Research › Search › Judgment

Andhra High Court · body

2007 DIGILAW 367 (AP)

Mohd. Masthan v. Abdul Rehman

2007-04-04

P.S.NARAYANA

body2007
Judgment :- 1. The 1st defendant in O.S.No.268/84 on the file of District Munsif, Vizianagaram, being aggrieved of the Decree and Judgment made in A.S.No.117/95 on the file of District Judge, Vizianagaram, wherein the Decree and Judgment of the Court of first instance had been reversed, had preferred the present Second Appeal. 2. The appellant-1st defendant died during the pendency of the Second Appeal and appellants 2 to 12 were brought on record as the legal representatives of the deceased 1st appellant by Order dt.3-11-2005 in C.M.P.No.2745/2005. The Second Appeal as against R.5, R.6 and R.7 was dismissed for default. But, however, it is stated that the main contest is between R.1 to R.4 – the plaintiffs in O.S.No.268/84 and at present the legal representatives of appellant-1st defendant. It is also stated that these parties claiming under the 1st defendant as tenants had been shown as defendants 2, 3 and 4 and hence, the Counsel on record submitted that the Second Appeal to be heard on merits. 3. Contentions of Sri M. Adinarayana Raju:- Sri Adinarayana Raju, the learned Counsel representing the legal representatives of the 1st appellant-appellants 2 to 12 had taken this Court through the respective pleadings of the parties and the evidence available on record and also the findings which had been recorded by the Court of first instance and the findings recorded by the appellate Court and would submit that it is a clear case of the benefits of Section 53-A of the Transfer of Property Act, 1882, being available to the appellant-1st defendant and the Court of first instance recorded proper findings which had been reversed by the appellate Court on unsustainable grounds. The learned Counsel also would submit that even if by the date of putting forth such defence under Section 53-A of the Transfer of Property Act, 1882 the defendants could not have filed a suit for specific performance and even if such claim is otherwise barred by limitation, it would not seriously alter the situation as far as the applicability of the doctrine of part performance is concerned. The learned Counsel also would submit that in the peculiar facts and circumstances, the finding recorded by the appellate Court that the 1st defendant was not ready and willing to perform his part of the contract is an unsustainable finding and the fact that the father of the plaintiffs and the 1st defendant were close friends and in view of the position in which the father of the plaintiffs had been placed at the relevant point of time, the 1st defendant could not insist upon the execution of the sale deed as such, these aspects should have been taken note of by the appellate Court while appreciating the applicability or otherwise of the doctrine of part performance to a case of this nature. The learned Counsel also pointed out to several of the admissions made by P.W.1 and would contend that except the evidence of P.W.1, there is no other evidence available on record whereas apart from the evidence of D.W.1, the other evidence D.W.2, D.W.3 and D.W.4 also is available on record. The learned Counsel also had taken this Court through the contents of Ex.B.8 and further pointed out to Ex.B.1 to Ex.B.7 also and would maintain that the property tax receipts definitely would go to show that to the knowledge of the plaintiffs, the 1st defendant had been in possession and enjoyment of the property for sufficiently a long time and hence decreeing the suit for recovery of possession at this stage would cause serious prejudice to the legal representatives of the appellant-1st defendant who are in possession of the property in question in pursuance of the agreement of sale. The learned Counsel also had pointed out to Ex.A.1 and Ex.A.2 and further would maintain that the averments in the plaint and also the evidence of P.W.1 would clearly go to show that P.W.1 did not approach the Court with clean hands but suppressed all the facts and had pleaded a loan transaction and the appellate Court having disbelieved the said stand and having arrived at a conclusion that there was an agreement of sale in between the father of the plaintiffs and the 1st defendant instead of giving the benefit under Section 53- A of the Transfer of Property Act, 1882, decreed the suit as prayed for by the plaintiffs and the same cannot be sustained. The Counsel also pointed out that in fact the suit was instituted after a long lapse of time, at any rate, beyond 12 years and hence both in law and also on the ground of equity, the relief’s prayed for to be negatived to respondents 1 to 4 in the appeal-plaintiffs in the suit. The Counsel also placed strong reliance on certain decisions to substantiate his submissions. 