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Himachal Pradesh High Court · body

2001 DIGILAW 212 (HP)

RATTAN LAL MAHAJAN v. TULSI RAM

2001-08-28

M.R.VERMA

body2001
JUDGMENT M.R. Verma, J.- This regular second appeal has been preferred by the appellant-plaintiff Sarwan (since deceased and hereafter referred to as the deceased) represented by the legal representatives, the present appellants, (hereafter referred to as appellants) against the judgment and decree dated 15.2.1993 passed by the learned Addl. District Judge, Bilaspur in Civil Appeal No. 252-B of 1986 whereby the judgment and decree dated 19.1.1985 passed by the learned Sub Judge 1st Class, Ghumarwin, has been upheld and affirmed. 2. The brief facts leading to the presentation of this appeal are that the deceased instituted a suit against the respondents-defendants No.1 to 4 (hereafter referred to as the defendants) in which proforma respondents-defendants No.5 to 7 (hereafter referred to as the proforma defendants) were also added as parties and the relief claimed was for possession of land comprising Khata Khatauni No.3/8 Khasra No. 359 measuring 2 Biswas situate in village Dakri, Pargana Tiun, Tehsil Ghumarwin, District Bilaspur (hereafter (hereafter referred to as the suit land) alongwith house-cum-shop, detailed in site plan Ext. PW-3/A and Ext.PW-3/B. The relief of permanent injunction restraining the defendants from raising any new construction, mandatory injunction and mesne profits were also claimed. The case, as made out in the plaint, is that the deceased was non-occupancy tenant of the suit land and subsequently acquired proprietary rights in respect of one biswa of land and remained non-occupancy tenant in respect of remaining one biswa of the land. He constructed a house-cum-shop on the suit land and left apart some portion of the land as a court yard. He remained in possession of the said house-cum-shop and the court yard upto 27.4.1979 when at about 11 P.M. the defendants by breaking the lock forcibly entered the house-cum-shop wherein some articles like eot, rafters, wooden pieces, kacha bricks and almirah valued at Rs.210/- were also kept and took the forcible possession of the house-cum-shop and the court yard. Despite request by the deceased, the defendants failed to vacate their forcible possession. Hence, the suit. 3. The claim as made out in the suit, was resisted by the defendants. In the written statement, they raised preliminary objections that the suit was not properly valued for the purposes of Court fee and jurisdiction, that the plan of the shop attached with the plaint was incorrect and the suit was not maintainable in the form it has been laid. In the written statement, they raised preliminary objections that the suit was not properly valued for the purposes of Court fee and jurisdiction, that the plan of the shop attached with the plaint was incorrect and the suit was not maintainable in the form it has been laid. On merits, it was claimed that the deceased executed an agreement on 25.7.1978 agreeing to sell 4 Biswas of land comprising the suit land and Khasra No. 471/360 for a consideration in the sum of Rs.16,500/-to defendant No.1 and received a sum of Rs.8000/ - as advance payment agreeing to pay Rs.4000/- on Diwali of 1978 and Rs. 4500/- on Lohri of 1979 and also agreed to execute a sale deed in favour of defendant No.1. On the date of execution of the agreement and on receipt of Rs.8000/- the deceased handed over the possession of the land agreed to be sold, including the suit land, to defendant No.1. Thereafter, defendant No.1 after incurring expenses in the sum of about Rs. 11,000/- constructed the house - cum - shop and also paid Rs.4000/- to the deceased and asked him to executed the sale deed. The deceased, however, executed a sale deed. The deceased, however, executed a sale deed in respect of 2 Biswas of land comparing Khasra No.471/360 on 2.12.1978 but put off the execution of\the sale deed in respect of the suit land on one pretext or the other and instead instituted this false suit,. Thus, the claim, as made out in the plaint, was denied, the proforma defendants No.5 and 6 in their separate written statements, supported the claim of the defendants 1 to 4, Similarly proforma defendant No.7, on whose behalf separate written statement was filed, also supported the claim of the defendants. 4. The plaintiff filed replication wherein while admitting the execution of the agreement as claimed by the defendants, the grounds of defence, as taken in the written statement, were denied and the claim, as made out in the plaint, was reiterated. 5. On the pleadings of the parties, the learned trial judge framed the following issues:- 1. Whether the suit has wrongly been assessed for the purpose of Court fee and jurisdiction. If so to what the correct value? OPD 1-A. Whether on 27.4.1979 defendants forcibly took possession of the suit property, if so to what effect? 