Karnataka High Court
Mahadeva S/O Mandi Madashetty vs Smt.Rangamma W/O S Subbaiah on 3 October, 2012
Author: S.Abdul Nazeer
Bench: S. Abdul Nazeer
R
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 3RD DAY OF OCTOBER 2012
BEFORE
THE HON'BLE MR.JUSTICE S. ABDUL NAZEER
REGULAR SECOND APPEAL NO.398/2010
C/W RSA NO.399/2010(DEC).
Between:
Mahadeva,
S/o Mandi Madashetty,
Hindu, aged about 45 years,
R/a Maratikyathanalli Village,
Jayapura Hobli,
Mysore Taluk 570 001. .... Appellant.
(common)
(By Sri O. Shivarama Bhat, Adv.)
And :
1 Smt. Rangamma,
W/o S.Subbaiah,
Aged about 39 years,
R/a Door No.1057,
Sarvajanika Hostel Road,
Vidyaranyapuram,
Mysore - 570 001.
2
2 Smt. Lakshmamma,
W/o Ningaraju,
Aged about 40 years,
R/a Door No.1057,
Sarvajanika Hostel Road,
Vidyaranyapuram,
Mysore - 570 001. .... Respondents.
(common)
(By Sri T.N. Raghupathy, Adv.)
---
These Regular Second Appeals are filed under Sec.100 of
CPC against the judgment and decree dated 12.1.2010 in
R.A.Nos.35/2004 and 38/2004 on the file of the II Additional
District Judge, Mysore, etc.
These Regular Second Appeals coming on for Further
Hearing this day, the Court delivered the following:
JUDGMENT
These two appeals are directed against the judgment and decree in R.A.Nos.35/2004 and 38/2004 dated 12.1.2010 on the file of the II Additional District Judge at Mysore.
2. Mahadeva is the common appellant in both these appeals. Similarly, Smt.Rangamma and Smt.Lakshmamma are the common 3 respondents. Mahadeva filed O.S.No.266/1997 on the file of the II Additional Civil Judge (Sr.Dn.), Mysore, against the respondents for declaring that he is the absolute owner and in possession of the plaint schedule property and that the sale deed dated 23.9.1996 executed by Smt.Rangamma, the first defendant in favour of Smt.Lakshmamma, the second defendant in respect of the suit schedule property is null and void and for permanent injunction restraining the defendants, their servants or anybody claiming through them from interfering with his possession and enjoyment of the suit schedule property. It is the case of the plaintiff that he is the owner and in possession of Sy.No.5/2p measuring 22 guntas situated at Maratikyathanahalli village, Mysore Taluk. On 10.5.1994, the first defendant has illegally got transferred the katha of the suit schedule property to her name. The said fact came to his knowledge in September, 1996 when the first defendant started interfering with his possession and enjoyment of the suit schedule property. Immediately thereafter, he obtained certified copy of the mutation extract and challenged the same by filing an appeal under 4 Section 136 of the Karnataka Land Revenue Act before the Assistant Commissioner in RRT No.28/96-97. During the pendency of the appeal, he has filed the above suit. Therefore, the appeal was disposed of by directing the parties to pursue the suit. It is further contended that on the basis of the said katha, the first defendant has executed the sale deed in favour of the second defendant without having any right over the said property. On the basis of the illegal transaction, the defendants are interfering with his possession and enjoyment of the said property.
3. In response to the summons, the defendants have entered appearance in the suit and have filed their joint written statement admitting that plaintiff was the owner of the suit schedule property. It is their case that first defendant has purchased the said property under a Panchayathi Sale Agreement dated 15.3.1992 from the plaintiff and that from the said date till 23.9.1996, the first defendant was in possession of the said property. Thereafter, by virtue of the sale deed executed by her in favour of the second 5 defendant, second defendant is in possession and enjoyment of the said property. It is contended that after purchase of the land from the plaintiff, the katha of the property was changed to the name of the first defendant on 15.6.1993 with the assistance of the plaintiff. As per the Panchayathi Sale Agreement dated 15.3.1992, the possession of the suit schedule property was given to the first defendant. On several occasions, the first defendant has called upon the plaintiff to execute the sale deed in respect of the said property in her favour and to convey the absolute ownership. However, the plaintiff was not ready and willing to execute and register the sale deed.