4. Contentions of Sri P.R. Prasad:- On the contrary Sri Prasad, the learned Counsel representing R.1 to R.4-plaintiffs in the suit had explained in detail the scope and ambit of Section 53-A of the Transfer of Property Act 1882 and had pointed out that this is a fit case where the relief’s as prayed for by the plaintiffs can be granted for the reason that at no point of time, the 1st defendant made an attempt to get a regular registered sale deed nor made an attempt to pay the remaining sale consideration of Rs.1,500/- though it is stated that the sale consideration agreed upon was Rs.3,000/-and only Rs.1,500/- had been paid. The learned Counsel also would further point out that it is no doubt true that in the pleading specific stand was taken that it is in relation to a loan transaction, but findings had been recorded by the Courts below relating to the existence of an agreement of sale in question. The Counsel also would point out however that the mere existence of the agreement of sale would not seriously alter the situation for the reason that possession in pursuance of such transaction to be taken as permissive possession only and the same will never become adverse and when that being so, in the absence of a regular registered sale deed and in the absence of filing a suit for specific performance within time by the opposite party, inasmuch as the plaintiffs continue to be the owners of the property and in view of the fact that the 1st defendant was never ready and willing to perform his part of the contract, the appellate Court is well justified in reversing the Decree and Judgment of the Court of first instance. The Counsel also placed strong reliance on certain decisions to substantiate his contentions. 5. The Counsel also placed strong reliance on certain decisions to substantiate his contentions. 5. Heard the Counsel on record and perused the oral and documentary evidence available on record and also the findings recorded by the Court of first instance and also the findings recorded by the appellate Court. 6. On 1-5-1997 this Court made the following Order:- "Admit. The substantial question of law that arises for consideration is as formulated in ground No.18 of the Memorandum of Grounds of Appeal." 7. The grounds specified under Ground No.18 are as hereunder:- 1) Whether doctrine of part performance of the contract as enshrined under Section 53-A of the Transfer of Property Act is applicable to the facts of this case as held by the trial Court? 2) Whether the defendant has perfected title to the suit schedule property within the meaning of Article 65 of the Limitation Act, as held by the Trial Court? 3) Whether the decision of the Court below is perverse for non-consideration of material evidence in the case both oral and documentary ie., D.W.2, D.W.3 and Ex.B.1 to Ex.B.8? 8. For the purpose of convenience, the parties hereinafter would be referred to as plaintiffs and defendants. It is needless to say that the 1st defendant, who is really the contesting party, preferred this Second Appeal and inasmuch as he died pending Second Appeal, the legal representatives were brought on record. 9. The plaintiffs filed the suit praying for the relief of declaration that the plaintiffs are the absolute owners of the house property described in the plaint schedule and also for a further direction for ascertainment of future profits under Order XX Rule 12 of the Code of Civil Procedure and for other ancillary relief’s. 10. It was pleaded by the plaintiffs in the plaint as hereunder:- Abdul Sattar Khan, the father of the plaintiffs is the absolute owner of the thatched house and site described in the schedule appended hereto. He purchased then by name of a registered sale deed dated 24-4-1930 from Khatoom Bibi and others. Ever since the date of purchase, he was in absolute and exclusive possession and enjoyment of the same. The plaintiffs pray that the sale deed may be read as part of the plaint. He purchased then by name of a registered sale deed dated 24-4-1930 from Khatoom Bibi and others. Ever since the date of purchase, he was in absolute and exclusive possession and enjoyment of the same. The plaintiffs pray that the sale deed may be read as part of the plaint. While so, he inducted the 1st defendant into possession of the house property described in the schedule about 12 years back in lieu of interest payable by him for the sum of Rs.15,000/- borrowed as loan from him. The 1st defendant thereafter inducted defendants 2 to 4 into the said house and he is said to be collecting rents from them. Abdul Sattar died intestate in the year 1978. The plaintiffs being his children have inherited all his properties including the house property described in the schedule. They are, therefore, offered to pay the amount of Rs.15,000/- on 28-11-1979 to the 1st defendant and demanded him to vacate the said house and site. But the defendants have colluded and gave evasive