second appeal to raise such pleas it would certainly amount to providing a handicap to the opposite party. The plea that the defendant is protected by the doctrine of part performance, therefore, cannot be allowed to be raised at this stage."
12. In Hiralal Agarwala v. Bhagirathi Gore, AIR 1975 Cal 445, it has been held that the plea under Section 53A being a mixed question of law and fact cannot be allowed to be raised for the first time in appeal to support the plea under Section 53A, Transfer of Property Act which was never raised at the earlier stage.
13. One of the salient condition to be fulfilled by the transferee for invoking the principle of part perfomance is that he has performed or is willing to perform his part of the contract. Section 53A, Transfer of the Property Act requires that the person claiming the benefit of part performance must always be shown to be ready and willing to perform his part of the contract and if it is shown that he was not ready and willing to perform his part of contract, he will not qualify for the principle of doctrine of part performance. (See Kuldip Singh Sawhney v. Mrs. Parkash Chand, AIR 1985 Punj & Har 222 and Sardar Govindrao Mahadik v. Devi Sahai, AIR 1982 SC 989).
14. In the present case, the defendant has nowhere pleaded that he had performed or was willing to perform his part of the contract. High Court of Punjab and Haryana in Om Prakash v. Sharma Electric Company, (1985) 87 Punj LR 198 has held that unless the defendant pleads that he has performed or was willing to perform his part of the contract, provisions of Section 53A, Transfer of Property Act would not be attracted, The defendant in the present case has nowhere pleaded and proved that he had performed or was-willing to perform his part of the contract.
15. In the absence of specific pleadings, the first appellate Court has therefore, erred in allowing the benefit and protection of Section 53A in favour of the defendant.
16. Even if it be assumed for the sake of arguments that it is open to the defendant to raise the plea of doctrine of part-performance, the facts coming on the record as established from the evidence would not entitle him to such a protection. Admittedly, the agreement to sell Ex.DW-1/A was entered into between the previous owner Charan Dass and the defendant on 23-12-1976. The previous owner Charan Dass while appearing as PW. 4 has categorically admitted the execution of this agreement. By virtue of this agreement, land measuring 13 marlas comprising of khasra No, 1572/843 was agreed to be sold to the defendant for a consideration of Rs. 500/-. There is no recital in the said agreement showing that the defendant was placed into possesion of the land agreed to be sold in pursuance of the said agreement. It is not disputed that the defendant was not in possession of the land in question prior to the execution of the agreement Ex.DW-1 / A.D.W. Jeet Ram one of the marginal witnesses of agreement Ex.DW-1/A has not stated that the defendant was placed into possession of the land in dispute by the previous owner Charan Dass. He has merely stated that he has been seeing the possession of the defendant since after the agreement. Ex.P-2 is the copy of jamabandi for the year 1979-80. A perusal of the same shows that the land measuring 13 marlas comprising of khasra number 1572/843 is recorded to be in self possession of the previous owner Charan Dass. This jamabandi, to which a presumption of truth is attached, belies the version of the defendant that he was placed into possession of the land agreed to be sold to him at the time of execution of the agreement to sell Ex.DW-1/A on 23-12-1976.
17. The learned District Judge while coming to the conclusion that the defendant was delivered the possession of the land in dispute in pursuance of the agreement to sell Ex.DW-1 / A has placed great reliance on the copy of khasra girdawari Ex.DX for the period kharif 1980 to kharif 1983.-A perusal of the same shows that in Kharif 1980 "pencil entry" has been shown to have been showing the defendant to be in possession of the land measuring 13 marlas comprising of khasra number 1572/843. There is a note appended on Ex.DX to the effect that the pencil entry has not been verified/ attested by any revenue officer. In the absence of verification/attestation of such pencily entry in favour of the defendant, the learned first appellate Court committed a great error in placing reliance thereon while holding the defendant to be in possession of the said land under the agreement to sell Ex.DW-1/A.
18. There is yet another significant aspect of the case which belies the correctness of the said pencil entry made in favour of the defendant in kharif 1980. Ex. P3 is another copy of khasra girdawari pertaining to the period kharif 1980 to ravi 1982. This copy was attested by the halka patwari on 23-10-1982. There is no pencil entry in favour of the defendant in Ex. P-3. The copy of khasra girdawari Ex.DX was obtained by the defendant 17-1-1984 showing the existence of pencil entry. In view of the fact that there is no mention of pencil entry in the copy of the khasra girdawari Ex.P-3 issued in favour of the plaintiff on 23-10-1982, the possibility of the same having been got incorporated by the defendant subsequent thereto cannot be ruled out. Therefore, no reliance can be placed on Ex. DX for holding the defendant to be in possession of the land in question in pursuance of the agreement to sell.
19. The learned counsel for the defendant has contended that in view of the fact that the defendant has been shown and proved to be in possession of the land in dispute, the suit having been filed for injunction was not maintainable. This argument raised on behalf of the defendant has no force. A perusal of the prayer clause of the plaint shows that the plaintiffs in the alternative have claimed for a decree for possession of the land in dispute. Therefore, even if the plaintiffs may not be entitled to permanent injunction, they are entitled to a decree for possession on the basis of a valid title in their favour by virtue of the sale deed Ex.PY. It appears that after coming to know regarding the sale having been made in favour of the plaintiffs by the previous owner Charan Dass, the defendant took forcible possession of the land in dispute and tried to raise some construction thereon, which was resisted by the present plaintiffs leading to a registration of criminal case against the plaintiffs vide F.I.R. Ex.DW-4/A. It is in the evidence of D.W.4 that a counter report was also made by the plaintiff Sohan Singh, though no case came to be registered on the basis of such report.
20. Considering the entire evidence coming on the record, I hold that the plaintiffs are entitled to possession of the land in dispute by way of demolition of super structure, if any, existing on the spot.
21. As a result, the present appeal is allowed. The judgment and decree of the lower appellate Court are set aside and a decree for possession of the land in dispute by way of demolition of super-structure, if any, existing on the spot is passed in favour of the plaintiffs and against the defendant leaving the parties to bear their own costs.