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2003 DIGILAW 170 (KAR)

H. K. PUTTATHAYAMMA v. K. BHARATHI

2003-02-19

S.B.MAJAGE

body2003
S. B. MAJAGE, J. ( 1 ) THE appellant, who was plaintiff in O. S. No. 12 of 1987 on the file of court of Munsiff at Holenarasipura, has come up before this Court in second appeal, challenging the judgment and decree passed in that suit and also in R. A. No. 112 of 1996 on the file of the Court of Civil Judge (Senior Division) at Holenarasipura, by which the judgment and decree passed by the Trial Court came to be affirmed. ( 2 ) FOR the sake of convenience, parties will be referred here after as plaintiff and defendant i. e. , as shown in the impugned judgment and decree of the Trial Court. ( 3 ) THE brief facts, which give rise to the present appeal, are: (A) The plaintiff, being the owner in possession of suit land in Sy. No. 167 measuring 1 acre situated at Thattiekere Village, entered into an agreement of sale with the defendants on 28-5-1980 for a consideration of Rs. 8,000/- and received Rs. 5,000/- as part consideration amount and handed over its possession to them with an agreement that after balance payment of Rs. 3,000/-, sale deed shall take place. However, unfortunately, that date has not yet come so far. According to the plaintiff, the defendants were at fault and committed breach of terms of the agreement of sale in spite of her repeated requests to pay balance consideration amount and get registration of sale deed. (B) However, according to the defendants, the plaintiff has already received Rs. 3,000/- through her husband, but went on postponing the execution of sale deed and brought suit for possession and even otherwise, they have shown readiness and willingness to pay balance consideration of Rs. 3,000/- and get registered sale deed. So, the plaintiff claimed possession of suit land from the defendants in the circumstances that they had not complied with the terms of agreement and in fact, committed breach of the same and consequently, she is entitled to get back possession. Accordingly, she brought suit for possession only reserving her right to claim damages separately. (C) With said pleadings, the parties went on trial. For the plaintiff, her husband and a witness were examined and two documents were marked. For the defendants, they examined themselves and a witness and got marked 12 documents. Accordingly, she brought suit for possession only reserving her right to claim damages separately. (C) With said pleadings, the parties went on trial. For the plaintiff, her husband and a witness were examined and two documents were marked. For the defendants, they examined themselves and a witness and got marked 12 documents. Considering that evidence, the Trial court dismissed the suit of the plaintiff, after answering following issues 1 and 2 in negative and issues 3 and 4 as per order: 1. Whether plaintiff proves that defendants have committed breach of agreement? 2. Whether as counter-claim, the defendants are entitled to specific performance? 3. To which relief, plaintiff is entitle? 4. What decree or order? (D) Aggrieved by it, the plaintiff filed R. A. No. 112 of 1996 before the appellate Court, which also confirmed the said dismissal of the suit by the Trial Court by dismissing the appeal. (E) Incidentally, it may be noted that the suit filed by the plaintiff was earlier decreed in the year 1989 when the defendants did not file any written statement and contest it. However, when that was challenged in R. A. No. 9 of 1989, allowing the appeal, the matter was remitted to the Trial Court on 24-7-1995, giving opportunity to the defendants to file written statement. Thus, after the matter was remitted to the trial Court, the defendants filed written statement on 17-11-1995 and it was thereafter, trial took place and ultimately the plaintiff became unsuccessful successively and as such, he is before this Court. ( 4 ) AT the stage of admission of the appeal on 26-3-1999, following substantial questions of law were framed by this Court:1. WHETHER the lower Appellate Courts have erred in not decreeing the suit for possessi on only on the sole ground that the plaintiff/appellant has not produced documents of title relating to the schedule property despite the fact that the ownership of the plaintiff was admitted by the respondents?2. Whether the lower Courts have erred in not decreeing the suit for possession even though the respondents who are transferees in possession have lost their right to sue for specific performance of the agreement of sale? ( 5 ) HEARD the learned Counsel for the appellant only, as the defendants, though served with notice of the appeal, remained absent and unrepresented. Perused the records carefully. ( 5 ) HEARD the learned Counsel for the appellant only, as the defendants, though served with notice of the appeal, remained absent and unrepresented. Perused the records carefully. ( 6 ) SINCE the said 2nd question framed by this Court goes to the root of the matter, that is taken up for consideration first. ( 7 ) THE learned Counsel for the plaintiff placed reliance on the decision of this Court in the case of Kareem Baig and Others v Dr. Mohammad Khizar Hussain and Others. So also two other Division Bench decisions of this Court in K. Gururao v M. Subba Rao , M. Azmathulla khan (dead) by L. Rs v Thankamma Mathews, in support of her argument that, when the defendants' right to file suit for specific performance of contract is lost by efflux of time, the plaintiff was entitled to possession of suit claim from defendants but, wrongly, the lower Court refused the relief prayed for by her. ( 8 ) IN the present case, it is not in dispute between the parties that there was an agreement of sale between them on 28-5-1980, Rs. 5,000/- was received by plaintiff when paid by defendants on that date out of Rs. 8,000/- agreed as sale consideration amount and the defendants were put in possession of the property and thus, they came in possession of the property under the agreement of sale and continue to be so even as on today and it is for that reason, the plaintiff brought suit for possession on the ground that the defendants committed default i. e. , breach of the conditions of the agreement of sale. The Trial Court held that the plaintiff failed to prove that the defendants have violated terms of the agreement and so also the defendants, and for that reason, it negatived the request of the defendants when put forward counter-claim though dismissed the suit of the plaintiff also. Similarly, the Appellate Court gave finding as held by the Trial Court. In addition it has recorded finding to the effect that, whether the defendants are ready and willing to perform their part of contract, though not necessary in the circumstances. Be that as it may, there are concurrent