replies. The plaintiffs, therefore, issued registered notice dated 13-12-1975 emending them to vacate. But they did not do so. On the other hand they sent a reply with false and untenable allegations claiming the property under an agreement of sale said to have been executed by Abdul Sattar. It is false to state that Abdul Sattar executed any agreement of sale in favour of the 1st defendant and that the 1st defendant is entitled to continue in possession under the agreement of sale. The said agreement must have been brought into existence by the 1st defendant to claim to the house property described in the schedule. If really such agreement were there, the 1st defendant would not have kept quite without obtain the sale deed from him and that in case, he refused without filing a suit for specific performance of the said agreement. The alleged at is also barred by limitation. The 1st defendant and defendants 2 to 4 are bound to vacate the buildings and deliver vacant possession of the same to the plaintiffs. Hence, this suit is filed for the declaration that the plaintiffs are the owners of the house property described in the schedule and also for recovery of possession. 11. The 1st defendant filed written statement substantially denying several of the averments made in the plaint. Hence, this suit is filed for the declaration that the plaintiffs are the owners of the house property described in the schedule and also for recovery of possession. 11. The 1st defendant filed written statement substantially denying several of the averments made in the plaint. The 1st defendant pleaded in the written statement as hereunder:- "The averments that the plaintiffs' father borrowed an amount of Rs.1,500/- from the 1st defendant and inducted him into possession of the suit schedule property about 12 years back in lieu of interest payable by him for the amount borrowed by him as a loan is far from truth and purely invented for the purpose of the suit It is also stated that the plaintiffs' father sold the suit schedule property to the 1st defendant for an amount of Rs.3,000/- and received Rs.1,500/- towards the sale proceeds in the year 1966 January and handed over possession of the suit schedule property agreeing to receive the balance of sale proceeds of Rs.1,500/- and executed a registered sale deed in favour of the 1st defendant. The plaintiffs' father subsequently on 13-12-1968 executed an agreement of sale acknowledging sale transaction between the plaintiffs' father and this defendant in the year 1966 January. Thereafter, this defendant has completely rebuilt the house incurring an amount of Rs.4,000/- to the knowledge of plaintiffs and their father. It is further stated that the defendant is in possession and enjoyment of the suit schedule property as a purchaser since January 1966 to the knowledge of the plaintiffs' father and the plaintiffs. The plaintiffs are aware of the above said sale transaction and continuous enjoyment of the suit schedule property by this defendant. The possession and enjoyment of this defendant is uninterrupted and to the knowledge of the plaintiffs for more than 12 years by the time they got issued a registered notice. It is also further stated that the plaintiffs' father never got ready to execute the registered sale deed in spite of several requests made by the 1st defendant. The plaintiff's father and this defendant were in friendly terms throughout the life time of the plaintiffs' father and as such this defendant could not compel the father of the plaintiffs to execute the sale deed after receiving the balance of the sale proceeds. The plaintiff's father and this defendant were in friendly terms throughout the life time of the plaintiffs' father and as such this defendant could not compel the father of the plaintiffs to execute the sale deed after receiving the balance of the sale proceeds. It is also stated that the plaintiffs' father fell ill with paralysis and suffered for two years with paralysis and died. This defendant could not compel the plaintiffs' father to execute a registered sale deed as to the plaintiffs' father was not in a position to move from the bed. After the death of the plaintiffs' father, this defendant requested the plaintiffs to receive the balance of sale proceeds and execute a sale deed. The plaintiffs have been promising to execute a sale deed. The plaintiffs have been promising to execute the sale deed, postponed the execution by one pretext or other for the reasons best known to them. The plaintiffs entertained an evil idea and got issued a registered notice knowing fully well that this defendant is in continuous possession and enjoyment of the suit schedule property within the knowledge of the plaintiffs for more than 12 years. This defendant got issued a reply notice. It is further stated that the plaintiffs' father after receiving the reply notice on the advice of the mediators agreed to receive the balance sale proceeds as the plaintiffs are aware that the defendant has perfected his title to the suit schedule house. This defendant believed the plaintiffs. It is also stated that the plaintiffs rushed to the Court to grab away the suit schedule property with false and untenable contentions." 