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Showing contexts for: section 53a in Wilfred Lovette vs Ganesh on 9 November, 1987Matching Fragments
1. This revision application under Section 25 of the Provincial Small Cause Courts Act, 1887, challenging the judgment and decree of ejectment and arrears of rent mesne profits passed by the learned Additional Judge, Small Causes Court, Nagpur oin 25-3-1985 in Civil suit No. 592 of 1981, against the applicant-defendant Wilfred Lovette, raises an important question as to whether Small Causes Court loses jurisdiction in an ejectment suit, as soon as the defence is raised in the written statement under Section 53A of the T. P. Act, 1882, contending inter alia that the defendant is in possession of the suit premises in part performance of a contract for sale of the suit property by virtue of an agreement in writing executed by the owner, and that the plaintiff being a transferor of the suit property by a sale deed from the owner is debarred enforcing against the transferee-defendant under Section 53A of the T. P. Act any right in respect of the property of which the defendant-transferee had taken or continued in possession.
This defence was certainly one under Section 53A of the T.P. Act. The learned trial Court has failed to notice the provisions of Section 53A of the T.P. Act which are as follows :
"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 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 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:
19. In the case Chinna Theyar v. Gnaneprakasi Animal, it has been observed, relying on the Division Bench ruling of that Court in Munuswami Gounder v. Eruse Gounder, as follows :
"On the other hand, speaking for the Bench, Sri Veeraswami, C.J. has held that Section 53A of the T.P. Act does confer some right on the transferee, if the conditions of that section are fully satisfied, that this is a right to have the transferor or any person claiming under him debarred from enforcing against a transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, that this right can be enforced by the transferee always as a shield and not as an independent claim either in the capacity of plaintiff or defendant, that is to say, he cannot ask for title basing his claim on the fact that he has fulfilled the conditions of Section 53A, that he can as a shield, ask for protection of the right envisaged by Section 53A, by debarring by getting an injunction against the transferor and those claiming under him from interfering with his possession."
23. In such a case, the plaint has to be returned for presentation to the proper Court with the written statement and the parties have to be directed to appear before the regular Court having jurisdiction to get the matter decided.
24. In the impugned order, the learned Small Causes Judge has thought, relying on (supra), that questions as to existence of tenancy or sub-tenancy are not questions of title and that, therefore, the Small Cause Court has jurisdiction. In that case, the defendant No. 1's monthly tenancy was duly terminated and a suit for eviction was filed against defendants 2 and 3 who were in actual possession of the suit premises. The tenancy between the plaintiff and the defendant was an admitted fact on the part of defendant 1, who contended that defendants 2 and 3 who were in actual possession, were sub-lessees. The sub-lessees defendants 2 and 3 raised several contentions including the challenge to the jurisdiction of the Small Cause Court which was negatived, holding inter alia that the questions as to existence of tenancy or sub-tenancy were not questions of title ousting the jurisdiction of the Small Cause Court. In the instant case, the question is different. Here the specific plea has been raised under Section 53A of the T.P. Act which would debar the plaintiff from ejecting the defendant. No doubt, a specific issue has been raised by the written statement relating to an interest in the immoveable property which, if proved, would non-suit the plaintiff. In such a situation, it must be held that as soon as, in an ejectment suit which otherwise be cognizable by a Small Cause Court, a defence is raised in the written statement under Section 53A of the T.P. Act, the suit itself goes out of jurisdiction of the Small Cause Court to decide the substantial issues involved in the suit and the Small Cause Court, in such a situation, has to return the plaint with the written statement for presentation to proper regular Court having jurisdiction to decide the suit.