Andhra Pradesh High Court - Amravati
K. Bhagya Lakshmi, vs B. Veera Venkatarao, on 18 February, 2025
APHC010387982000
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3397]
(Special Original Jurisdiction)
TUESDAY ,THE EIGHTEENTH DAY OF FEBRUARY
TWO THOUSAND AND TWENTY FIVE
PRESENT
THE HONOURABLE SRI JUSTICE VENUTHURUMALLI GOPALA
KRISHNA RAO
FIRST APPEAL NO: 389/2000
Between:
K. Bhagya Lakshmi, and Others ...APPELLANT(S)
AND
B Veera Venkatarao and Others ...RESPONDENT(S)
Counsel for the Appellant(S):
1. M V SURESH
Counsel for the Respondent(S):
1. PARTY IN PERSON
2. P SRINIVAS
The Court made the following:
JUDGMENT:-
This Appeal, under Section 96 of the Code of Civil Procedure [for short „the C.P.C.‟], is filed by the Appellant challenging the decree and judgment, dated 28.01.2000 in O.S.No.95 of 1989 passed by the Principal Senior Civil Judge, Rajahmundry [for short „the trial Court‟].
2. The 1st appellant herein is the defendant and respondents herein are the plaintiffs in O.S.No.95 of 1989. During the pendency of the appeal, the 1st appellant died and her sole legal representative is brought on record as 2nd appellant.
3. The respondents/plaintiffs filed the suit for delivery of possession of the plaint schedule property after evicting the defendant there from, and for damages of Rs.2,200/- till date of suit, for future damages till delivery of possession and for costs of the suit.
4. Both the parties in the Appeal will be referred to as they are arrayed before the trial Court.
5. The brief averments of the plaint in O.S.No.95 of 1989 are as under:
The plaintiffs are the owners of the plaint schedule site and other sites covered by S.No.93 of Rajahmundry Rural area. They have demarcated their land for house sites and made layout and got it approved by Town Planning department in the year 1971 and have sold some sites therein. The defendant purchased two sites of which she obtained a sale deed for one and having two sites of which she obtained a sale deed for one and having some doubts about the proposal of the Municipality laying a road through the suit schedule site deferred the purchase of the property and obtained an agreement for the suit schedule site from the plaintiffs on 14.04.1977 for Rs.2,527/-. The other terms of the agreement are that the plaintiffs should ascertain within one year thereafter about the release of the property from the proposed road through the suit land and the defendant should immediately pay the balance of sale consideration for obtaining the sale deed for the property. A sum of Rs.50/- was mentioned in the agreement on the promise that the defendant would pay in a day or two thereafter, but, even that amount was not paid. It was finally known that no road was being laid through the suit land, by the end of 1977 itself and the plaintiffs intimated the defendant through her husband that there was no impediment for completing the sale transaction and that they were prepared to convey the property on payment of the balance of sale consideration. The defendant intimated that she was not able to purchase the site and so the transaction was cancelled. This was in about April, 1978. The defendant never had anything to do with the site thereafter. Defendant in about June, 1987with fraudulent intention of making wrongful claim trespassed into the suit land and attempted to make some constructions in the site and plaintiffs thereupon got issued a notice to the defendant and the Municipality and other authorities on 01.07.1987 requesting the defendant to refrain from making any constructions on the suit land and the authorities not to permit her for making any such constructions in the suit land. The defendant kept quiet but on 14.12.1987 got issued notice to the plaintiffs requesting execution of sale deed and other reliefs on false and untenable grounds. The plaintiffs got issued reply notice on 19.12.1987 requested the defendant to put the plaintiffs in possession of the property but the defendant did not comply with the plaintiffs‟ request. The property is a vacant site and may fetch a sum of Rs.100/- per month if let out and the plaintiffs are entitled to claim damages at that rate from June, 1987 up to date. Hence, the suit.
6. The brief averments in the written statement filed by the defendant are as follows:
(i) The defendant admitted that the plaintiffs are the original owners of the plaint schedule property of an Ac.0-91 cents in Sy.No.93 of 13th Ward, within Rajahmundry Municipality. They formed a layout for the said extent dividing the land into several house plots. The plaintiffs represented that the layout plan made by them for the said land and was duly approved and offered for sale of the plots in the year 1974. Believing the same, the defendant entered into an agreement of sale with the plaintiffs to purchase Plot Nos.1 and 2. Under the said agreement of sale, the plaintiffs put the defendant in possession of the said two plots.
(ii) When the defendant applied for approval of the plan to the authorities of the Rajahmundry Municipality in the year 1977 to construct a house therein, the concerned authorities returned the plan with remarks that the layout made by the plaintiffs in respect of Ac.0-91 cents of land in Sy.No.93 of Rajahmundry was not approved. As per the arrangement agreed to between the plaintiffs and the defendant before the elders, the plaintiffs executed an agreement of sale, dated 14.04.1977 in favour of the defendant, agreeing to sell the Plot No.2, for Rs.2,527/- and it was also mentioned in the said agreement of sale that Plot No.2 was delivered by the plaintiffs to the defendant as the defendant was already in possession of the said plot by virtue of the previous agreement of sale.
(iii) As per the terms of the said agreement of sale, dated 14.04.1977 entered into in respect of Plot No.2, the defendant should obtain a registered sale deed from the plaintiffs for Plot No.2 after the layout plain is approved and after the Rajahmundry Municipality releases the layout plan. An advance amount of Rs.50/- was paid to the plaintiffs under the said agreement of sale.
In the said agreement of sale, it was also mentioned that the plaintiffs should get the layout plan duly approved and get the layout plan released from the Rajahmundry Municipality and also form roads as per the layout and inform the defendant to enable her to obtain a regular registered sale deed for Plot No.2 from the plaintiffs. After the said dispute was settled by the elders as stated supra, the original agreement of sale in respect of Plot Nos.1 and 2 written in the year 1972 was torn off as a registered sale deed was obtained for Plot No.1 and a fresh agreement of sale was obtained for Plot No.2. Layout plan was approved by the Rajahmundry Municipality, the defendant put up a plan for approval to the Rajahmundry Municipality in October, 1986 to construct two portions house in Plot No.1. The defendant waited for 6 months for approval of the plan from the Rajahmundry Municipality and as the Rajahmundry Municipality has not passed any order within the stipulated time either approving or rejecting the plan, the defendant constructed a pucca terraced house consisting of two portions as per the plan submitted by her, deeming it to have been approved.
