Second Appeal No.205 of 2004

10th July, 2007

Petitioner Counsel: Mr. R. L. KHAPRE
Respondent Counsel: Mr. M. V. DHARESHWAR

Cases Cited:
Rambhau Namdeo Gajre Vs. Narayan Bapuji, 2004(5) ALL MR 1189 (S.C.)=(2004)8 SCC 614 [Para 8]
R. K. Mohd. Ubaidullah Vs. Hajee Abdul Wahab through L.Rs., A.I.R. 2001 Supreme Court 1658 [Para 8]
AIR 1955 Madhya Bharat 93 [Para 8]

JUDGMENT

JUDGMENT :- This second appeal is preferred against the judgment and decree passed by the 6th Ad hoc Additional District Judge, Nagpur, on 13-2-2004 in Regular Civil Appeal No.341/1992 whereby the judgment and decree passed by the 2nd Joint Civil Judge, Junior Division, Nagpur, on 30-4-1991 in Regular Civil Suit No.794/1986 was reversed. When this second appeal came up for admission before this Court on 22nd February, 2005, the same was admitted on the following substantial question of law :

"(i) Whether the possession of the appellants in pursuance of agreement of sale dated 26-12-1973 is protected under the provisions of Section 53(A) of the Transfer of Property Act?"

2. The brief facts which give rise to the present second appeal and to the substantial question of law framed herein above, are stated thus :

The respondent is the original plaintiff. A suit was filed by the plaintiff Jainabai for perpetual injunction restraining the defendants from disturbing the peaceful possession of the plaintiff. In the alternative, in case it was found that the plaintiff was not in possession of the property, the plaintiff prayed for relief of possession. The suit property is a plot of land which was originally owned by one Ramaswami. Ramaswami sold the said plot to plaintiff Jainabai under a registered sale deed dated 7-2-1986, for Rs.7,000/-. According to the plaintiff, the possession of the suit plot was handed over to the plaintiff and she constructed a hut on the suit plot. Ramaswami, in turn, had purchased the suit plot from one Jagannath Somkuwar, on 17-6-1974 for the consideration of Rs.2,000/-. It was pleaded by the plaintiff that on 27-4-1986, she noticed that the defendants were demarcating the plot and trying to excavate the area and plaintiff, therefore, had to report the aforesaid fact to the Police Station.

3. The defendants filed their written statement and denied the claim of the plaintiff. It was the case of the defendants that the defendant No.1 approached Jagannath Somkuwar who wanted to dispose of the suit plot, in the month of December, 1973. Jagannath executed an agreement of sale in their favour and the consideration was agreed at Rs.10,000/-. According to the defendant No.1, he took actual physical possession of the plot. The agreement of sale was executed on 26-12-1973 and Rs.8,000/- was to be paid at the time of registration of the sale deed, as Rs.2,000/- were paid as an earnest amount. Since the defendant No.1 had suggested that the sale deed should be executed in the name of the defendant No.2, Jagannath had executed the same in favour of the defendant No.2 in stead of the defendant No.1. It was further pleaded by the defendants that they were already enjoying the possession of the suit plot towards part performance of the agreement of sale dated 26-12-1973. The title of the plaintiff was denied by the defendants and it was claimed that the plaintiff was never put in possession of the suit plot. It was lastly pleaded that the prosecution between Ramaswami and the plaintiff was void and the suit was liable to be dismissed.

4. The trial Court framed the necessary issues and held that the plaintiff had failed to prove that she was the owner of the suit property. The trial Court further held that the plaintiff failed to prove that she was in possession thereof. The Court then proceeded to hold that the defendant No.1 was the owner of the suit property and was in possession of the same. Consequently, the trial Court dismissed the suit filed by the plaintiff. In an appeal preferred by the plaintiff, the judgment passed by the trial Court was reversed and the appeal filed by the plaintiff was allowed. The appellate Court decreed the suit with costs and directed the defendants to deliver the vacant possession of the suit plot to the plaintiff. A decree of permanent injunction was also granted in favour of the plaintiff. The judgment passed by the first appellate Court is challenged in the instant second appeal.

