Andhra HC (Pre-Telangana)
Thota Rambabu @ Ramu vs Cherukuri Venkateswara Rao @ Pedababu ... on 10 June, 2005
Equivalent citations: AIR2006AP114, 2005(4)ALD450, 2005(5)ALT278, AIR 2006 ANDHRA PRADESH 114, 2006 (2) AJHAR (NOC) 397 (AP), 2006 (4) AKAR (NOC) 596 (AP), 2006 A I H C 1405, (2006) 40 ALLINDCAS 293 (AP), (2006) 1 CURCC 214, (2006) 1 CIVILCOURTC 506, (2005) 4 RECCIVR 700, (2005) 5 ANDH LT 278, (2005) 1 ANDHWR 631
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
JUDGMENT L. Narasimha Reddy, J.
1. Plaintiff in O.S. No. 33 of 1995 on the file of the Senior Civil Judge, Narsapur, is the appellant herein. Aggrieved by the dismissal of the suit, through judgment dated 4-4-2001, he preferred this appeal. For the sake of convenience, the parties are referred to, as arrayed in the suit.
2. The suit was filed for the relief of specific performance of an agreement of sale, dated 15-1-1985, marked as Ex.A-1. It was pleaded that the 1st defendant is the owner of undivided 1/4th share of the suit schedule property a rice mill at Narsapur; his brother, the 2nd defendant is the owner of another 1/4th share, where the 3rd defendant holds 1/2 share in it. The plaintiff pleaded that the wife of the 1st defendant died in a fire accident, resulting injuries to 1st defendant also, and that the latter incurred huge expenditure in defending himself in a criminal case and for his treatment. To meet the same, he is said to have offered to sell his undivided 1/4th share in favour of the plaintiff. It was stated that an agreement of sale was executed on 15-1-1985, proposing to sell the undivided 1/4th share of the 1st defendant, for a consideration of Rs. 3 lakhs, marked as Ex.A1. He pleaded that a sum of Rs. 1,50,000/-was paid on the same day, and on two subsequent dates, viz., 10-1-1988 and 20-12-1990; and sum of Rs. 50,000/- each, was paid under endorsements, marked as Exs.A-2 and A-3, respectively. It was further averred that symbolical possession of the property was delivered to the plaintiff. He claimed that though he is ready and willing to pay the balance of consideration, the 1st defendant is not coming forward to execute the sale deed. He filed the suit for the relief of specific performance, or in the alternative for a decree for refund of a sum of Rs. 6,34,950/-. Defendants 4 and 5 came on record at subsequent stage.
3. The 1st defendant denied the contents of the plaint. In his written statement he sated that he never executed Ex.A-1, much less received the amounts under endorsements in Exs.A-2 and A-3. He flatly denied the delivery of possession of the undivided share. He further stated that the funds necessary to defend himself in criminal case and to undergo treatment, were provided to him by his brother, the 2nd defendant, and their mother. He also denied the acquaintance or knowledge with the attestors in Exs.A-1 to A-3 and the scribe thereof. It was pleaded that the stamp paper utilized for execution of Ex.A-1 was never purchased by him, and that there was no necessity to purchase the same, at Penugonda, particularly when there are stamp vendors in his own pace of residence, namely, Narsapur. He denied his signatures on the documents. The 2nd defendant adopted the written statement of the 1st defendant as well as that of defendant Nos. 4 and 5.
4. The 3rd defendant filed written statement denying the allegations. He did not plead any specific case, since no relief as such as was claimed against him.
5. Defendants 4 and 5 pleaded that the undivided share of the 1st defendant was settled on them, through settlement deeds dated 22-5-1985, 10-6-1985 and 11-6-1985. They made reference to the various facts, relating to the conduct of the 1st defendant and ultimately stated that in view of the settlement in their favour, the 1st defendant did not have the right, or capacity to execute Ex.A-1. They further pleaded that Section 53-A of the Transfer of Property Act (for short "the Act"), has no application to the facts of the case, since the possession was not delivered.
6. The Trial Court dismissed the suit, holding inter alia that Exs.A-1 to A-3 were not proved.
7. Sri K. Chidamabaram, learned Counsel for the appellant submits that the Trial Court while considering proof of Exs.A-1 to A-3, has taken a hyper-technical view, particularly as regards the purchase of the stamp paper, on which Ex.A-1 was written. He contends that the 1st defendant remained ex parte, and in that view of the matter, all the plaint averments deserve to be treated as having been proved. It is also his case that in view of the acts subsequent to Ex.A-1, such as, receipt of part of consideration, at different stages, by the 1st defendant, issuance of notice by the plaintiff; the suit cannot be said to have been barred by limitation. Relying upon Section 114 of the Evidence Act he submits that an adverse inference deserved to be drawn against the 1st defendant, and consequently, the suit ought to have been decreed. He further contends that no issue was framed on the question of limitation, and it is not open to the defendants 4 and 5 to raise the same at this stage.