5. On the pleadings of the parties, the learned trial judge framed the following issues:- 1. Whether the suit has wrongly been assessed for the purpose of Court fee and jurisdiction. If so to what the correct value? OPD 1-A. Whether on 27.4.1979 defendants forcibly took possession of the suit property, if so to what effect? OPP 1-B. Whether the plaintiff is owner on half of the land and non-occupancy tenant on the rest of the land in suit, if so what effect? OPP 1-C. Whether the plaintiff is entitled for mandatory injunction in the alternative? OPD 1-D. Whether the suit is not maintainable in the present form? QPD 1-E. Whether the defendant was ready and willing to perform his part of the contract in pursuance to the agreement dated 25.7.1978? OPD 1-F. Whether the defendant No.1 was put in possession of the suit land alongwith Khasra No.471/360 measuring 2 biswas in pursuance of the agreement dated 25.7.1978, if so to what effect? OPD 1-G. Whether the agreement dated 25.7.1978 comes to an end with the execution of the alleged sale deed in respect of the land comprising in Khasra No. 471/360 measuring 2 biswas on 2.12.1978, if so what effect? OPP 1-H. Whether the plaintiff is always willing and ready to perform his part of contract? OPP 1-I. Whether I biswa out of the suit land on which the plaintiff acquires the proprietary rights could not be sold by sale for a period of 10 years, as alleged, if so to what effect? OPP 1-J. Whether by an agreement of sale dated 25.7.1978, the plaintiff created a lease of the suit land on payment of Rs.250/ as rent per mensum in favour of defendant No.1 on plaintiffs failure to execute the sale deed, as alleged, if so to what effect? OPD 2. Whether the suit property has not been shown in the site plan properly, as alleged? OPD 3. Relief. 6. The trial Court decided Issue No.1-A, 1-B, 1-C, 1-G, 1-H and 1-I against the plaintiff, Issue No.1, 1-J and 2 were decided against the defendants and Issue No. 1-D, 1-E and 1-F were decided in favour of the defendants as a consequence the suit was dismissed. 7. Feeling aggrieved, the deceased plaintiff preferred an appeal in the Court of learned Addl. District Judge, Bilaspur, who dismissed the appeal. Hence, the present appeal. 8. 7. Feeling aggrieved, the deceased plaintiff preferred an appeal in the Court of learned Addl. District Judge, Bilaspur, who dismissed the appeal. Hence, the present appeal. 8. I have heard the learned counsel for the parties and have also gone through the records. 9. This appeal has been admitted for hearing on the following substantial questions of law:- (1) Whether both the Courts of facts have in the absence of any pleading or issue, mis-construed the oral as also the documentary evidence and given wholly a wrong approach to conclude the finding" that the respondent-defendants are entitled to the protection under Section 53(A) of the Transfer of Property Act vis-a-vis the suit land? (2) Whether the possession of the defendants over the suit land in the facts and circumstances of the case emerging from the record is illegal in view of the fact that the plaintiff was legally incompetent to enter into a contract for sale of the suit land under the statutory provisions of H.P. Tenancy and Land reforms Act. 1972? (3) Whether the execution of sale deed, Ext. PY pursuant to agreement for sale, Ext. D-1 and in the absence of plea with respect to readiness and willingness to perform the contract on the part of the defendants amounts to waiver and estoppel, if so, to what effect? Substantial Question No.1 10. It was contended by the learned counsel for the appellant that in the absence of pleadings and issue regarding applicability of the provisions of Section 53-A of the Transfer of Property Act (hereafter referred to as the Act) to the case set up by the defendants the Courts below have acted illegally in invoking the principle of part performance to protect the possession of defendant No.1. 11. There cannot be any dispute that the defence of part performance of a contract under Section 53-A of the Act involves a question of fact, therefore, its foundation has to be laid in the pleadings and has to be proved by evidence. It is, however, not necessary to specifically refer to Section 53-A of the Act in the pleadings. It is enough to plead all the material facts constituting the defence of part performance of the contract. While dealing with a similar question, this Court in Badar Dean and others vs. Chuhru and others (RSA No. 143 of 1992, decided on 10.7.2001) has held as under: "17. It is enough to plead all the material facts constituting the defence of part performance of the contract. While dealing with a similar question, this Court in Badar Dean and others vs. Chuhru and others (RSA No. 143 of 1992, decided on 10.7.2001) has held as under: "17. The plea of part performance under Section 53-A of the Act is a mixed question of law and fact. Therefore, the defendant claiming the benefit thereof must raise the plea in the written statement. It is, however, not necessary that to take the benefit of the doctrine of part performance plea must be specifically and expressly raised with reference to the provisions of Section 53-A of the Act. It would be sufficient if all the relevant facts which constitute a plea of part performance of a contract are mentioned in the written statement". 12. The next question is as to what are the material facts (ingredients) to constitute the defence of part performance of a contract under Section 53-A of the Act. In this regard, in view of the provisions of Section 53-A, this Court in Badar Deans case supra held as follows: "19. It is evident form a bare reading of the above section that to constitute the defence of part performance, the necessary conditions are (1) that the transferor has contracted to transfer for consideration any immovable property by writing signed by him or on his behalf, (2) that the terms and conditions to constitute the transfer can be ascertained from such writing with reasonable certainty, (3) 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. (4) that the transferee has done some act in furtherance of the contract and (5) that the transferee has performed or is willing to perform his part of the contract." 