5. Shri. Khapre, the learned counsel for the appellants, submitted that the appellate Court was not justified in decreeing the suit of the plaintiff when the possession of the defendants should have been protected under the provisions of Section 53-A of the Transfer of Property Act, as the defendant No.1 was put in possession of the suit property in pursuance of an agreement of sale dated 26-12-1973. It was further submitted on behalf of the appellants that the suit property was sold by Jagannath in favour of Ramaswami on 17-6-1974 and since the agreement of sale was executed between Jagannath and the defendant No.1 on 26-12-1973 i.e. much prior to the registered sale deed dated 17-6-1974, the possession of the defendants needed protection. He further submitted that the sale deed executed by Jagannath in favour of Ramaswami on 17-6-1974, was also not duly proved. The counsel for the appellants then submitted that there was voluminous documentary evidence on record to show that the defendant No.1 was in actual possession of the property and the property was recorded in the name of the defendants. It was also submitted on behalf of the appellants that the appellants had paid the development charges for the development of the plot after the purchase of the property, on 30-11-1983. According to the counsel for the appellants, in any case, the appellate Court ought not have reversed the findings recorded by the trial Court without considering the provisions of Section 53-A of the Transfer of property Act and the fact that the defendants were put in possession of the suit property in pursuance of the agreement dated 26-12-1973. According to him, the defendants had every right to protect their possession which was secured by them in pursuance of the agreement of sale dated 26-12-1973.

6. Shri. Dhareshwar, the learned counsel for the respondent submitted that the substantial question of law framed in the present second appeal does not, in fact, arise for consideration as the defendants had not specifically pleaded about the applicability of the provisions of Section 53-A of the Transfer of Property Act and the facts leading thereto. It was then submitted on behalf of the respondent that a perusal of the plaint as well as the written statement clearly showed that it was a case where the plaintiff had claimed to be the title-holder of the property and the defendant had also claimed to be the owner of the same in view of the registered sale deed dated 30-11-1983. It was further submitted on behalf of the respondent that once the sale deed was executed by Jagannath in favour of the defendant No.2, the provisions of Section 53-A of the Transfer of Property Act could not apply as Section 53-A of the Act was available only to the defendant who was in possession of the property in view of an agreement of sale and was ready and willing to perform his part of the contract. The counsel for the respondent drew the attention of the Court to the proviso to Section 53-A of the Act to point out that provisions of Section 53-A of the Act, in fact, could not affect the rights of the transferee for consideration, who had no notice of the contract or of the part performance thereof. According to the respondent, the respondent was a bona fide purchaser of the property for value without notice and since the facts leading to the applicability of Section 53-A of the Act were not specifically pleaded by the defendants, there was no occasion for the plaintiff to have proved that she was a bona fide purchaser of the suit property for value and without notice. It was submitted by the counsel for the respondent that since the case pertains to the rival claims of ownership over the property, the appellate Court had rightly considered the evidence to hold that the plaintiff had proved the ownership over the suit property and the title of the property did not pass to the defendants in pursuance of the registered sale deed dated 30-11-1983. In the backdrop of the aforesaid facts, it was submitted that the appeal is liable to be dismissed.