8. In this appeal defendants 4 and 5 alone responded to notices. Their Counsel Sri S.R. Sanku, submits that the 1st defendant was addicted to vices, and unable to bear the same, his wife committed to suicide. According to him, the suit schedule property was settled upon his clients, through various deeds, and the same is evident from the subsequent conduct of their having been arrayed as lessors, while leasing the rice mill. He further contends that the suit was filed in collusion with the 1st defendant, with a view to deny his clients of the benefits of settlement. Learned Counsel submits that even before a plea of limitation was raised, it was the obligation of the Trial Court, to examine whether the suit is filed with limitation, and in the instant case, such an exercise was not undertaken, particularly, even after the plea of limitation was specifically raised.
9. As observed earlier, the plaintiff filed the suit for the relief of specific performance of an agreement of sale, or in the alternative, for a decree for refund of a sum of Rs. 6,34,950/-. On the basis of the pleadings before it, the Trial Court framed the following issues:
(1) Whether the suit agreement of sale dated 15-1-1985 is true, valid and binding on the defendants?
(2) Whether the plaintiff is entitled to the benefits of Section 53-A of Transfer of Property Act?
(3) Whether the settlement deeds dated 22-5-1985, 10-6-1985 and 11-6-1985 are true, duly executed and validly attested and binding on the plaintiff?
(4) Whether the 1st defendant delivered the symbolical possession of the schedule property to the plaintiff?
(5) Whether the endorsements of payments on the reverse of the agreement of sale dated 15-1-985 are true, valid and binding on the defendants?
(6) To what relief?
10. On behalf of the plaintiff PWs.1 to 7 were examined and Exs.A-1 to A-3 were marked. The 1st defendant remained ex parte. The 4th defendant was examined as DW-1. He also examined DWs.2 to 5. On his behalf, Exs.B-1 to B-15 were marked. The Trial Court has also taken on record Ex.C-1, a letter addressed by the Sub-Registrar, Penugonda. It answered all the issues against the plaintiff.
11. In view of the submissions made by the learned Counsel for the parties, in this appeal, the following points arise for consideration:
(1) Whether Exs.A-1 to A-3 are true and genuine?
(2) Assuming that the plaintiff proved the said documents, as true and valid, whether the suit is barred by limitation?
(3) Whether the plaintiff is entitled for the benefit of Section 53-A of the Transfer of Property Act?
12. The plaintiff and 1st defendant were not well-acquainted with each other. The plaintiff hails from a village in Ramachandrapuram Mandal of East-Godavari District, whereas the 1st defendant is from Narsapur of West Godavari District. The plaintiff did not state as to how he got acquaintance with the 1st defendant. It is not necessary that transfers must take place only between the persons acquainted with each other. All the same, one expects a semblance of interaction between the parties to the transfer, before it actually takes place. The reason is that consensus-adidem, a vital requirement in the realm of contracts, cannot emerge in the absence of such interaction. The only occasion for the plaintiff to know the 1st defendant was stated to be during the visit of the former to Narsapur for cattle business. Admittedly, the 1st defendant did not undertake any business in cattle.
13. Be that as it may, it has come in evidence that Ex.A-1 was executed at Kotipally. As PW-1, the plaintiff stated that the bargain took place at Narsapur. He is a resident of Venkatayapalem village. The 1st defendant is a resident of Narsapur. The stamp paper was purchased from Penugonda, in the name of the 1st defendant. There is a Sub-Registrar's office as well as stamp vendor at Narsapur. No reasons were forthcoming for purchase of stamp paper at Penugonda and execution of the document at Kotipally.
14. On behalf of the contesting defendants, the Junior Assistant of the office of the Sub-Registrar, Penugonda, was examined as DW-4. He produced the register, which contains the particulars of the sale of stamp paper by the stamp vendors, within the jurisdiction of the Sub-Registrar. It was elicited through him that the endorsements on the stamp paper, on which Ex.A-1 was written namely, the serial number, date of sale, name of the stamp vendor, name of the person, in whose name it was purchased, do not tally with those in the sales register. Nothing was elicited through him in the cross-examination, to explain the inconsistency pointed out, above. This is one aspect.