12. On the strength of these pleadings, the following issues were settled by the Court of first instance:- 1) Whether the plaintiffs are the absolute owners of the property described in the schedule and entitled for vacant possession? 2) Whether the suit is barred by limitation? 3) Whether the Court fee paid is correct? 4) Whether there is any cause of action for the suit? 5) Whether the defendants have perfected their title by adverse possession? And 6) To what relief? 13. On behalf of the plaintiffs, the 1st plaintiff examined himself as P.W.1. On behalf of the defendants, the 1st defendant was examined as D.W.1. Apart from D.W.1, D.Ws. 2 to 4 also were examined. Ex.A.1 and Ex.A.2 and Ex.B.1 to Ex.B.8 were marked. 5) Whether the defendants have perfected their title by adverse possession? And 6) To what relief? 13. On behalf of the plaintiffs, the 1st plaintiff examined himself as P.W.1. On behalf of the defendants, the 1st defendant was examined as D.W.1. Apart from D.W.1, D.Ws. 2 to 4 also were examined. Ex.A.1 and Ex.A.2 and Ex.B.1 to Ex.B.8 were marked. The Court of first instance recorded reasons in detail, came to the conclusion that the suit was not filed within time and also further relied upon Ex.B.8 - agreement of sale dated 13-12-1968 and ultimately dismissed the suit. Aggrieved by the same, the plaintiffs carried the matter by way of appeal A.S.No.117/95 on the file of District Judge, Vizianagaram and the appellate Court framed the following points for consideration:- 1) Whether the plaintiffs are entitled for declaration of title to the property? 2) Whether the plaintiffs are entitled for recovery of possession of the property? 3) Whether the first defendant perfected his title by adverse possession? 4) Whether the plaintiffs are entitled to mesne profits? 5) Whether and to what extent, if any, finding of the lower Court can be interfered with and what is the relief that can be granted to the plaintiffs? The learned Judge relied upon several decisions and recorded a finding that the plea of adverse possession and the plea that the suit is barred by limitation would not be applicable to the facts of the case and also further recorded a positive finding that a party who was never ready and willing to perform his part of the contract, would not be entitled to the benefits of Section 53-A of the Transfer of Property Act, 1882 and in view of the same, inasmuch as, the plaintiffs being the legal representatives of the deceased father succeeding to his estate as owners of the property are entitled to the relief’s prayed for and thus reversed the findings recorded by the Court of first instance. Hence, the present Second Appeal. 14. Hence, the present Second Appeal. 14. The applicability or otherwise of Article 65 of the Limitation Act 1963 to the facts of the case needs no serious consideration at the hands of this Court for the reason that there is no serious controversy between the parties that the possession of appellants is permissive possession by virtue of an agreement of sale - Ex.B.8 and hence it cannot be said that the said possession became adverse, unless at some point of time there is unequivocal denial of the title of the real owner. There is no such material placed on record and no such evidence is forthcoming. Hence on the question of limitation or the plea of adverse possession, the findings recorded by the Court of first instance cannot be sustained. However, the principal question which had been argued in elaboration, in the light of the findings recorded by both the Courts below, is the applicability or otherwise of the doctrine of part performance under Section 53-A of the Transfer of Property Act, 1882 to the facts of the present case and incidentally certain submissions were made that the material evidence available on record had not been considered by the appellate Court in proper perspective. 15. Section 53-A of the Transfer of Property Act 1882 reads as hereunder:- Part performance:- Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable opportunity. 15. Section 53-A of the Transfer of Property Act 1882 reads as hereunder:- Part performance:- Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable opportunity. and 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 and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that the contract, though required to be registered has not been registered, or where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefore by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract: Provided that nothing in this Section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof. 16. 