13. The ratio in Sardar Govindrao Mahadik and another vs. Devi Sahai and others (AIR 1982 SC 989) and Nathulal vs. Phoolchand (AIR 1970 SC 546) is also the same. The question in hand when examined in view of the aforesaid settled position in law, there is no force in the contention that the pleading regarding defence available under Section 53-A are absent in the written statement of the defendants. 14. The question in hand when examined in view of the aforesaid settled position in law, there is no force in the contention that the pleading regarding defence available under Section 53-A are absent in the written statement of the defendants. 14. The defendants vide para 1 of the written statement on merits have specifically pleaded that the plaintiff executed an agreement to sell land including the suit land to defendant No. 1 for consideration, a part of which was paid in advance and the remainder was agreed to be paid in two installments on specified dates and the possession of the land agreed to be sold was delivered to defendant No. 1 who is in possession thereafter and had paid one of the installments of consideration to be paid by him and has also made improvement on the suit land, but the deceased failed to perform his part of th contract i.e. to execute the sale deed. It is further averred that the defendant No. 1 has always been willing to perform his part of the contract. Thus all the material facts to constitute the defence under Section 53-A of the Act have been duly pleaded. 15. Issue Nos. 1E, 1F, 1G and H as framed by the learned trial Judge arise out of the plea of part performance as taken by the defendants. Therefore, it cannot be held that no issue was framed regarding plea of part performance of the contract. 16. In view of the above discussions and findings, this is not a case of absence of pleadings and issues resulting in misconstruction of the oral and documentary evidence as contended for the appellants. Substantial Question No. 2 17. Both the Courts below have concurrently held that the deceased agreed to sell the suit land (including a house thereon) to defendant No. 1 for consideration and pursuant to such agreement had put him in possession of the property agreed to be transferred. The learned trial Judge over ruled the objection that the transaction was illegal and void because the deceased was not legally competent to sell the suit land, therefore, the defence under Section 53-A is not available to the deceased defendants. The learned trial Judge over ruled the objection that the transaction was illegal and void because the deceased was not legally competent to sell the suit land, therefore, the defence under Section 53-A is not available to the deceased defendants. The view taken by the learned trial Judge is that the defence under Section 53-A of the Act could be availed of even in those cases where the contract is not enforceable or the same is forbidden by law, therefore, the sale of the suit land by the deceased being tenant of a part of it and having acquired ownership rights on another part (i.e. one biswa in each case) will not make any difference because of equity which is the hallmark of Section 53-A and basis for enactment thereof. The appellate Court has not given any express findings on this plea, though it was raised before it. 18. There is no dispute that the deceased was owner of one biswa and tenant over the other biswa of the suit land and he became owner of said one biswa by acquisition of property rights therein because he was tenant of the entire suit land. He admittedly acquired such proprietary rights in the year 1976 and agreed to sell the land vide agreement Ex.D-1 dated 25.7.1978 i.e. within 10 years of acquisition of the proprietary rights. 19. Section 113 of the H.P. Tenancy and Land Reforms Act provides as follows: Bar of transfer of ownership rights.- No land in respect of which proprietary rights have been acquired under this Chapter shall be transferred by sale, mortgage, gift or otherwise during a period of ten years by a person from the date he acquires proprietary rights: Provided that nothing contained in subsection (1) shall apply to the transfer of land made for a productive purpose with a prior permission of the State Government in a prescribed manner. Provided further that nothing in this sub section shall apply to the land mortgaged with the Co-Operative Societies established under the Himachal Pradesh Co-operative Societies Act, 1968 or with a bank. (2) Any transfer of land made in contravention of sub section (1) shall be void and no registering authority shall register any document evidencing such transfer under the India Registration Act, 1908. 20. (2) Any transfer of land made in contravention of sub section (1) shall be void and no registering authority shall register any document evidencing such transfer under the India Registration Act, 1908. 