7. To answer the substantial question of law framed in the instant appeal, it is necessary to peruse the pleadings of the parties. In the suit filed by the plaintiff, the plaintiff had claimed ownership over the property as she had purchased the same from Ramaswami on 7-2-1980. The plaintiff had specifically pleaded that the property was initially owned by Jagannath who sold it to Ramaswami by a registered sale deed dated 17-6-1974. Sale deeds dated 17-6-1974 and 7-2-1980 clearly recited that the possession of the property was passed on from Jagannath to Ramaswami in the year 1974 and from Ramaswami to the plaintiff in the year 1980. The defendant Nos.1 and 2 had denied the claim of the plaintiff over the suit property and had pleaded that the defendants were the full-fledged owners of the suit plot and the temporary construction standing thereon, since 30-11-1983, as the property was purchased by the defendants from Jagannath on 30-11-1983 for a consideration of Rs.10,000/-. It was also pleaded in clause (c) of the specific pleadings that the defendants were in actual physical possession of the suit site in part performance of the agreement of sale dated 26-12-1973. However, there was nothing else in the written statement to show that the defendants had claimed protection of their possession in view of the provisions of Section 53-A of the Transfer of Property Act. A bare reading of the written statement in the entirety clearly showed that the defendants had denied the title of the plaintiff and had claimed title of the property in themselves. Since the facts leading to the applicability of Section 53-A of the Transfer of Property Act were not pleaded and no specific plea was raised about the same in the written statement, the trial as well as the appellate Court rightly did not frame an issue in that regard and proceeded to frame the issues on the ownership and possession of the suit property. The trial Court heavily relied on the recital in the agreement of sale dated 26-12-1973 regarding the delivery of possession of the suit plot in favour of the defendant No.1. The trial Court held that Jagannath had no right to execute the sale deed in favour of Ramaswami. The Court gave undue weightage to the fact that the defendants were paying the taxes and the name of the defendant No.2 was entered into the Corporation record. The trial Court mainly considered the document in the form of Revenue record, 7/12 extracts and City Survey records. The trial Court erroneously held that the plaintiff could not have claimed to be the owner of the property only on the basis of the sale deed executed by Ramaswami, when the defendant No.2 was shown as owner in all the relevant records. The trial Court proceeded to record certain other unsustainable reasons while deciding the ownership of the plaintiff over the suit property, only to conclude that the defendant No.2 was enjoying the title over the suit plot and the plaintiff had no title to the same. The appellate Court, however, considered the evidence of the plaintiff and her three witnesses and the registered sale deeds executed by Jagannath in favour of Ramaswami and Ramaswami in favour of the plaintiff, to hold that the plaintiff had proved her ownership over the suit property. The appellate Court further observed that the son of Ramaswami had proved the execution and the contents of the sale deed executed by Jagannath in favour of Ramaswami, as Ramaswami had expired on 11-10-1983. Ramaswami's son was incidentally an attesting witness to the sale deed. The appellate Court recorded cogent reasons for believing the evidence of son of Ramaswami. Thus, on an appreciation of the material evidence on the record, the appellate Court held that it was quite clear on the basis of the sale deed executed by Jagannath in favour of Ramaswami, that Ramaswami had become the owner of the plot and since the plaintiff had purchased the suit plot from Ramaswami by a registered sale deed, she became the owner of the same. The appellate Court rightly held that before executing the registered sale deed, Exh.71, dated 30-11-1983, in favour of the defendant No.2, Jagannath had already sold the suit plot by a registered sale deed in favour of Ramaswami and, therefore, the subsequent sale deed executed in the year 1983, did not create any right or interest in the suit property in favour of the defendant No.2. The appellate Court considered the provisions of Section 54 of the Transfer of Property Act to hold that an agreement of sale does not by itself create any interest or charge on the property. The appellate Court finally held that the defendants were in unauthorised possession of the suit plot as they had failed to prove their ownership over the same. As the plaintiff had established her ownership over the suit plot, the appellate Court decreed the suit of the plaintiff with costs.

