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2002 DIGILAW 428 (KAR)

ABDUL RAHIMANSAHEB v. PUTTAWWA

2002-07-09

A.M.FAROOQ

body2002
A. M. FAROOQ, J. ( 1 ) THIS is a second appeal filed by the defendant in O. S. No. 582 of 1993 on the file of the learned Principal Civil Judge, Junior Division, Dharwad and it is directed against the confirming judgment in R. A. No. 49 of 2000 on the file of the learned Additional Civil Judge, Senior Division, Dharwad. ( 2 ) THE brief facts of the case was that the plaintiff filed the suit seeking possession of the suit schedule property on the ground that the defendant had entered into an agreement with the plaintiff and the defendant had filed a suit in O. S. No. 60 of 1980 for specific performance of the agreement and the suit was partly decreed directing the plaintiff to pay an amount of Rs. 7,000/- with interest. That the defendant/appellant herein challenged the decree in R. A. No. 88 of 1982 which was dismissed and thereafter, the appellant challenged the same in R. S. A. No. 967 of 1993 which was also dismissed confirming the judgment and decree of the lower Courts. ( 3 ) THE defendant mainly contested the suit on the ground under section 53-A of the Transfer of Property Act by contending that in view of the admitted agreement in his favour executed by the plaintiff, he has got right to protect his possession. Both the Courts below have negatived the said contention and directed the defendant to deliver possession to the plaintiff. ( 4 ) IT is now submitted by the learned Counsel appearing for the appellant that even though the appellant had filed a suit for specific performance and even though the said suit was partly allowed directing the plaintiff to deposit certain money towards refund of the advance amount paid by him the plaintiff having not deposited the same even after filing of the suit, the plaintiff was not entitled to seek possession. The lower Appellate Court has considered this aspect of the matter and in my view has rightly held that subsequently, the plaintiff has deposited the amount and in view of the said deposit by the plaintiff, the plaintiff cannot lose the right to get possession of the land. The lower Appellate Court has considered this aspect of the matter and in my view has rightly held that subsequently, the plaintiff has deposited the amount and in view of the said deposit by the plaintiff, the plaintiff cannot lose the right to get possession of the land. ( 5 ) THE main contention that is argued before me by the learned counsel appearing for the appellant is that under Section 53-A of the transfer of Property Act, the appellant as defendant in the suit is entitled to defend his possession. The learned Counsel contended that under section 53-A of the Transfer of Property Act, the appellant who got an agreement in writing in his favour from the plaintiff is entitled to defend his possession. The learned Counsel does not dispute that the appellant has filed a suit in O. S. No. 60 of 1980 seeking specific performance of the agreement but specific performance was not granted and the said decree has been confirmed by this Court and in view of the same, the defendant was not entitled to get a registered sale deed in respect of the suit property. He was entitled to get only refund of the amount as directed in the decree. The contention of the appellant that despite his having filed a suit based on the agreement in question, he is entitled to rely upon the same agreement and defend his possession of the suit schedule property, which cannot at all be accepted. ( 6 ) UNDER Section 20 of the Specific Relief Act, the Court is given discretion either to grant a decree for specific performance or not. Even if the plaintiff in a case for specific performance proves that there was an agreement in his favour and that he had done everything that is necessary to fulfill all the conditions of the agreement, still the Court has got discretion to reject a decree for specific performance of the agreement. In such a case, the defendant who has lost the case on such an agreement cannot subsequently defend his possession when the plaintiff seeks possession of the land which was given to him under the said agreement. The learned Counsel has cited a judgment of the Hon'ble supreme Court in the case of S. S. Surya Vanshi v P. B. Surya. Vanshi. The learned Counsel has cited a judgment of the Hon'ble supreme Court in the case of S. S. Surya Vanshi v P. B. Surya. Vanshi. In the said judgment, the Hon'ble Supreme Court has held in para 6 that Section 53-A does not forbid the defendant/transferee from taking a plea in his evidence to protect his possession over the suit property obtained in part performance of a contract even though the period of limitation for bringing the suit for specific performance has expired. That it also does not expressly provide that a defendant/transferee is not entitled to protect his possession over the suit property taken in part performance of the contract if the period of limitation to bring a suit for specific performance has expired. That in the absence of such a provision we have to interpret the provisions of Section 53-A in a scientific manner and it means to look into the legislative history and structure of the provisions of Section 53-A. ( 7 ) AFTER considering several judgments and other materials, the hon'ble Supreme Court has held that despite the period of limitation having expired, the defendant is entitled to take protection under Section 53-A of the Transfer of Property Act. But the facts of this case is quite different from the facts of the different cited cases. Here is a case, where the plaintiff has already filed a suit for specific performance and no decree was admittedly granted to him for specific performance. He was granted only a decree for refund of the earnest money. Thus, the appellant who was the defendant in a suit has already exhausted his remedy under the alleged agreement and failed in his attempt to get the agreement enforced. Therefore, in such circumstances, he cannot defend his possession under Section 53-A and by taking recourse to the same agreement on which he had already filed a suit had failed to get a decree for specific performance. ( 8 ) ADMITTEDLY, the plaintiff was a party in the said suit and the suit was disposed off after contest and by virtue of the decree passed in the said suit, the plaintiff in the present suit was entitled to get back possession since no decree for specific performance was granted to the appellant who filed the suit. ( 8 ) ADMITTEDLY, the plaintiff was a party in the said suit and the suit was disposed off after contest and by virtue of the decree passed in the said suit, the plaintiff in the present suit was entitled to get back possession since no decree for specific performance was granted to the appellant who filed the suit. The plaintiff was therefore, entitled to seek for possession from the defendant and in such circumstances, the defendant cannot defend his possession under the alleged agreement which was already adjudicated by the Court in the earlier suit. Hence, Section 53-A of the Transfer of Property Act cannot be taken recourse to by the appellant to defend his possession. The plaintiff who was a party in the earlier suit had a right to take possession from the defendant and both the Courts below were therefore, justified in decreeing the suit for possession. In my view, no substantial question of law arises in this second appeal and the same is accordingly dismissed. ( 9 ) CONSIDERING the fact that the appellant has been in possession in respect of the suit schedule property since a long time, the appellant is given 3 months time from today to vacate and deliver vacant possession of the petition schedule premises and put the respondent in possession of the same subject to the condition that the appellant files an affidavit before this Court undertaking to vacate and deliver vacant possession of the petition schedule premises to the respondent/plaintiff on or before the 10th of October, 2002. --- *** --- .