(iv) The defendant has always ready with the balance consideration and to fulfill her part of the contract and was waiting to receive information in writing that the said layout plan was approved and the plan was released by the Rajahmundry Municipality and also they laid roads as per the layout plan and to produce sufficient proof that the extension of weavers‟ colony road towards North through Plot No.2 was finally dropped. Unless the plaintiffs fulfill three conditions i.e.,
(a) production of approved layout plan from the Rajahmundry Municipality;
(b) completion of forming roads as per the layout plan by the plaintiffs;
(c) to produce sufficient evidence that the extension of weavers‟ colony road towards North through Plot No.2 was finally dropped, the plaintiffs cannot insist upon the defendant to pay the balance consideration and obtain the sale deed.
Therefore the defendant prays to dismiss the suit.
7. Based on the above pleadings, the trial Court framed the following issues:
(1) Whether the defendant cancelled the offer to purchase the second site in question?
(2) Whether the defendant trespassed into suit schedule property without any right?
(3) Whether the property in unauthorized occupation of the defendant fetches Rs.100/- per month?
(4) Whether the plaintiffs are entitled to the vacant possession of schedule property after the eviction of the defendant, as prayed for?
(5) Whether the plaintiffs are entitled to part and future damages, as prayed for?
(6) To what relief?
8. During the course of trial in the trial Court, on behalf of the Plaintiffs, PW1 was examined and Ex.A1 to Ex.A6 were marked. On behalf of the Defendant, DW1 and DW2 were examined and Ex.B1 to Ex.B24 were marked.
9. After completion of the trial and hearing the arguments of both sides, the trial Court decreed the suit vide its judgment, dated 28.01.2000, against which the present appeal is preferred by the defendant in the suit questioning the Decree and Judgment passed by the trial Court.
10. Heard Sri M.V.Suresh, learned counsel for the appellants and Sri B. Sri Rama Murthy, 2nd respondent/party-in-person.
11. Learned counsel for the appellants would contend that the decree and judgment passed by the trial Court is contrary to law. He would further contend that the trial Court ought to have appreciate that the respondents have not fulfilled three conditions mentioned in the agreement of sale to enable the appellant to proceed further, as such, the trial Court ought to have held that the appellant could not proceed further for payment of balance sale consideration and for obtaining sale deed in respect of suit lands. He would further contend that the trial Court erred in holding that the appellant is not entitled to seek protection under Section 53-A of Transfer of Property Act. He would further contend that the learned trial Judge came to a wrong conclusion by decreeing the suit for recovery of possession of the plaint schedule property and the appeal may be allowed by setting aside the decree and judgment passed by the learned trial Judge.
12. Per contra, the 2nd respondent/party-in-person would contend that on appreciation of the entire evidence on record, the learned trial Judge rightly decreed the suit and there is no need to interfere with the findings given by the learned trial Judge.
13. Now the points for determination in the appeal are:
1) Whether the appellant/defendant is entitled protection under Section 53-A of Transfer of Property Act?
2) Whether the trial Court is justified in ordering recovery of possession of the plaintiffs in suit scheduled property from the defendant?
14. Point No.1:
Whether the appellant/defendant is entitled protection under Section 53-A of Transfer of Property Act?
The case of the plaintiffs is that they are the owners of the plaint schedule site and other sites covered by S.No.93 of Rajahmundry Rural area, they have demarcated their land for house sites and made layout and got it approved by Town Planning department in the year 1971 and have sold some sites therein. The defendant purchased two sites of which she obtained a sale deed for one and having two sites of which she obtained a sale deed for one and having some doubts about the proposal of the Municipality laying a road through the suit schedule site deferred the purchase of the property and obtained an agreement for the suit schedule site from the plaintiffs on 14.04.1977 for Rs.2,527/-. The other terms of the agreement are that the plaintiffs should ascertain within one year thereafter about the release of the property from the proposes road through the suit land and the defendant should immediately pay the balance of sale consideration for obtaining the sale deed for the property. A sum of Rs.50/- was mentioned in the agreement on the promise that the defendant would pay in a day or two thereafter, but, even that amount was not paid. It was finally known that no road was being laid through the suit land, by the end of 1977 itself and the plaintiffs intimated the defendant through her husband that there was no impediment for completing the sale transaction and that they were prepared to convey the property on payment of the balance of sale consideration. The defendant intimated that she was not able to purchase the site and so the transaction was cancelled. This was in about April, 1978. The defendant never had anything to do with the site thereafter. Defendant in about June, 1987 with fraudulent intention of making wrongful claim trespassed into the suit land and attempted to make some constructions in the site and plaintiffs thereupon got issued a notice to the defendant and the Municipality and other authorities on 01.07.1987 requesting the defendant to refrain from making any constructions on the suit land and the authorities not to permit him for making any such constructions in the suit land. The defendant kept quiet but on 14.12.1987 got issued notice to the plaintiffs requesting execution of sale deed and other reliefs on false and untenable grounds. The plaintiffs got issued reply notice on 19.12.1987 requested the defendant to put the plaintiffs in possession of the property but the defendant did not comply with the plaintiffs‟ request. The property is a vacant site and may fetch a sum of Rs.100/- per month if let out and the plaintiffs are entitled to claim damages at that rate from June, 1987 up to date.
15. The execution of Ex.B1 agreement of sale in between the plaintiffs and defendant is not in dispute. The case of the plaintiffs is that the possession was not delivered on the date of Ex.B1 and Ex.B1 is not a possessory agreement of sale. The plaintiffs further contend that the defendant who is in possession of Ex.B1 agreement of sale inserted one line after completion of agreement on the second page of end of agreement above the schedule of property, as if the possession was delivered. As seen from original of Ex.B1, the line appears to be inserted at the end of agreement Ex.B1 on top of the schedule mentioned property with a different ink and with different handwriting and the same is visible with a nacked eye. Perused the original of Ex.B1 agreement of sale on the second page of agreement of sale at the end of agreement with a different ink and with different handwriting as "sadaru asti eeroje swadeenam cheyadamainadi".