8. Now coming to the applicability of the provisions of Section 53-A of the Transfer of Property Act, it is necessary to consider that the defendants had not specifically pleaded that they were entitled to protect their possession in pursuance of the provisions of Section 53-A of the Transfer of Property Act. In fact, the main plea raised in the written statement pertains to the ownership of the defendant No.2 over the suit property and the possession of the defendants over the same. It is only in clause (C) of the specific pleadings in the written statement, that the defendants have raised a plea that they have entered into the property and are in possession thereof in part performance of contract dated 26-12-1973. Since the plea was not specifically raised, the trial as well as the appellate Court did not consider the applicability of the provisions of Section 53-A of the Transfer of Property Act to the facts of the case. In fact, Section 53-A of the Transfer of Property Act could be invoked by the defendant only in a case where the defendant was put in possession of the property in pursuance of an agreement of sale and the defendant was ready and willing to perform his part of the contract. Such is not the case here. The plaintiff claims to be the owner of the suit property in pursuance of the registered sale deed executed in her favour by Ramaswami in the year 1980 and the defendants claim to be the owner of the suit property in pursuance of the sale deed executed in the year 1983. It is further noteworthy that since the plea was not specifically raised in the written statement, there was no occasion for the plaintiff to prove before the Court that her rights as a transferee for consideration without notice, could not be affected merely by the fact that the defendants were put in possession of the property in pursuance of the agreement of sale. A perusal of the agreement of sale dated 26-12-1973, Exh.69, reveals that the same was executed on 26-12-1973 and the registered sale deed was to be executed within a period of one year from the date of execution of the agreement of sale. There is absolutely nothing on record to show as to why Jagannath had not executed the registered sale deed in favour of the defendant No.1 for a period of almost ten years though the sale deed was to be executed within a period of one year in terms of the agreement of sale. Moreover, though the consideration for sale was agreed at Rs.10,000/- in the year 1973, it is conspicuous to note that Jagannath sold the suit property by a registered sale deed in favour of Ramaswami for a consideration of only Rs.2,000/-. Ramaswami further sold the property to the plaintiff for Rs.7,000/-. The entire documentary evidence which is considered by the trial Court to hold that the ownership and possession of the defendants is established, ought to have been actually discarded by the trial Court as the documents produced by the defendants in the form of receipt showing the payment of development charges and revenue entries, show that they pertain to the year 1986 and 1987. The dates on which the aforesaid documents are issued and executed, are subsequent to the date on which the suit was filed. The suit was filed on 30th September, 1986, and the documents were issued in October and November, 1986 and in the subsequent year i.e. 1987-1988. Thus, the documents would not be of any assistance to prove the defendants' title or possession over the suit property. In the absence of any pleadings in respect of applicability of Section 53-A of the Transfer of Property Act and facts leading to the applicability thereof as also the fact that the plaintiff and the defendants had based their rival claims to the ownership of the suit property on the basis of the registered sale deeds executed in their favour, it was not necessary for the Courts to consider the issue as to whether the defendants were entitled to protect their possession in view of Section 53-A of the Transfer of Property Act. As rightly pointed out on behalf of the respondent that the doctrine of part performance would not apply to the facts of this case as Section 53-A of the Transfer of Property Act merely disentitles the transferor from disturbing the possession of the proposed transferee who is put in possession of the property in pursuance of the agreement. Section 53-A of the Transfer of Property Act has nothing to do with the ownership of the transferor who remains full owner of the suit property till it is legally conveyed by executing a registered sale deed in favour of the transferee. Such was not the case here. The defendants had claimed to be the owners of the suit property in pursuance of the registered sale deed which was executed in the year 1983. Hence Section 53-A of the Transfer of Property Act did not come into play as under Section 53-A of the Transfer of Property Act, a proposed transferee is entitled to protect his possession against the true owner or any person claiming through him. It cannot apply in the case where the person who is put in possession of the suit property is not the proposed transferee, but is, in fact, a person who claims that the property is already transferred in his favour. In the absence of any pleadings in the written statement and in view of the fact that the plaintiff did not have an opportunity to prove that he was the bona fide purchaser for value without notice, the provisions of Section 53-A of the Transfer of Property Act cannot be invoked at least to protect the possession of the defendants, especially when the defendants are not the proposed transferees but claim title in themselves. The substantial question of law is, therefore, answered in the negative and against the appellants. The judgments relied on by the counsel for the appellants in the case of Rambhau Namdeo Gajre Vs. Narayan Bapuji reported in (2004)8 SCC 614 : [2004(5) ALL MR 1189 (S.C.)] and in the case of R. K. Mohd. Ubaidullah & others Vs. Hajee Abdul Wahab through L.Rs. reported in A.I.R. 2001 Supreme Court 1658, cannot apply to the facts of this case and the principles laid down therein cannot be invoked in the instant case. In fact, paragraph No.5 of the judgment reported in AIR 1955 Madhya Bharat, page 93 relied on by the counsel for the respondent would be of some assistance to the case of the respondent herein.

9. For the reasons aforesaid, the second appeal is dismissed with no order as to costs.

Appeal dismissed.