15. In Ex.A-1, no time was stipulated for execution of the sale deed. The plaintiff stated in his evidence that he intended to conclude the transaction within one year from the date of execution of Ex.A-1. If his version is to be believed, he has chosen to make payments even after five years, under Exs.A-2 and A-3. The version of the witnesses to Ex.A-1, as well as to the endorsements in Exs.A-2 and A-3, is not at all creditworthy.
16. Another important aspect, which creates suspicion over the entire transaction is that, though the plaintiff admitted that the entire mill was under lease and he purchased an undivided 1/4th share, he did not know the name of the lessee. The conduct, subsequent to Ex.A-1, belies the very assertion that symbolical delivery of possession of the undivided 1/4th share was made to him. This aspect would be dealt within detail, while discussing point No. 3. Undisputedly, even after the delivery of alleged symbolical delivery of possession, the plaintiff did not make any efforts to collect the proportionate rent from the lessee. Delivery of possession of a rice mill, which is under lease to third parties, would, if at all anything, enable the purchaser to collect the rents. In the absence of any plea or proof as to the collection of rent by the purchaser, who pleaded delivery of possession the entire transaction suspicion, becomes suspicious.
17. The plaintiff was not able to state the resources from which he is said to have paid the consideration. Even according to him, he was only an agent in the cattle market. The truthfulness of the plaintiff needs to be examined from certain other angles also. At one stage he said that he got issued notices to the 1st defendant, requiring him to execute the sale deeds. In the next breath he said that he is not aware of the date, or at least the point of time at which such notices were got issued. Similarly, having stated that he has seen the title deeds, in relation to the suit schedule property, he deposed that he did not verify them. It was elicited through him that he did not even ask for the title deeds. He did not verify whether the lease of the mill was granted under a registered deed, and he did not choose to ask the lessee to join the execution of Ex.A-1, much less did he know the name of the lessee.
18. PW-2 is one of the witnesses to Ex.A-1. According to this witness, the bargain for purchase as well as the execution of Ex.A-1 took place at Kotipally; whereas the plaintiff pleaded that the bargain took place at Narsapur in a fancy shop by the side of rice mill. He stated that he did not attest any other document except Ex.A-1. This witness is a resident of Amalapuram. He did not explain as to how the occasion arose for him, to come to Kotipally. It is not known as to what made the plaintiff, PW-2, the scribe and the 1st defendant to go to a village in which none of them reside, to execute Ex.A-1, in relation to the properties situated at Narsapur.
19. PW-3 is a resident of yet another village, by name, Kunduru, but said to have been employed on a ferry at Kotipally. He is said to have scribed Ex.A-2. It was elicited through him that he did not ask the plaintiff or the 1st defendant as to the purpose properly in relation which, Ex.A-1 was executed and the amount of Rs. 50,000/-was paid.
20. PW-5 is another witness to Ex.A-1. The very circumstances under which Ex.A-1 came to be executed, makes the evidence of this witness not trustworthy. PW-6 is the witness to Ex.A-2. He is the cousin of the plaintiff. This witness is a resident of Narsapur. It is not his case that he went to Kotipally at the instance of the 1st defendant. He has no business or other avocation at Kotipally. Therefore, his very presence at Kotipally, where Ex.A-2 is said to have been executed, becomes suspicious.
21. To prove Ex.A-3 another endorsement dated 20-12-1990, witnessing a receipt of Rs. 50,000/- by the 1st defendant, PW-7 is examined. He is a resident of Darksharama village. It was elicited through him that pens with as many as five different inks were used in writing Ex.A-3. He admitted that he did not know the contents of Ex.A-3.
22. From the above discussion, it becomes clear that the plaintiff failed to prove that Exs.A-1 to A-3 were executed at all, by the 1st defendant. The fact that the 1st defendant remained ex parte, does not in any way change the situation, because the burden squarely rests upon the plaintiff to prove the same.
23. In view of the findings on point No. 1, the necessity to discuss other points, in fact, does not survive. However, since they touch upon the very basis for the institution of the suit, it becomes necessary to deal with the same.
24. The 2nd point relates to the question of limitation. In their written statements, the defendants raised a specific plea that the suit is barred by limitation. However, the Trial Court did not frame any issue on this.