16. It is serious contention of the plaintiffs in the plaint itself that the possession was not delivered to the defendant. In cross examination when it was suggested to the plaintiffs i.e., P.W.1 by the learned counsel for the defendant about the aspect of delivery of possession, P.W.1 denied the delivery of possession of the property. The case of the plaintiffs is that in the month of June, 1987 with fraudulent intention of making wrongful gain trespassed into the suit schedule land and attempted to make some constructions in the site and the plaintiffs there upon got issued a notice to the defendant and also to the Municipality and other authorities on 01.07.1987 requesting the defendant restrain from making any construction in the suit schedule land. It is the specific contention of the appellant that the possession was delivered long back prior to Ex.B1 alleged agreement of sale. Ex.B1 is dated 14.04.1977. The appellant relied on Ex.B9 to Ex.B24 documents to show about the payment of tax to the Municipality. It is the admitted case of both the parties that the plaint schedule property is Plot No.2 and Plot No.1 abutting to Plot No.2 was purchased under the registered sale deed by the appellant on the date of Ex.B1 agreement of sale and possession was also delivered in Item No.1 of the plaint schedule property i.e., other than the plaint schedule property. Therefore, it is for the defendant to show that those Ex.B9 and Ex.B24 are relates to the plaint schedule property. The defendant is examined as D.W.1 before the trial Court. Another witness of the defendant is examined as D.W.2. The evidence produced by the defendant is not at all sufficient to prove that Ex.B9 to Ex.B24 are connected with plaint schedule property. Ex.B9 to Ex.B13 are Property Tax Demand Register relates to Assessment No.10526; Ex.B14 to Ex.B17 are Property Tax Demand Register relates to Assessment No.11096 for a period from 1983-94 to 1986-87; Ex.B18 is Municipal Tax receipt for Assessment No.11096 for 1987-88; Ex.B19 is Property Tax Demand Register relates to Assessment No.11096 for the year 1987-88; Ex.B20 is Municipal Tax receipt for Assessment No.11096 for 1987-88; Ex.B21 to Ex.B23 relates to property tax receipts for Assessment No.11096; and Ex.B24 one of the tax receipts for the Assessment No.12073, dated 26.09.1992, the same is during the pendency of the suit. There is no evidence on record to show that the plaint schedule property belongs to either Assessment No.10526 or Assessment No.11096. Moreover, the payment of tax does not confer any title or right in respect of the plaint schedule property. The crucial document is Ex.B1. The recitals in Ex.B1 are as follows:
The plaintiffs have to ascertain about the layout release for laying road within three months and thereafter the defendant should pay the balance sale consideration and obtain a sale deed and an amount of Rs.50/- was paid towards advance sale consideration from out of an amount of Rs.2,527/- and remaining balance sale consideration has to be paid by the date of registration of sale deed.
17. It was contended by the learned counsel for the appellant that the trial Court came to a conclusion that the appellant did not trespass into the plaint schedule property and the said finding is not challenged by the plaintiffs by way of filing cross objections and therefore there is no need to investigate the said finding by the First Appellate Court in the first appeal proceedings.
18. It is well settled that in a first appeal, the first appellate court is duty bound to examine all the aspects and first appellate court has to scrutinize the oral and documentary evidence on record. The first appeal is a valuable right of the appellant and therein all questions of facts and law decided by the trial court are open for reconsideration. Therefore, the first appellate court is required to address itself to all the issues and decide the case by giving reasons. The court of first appeal must record its findings only after dealing with all issues of law as well as fact and with the evidence, oral as well as documentary, led by the parties. The judgment of the first appellate court must display conscious application of mind and record findings supported by reasons on all issues and contentions.
19. In Malluru Mallappa v. Kuruvathappa and others 1 , the Apex Court held as follows:
1(2020) 4 SCC 313 "It is a settled position of law that an appeal is a continuation of the proceedings of the original court. Ordinarily, the appellate jurisdiction involves a rehearing on law as well as on fact and is invoked by an aggrieved person. The first appeal is a valuable right of the appellant and therein all questions of fact and law decided by the trial court are open for reconsideration. Therefore, the first appellate court is required to address itself to all the issues and decide the case by giving reasons.
The court of first appeal must record its findings only after dealing with all issues of law as well as fact and with the evidence, oral as well as documentary, led by the parties. The judgment of the first appellate court must display conscious application of mind and record findings supported by reasons on all issues and contentions."
In view of the aforesaid reasons, I am unable to accept the contention of the learned counsel for the appellant since no cross objections are filed by the plaintiffs against the aforesaid finding given by the learned trial Judge, the First Appellate Court is not bound to examine the said aspect.
20. The plaintiffs relied on Ex.A1 approved layout for plaint schedule property and Ex.A2 is the copy of legal notice, dated 01.07.1987 said to have been issued by the plaintiffs through their Advocate to the defendant. The recitals incorporated in Ex.A2 legal notice are the defendant purchased Plot No.1 from the plaintiffs and also entered into agreement of sale for Plot No.2 i.e., plaint schedule property for 266 sq. yards for a sum of Rs.2,527/- with the plaintiffs on 14.04.1977. It was further averred in Ex.A2 legal notice that the defendant did not get ready to perform her part of contract though the plaintiffs are ready and willing to perform their part of contract. Ex.B3 is the reply notice said to have been issued by the defendant, dated 06.07.1987 to the plaintiffs‟ counsel. The defendant admitted in her evidence in cross examination that prior to the date of Ex.B1, Rajahmundry Municipality raised objection for constructing her house as there is a proposal for laying a road and they have not applied the Municipality for any construction in Plot No.2 by giving a plan for approval. She further admitted that they have constructed terraced house in 1987 in Plot No.1 and in the year 1987 they have constructed a compound wall surrounding Plot Nos.1 and 2 and in the year 1977 the Municipal authorities requested her husband to provide the front site in Plot No.2 for laying road and the Municipal people will provide an alternative site situated on the west in exchange, but her husband refused to do the same and by then it was determined that there is no road and that from 1977 to 1987 they have not issued any notice to the plaintiffs requesting them to execute registered sale deed stating that they are ready with money.