20. In view of the provisions of Section 113 ibid, a person who has acquired proprietary rights in the land under the H.P. Tenancy and Land Reforms Act is debarred from transferring the land for a period of ten years. In case such land is transferred, the transfer shall be void, unless such transfer falls under either of the provisos to, sub section (1) of Section 113. It is not the case of the defendants that the agreement Ex.D-1 contemplates a transfer which is covered under either of the said two provisions. Therefore, the agreement to sell 1 biswa of suit land by the deceased to defendant No. 1 being violative of the provisions of Section 113 is null and void. 21. The deceased being a tenant of the other half i.e. 1 biswa of the land agreed to be sold was legally not competent to sell or to agree to sell it. The agreement Ex.D-1 thus is void in so far it provides for sale of the suit land by the deceased to defendant No. 1. The doctrine of part performance ?? cannot be availed of in respect of a transaction which is specifically barred by law and is null and void. To hold the contrary will mean to protect illegal possession on the basis of a void transaction and to nullify the provisions of Section 113 ibid. 22. While dealing with the question whether protection under Section 53-A of the Act is available to a person in possession of immovable property by virtue of a void transaction, Nagpur High Court in Narayan and others v. Vithoba and another (AIR 1927 Nagpur 177) held : "Where the flaw in the transaction is not a mere defect of form or the absence of some formality normally necessary, but the transaction is one which is void ab initio, the doctrine of part performance cannot be applied." 23. In Muthabathula Arjayya v. Rambala Venkata Surya Gopala Krishnamurthy and another (AIR 1974 Andhra Pradesh 240) there was a contract of sale in respect of a service inam land which was vioiative of Section 5 of the Madras Hereditary Village Offices Act and the suit for possession filed by the Inamdar was contested on the plea of part performance under section 53-A of the Act. A full Bench of the Andhra Pradesh High Court held as follows: "........We, therefore, hold that in a case where possession is obtained under an agreement of sale in respect of a service inam land, the provisions of Section 53-A of the Transfer of Property Act cannot be resorted to by the would be vendee to maintain his possession. In such a case if the inamdar is to file a suit for possession of the -inam land, Section 53-A of the Transfer of property Act would not be a defence." 24. In Gaddam Narsa Reddy and others v. Collector, Adilabad District and others (AIR 1982 AP1) a member of scheduled tribe sold land in contravention of the provisions of Section 3(1) (a) of the Andhra Pradesh Scheduled Areas Land Transfer Regulation and the question involved was whether vendee could seek protection under Section 53 A of the Act. Answering the question, a Full Bench of the Andhra Pradesh High Court held that when a transfer contravenes the provisions of the Section 3(1)(a) of the regulations, it will not be saved even if made in conformity with the provisions of the Transfer of Property Act and Registration Act and other law for the time being in force, therefore, a person in possession of immovable property by virtue of a transfer made in contravention of Section 3(1).(a) would not be entitled to claim the benefit of Section 53 A of the Transfer of Property Act. 25. In Sadhu Meher v. Bai Kumar Patel (AIR 1994 Orissa 26). The question was whether protection under Section 53 A is available to a party in possession of immovable property by virtue of a void transaction. A Learned Single Judge of Orissa High Court held that a defendant who is in possession on the basis of a void transction is not entitled to ask for protection of his possession under Section 53-A of the Transfer of property Act. 26. A Learned Single Judge of Orissa High Court held that a defendant who is in possession on the basis of a void transction is not entitled to ask for protection of his possession under Section 53-A of the Transfer of property Act. 26. The ratio in the above decisions fully support the view I have taken heretofore. Therefore, the Courts below have wrongly and illegally held that the possession of the defendant over the suit land was protected by the doctrine of part performance of a contract as contemplated under Section 53 A of the Act. Substantial Question of law No. 3 27. It has already been found that the defendant No. 1 has pleaded in the written statement that the was and is willing to perform his part of the contract. He has stated so while appearing as his own witness (DW-1). There are concurrent findings of fact recorded by both the Courts below that defendant No. 1 nowhere relinquished his claim under the agreement Ex.D-1 expressly or impliedly. Therefore, it cannot be held that the defendant No. 1 has not pleaded his readiness and willingness to perform his part of the agreement nor the principle of waiver or estoppel are attracted in the facts and circumstances of the case. 28. Since the defence under Section 53-A of the Act is not available to the defendants as already held hereinabove, therefore, the judgment and decree dismissing the suit by relying on the provisions of section 53-A of the Act, being illegal, are liable to be set aside and the suit must succeed in respect of the relief of possession. 29. As a result, this appeal is allowed. The impugned judgment and decree passed by the courts below are set aside and a decree for possession of the suit land alongwith house - cum - shop thereon specifically detailed in plan Ex.PW-3/A is passed in favour of the appellants plaintiffs and against the defendants. In the peculiar circumstances of the case, there is no order as to costs.