25. Framing of issues is one of the important steps in the adjudication of suits. It enables the Court to focus upon the actual controversy, in the light of the pleadings of the parties. There does not exist any necessity for a Court to frame an issue on an aspect, as to which, the parties are not at controversy. The occasion for a Court to frame issues arises at a stage, after the defendant is served with a notice, and in turn, he comes forward with his written statement. Limitation, however, is an aspect, comparable to an issue, which the Court itself is expected to take into account, even at the threshold, namely, presentation of the plaint. Rules 6 and 11 of Order 7 C.P.C., make this aspect very clear.
26. The Court can reject the plaint, if it is not satisfied, that the suit was presented within a period of limitation. The Legislature had provided for such a step, because of the reason that, the question of limitation, for the most part of it, can be decided on the averments, contained in the plaint itself. If it appears to the Court at the first blush, that the suit claim is barred by limitation, it can obviate the necessity of calling upon the defendant to deliver his defence.
27. In the instant case, Ex.A-1, the agreement of sale is dated 15-1-1985. The suit was filed on 23-5-1985. The limitation for filing of suit, for specific performance of contract, is three years, under Article 54 of the Limitation Act. The starting point is the date, fixed for performance. If no such date is fixed, the date on which the plaintiff has the notice of refusal by the defendant, to perform his part of the contract. The alternative relief claimed in the suit is for compensation for breach of the contract. For this relief also, the limitation is three years, under Article 55 of the Schedule to the Limitation. The limitation for this starts from the date on which the contract is broken and where the breaches are successive, the date on which, the one that gave rise to the institution of the suit had occurred.
28. The suit is obviously filed 10 years after the date on which Ex.A-1 is said to have been entered into. No time was stipulated in Ex.A-1 for performance of the contract. Though the plaintiff pleaded that he got issued a notice, requiring the 1st defendant to perform his part of the contract, he failed to establish the same. Therefore, the date of Ex.A-1 deserves to be treated as the starting point. The suit ought to have been filed on or before 14-1-1988, for either of the reliefs.
29. The plaintiff tried to take advantage of provisions of Section 18 of the Limitation Act, by pleading that the 1st defendant received part of the consideration, once, on 10-1-1988 and for the second time on 20-12-1990, and made endorsements, marked as Exs.A-2 and A-3. In effect, he treated Exs.A-2 and A-3 as acknowledgements, within the meaning of Section 18 of the Act. It has already been held that Exs.A-2 and A-3 were not proved. Assuming that they are true and valid, the suit is filed about 4 and 1/2 years, subsequent to the date of Ex.A-3. Therefore, the suit is barred by limitation. When so glaring was the aspect of limitation, the Trial Court ought to have exercised its power under Order 7 C.P.C. and rejected the plaint. At any rate, there was no jurisdiction in not framing an issue on such a vital aspect. It is permissible for the Court to deal with the same under Rule 33 of Order 41 C.P.C.
30. Now the third point: The plaintiff raised a plea, as to his entitlement for the benefit under Section 53-A of the Act. Specific issue was framed and extensive discussion was undertaken by the Trial Court on this. It is true that Section 53-A of the Act is basically a legal weapon to be used in defence to protect the possession, under an agreement of transfer, if the person in possession is ready and willing to perform his part of contract. In the recent past, Courts have recognized that this provision can be treated as a source of independent right, and that it can be enforced by filing a suit.
31. One of the most important ingredients of Section 53-A of the Act is that the person claiming the benefit under it, must be in possession of the property, which is the subject-matter of the contemplated transfer. By its very nature, possession is a fluid concept, and is not susceptible to any precise definition. For the most part of it, possession was treated as a question of fact, and was held to depend upon the purpose, as well as the connection with which it arises. Shartel, in his Article "Meanings of Possession" [(1932) 16 Minnesota Law Review 611], observed as under:
"I want to make the point that there are many meanings of the word 'possession'; that possession can only be usefully defined with reference to the purpose in hand; and that possession may have one meaning in one connection and another meaning in another".
32. Jurists hailing from various legal systems have pointed out that possession, as a legal concept, has two components, viz., corpus possessions, physical possession of the property and animus possidendi, i.e. the intention to hold it as of right. Their difference of approach was only as to the emphasis on these ingredients, to constitute a position in law. In his treatise on the Common Law, O.W. Holmes [Holmes The Common Law Ch 6,], observed as under:
"To gain possession, then, a man must stand in a certain physical relation to the object and to the rest of the world, and must have a certain intent. These relations and this intent are the facts of which we are in search".