4. On the basis of the pleadings of the parties, the trial Court has framed the relevant issues. The parties have let in evidence in support of their contentions. On appreciation of the materials on record, the trial Court has declared that the plaintiff is the owner of the suit schedule property and that the sale deed executed by the first defendant in favour of the second defendant dated 23.9.1996 is 6 null and void. Defendant Nos.1 and 2 were directed to hand over possession of the suit schedule property to the plaintiff within three months from the date of the said decree.
5. Feeling aggrieved, the defendants filed an appeal in R.A.No.35/2004. The plaintiff also filed R.A.No.38/2004 challenging the said judgment and decree on the ground that the trial Court ought to have granted permanent injunction in his favour. The first appellate Court clubbed both the appeals and passed judgment and decree on 31.3.2008 allowing the appeal filed by the defendants in R.A.No.35/2004 and setting aside the judgment and decree of the trial Court. R.A.No.38/2004 filed by the plaintiff was dismissed. The plaintiff challenged the said decrees of the first appellate Court by filing R.S.A.Nos.1405/2008 and 1406/2008. On 25.9.2008, this Court has allowed the appeals and has set aside the judgment and decree of the first appellate Court and has remitted the matter to the first appellate Court to consider the question relating to possession of the suit schedule 7 property. Liberty was reserved to the parties to file necessary application to amend their respective pleadings. Thereafter, the plaint was amended in order to include the relief of possession. The first appellate Court has again considered the matter in the light of the observations made by this Court. It has dismissed the appeal filed by the plaintiff in R.A.No.38/2004 and the appeal filed by the defendants in R.A.No.35/2004 is partly allowed. The judgment and decree passed by the trial Court holding that plaintiff is the owner of the property is confirmed. The order of the trial Court directing the defendants to deliver possession of the suit schedule property to the plaintiff is set aside as the first defendant was in possession of the property in part performance of the agreement. The Court held as under:
"Therefore, in the present case also 1st defendant being the person who is in possession of the suit schedule property in part performance of sale agreement entered into between her and the plaintiff is entitled to protect her possession, even though the agreement of sale is 8 time barred for enforcing the same for specific performance, 2nd defendant is claiming right and possession over the suit schedule property under 1st defendant. Since 2nd defendant is inducted into possession of the suit schedule property by 1st defendant it cannot be said that 2nd defendant is in independent possession of the property even though the sale deed executed by 1st defendant in her favour is null and void as 1st defendant had no title in the suit schedule property to convey the same to 2nd defendant. Hence, the plaintiff is not entitled to seek possession of the suit schedule property in the case from the defendants as 1st defendant was in possession of the suit schedule property in part performance of the sale agreement and subsequently she has inducted 2nd defendant into the possession of the property. Under these circumstances, I am constrained to hold that the plaintiff is not entitled for the relief of possession also in the suit."9
6. While admitting the appeals, this Court has framed the substantial questions of law as under:
"(i) Whether the first appellate Court was justified in reversing the trial Court's finding as regards the plaintiff being in possession and in the process, the appellate Court committed the error of comparing the signature of the plaintiff in Ex.D13 without the signature being got verified from experts in handwriting?
(ii) Whether the benefit of Section 53-A of the Transfer of Property Act is available to the 1st defendant when no suit for specific performance was filed on the basis of the alleged agreement of sale Ex.D13?"
7. I have heard Sri O.Shivarama Bhat, learned Counsel for the plaintiff/appellant and Sri T.N.Raghupathy, learned Counsel for the defendants/respondents.
