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2006 DIGILAW 165 (HP)

CHANDER KANTA v. DURGA DUTT

2006-06-02

SURJIT SINGH

body2006
JUDGEMENT Surjit Singh, Judge (Oral). Heard and gone through the record. 2. Appellants-plaintiff Chander Kanta and Ramesh Dutt (one of the sons of late Shri Surat Ram, who was a co-sharer with Chander Kanta) filed a suit, seeking declaration that they were owners in possession of the land described in the plaint and that the respondent-defendant Durga Dutt had no right, title or interest in the said land, but he had been threatening to interfere in their possession. Therefore, besides seeking aforesaid declaration, they sought issuance of a permanent prohibitory injunction, restraining said Durga Dutt from causing any interference in their possession. In the alternative, they prayed for decree of possession of the suit land. 3. It was alleged that Durga Dutt had earlier filed a suit for declaration and injunction against Surat Ram, father of plaintiff No.2, alleging that the suit land had been sold to him by Surat Ram for a sum of Rs.4,500/- and he had been in possession thereof since the time of the sale. He claimed that a writing regarding sale had also been executed by Surat Ram on 24.3.1983. That suit was partly decreed and it was declared that Durga Dutt was in possession under an agreement to sell execution in his favour by Surat Ram. The plaintiff alleged that the decree in that suit having been obtained by Durga Dutt by playing fraud on the Court and making misrepresentation and that as a matter of fact, Surat Ram was owner in possession of only half share in the suit land and, therefore, he could not have sold more than his share in the suit land. Further, it was alleged by the plaintiffs that the alleged sale by Surat Ram had never been made and a false claim was made by Durga Dutt in that suit. 4. Durga Dutt contested the suit and pleaded that Surat Ram, predecessor of plaintiff No.2 Ramesh Dutt, was owner in possession of the entire suit land and he had sold the whole of it to him for a consideration of Rs.4,500/- and a writing to that effect was also prepared on 24.3.1983. He claimed that ever since he had been in possession of the suit land and was entitled to remain in possession Some preliminary objections were also raised by him. He claimed that ever since he had been in possession of the suit land and was entitled to remain in possession Some preliminary objections were also raised by him. Trial Court held that plaintiff Chander Kanta was co-owner to the extent of half share of the suit land and that she was entitled to have her half share separated by partition she was held not to be in physical possession on any part of the suit land. 5. Appeal was filed by the plaintiff in the Court of District Judge, which stands dismissed. Finding and the decree of the trial Court, declaring plaintiff No.1 Chander Kanta as joint owner to the extent of half share, has been affirmed Rest of the claim of the plaintiffs has been dismissed. 6. The contention, that has been raised by the learned counsel for the appellants-plaintiffs, before me is that once the two Courts had returned the finding that Durga Dutt did not have any valid title qua the suit land and the protection, under Section 53-A of the Transfer of Property Act, had not been claimed by Durga Dutt, the trial Court ought to have passed a decree for possession of whole of the suit land. 7. The two Courts below have returned a specific finding that Surat Ram had executed a writing on 24.3.1983, which is Ex. DW-1A, whereby he agreed to sell the suit land for a consideration of Rs.4,500/- in favour of respondent-defendant Durga Dutt and pursuant to that agreement respondent-defendant was put in physical possession of the suit land. As per that writing the entire amount of agreed sale consideration had been paid before the execution of the writing Respondent-defendant Durga Dutt specifically claimed that he was in possession of the suit land having purchased it from predecessor of plaintiff No.2 and suit land having purchased it from predecessor of plaintiff No.2 and proforma-respondents No.2 & 3. He proved on record the writing that was executed in his favour by Surat Ram. The plea taken by respondent-defendant Durga Dutt and the writing Ex. DW-1/A proved by him, make it plainly clear that Durga Dutt had performed his part of the contract in full, because he paid the entire amount of sale consideration and, hence, nothing remained to be done on his part. The plea taken by respondent-defendant Durga Dutt and the writing Ex. DW-1/A proved by him, make it plainly clear that Durga Dutt had performed his part of the contract in full, because he paid the entire amount of sale consideration and, hence, nothing remained to be done on his part. He doubt, he did not take the plea hat his possession was protected, under Section 53-A of the Transfer of Property Act, but an overall reading and assessment of the pleadings and the evidence on record suggest that in fact all the conditions of Section 53-A of the Transfer of Property Act are fulfilled. However, the plaintiffs knew that the respondent-defendant had claimed that he had the right in remain in possession, because of the writing that was executed in his favour by Surat Ram and the writing is in the form of an agreement to sell. 8. Learned counsel for the appellants, by placing reliance on a judgment of this Court in Sham Lal v. Smt. Mathi, AIR 2002 Himachal Pradesh 66, and another of the Honble Supreme Court in Mool Chand Bakhru and another v. Rohan and others, AIR 2002 Supreme Court 812, urged that the pleadings and the evidence on record did not establish the material particulars of the plea that is available to a transferee, under Section 53-A of the Transfer of Property Act, inasmuch as there was no allegation that the respondent-defendant was prepared to perform his part of the contract. The contention has been noticed only to be rejected. As already noticed, a vendee, in a contract for sale of property, has only to pay the sale consideration that in his part of the contract. In the present case, respondent-defendant specifically pleaded and also led the evidence that he had paid the entire sale consideration of Rs.4, 500/- Thus, he had already performed, his part of the contract in its entirely when the suit was filed and so there was hardly any occasion for him to have stated that he had ready and written to perform his par of the contract. 9. Learned "counsel representing the appellants further contended that no suit for specific performance having been filed by the respondent-defendant, within the time limited by law, he could not have been said to be willing to perform his part of the contract. This contention is also without any merit. 9. Learned "counsel representing the appellants further contended that no suit for specific performance having been filed by the respondent-defendant, within the time limited by law, he could not have been said to be willing to perform his part of the contract. This contention is also without any merit. As already noticed, the only part that was required to be performed by the respondent-defendant was to have paid the amount of sale consideration in full, which he did even before the, agreement to sell was executed. Thus, no part of the agreement remained to be] performed by him and, therefore, the omission of these words in the written statement is of little consequence. 10. The net result in that no substantial question of law arises. Hence, the appeal is dismissed.