33. Opinions drastically varied, as to whether possession is a question of fact, or of law. While some jurists treated it as a pure question of fact, others held it to be matter of law. Dias, in his treatise on 'Jurisprudence', struck a balance and observed, as under (Dias Jurisprudence Fifth Edition Page-290):
"Possession has three aspects: firstly, the relation between a person and a thing is a fact. Secondly, the advantages attached by law to that relation is a matter of law. Thirdly, these advantages are also attributed to a person when certain other facts exist. What they are in any given type of case is a matter of law".
34. Where the possession of a property, movable or immovable, is physically delivered to another, it is not difficult to discern, as to who exactly is in possession of such property. Difficulty, however, arises, where the delivery is implied or symbolical. It is only an examination of a bunch of facts, that would yield an answer to this. In the instant case, the plaintiff pleaded that symbolical delivery of possession was affected to him. Admittedly, the 1st defendant is owner of only 1/4th share of the rice mill and that the mill, as a whole, was under lease to a third party.
35. Section 53-A of Act is clear to the effect that the person claiming benefit under it, must have "taken possession of the property". This can happen, if the transferee was delivered physical possession of the property. It can also happen when a symbolical delivery of possession was effected, such as by attornment of the existing lease over such property. Where the contemplated transfer relates to an undivided share, Section 53-A takes a different colour. The reason is that, there cannot be delivery of possession of property by a co-owner, of an undivided property, or the corresponding taking possession of such property by the transferee. Section 44 of the Act makes this abundantly clear. It reads as under:
"Sec. Transfer by one co-owner :--Where one of two or more co-owners of immovable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest, and so far as is necessary to give, effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting at the date of the transfer, the share or interest so transferred.
Where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house".
It mandates that, what a transferee, from a co-owner of an undivided property, gets, is a right, to enforce a partition, that too, subject to conditions and liabilities, in relation to the property, by the date of transfer.
36. The phenomena of co-ownership of an undivided property, on the one hand, and delivering of physical or symbolical possession thereof do not co-exist. In fact, they are mutually exclusive. In Saleem, S/o. Yaseen v. I Additional Civil Judge, Senior Division, Saharanpur, , it was held that the right of a transferee under Section 53-A of the Act does not have the effect of superceding, or frustrating the provisions of Section 44 of the Act. To the same effect is the judgment of the Supreme Court in Dorab Cawasji Warden v. Coomi Sorab Warden, . Though they related to the second limb of Section 44, by and large, the principle remains the same.
37. In Smt. Lalita James v. Ajit Kumar, and Ashim Ranjandas v. Smt. Bimala Ghosh, , it was held that a transferee from a co-owner of a portion of undivided property is not entitled to right of exclusive possession, and that he can, at the best, enforce a partition of joint estate. The Himachal Pradesh High Court in its judgment in Paldev Singh v. Smt. Darshani Devi, , observed that a co-owner cannot be said to be in actual physical or exclusive possession of any parcel, till a partition takes place, and the question of his delivering the possession of such an undivided share does not arise. Authorities can be multiplied on this aspect. The gist is that the transferee from a co-owner of an undivided property gets nothing more than a right to seek partition, and thereafter, secure possession of the share of property purchased by him, and he cannot claim any exclusive possession, on the basis of such transfer till the partitions takes place. Resultantly, such a transferee cannot claim the benefit of Section 53-A, since he does not gain or take possession of I the subject-matter of transfer.
38. Even if we assume that the 1st defendant was in exclusive possession of the suit schedule property, it is difficult to invoke Section 53-A in favour of the plaintiff. The reason is that, except pleading that a symbolic delivery of possession was effected to him, the plaintiff would not prove its ingredients. One of the most well-recognized methods of symbolic delivery of possession of immovable property is, by attorning existing lease in favour of the transferee. Such attornment can take place either with the direct participation of the lessee, in a tripartite transaction, or through intimation by the transferor to the lessee about the latter's obligations to pay the rents to the transferee, henceforth. Even where no such specific steps are taken, an implied symbolic, delivery of possession can be culled out, if the transferee is able to prove to the satisfaction of the Court, that he is started receiving the rents of the property, subsequent to the agreement, as of right.
39. In the absence of any of the circumstances referred to above, the Court cannot infer delivery of possession in favour of a transferee. Taking of possession, being one of the most important ingredients of Section 53-A, the plaintiff cannot derive the benefit of that provision, once he failed to prove that he has taken possession of the suit schedule property.
40. Viewed from any angle, the plaintiff is not entitled to any relief. The Trial Court dismissed the suit on proper appreciation of facts and by applying the correct principles of law. This Court does not find any basis to interfere with the same. The appeal is accordingly dismissed. There shall, however, be no order as to costs.