21. It is the contention of the learned counsel for the appellant that unless the plaintiffs complete the first term of the contract about the release of layout for laying road, payment of balance sale consideration would not arise and payment of balance sale consideration to the plaintiffs will arise after completion of the first term in the contract of sale. Admittedly, the alleged Ex.B1 is unregistered agreement of sale, dated 14.04.1977. As per the recitals in Ex.B1 the total agreed sale consideration is Rs.2,527/-. From out of it, a paltry amount of Rs.50/- has been paid to the plaintiffs and the remaining amount of Rs.2,477/- has to be paid to the plaintiffs by the date of obtaining registered sale deed. Admittedly, from the year 1977 to 01.07.1987, there is no exchange of notices in between both the parties to the suit. In first, the plaintiffs issued a legal notice on 01.07.1987 to the defendant with a specific plea that the plaintiffs are always ready and willing to perform their part of contract. Ex.A2 is notice issued by the plaintiffs through their Advocate to the defendant and the recitals in the said notice are the defendant purchased Plot No.1 from the plaintiffs and obtained registered sale deed for Plot No.1 and also entered into agreement of sale for Plot No.2 i.e., plaint schedule property for 226 sq. yards for a sum of Rs.2,527/- with the plaintiffs on 14.04.1977. It was further averred in Ex.A2 legal notice that the defendant did not perform her part of contract and the plaintiffs are ready and willing to perform their part of contract. Ex.B3 is reply notice, dated 06.07.1986 said to have been issued by the counsel for defendant to the counsel for plaintiffs. In Ex.B3 it was admitted by the defendant that the plaintiffs are the owners of the plaint schedule property and the defendant is ready and willing to perform her part of contract provided the plaintiffs produce the approved layout plan by the authorities of Rajahmundry Municipality and the order of releasing it and also sufficient proof that the extension of weavers‟ colony road towards north through the Plot No.2 was finally dropped and further defendant pleaded that unless the plaintiffs provides the approved layout plan by the authorities of Rajahmundry and obtain order of releasing it for laying road, payment of balance sale consideration of Rs.2,477/- does not arise. Fact remains that obtaining a layout plan from the Rajahmundry Municipality is not within the hands of the plaintiffs. The layout has to be approved by the Municipal Authorities. As noticed supra, to prove her bonafidies, the defendant did not issue any legal notice, she remain silent for a period of 10 years until the receipt of legal notice from the plaintiffs. The defendant obtained Ex.B1 alleged agreement of sale from the plaintiffs on 14.04.1977. If the plaintiffs have not completed the first term contract, the defendant has to issue legal notice to the plaintiffs by informing her readiness and willingness within three years from the date of Ex.B1 agreement of sale, but she remained silent until she received legal notice from the plaintiffs. In fact, the plaintiffs issued a legal notice in the beginning of 01.07.1987 to the defendant by demanding the defendant to perform her part of contract. The fact remains that at-least the defendant has to file suit for specific performance of agreement of sale within three years from the date of receipt of legal notice, but no suit has been filed by the defendant for specific performance of agreement of sale except a paltry amount of Rs.50/- has been paid from out of agreed sale consideration of Rs.2,527/- under Ex.B.1. It is not at all the case of the defendant that he paid balance sale consideration of Rs.2,477/- subsequent to alleged Ex.B1 contract. It was pleaded by defendant that she is ready to pay the balance sale consideration of Rs.2,477/- provided the plaintiffs has to fulfill the other terms and conditions in Ex.B1.
22. Ex.A3 is legal notice said to have been issued by the defendant to the plaintiffs, dated 14.12.1987 by stating that the defendant made an application before Rajahmundry Municipality that the plaintiffs presented an application to the Rajahmundry Municipality not to approve any building plan that might be submitted by the defendant for making construction in Plot No.2 i.e., plaint schedule property. In Ex.A3 legal notice, dated 14.12.1987, it was not at all mentioned by the appellant that the constructions are made by the defendant in the plaint schedule property. Ex.A4 is the reply notice, dated 19.12.1987 given by the plaintiffs to Ex.A3 legal notice. In Ex.A4 it was specifically pleaded by the plaintiffs that in the year 1987 the defendant trespassed into Plot No.2 i.e., plaint schedule property and started making constructions therein and that they gave a legal notice to the defendant. The suit is instituted by the plaintiffs for recovery of possession of the plaint schedule property on 01.04.1989.
23. Learned counsel for the appellant placed a reliance of Dammulal Babulal Jain v. Mohammad Bhai Haji Suleman Kacchi2 wherein the High Court of Nagpur held as follows:
Section 53-A is an exception to the provisions which require a contract to be in writing and registered and which bar proof of such contract by any other evidence. Consequently, the exception must be strictly construed. The protection given by this section to the defendant in possession cannot by analogy be extended to the transferor. That may be inequitable as the learned Counsel submits. If so, it is a lacuna in the section.
The omission to give protection to the transferor except where Section 27-A of the Specific Relief Act is applicable appears to be deliberate. Referring to S. 53A the Supreme Court has observed in „Maneklal Mansukhbhai v. Hormusji Jamshedji Ginwala and Sons,‟ 1950 SCC 83 : AIR 1950 SC 1 at p. 4 (R):2
AIR 1955 Nagpur 306 "The Section 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.......
Admittedly, in the case on hand, Ex.B1 is not registered agreement of sale. The facts in the present case are not in between the lessor and lessee.
24. Learned counsel for the appellant placed reliance of Yenugu Achayya and others vs. Ernaki Venkata Subba Rao and others3 wherein the composite High Court of Andhra Pradesh at Hyderabad held as follows:
It is not necessary to consider the pre-existing law of part performance as it obtained in India or in England, for after the enactment of Section 53-A laying down the limits of the doctrine, we are only governed by the said provisions. The necessary conditions for the application of the section are (i) there is a contract to transfer immoveable property for consideration, (ii) the contract is signed by or on behalf of the transferor,
(iii) the terms can be ascertained with reasonable certainty from the document, (iv) the transferee is put in possession or if he has been already in possession continues in possession, (v) he has done some act in furtherance of the contract and (vi) the transferee has performed or is willing to perform his part of the contract.
If the aforesaid conditions are fulfilled 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 that property. This Section does not, even if the conditions laid down therein are complied with, convey title to the transferee. Notwithstanding the section title can be transferred only after the registration of the document. The provision prevents a transferor from enforcing his rights in respect of the property against the transferee but enables him to sue the transferee upon the covenants contained in the document. In short, 3 1956 ILR (Andhra Pradesh) 1019 the mutual convenants will be operative, though title does not pass under the document.
The section does not either expressly or by necessary implication indicate that the rights conferred on the transferee there under can only be invoked as a defendant and not as a plaintiff. Under the terms of the section the transferor is debarred from enforcing against the transferee any rights in respect of the property and this bar does not depend upon the array of the parties. The transferee can resist any attempt on the part of the transferor to enforce his rights in respect of the property whatever position he may occupy in the field of litigation. In one sense, it is a statutory recognition of the defensive equity. It enables the transferee to use it as a shield against any attempt on the part of the transferor to enforce his rights against the property.
Whether the transferee occupies the position of a plaintiff or a defendant, he can resist the transferor's claim against the property. Conversely, whether the transferor is the plaintiff or the defendant, he cannot enforce his rights in respect of the property against the transferee. The utility of the section or the rights conferred there under should not be made to depend on the maneuvering for positions in a Court of law; otherwise, a powerful transferor can always defeat the salutary provisions of the section by dispossessing the transferee by force and compelling him to go to a Court as plaintiff. Doubtless, the right conveyed under the section can be relied upon only as a shield and not as a sword but the protection is available to the transferee both as a plaintiff and as a defendant so long as he uses it as a shield.