16. Strong reliance was placed on MOHAN LAL vs MIRZA ABDUL GAFFAR ( (1996) 1 SCC 639 ) wherein the Apex Court while dealing with the doctrine of part performance held that this doctrine must be based on specific pleading of readiness and willingness to perform his part of the contract and the plea based on Section 53-A of the Transfer of Property Act 1882 is available only by way of defence no doubt possession of land obtained by appellant pursuant to an agreement of sale by paying part of consideration, suit for specific performance of the contract dismissed became final and no specific pleading made by appellant that he was ready and willing to perform his part of the contract by paying remaining consideration, nor payment of the remaining consideration made by him and land sold out to respondent, held that the appellant not entitled to retain possession of the land under Section 53-A of the Act but since appellant remained in possession under an agreement, respondent not entitled to any damages. Further strong reliance was placed on ROOP SINGH vs RAM SINGH ( (2000) 3 SCC 708 ) wherein the Apex Court observed that permissive possession for long does not convert to adverse possession and claimant by cogent and convincing evidence must show hostile animus and possession adverse to the knowledge of real owner. In MOOL CHAND BAKHRU vs ROHAN (AIR 2002 S.C., 812) it was held that person, claiming to be a proposed vendee, cannot protect his possession of immovable property on the plea of part performance under Section 53-A of the Transfer of Property Act on the basis of an oral agreement the terms of which have not been reduced in writing and the written agreement is sine qua non for the applicability of the equitable doctrine of part performance enshrined in Section 53-A of the Act specified supra. 17. There cannot be any quarrel relating to the propositions of law laid down in the decisions specified above. 17. There cannot be any quarrel relating to the propositions of law laid down in the decisions specified above. At the outset it is pertinent to note that the specific case of the plaintiffs, as pleaded and as deposed by P.W.1, is that their father borrowed an amount of Rs.1,500/- from the 1st defendant and delivered suit schedule house in lieu of interest to be paid there-under and they offered to repay Rs.1,500/- to the 1st defendant and requested to deliver the house again and further specific stand taken by P.W.1 is that it is not true to say that his father agreed to sell the property for Rs.3,000/- and he is ready to pay Rs.1,500/- to the defendants if they vacate and deliver the possession of the house. This version of P.W.1 was totally disbelieved. The recitals in Ex.B.8 being self-explanatory, the same need not be further elaborated. The evidence of D.W.1 is that in the year 1966 he agreed to purchase the site for Rs.3,000/- and paid an earnest money of Rs.1,500/- to Abdul Sattar and Abdul Sattar executed an agreement in his favour on 13-12-1968 and possession also was delivered to him and he had constructed a house in the said site by spending Rs.6,000/-. It is also his evidence that he had been paying municipal taxes. Ex.B.2 to Ex.B.5 are tax receipts and Ex.B.6 and Ex.B.7 are the demand notices issued by the Municipality. He had constructed the house in the year 1968 and he had been residing therein. It is also his case that the plaintiffs have knowledge about his possession and they never came and never demanded to vacate the house. This witness also deposed in detail about Ex.B.8. This witness was cross-examined at length. The scribe of Ex.B.8 was examined as D.W.2, who had deposed that he had scribed Ex.B.8 and Abdul Sattar told him that Masthan paid Rs.1,500/- already and as per the understanding Masthan has to pay Rs.1,500/- at the time of registration. Sattar signed in his present. After the transaction, he had put his signature. This witness also was cross-examined in detail. DW.3, the attestor of Ex.B.8, deposed that Ex.B.8 was written at the Market i.e., at Sattar shop and had given the details relating the same. Sattar signed in his present. After the transaction, he had put his signature. This witness also was cross-examined in detail. DW.3, the attestor of Ex.B.8, deposed that Ex.B.8 was written at the Market i.e., at Sattar shop and had given the details relating the same. D.W.4 deposed that he know the 1st defendant and he issued reply on behalf of the 1st defendant under Ex.B.1 and three days after the reply notice was issued by him, the 1st defendant produced the agreement Ex.B.8 before him and he had perused the contents. 