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8. Learned Counsel for the appellant would contend that the second defendant was put in possession of the property under Ex.D13 agreement dated 15.3.1992. First defendant has executed the sale deed at Ex.D10 dated 23.9.1996 in favour of the second defendant and put her in possession of the property. The first defendant is not in possession of the suit schedule property. Neither the first defendant nor the second defendant is entitled to retain possession of the property. Their possession is not protected under Section 53-A of the Transfer of Property Act, 1882 (for short 'TP Act'). When the first defendant had no saleable interest in the property, she cannot convey any right, title and interest in respect of the said property in favour of the second defendant. Therefore, the courts below ought have directed delivery of possession of the suit schedule property.
9. On the other hand, learned Advocate appearing for the respondents submits that the second defendant is none other than the daughter of the first defendant. The first defendant was put in 11 possession of the property under an agreement at Ex.D13 and the first defendant inturn has executed the sale deed at Ex.D10 in favour of the second defendant. Ex.D10 is a void document. The possession of the second defendant is only a permissive possession. The plaintiff has received the entire sale consideration. The possession of the first defendant is lawful, which is protected under Section 53-A of the TP Act.
10. I have carefully considered the arguments of the learned Counsel made at the Bar and perused the records of the courts below.
11. It is not in dispute that plaintiff is the owner of the suit schedule property. It is also clear that the first defendant was put in possession of the property in part performance of the Agreement at Ex.D13 dated 15.3.1992. The first defendant has executed the sale deed at Ex.D10 dated 23.9.1996 in favour of her daughter, the second defendant. Execution of the agreement at Ex.D13 by the 12 plaintiff in favour of defendant No.1 is not disputed before me. In view of this admitted position, the first substantial question of law does not survive for consideration.
12. This Court while remanding the appeals in RSA Nos.1405/2008 connected with RSA No.1406/2008 has held that when both the Courts have concurred with regard to the title of the appellant over the suit schedule property and have held that plaintiff is the absolute owner of the suit schedule property and also having concurrently held that the sale deed executed by the first defendant in favour of the second defendant is null and void, the lower appellate Court could not have dismissed the suit of the plaintiff altogether. The Court has remanded the matter to record a finding as to who is in legal possession of the property in the light of the evidence placed by the parties and further evidence that the parties may adduce in this connection.
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13. After remand, plaintiff has amended the prayer by adding an alternative relief that if the Court comes to a conclusion that the plaintiff is not in possession of the suit schedule property, for grant of relief of possession by directing the defendants to put him in possession of the suit schedule property. The first appellate Court has partly allowed the appeal filed by the defendants in R.A.No.35/2004 by holding that the plaintiff continued to be the owner of the suit schedule property. The decree of the trial Court directing the defendants to deliver possession of the suit schedule property is set aside on the ground that the first defendant was put in possession in part performance of the agreement at Ex.D13. Even though the agreement is time barred for specific performance, plaintiff is not entitled to seek possession of the schedule property.
14. Admittedly, the first defendant was put in possession of the property in part performance of the agreement at Ex.D13. Though the first defendant had no saleable interest in the property, he has executed the sale deed at Ex.D10 in favour of the second 14 defendant and put her in possession of the property. I am not in agreement with the submission of the learned Counsel for the defendants that since the sale deed at Ex.D10 is a void document, possession of the 2nd defendant should be treated as the possession of the 1st defendant. It is not the case of the defendants that the 2nd defendant has delivered possession of the property to the 1st defendant after the decree of the trial Court holding that the sale deed at Ex.D10 is a void document. Whatever may be the nature of possession of the property of the second defendant, the fact remains that she continued to be in possession of the property even after the decree of the trial Court.