Learned counsel for the appellant relied on Yeditha Satyanarayanamurty and others vs. Tadi Subrahmanyam and others 4 wherein the composite High Court of Andhra Pradesh at Hyderabad held as follows:
"It is seen that the equitable doctrine of par; performance embodied in Section 53-A is applicable only where a person having contracted to 4 AIR 1959 Andhra Pradesh 534 transfer property by writing signed by him or on his behalf and put the vendee in possession thereof, wants to recover the property taking advantage of want of formality in the evidence. In other words, this section precludes a transferor from asserting his title in respect of property transferred by him when the conditions contemplated by the section are fulfilled."
Learned counsel for the appellant relied on Nathulal v. Phoolchand5 wherein the Apex Court held as follows:
"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 immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty:
(2) that the transferee has, in part performance of the contract,, taken possession of the. property or any part thereof, or the transferee, being already in possession continues in possession in part performance of the contract;
(3) that the transferee has done some act in furtherance of the contract; and (4) that the transferee has performed or is willing to perform his part of the contract.
If these conditions are fulfilled then notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefore by the law for the time being in force, the transferor or any person claiming under him is debarred from enforcing against the transferee any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the 5 AIR 1970 Supreme Court 546 contract. Section 70(8) of the M.B. Land Revenue and Tenancy Act creates no bar to defence of part performance."
In the case on hand, the signatures of the parties on Ex.B1 are not in dispute. The specific case of the plaintiffs is that possession was not delivered to the defendant. As stated supra, in Ex.B1 agreement of sale a line at the end of agreement is appears to be inserted with a different ink and with different handwriting, as if the possession was delivered to the defendant under Ex.B1 agreement of sale, the same is visible with nacked eye. It was suggested to D.W.2 in the cross examination by the learned counsel for the plaintiffs that the possession was not delivered to the defendant and the said was denied by D.W.2. As stated supra, there is no other cogent evidence to show that the possession was delivered to the defendant under Ex.B1 agreement of sale in respect of the plaint schedule property. The appellant herein failed to comply necessary condition Nos.2 to 4 as held by Apex Court in Natulal's case (5 supra) for making out a defence for part of performance. Admittedly, the defendant has not issued any notice prior to the issuance of legal notice by the plaintiffs that she is always ready and willing to perform her part of contract, but the plaintiffs have not came forward to discharge their obligation. Admittedly, the defendant has not issued any notice to the plaintiffs that she is ready with balance sale consideration of Rs.2,477/-, a paltry amount of Rs.50/- has been paid from out of Rs.2,527/-. It is also made it clear that no suit has been filed by the defendant for specific performance of agreement of sale, dated 14.04.1977.
25. Learned counsel for the appellant placed a reliance of Piru Charan Pal and another vs. Minor Sunilmoy Nemo and another 6 wherein the Calcutta High Court held as follows:
"It was firstly contended by Mr. Baneriee, learned Advocate appearing on behalf of the plaintiff-respondent, that the defendants not having specifically pleaded Section 53-A of the Transfer of Property Act in their 6 AIR 1973 Calcutta 1 written statement, they were not entitled to seek protection under the said provision. It, however, appears from the written statement that the defendants stated all ingredient facts necessary for the purpose of Section 53-A of the Transfer of Property Act. It is true that there has been no specific mention of the section in the written statement, but in our view, that will not debar the defendants from raising the defence under Section 53-A of the Transfer of Property Act. It does not appear from the judgment of the lower appellate court that the plaintiff took any objection to the defendants' relying upon the provisions of Section 53- A of the Transfer of Property Act Mr. Baneriee relied upon a decision reported in Seraijul Hoque v. Dwijendra, 45 Cal WN 240 = (AIR 1941 Cal
33). where it has been laid down that Section 53-A must be specifically pleaded. In the instant case, as aforesaid, the defendants having stated all ingredient facts for the purpose of Section 53-A, in our view, the defendants were entitled to raise the defence under Section 53-A, even though there has been no mention of that section in the written statement. We would accordingly overrule this contention of Mr, Baneriee."
Learned counsel for the appellant placed a reliance of S.F. Muniswami Gounder and others vs. Erusa Gounder7 wherein the High Court of Madras held as follows:
"It is settled law, that, under Section 53-A of the Transfer of Property Act, no title passes to a transferee. He cannot file a suit for declaration of his title to the property or seek to recover possession of the same on the basis of any title conferred on him."
Learned counsel for the appellant placed a reliance of Ranchhoddas Chhaganlal vs. Devaji Supdu Dorik and others8 wherein the Apex Court held as follows:
7AIR 1975 Madras 25 8 AIR 1977 Supreme Court 1517 "The principal hurdle in the way of the respondent is that the respondent has never been ready and willing to perform the agreement, as alleged by the appellant. The respondent alleged that the consideration for purchase was Rs. 12000/-. The respondent has never been ready and willing to perform the agreement alleged by the appellant. The respondent relied on the doctrine of part-performance. One of the limbs of part performance is that the transferee has in the part performance of the contract taken possession of the property. The most important consideration here is the contract. The true principle of the operation of the acts of part performance seems to require that the acts in question must be referred to some contract and must be referred to the alleged one; that they prove the existence of some contract, and are consistent with the contract alleged. The doctrine of 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. The appellant is right in the contention that there was never any performance in part by the respondent of the contract between the parties."
Learned counsel for the appellant placed a reliance of Nagarathinam Pillai vs. K.K.Natesam Chettair 9 wherein the Maras High Court held as follows:
"The contention that Section 53-A of the Transfer of Property Act will have no application unless the contract relied on can be specifically enforced, is to put the proposition in too broad and wide a manner. The object of this section it to protect persons in cases where there is a contract which is inadmissible in evidence and cannot been forced by filing a suit for specific performance. The contract contemplated in Section 53-A of the Transfer of Property Act must be a valid and completed contract and net a contract forbidden by law or based on negotiations which had not been matured into a contract. As exhibit B1 is a completed contract of transfer of immovable property for 9 1980 (93) LW 489 consideration valid in law, that is sufficient to bring the case within the ambit of Section 53-A of the Transfer of Property Act and the question that it is an unregistered document is not relevant for purpose of Section 53-A of the Transfer of Property Act."