18. In the light of this evidence available on record and also taking into consideration the fact that except the evidence of P.W.1, there is no other evidence on behalf of the plaintiffs. The Courts below believed Ex.B.8 and hence, it is clear that the plaintiffs had not approached the Court with true facts. Ex.A.1 is the extract of sale deed dated 24-4-1950, Ex.A.2 is the office copy of registered lawyer's notice dated 13-12-1979. Apart from this aspect of the matter, these are certain of the crucial admissions which can be taken into consideration for recording appropriate findings which are as hereunder:- 1) That the father of P.W.1 and the 1st defendant were close friends. 2) That the 1st defendant used to rethatch the roof. 3) Since the date of possession by the 1st defendant, he is paying the taxes to the Municipality. 4) That the 1st defendant got the entries changed in municipal records. 5) That they did not raise any objection at the time of changing the name of the 1st defendant in Municipal records in respect of the plaint schedule house. 6) That P.W.1 knows that the 1st defendant is paying the municipal taxes over the suit schedule house. 7) P.W.1 further submitted that for the first time he demanded the 1st defendant to vacate the suit schedule house in the presence of Babini and some others. 8) P.W.1 does not know what happened at the time of delivery of possession of the suit house by his father to the 1st defendant. 9) The plaintiffs did not effect any repairs to the suit schedule house as the 1st defendant was effecting necessary repairs. 10) 20 years back a Puroni was executed by the father of P.W.1 and the amount was paid by the 1st defendant in the year 1966. 9) The plaintiffs did not effect any repairs to the suit schedule house as the 1st defendant was effecting necessary repairs. 10) 20 years back a Puroni was executed by the father of P.W.1 and the amount was paid by the 1st defendant in the year 1966. 11) That P.W.1 knows the transaction between his father and D.W.1 i.e., 1st defendant. It is true that the 1st defendant by the date he had entered upon the defence by putting in the written statement was not in a position to institute a suit for specific performance. The reasons for not further proceeding with had been explained by D.W.1. It is true that D.W.1 also was not diligent since D.W.1 had not made any attempt whatsoever by issuing notice or otherwise calling upon the father of the plaintiffs to execute a sale deed nor any attempt was made to make the payment of the remaining sale consideration. However, the friendship between the parties and the other peculiar facts also may have to be taken into consideration. Certain submissions were made that there is no specific plea taken in relation to the applicability of doctrine of part performance under Section 53-A of the Transfer of Property Act 1882. Pleadings to be read as a whole and to be appreciated. If the averments made in the written statement are taken, in toto and appreciated, the sum and substance of the written statement is that an agreement of sale had been executed by the real owner and I pursuance thereof possession was delivered. The other material placed on record would go to show that subsequent thereto, taxes were paid and for sufficiently a long time, the first defendant continued to be in possession and at no point of time, sufficiently for about 14 years, any little finger was raised by any of the plaintiffs whatsoever. In DEVASAHAYAM vs. P.SAVITHRAMMA ( (2005) 7 SCC 653 ) while dealing with the aspect of pleadings and also Section 53-A of the Transfer of Property Act 1882, the Apex Court in paras 20 and 21 observed as hereunder:- "The pleadings as are well known must be construed reasonably. The contention of the parties in their pleadings must be culled out from reading the same as a whole. The contention of the parties in their pleadings must be culled out from reading the same as a whole. Different considerations on construction of pleadings may arise between pleadings in the mofussil Court and pleadings in the Original Side of the High Court. So read, the plaintiff in his plaint merely ascribed that he continued to be in possession of the tenanted premises after the original agreement of sale was entered into by and between the parties pursuant to or in furtherance thereof. It has not been and could not have been the contention of the appellant that he had derived title as a vendee in respect of the premises in question. Such a plea, in view of Section 54 of the Transfer of Property Act, was not available. He at best could have raised a claim of possession of the said premises in part-performance of contract as envisaged under Section 53-A thereof." In MAHADEVA AND OTHERS vs TANABAI ( (2004) 5 SCC 88 ) while dealing with the availability of the benefit of the plea of part-performance of an agreement of sale under Section 53-A of the Transfer of Property Act 1882, it was held that merely because suit for specific performance at the instance of vendee has become barred by limitation or that plea of acquisition of