findings recorded by both the Courts below on the issues raised in the matter. In addition it has recorded finding to the effect that, whether the defendants are ready and willing to perform their part of contract, though not necessary in the circumstances. Be that as it may, there are concurrent findings recorded by both the Courts below on the issues raised in the matter. ( 9 ) SO, firstly, what arises for consideration is the 2nd question of law raised and noted already. However, to put it in other words or in plain language, it is:"whether a transferee in possession of a property under part performance of contract (under Section 53 (a) of the Transfer of property Act) can maintain his possession against a true owner, when the true owner brings suit for possession of property from him?" ( 10 ) AT this stage, it may be noted that, the powers of this Court in second appeals are limited, as held in the case of Veerayee Animal v seeni Ammal. In fact, the Supreme Court has held that even if a view different from the view taken by the Court below is possible to be taken on reappreciation of the material on record, it is not open for this Court in 2nd appeal to go into that aspect of the matter on the ground of substantial question of law touching such question of facts. ( 11 ) ACCORDING to the learned Counsel for the plaintiff, the defendants, who are transferees in possession of the property taken by them in part performance of the contract under an agreement of sale, have lost their right to file a suit for specific performance of the contract and as such, they cannot maintain their possession when the owner brought suit for possession. In support of her said argument; she relied on three Division bench decisions of this Court, referred to already. ( 12 ) HOWEVER, in the case of Shrimant Shamrao Suryavanshi and another v Pralhad Bhairoba Suryavanshi (dead) by L. Rs and Others, the Supreme Court has observed as under:"16. But there are certain conditions which are required to be fulfilled if a transferee wants to defend or protect his possession under Section 53-A of the Act. ( 12 ) HOWEVER, in the case of Shrimant Shamrao Suryavanshi and another v Pralhad Bhairoba Suryavanshi (dead) by L. Rs and Others, the Supreme Court has observed as under:"16. But there are certain conditions which are required to be fulfilled if a transferee wants to defend or protect his possession under Section 53-A of the Act. The necessary conditions are: (1) there must be a contract to transfer for consideration of any immovable property; (2) the contract must be in writing, signed by the transferor, or by someone on his behalf; (3) the writing must be in such words from which the terms necessary to construe the transfer can be ascertained; (4) the transferee must in part-performance of the contract take possession of the property, or of any part thereof; (5) the transferee must have done some act in furtherance of the contract; and (6) the transferee must have performed or be willing to perform his part of the contract. 17. We are, therefore, of the opinion that if the conditions enumerated above are complied with, the law of limitation does not come in the way of a defendant taking plea under Section 53-A of the Act to protect his possession of the suit property even though a suit for specific performance of a contract is barred by limitation. 18. The matter may be examined from another angle. The established rule of limitation is that law of limitation is not applicable to a plea taken in defence unless expressly a provision is made in the statute. The law of limitation applies to the suits and applications. The various articles of the Limitation Act show that they do not apply to a defence taken by a defendant in a suit. Thus, the law of limitation bars only an action in a Court of law. In fact, what the Limitation Act does is, to take away the remedy of a plaintiff to enforce his rights by bringing an action in a Court of law, but it does not place any restriction to a defendant to put forward any defence though such defence as a claim made by him may be barred by limitation and cannot be enforced in a Court of law. On the said principle, a defendant in a suit can put forward any defence though such defence may not be enforceable in a court of law, being barred by limitation. 19. In M. K. Venkatachari v L. A. R. Arunachalam Pillai, it was held, thus: "that the defence to limitation is a creature of positive law and therefore cannot be extended to cases which do not strictly fall within the enactment. It is an established canon of construction of the law of limitation not to enlarge the scope of statutory provisions of limitation by analogy or logic". 20. It is. therefore, manifest that the Limitation Act does not extinguish a defence, but only bars the remedy. Since the period of limitation bars a suit for specific performance of a contract, if brought after the period of limitation, it is open to a defendant in a suit for recovery of possession brought by a transferor to take a plea in defence of part-performance of the contract to protect his possession, though he may not be able to enforce that right through a suit or action. 21. In the present case, it is not disputed that the transferee has taken possession over the property in part-performance of the contract. It is also not disputed that the transferee has not brought any suit for specific performance of the agreement to sell within the period of limitation". (emphasis supplied) ( 13 ) IN view of the above, it cannot be said that the defendants cannot maintain their possession against the plaintiff in such a suit even if right to bring suit for specific performance is barred by time. Consequently, three Division Bench decisions of this Court relied on by the learned Counsel for the plaintiff, will be of no help to her on the view expressed, which is against the said decision of the Supreme Court. ( 14 ) IT is vehemently argued for the plaintiff that in the case on hand, the defendants failed to show that their readiness and willingness to perform their part of contract and as such, they cannot maintain their possession. For this, suffice to note at this stage that, in view of the law laid down by the Supreme Court in the case referred to above, the 2nd question of law raised requires to be answered in negative and accordingly, it is answered. For this, suffice to note at this stage that, in view of the law laid down by the Supreme Court in the case referred to above, the 2nd question of law raised requires to be answered in negative and accordingly, it is answered. In the above view of the matter, no finding is required on first Question of law referred. In the result, appeal is dismissed. However, in the circumstances, parties are directed to bear their respective costs. --- *** --- .