15. Section 53-A was inserted for the first time in the Act by Transfer of Property (Amendment) Act, 1929. While incorporating the said Section in the Act, the English equitable doctrine of part performance was partially imported into India. The Special Committee constituted for suggesting the amendments into the Act 15 in its report (published in the Gazette of India, 1929, Part V, page
71), had observed as under:
"There is some conflict of decisions in the Indian Courts with regard to the period within which equitable relief can be given to parties to a transaction when there has been no registered instrument. One view is that such relief can be given only within the period during which a suit for specific performance would lie, the other view being that such relief can be given even after the period has expired. It seems to us that the first view to which we propose to give effect by adding Section 30A to the Specific Relief Act, 1877, does not go far enough, in all cases, to afford the relief which the equities arising out of the part performance require. Because, even after the period of limitation, when part performance has taken place, the parties stand in the same relation to each other as they did within the period of limitation and the equities which arose within that period remain the same. In fact, the longer the possession in part performance, the higher will be the equities. We, therefore, think that in order that the relief may be effective, it ought to be 16 available at all times during which the transferee is in possession in part performance of the contract and subject to the other conditions which we have proposed. In 46 Mad 919 and 23 CWN 284, the Court took the view that the relief was available even after the period of limitation for specific performance was over. We feel that, in order that the relief may be real, it ought to be available as between the parties to the transaction even after such period of limitation."
(emphasis supplied by me)
16. The Select Committee entirely approved the above view as is apparent from its Second Report which was presented before the Legislative Assembly on 2.9.1929 along with the Bill.
17. It is well settled that the right of the transferee to retain his possession envisaged under Section 53-A of the T.P.Act is statutory in nature and it has not been subjected to any limitation either express or implied. This provision does not forbid a transferee from taking a plea in his defence to protect his possession over the suit property obtained in part performance of a 17 contract even though the period of limitation for bringing a suit for specific performance has expired. The law of limitation does not apply to defence raised under the said provision since the Section does not provide for any limitation on expiry thereof. Notwithstanding the fact that a transferee in possession pursuant to a contract of sale fails to file a suit for specific performance within the prescribed period of limitation, still in law, the contract remains valid and operative entitling him to exert his right to retain the possession over the property in exercise of his statutory right conferred by Section 53A of the Act by way of defence in a suit brought against him by his transferor, for recovery of possession {See NARASIMHASETTY VS. PADMASETTY - ILR 1998 KAR 3230 and SHRIMANT SHAMRAO SURYAVANSHI & ANOTHER VS. PRALHAD BHAIROBA SURYAVANSHI (DEAD) BY LRs & OTHERS - AIR 2002 SC 960}.
18. But the question is whether the right to protect possession against the proposed vendor can be pressed into service 18 by a third party like the second defendant, who is in possession of the property or the first defendant who has parted with possession of the property under Section 53-A of the Act?
19. In STATE OF U.P. VS. DISTRICT JUDGE - AIR 1997 SC 53, the Apex Court has held 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 the said Section. 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 an agreement. Such a right to protect possession against the proposed vendor cannot be pressed into service against a third party.
20. In RAMBHAU NAMDEO GAJRE VS. NARAYAN BAPUJI DHOTRA (DEAD) THROUGH LRs - (2004) 8 SCC 19 614, the Apex Court was examining an identical question. In the said case, the respondent, who was the owner of the suit property filed a suit for possession of the land with the averment that the appellant had wrongfully dispossessed him of the suit land in April, 1965. The appellant resisted the suit contending that under the agreement of sale dated 16.6.1961, the original plaintiff and his brother had agreed to sell the suit land to Pishorrilal Punjabi, who paid the entire amount of consideration and was put in possession of the land in part performance of the agreement of sale. Pishorrilal had executed an agreement of sale of the suit land in favour of the appellant on 1.9.1961. He had paid the entire amount of consideration to Pishorrilal and was put in possession of the suit land by Pishorrilal in part performance of the agreement dated 1.9.1961. It is contended that since he was in possession of the suit land in part performance of the agreement, he was entitled to protect his possession in terms of Section 53-A of the TP Act. The trial Court held that a mere contract of sale is incapable of creating