Learned counsel for the appellant placed a reliance of Sardar Govindarao Mahadik and another vs.Devi Sahai and others10 wherein the Apex Court held as follows:
"While text book writers and English decisions may shed some light to illuminate the blurred areas as to whether part payment of purchase money or even the whole of the consideration would not be sufficient act of part performance, it is necessary that this aspect may be examined in the background of statutory requirement as enacted in section 53A. To qualify for the protection of the 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 r it and from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty. These are pre-requisites to invoke the equitable doctrine of part performance. After establishing the aforementioned circumstances it must be further shown that a transferee had in part performance of the contract either taken possession of the property or any part thereof or the transferee being already in possession continues in possession in part performance of the contract and has done some act in furtherance of the contract. The acts claimed to be in part performance must be unequivocally referable to the pre-existing contract and the acts of part performance must unequivocally point in the direction of the existence of contract and evidencing implementation or performance of contract. There must be a real nexus between the contract and the acts done in pursuance of the contract or in furtherance of the contract and must be unequivocally referable to the contract. When series of acts are done in part performance, one such may be payment of consideration. Any one 10 AIR 1982 Supreme Court 989 act by itself may or may not be of such a conclusive nature as to conclude the point one way or the other but when taken with many others payment of part of the consideration or the whole of the consideration may as well be shown to be in furtherance of contract. The correct approach would be what Lord Reid said in Steadman's case that one must not first took at the oral contract and then see whether the alleged acts of part performance are consistent with it. One must first look at the alleged acts of part performance and see whether they prove that there must have been a contract and it is only if they do so prove that one can bring in the oral contract. This view may not be wholly applicable to the situation in India because an oral contract is not envisaged by section 53A. Even for invoking the equitable doctrine of part performance there has to be a contract in writing from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty. Therefore, the correct view in India would be, look at that writing that is offered as a contract for transfer for consideration of any immovable property and then examine the acts said to have been done in furtherance of the contract and find out whether there is a real nexus between the contract and the acts pleaded as in part performance so that to refuse relief would be perpetuating the fraud of the party who after having taken advantage or benefit of the contract backs out and pleads non registration as defence, a defence analogous to section 4 of the Statute of Frauds.
26. Section 53A of Transfer of Property Act reads as under:
53A. Part performance.-- Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that, 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.
27. There is no averment in the written statement that he has been claiming possession of the property in part performance of the contract. To claim the benefit under Section 53-A of Transfer of Property Act, there shall be necessary pleadings. In the absence of necessary pleadings, the benefit under the provision cannot be claimed. The law in this regard is well settled in Shyam Narayan Prasad vs. Krishna Prasad 11 , that "the defendant who intends to avail the benefit of Section 53-A of Transfer of Property Act must plead that he has taken possession of the property in part performance of the contract..... No relief can be granted to a party without the pleadings".
28. Learned counsel for the appellant placed a reliance of Chaman Lal vs. Smt. Surinder Kumari 12 wherein the Punjab and Haryana High Court held as follows:
"A transferee, who has come in possession of the property in part performance of a written agreement, can continue in its possession if he is ready and willing to perform his part of the agreement, in such a case, it is not necessary the transferee should have filed a suit for specific 11 2018 (4) ALT(sc) 40 12 AIR 1983 Punjab and Haryana 323 performance within the period of limitation for suit for specific performance."
Learned counsel for the appellant placed a reliance of Balasaheb Manikrao Deshmukh and another vs. Rama Lingoji Warthi13 wherein the Bombay High Court held as follows:
"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."
Learned counsel for the appellant placed a reliance of Maung Po Kywe and others vs. Maung Po Tin and others14 wherein the Rangoon High Court held as follows:
"To a suit by the owner to recover possession of immovable property of the value of Rs.100 or upwards, it is a valid defence that the defendant had been put into possession under an oral contract of sale after paying the purchase money and such defence can be raised even though the right to sue for specific performance of the contract of sale may be barred by limitation."
Admittedly, in the case on hand, this Court came to a conclusion that the transferee has not came into possession of the plaint schedule property in part of the performance of the contract. Therefore, the ratio laid down in the aforesaid case laws are not applicable to the present case on hand.
13AIR 2000 Bombay 337 14 AIR 1929 Rangoon 251
29. Learned counsel for the appellant placed reliance of Nakul Chandra Policy vs. Kalipada Ghosal and another15 wherein the Calcultta High Court held as follows:
"The terms of S.53-A do not exclude the case of a transfer of occupancy holding which in order to be completed must be governed by the special provisions of the Bengal Tenancy Act. There is nothing in the T.P. Act or in the local Act to indicate that the general provisions of the Transfer of Property Act shall not apply to agricultural leases, nor is there any provision in the Bengal Tenancy Act which excludes a defence such as is provided for by S.53-A T.P. Act."
The ratio laid down in the aforesaid case law relates to Bengal Tenancy Act. Therefore, the facts the circumstances in the aforesaid case law are different to the instant case.
30. Learned counsel for the appellant placed a reliance of Akram Mea vs. Secunderabad Municipal Corporation16.
The facts in the aforesaid case law relates to suit filed by the appellant for declaration of his right in respect of two mutton stalls and also consequential relief of permanent injunction restraining the defendants from interfering with his rights. Therefore, the facts in the aforesaid case law are different to the instant case.
31. Learned counsel for the appellant placed a reliance of Narasimhasetty and others vs. Padmasett17.
The aforesaid case law relates to a writ petition filed under Article 225 of the Constitution of India in respect of challenging Rule 6 of Karnataka High 15 AIR 1939 Calcutta 163 16 AIR 1957 Andhra Pradesh 859 17 AIR 1998 Karnataka 389 Court Rules (1959). Therefore, the facts and circumstances in the aforesaid case law are different to the instant case.
32. Learned counsel for the appellant placed a reliance of Shrimant Shamrao Suryavanshi and another vs. Pralhad Bhairoba Suryavanshi (dead) by LRs. and others18 wherein the Apex Court held as follows:
"A perusal of Section 53-A shows that it does not forbid a defendant transferee from taking a plea in his defence to protect his possession over the suit property obtained in part performance of a contract even though the period of limitation for bringing a suit for specific performance has expired. It also does not expressly provide that a defendant transferee is not entitled to protect his possession over the suit property taken in part performance of the contract if the period of limitation to bring a suit for specific performance has expired. In absence of such a provision, we have to interpret the provisions of Section 53-A in a scientific manner. It means to look into the legislative history and structure of the provisions of Section 53- A of the Act.