any right or title in favour of the transferee. That no right or interest 20 was created in the suit land in favour of Pishorrilal by virtue of the agreement of sale dated 16.6.1961. The appellant could not defend his possession under Section 53-A of the TP Act as against the plaintiff/respondent. In view of the findings recorded, the trial Court proceeded to pass the decree for possession in favour of the respondent. The appellate Court taking a different view set aside the judgment of the trial Court and dismissed the suit by holding that the appellant had acquired an equitable/possessory title to the suit land on the basis of the agreement of sale executed in his favour by Pishorrilal and was therefore, entitled to protect his possession under Section 53-A of the Act. The High Court in the second appeal filed by the L.Rs. of the original plaintiff, framed a question of law as to whether the defendant, who is in possession of the suit land on the basis of an agreement of sale dated 1.9.1961 executed by Pishorrilal Punjabi, who himself, inturn, had come in possession of the suit land on the basis of a similar agreement dated 16.6.1961 executed by the plaintiff, can claim benefit of the equitable doctrine of part performance as stated in Section 53-A of 21 the Transfer of Property Act to protect his possession? The High Court answered the question in the negative and held that the appellant was not entitled to protect his possession claiming benefit of equitable doctrine of part performance enshrined in Section 53- A of the TP Act. The said judgment was challenged before the Apex Court. The Apex Court framed the question of law for its consideration as under:
"Whether the doctrine of part performance could be availed of by the defendant with whom the respondent had never entered into an agreement of sale?"
The Apex Court has held that there was no agreement between the appellant and the respondent in connection with the suit land. The appellant not being a transferee within the meaning of Section 53-A of the Act could not invoke the equitable doctrine of part performance to protect his possession against the plaintiff/respondent. It has been held thus:
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"............ There was no agreement between the appellant and the respondent in connection with the suit land. The doctrine of part performance could have been availed of by Pishorrilal against his proposed vendor subject, of course, to the fulfillment of the conditions mentioned above. It could not be availed of by the appellant against the respondent with whom he has no privity of contract. The appellant has been put in possession of the suit land on the basis of an agreement of sale not by the respondent but by Pishorrilal, therefore, the privity of contract is between Pishorrilal and the appellant and not between the appellant and the respondent. The doctrine of part performance as contemplated in Section 53-A can be availed of by the proposed transferee against his transferor or any person claiming under him and not against a third person with whom he does not have a privity of contract.
14. The doctrine of part performance is rooted in equity and provides a shield of protection to the proposed transferee to remain in possession against the 23 original owner who has agreed to sell to the transferee if the proposed transferee satisfies other conditions of Section 53-A. It operates as an equitable estoppel against the original owner to seek possession of the property which was given to the proposed vendee in part performance of the contract. The appellant being a third party and not a privity to the transaction on which the estoppel rests can take no advantage of it."
(emphasis supplied by me)
21. From the discussions made above, it is clear that Section 53-A of the TP Act provides for a shield of protection to the proposed transferee to remain in possession against the original owner who has agreed to sell 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 an agreement. The doctrine of part performance is an equitable doctrine. The right to protect possession under this 24 provision cannot be pressed into service by a third party like the second defendant against the proposed vendor as there was no agreement between her and the plaintiff in relation to the suit schedule property. Since the first defendant has already transferred the land to the second defendant, whatever may be the nature of possession of the second defendant, she cannot protect the possession under this provision. The second substantial question of .law is answered accordingly.
22. In the light of the answer as above, the first appellate Court is not justified in allowing the appeal filed by the defendants in R.A.No.35/2004 and dismissing the appeal filed by the plaintiff in R.A.No.38/2004. Therefore, the judgment and decree of the first appellate Court in R.A.Nos.35/2004 and 38/2004 are hereby set aside. The judgment and decree of the trial Court is restored. The defendants are directed to deliver possession of the suit schedule property to the plaintiff within three months from the date of receipt of a copy of this judgment and decree. The plaintiff is 25 entitled for permanent injunction as prayed for. No costs. Draw the decree accordingly.
Sd/-
JUDGE.
BMM/-