Learned counsel for the appellant placed a reliance of M/s.Chetak Constructions Limited, Indore vs. Om Prakash and other19 wherein the High Court of Madhya Pradesh held as follows:
"12.Point (a) Section 53-A of the Transfer of Property Act relevant for the present purpose provides that where any person "contracts to transfer for consideration" any immovable property by writing signed by him and the "transferee" has in part performance of the contract "taken possession"
of the property and the transferee has "performed or is willing to perform his part of the contract", then notwithstanding that the contract, though required to be registered, has not been registered, the transferor "shall be debarred from enforcing against the transferee" any right in respect of 18 AIR 2002 Supreme Court 960 19 AIR 2003 Madhya Pradesh 145 the property of which the transferee has taken possession other than the right expressly provided by the terms of the contract. A plain reading of the Section shows that a statutory right has been conferred on the "transferee in possession" to protect his possession if he satisfies all the conditions of the Section. It imposes a statutory bar on the transferor, but confers no title on the transferee. The right conferred on the transferee can be used "as a shield and not as a sword", it is a "weapon of defence and not of attack", it is a defensive or passive equity and not an active one". To this extent the law is well settled. In Ranchhoddas v. Devaji, AIR 1977 SC 1517, it has been observed by the Supreme Court that the doctrine of part performance is a defence. It is a shield and not a sword. It is a right to protect his possession against any challenge to it by the transferor contrary to the terms of the contract. In State of U.P. v. District Judge, AIR 1997 SC 53, it is said that Section 53-A provides for a shield of protection to the proposed transferee to remain in possession against the original owner who has agreed to sell the lands to the transferee if the proposed transferee satisfies other conditions of Section 53-A. That protection is available as a shield only against the transferor, the proposed vendor, and would disentitle him from disturbing the possession of the proposed transferees who are put in possession pursuant to such agreement. Again in Hamzabi v. Syed Karimuddin (2001) 1 SCC 414 : (2000 AIR SCW 4354) it is reiterated that Section 53-A protects the possession of persons who may have acted on a contract of sale but in whose favour no legally valid sale deed may have been executed or registered.
In the case on hand, as stated supra, this Court held the transferee has not come into possession of the property in part of performance of the contract under Ex.B1 alleged agreement of sale.
33. The learned counsel for the appellant placed a reliance of Mahadeva and others vs. Tanabai20.
20AIR 2004 Supreme Court 3854 In the case on hand, there is no evidence on record that appellant/ defendant is in possession of the property since 1974, subsequently, Ex.B1 was executed. The present suit is filed in the year 1989 for claiming the relief of recovery of possession of the plaint schedule property. Therefore, the facts in the aforesaid case law are different to the instant case.
34. The learned counsel for the appellant placed a reliance of Madala Kotaiah vs. M/s. Hamsa Minerals & Experts and another 21 wherein the Single Bench of composite High Court of Andhra Pradesh at Hyderabad held as follows:
"Section 53-A of the Act is intended to protect the rights of the persons, who have entered into an agreement for purchase of an item of immovable property and are in possession of the property, but are facing threat of dispossession from the concerned vendors. The relief under this provision can be claimed, only by expressing readiness and willingness to perform his part of contract. In such cases, they can effectively resist the attempts of the vendors and the Court can grant the necessary relief. Instances of suits being filed solely on the basis of agreement of sale are somewhat rare. The holders of agreement of sale, in such cases, are required to file suit for specific performance of agreement of sale. Perpetual injunction can also be claimed as an ancillary relief."
In the case on hand, no suit for specific performance of agreement of sale is filed by the defendant herein and the defendant has not sought any relief of permanent injunction in the suit proceedings of specific performance of agreement of sale. Therefore, the facts and circumstances in the aforesaid case law are different to the instant case.
212011 (6) ALT 19 (S.B.)
35. Learned counsel for the appellant placed a reliance of M. Gopal and another vs. K. Janga Reddy (died) per L.Rs. and another22.
The facts in the aforesaid case law are owner of the lands is the 1st defendant and the 1st respondent/plaintiff filed the suit for declaration of title and recovery of possession and consequential relief of permanent injunction in respect of the property. In the case on hand, the plaintiffs are owners of the plaint schedule property and the defendant also admitted the ownership of the plaintiffs of the plaint schedule property. Therefore, the facts in the aforesaid case law are different to the instant case.
36. The learned counsel for appellant and respondents placed a reliance inMohan Lal (Deceased) Through His L.Rs. Kachru and others vs. Mirza Abdul Gaffar and another23,in that decision, it was held as follows:
When the transferee seeks to avail of Section 53-A to retain possession of the property which he had under the contract, it would be incumbent upon the transferee to plead and prove his readiness and willingness to perform his part of the contract. Under Section 16(c) of the Specific Relief Act also the plaintiff must plead in the plaint, his readiness and willingness from the date of the contract till the date of the decree. The plaintiff who seeks enforcement of the agreement is enjoined to establish the same. In a suit for possession filed by the respondent, successor-in-interest of the transferor as a subsequent purchaser, the earlier transferee must plead and prove that he is ready and willing to perform his part of the contract so as to enable him to retain his possession of the immovable property held under the agreement. In this case except vaguely denying that he was not ready and willing to perform his part, he did not specifically plead it.
37. In a case of A.Lewis and another vs. M.T.Ramamurthy and others24, the Apex Court held as follows:
222011 (4) ALT 652 (S.B.) (1996) 1 SCC 639 23 As rightly pointed out by the High Court, the existence of right to claim protection under Section 53-A of the Transfer of Property Act would not be available if the transferee just kept quiet and remained passive without taking effective steps. Further, he must also perform his part of the contract and convey his willingness. On the other hand, the factual finding is that there was no intimation by defendant Nos. 3 and 4 to perform their part of contract to claim protection of Section 53-A of the Transfer of Property Act. Likewise, as rightly concluded by the courts below, there is no material to show that the plaintiff had notice of agreement of sale Ex.D-1 in favour of defendant Nos. 3 and 4. The conclusion of the High Court that defendant Nos. 3 and 4 or even defendant No.1 who claims through them are not entitled to protection of Section 53-A of the Transfer of Property Act is acceptable and the argument contrary to the said conclusion is liable to be rejected.
38. The contention of the appellant herein is that she is entitled protection under Section 53-A of the Transfer of Property Act. Law is well settled that to protect her possession under Section 53-A of the Transfer of Property Act, the transferee/appellant has to fulfill requisite conditions viz., (i) the transferee must in part of performance of the contract take possession of the property or of any part thereof; and (ii) the transferee must have done some act in furtherance of the contract and the transferee must have perform or be willing to perform her part of contract. Admittedly, in the case on hand, the appellant fails to fulfill the aforesaid requisite conditions which are required to protect her possession under Section 53-A of the Transfer of Property Act.
39. It is the specific case of the appellant in the written statement that she came into possession of agreement of sale with the plaintiffs in respect of plaint schedule property along with another Plot No.1 abutting to Plot No.2 in the year 1974 under an agreement of sale but not in the year 1977 under Ex.B1 alleged agreement of sale. P.W.1 stated in his evidence that Plot Nos.1 and 2 were sold to the defendant in the year 1974 under an agreement of sale (2007) 14 SCC 87 24 and subsequently in the year 1977 the defendant obtained a registered sale deed, dated 14.04.1977 in respect of Plot No.1. The specific recitals in Ex.B1 is the advance amount given to Plot Nos.1 and 2 under earlier agreement of sale has been adjusted towards sale consideration for registered sale deed obtained for Plot No.1 and no advance amount is there for Ex.B1 property as on the date of Ex.B1. There was a specific recital in Ex.B1 that the possession of the property is with the plaintiffs. The appellant is not denying the terms and conditions in Ex.B1. As stated supra, there is no specific recital in Ex.B1 that the possession of the property is with the defendant. There is no mention in Ex.B1 that possession of the property of Plot Nos.1 and 2 were given to the defendant under an earlier alleged agreement of sale which is occurred in the year 1974. The specific contention of the appellant in the written statement is that the said agreement relates to the year 1974 was torn out since she obtained a registered sale deed for another Plot No.1 and a fresh agreement under Ex.B1 executed. There is no whisper in Ex.B1 that the original agreement of sale of the year 1974 was turn out and Ex.B1 is being executed.
40. In the case on hand, transferee has not done some act in furtherance of the contract. The conduct of the appellant does not establish that she is ready and willing to perform her part of contract by giving any notice or by filing a suit for specific performance of agreement of sale under Ex.B1. The appellant is kept quiet from the date of agreement of sale till today. There is no evidence on the part of appellant that she has done some act in furtherance of contract i.e., Ex.B1. On physical verification of Ex.B1, this Court came to a conclusion that subsequent to alleged Ex.B1 agreement, the line appears to be inserted at the end of Ex.B1 on the top of schedule mentioned property as "the possession is delivered to the defendant" with a different ink and with different handwriting and the same is visible with a nacked eye. Therefore, I am unable to accept the contention of appellant that she came into possession of schedule property. As noticed supra, there is no evidence on record on the part of the appellant that she has done some act in furtherance of Ex.B1 contract and no notice was issued by the appellant to the plaintiffs by informing that she is ready to perform her part of contract, but the plaintiffs are not ready and willing to perform their part of contract. The appellant remained silent till the date of receipt of legal notice from the plaintiffs and she issued a reply notice to the legal notice issued by the plaintiffs.
For the aforesaid reasons, the appellant is not entitled to enjoy the benefit under Section 53-A of the Transfer of Property Act and the appellant cannot seek protection in a suit for recovery of possession of the plaint schedule property filed by the plaintiffs.
Accordingly, point No.1 is answered.
41. Point No.2:
Whether the trial Court is justified in ordering recovery of possession of the plaintiffs in suit scheduled property from the defendant?
The case of the plaintiffs is that they are the owners of the plaint schedule property. It is also admitted by appellant that the plaintiffs are the original owners of plaint schedule property. It is the case of the appellant that she did not obtain any registered sale deed in respect of the plaint schedule property from the plaintiffs. The case of the appellant is that she obtained Ex.B1 agreement of sale, dated 14.04.1977 and she paid advance sale consideration of Rs.50/- under Ex.B1 from out of total sale consideration of Rs.2,525/-. The contention of the appellant is that though she is ready to pay the remaining balance sale consideration, the plaintiffs did not come forward to perform their part of contract. Admittedly, no notice has been issued by the appellant to the plaintiffs till the date of receipt of legal notice issued by the plaintiffs in the year 1987. The trial Court came to a different conclusion that the appellant was in possession of the plaint schedule property under Ex.B1 Agreement of sale but on physical verification of Ex.B1 this Court came to a conclusion that the line appear to be inserted at the end of Ex.B1 as the possession delivered to the defendant on the top of schedule mentioned property with a different ink and different handwriting and the same is visible with a nacked eye.
42. As stated supra, the learned trial Judge came to a different conclusion that the appellant was put in possession of the plaint schedule property under Ex.B1, but the said finding is not at all correct. This Court being the First Appellate Court is duty bound to examine all the aspects and First Appellate Court has to scrutinize the oral and documentary evidence on record. The First Appeal is a valuable right of the appellant and therein all questions of facts and law decided by the trial Court are open for reconsideration. Therefore, this Court being the First Appellate Court is required to address itself to all the issues and decide the case by giving reasons and this Court being the First Appellate Court must record its findings only after dealing with all issues of law as well as fact and with the evidence, oral as well as documentary, led by the parties. Though no cross objections are filed by the plaintiffs, since this Court being the First Appellate Court, is entitled as to appreciate the entire oral and documentary evidence on record afresh.
43. To show the bonafidies of the appellant, she did not move her little finger except throwing the blame on the part of the plaintiffs. Admittedly, no notice has been issued by the appellant to the plaintiffs till the date of receipt of legal notice issued by the plaintiffs in the year 1987. She remained silent and she has not filed any suit for specific performance of agreement of sale within three years by depositing the balance sale consideration into the Court from the date of denial by the plaintiffs to show her boanfidies. The transaction under Ex.B1 is incomplete transaction. Admittedly, a registered sale deed has not at all obtained from the original owners of the suit schedule property. Though the appellant relied on tax receipts, she failed to establish those tax receipts relates to the plaint schedule property. It was held in point No.1, as stated supra, that the appellant is not entitled protection under Section 53-A of the Transfer of Property Act, since nothing was done by the appellant in furtherance of the contract. Therefore, the plaintiffs are entitled for recovery of possession of the plaint schedule property from the appellant and the trial Court is justified in ordering recovery of possession of the plaint schedule property.
44. In the result, the appeal suit is dismissed and the appellant is directed to deliver the vacant possession of the plaint schedule property to the plaintiffs within a period of three (03) months from the date of this judgment; failing which the plaintiffs are entitled to take necessary steps in accordance with law. Considering the facts and circumstances of the case, there shall be no order as to costs.
As a sequel, miscellaneous petitions, if any, pending in the Appeal shall stand closed.
_________________________ V. GOPALA KRISHNA RAO, J Date: 18.02.2025 PGR THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO APPEAL SUIT No.389 OF 2000 Date:18.02.2025 PGR