title by adverse possession has been negatived and that possession was therefore illegal, held, not by itself enough to deny benefit of plea under Section 53-A of the Act aforesaid. In SHRIMANT SHAMRAO SURYAVANSHI vs. PRAHLAD BHAIROBA SURYAVANSHI ( (2002) 3 SCC 676 ) it was held that a person obtaining possession of the property in part-performance of an agreement of sale, can defend his possession in a suit for recovery of possession filed by the transferor or by subsequent transferee of the property claiming under him, even if a suit for specific performance of the agreement of sale has become barred by limitation. For scope and applicability of Section 53-A of the Act specified above, reliance was placed on G. JAMALAIAH vs V.BUTCHAIAH (A.S.No.438/69 & 61/70, dt.15-4-1974 (1974 (2) A.P.L.J., 1 (Short Notes)). Further strong reliance was placed on the decision of the learned Judge of this Court in PARASA RANGA RAO (DIED) BY LRs. For scope and applicability of Section 53-A of the Act specified above, reliance was placed on G. JAMALAIAH vs V.BUTCHAIAH (A.S.No.438/69 & 61/70, dt.15-4-1974 (1974 (2) A.P.L.J., 1 (Short Notes)). Further strong reliance was placed on the decision of the learned Judge of this Court in PARASA RANGA RAO (DIED) BY LRs. Vs MATHE SANJEEVA RAO (2006 (5) ALD 237) wherein the learned Judge at paras 16, 17 and 18 held as hereunder:- "Even if there existed any scope for doubting the respective stands taken by the parties, as regards the payment of balance of consideration, the lower appellate Court was under obligation to examine the scope of Section 53-A of Transfer of Property Act. It was only with a view to meet such contingencies that Section 53-A of the Act was enacted. Once the suit schedule property was delivered to the appellants in part performance of the agreement of sale i.e., Ex.B.1 and once the appellants have expressed their readiness and willingness to perform their part of contract, the Section got attracted straightaway, and the lower appellate Court was not justified in directing eviction of the appellants from the suit land. One significant aspect of the matter is that while the trial Court totally dismissed the suit, the lower appellate Court reversed it and neither of them have ensured compliance with Section 53-A of the Act. Even while protecting the possession of the appellants, the Courts were under obligation to ensure that the appellants paid the balance of consideration as provided for under Ex.B.1.” For the foregoing reasons, the second appeal is allowed and the Judgment and Decree of the lower appellate Court is set aside. The Decree passed by the trial Court shall be substituted with the following: (a) That the suit for the relief of recovery of possession of the plaint schedule property and ejectment of defendants there from is rejected. (b) That there shall be decree against the defendants for payment of the balance of consideration together with interest @ 12% thereon from 5-1-1979 till the date of decree and @ 9% on the total amount till the date of realization; and (c) That the amount that was deposited by the appellants to the credit of the suit shall be taken into account. It is no doubt true that when a party is not ready and willing to perform his part of the contract, such party cannot take shelter under Section 53-A of the Transfer of Property Act 1882. It is also no doubt true that the 1st defendant having paid Rs.1,500/-, subsequent thereto had not paid the remaining sale consideration of Rs.1,500/-. On admitted facts, it is clear that in view of the friendship between the parties and also the health condition of the deceased father of the plaintiffs, may be that the 1st defendant was not particular of taking Ex.B.8 to its logical end by having a regular registered sale deed. The same is being taken advantage of by the plaintiffs by instituting the present suit after a long lapse of time. In a case of this nature, while applying equitable principles also, balance may have to be maintained. The plaintiffs had not been diligent in approaching the Court. Equally, the 1st defendant had not been diligent in getting the regular registered sale deed. No doubt, some explanation is forthcoming on the part of the 1st defendant in this regard. It is too late in the day on the part of the plaintiffs to contend that it is only a simple loan transaction and Ex.B.8 is not true at all especially in the light of the findings recorded by both the Courts below. No doubt, some explanation is forthcoming on the part of the 1st defendant in this regard. It is too late in the day on the part of the plaintiffs to contend that it is only a simple loan transaction and Ex.B.8 is not true at all especially in the light of the findings recorded by both the Courts below. Hence, taking the over all facts and circumstances into consideration, this Court is of the considered opinion that at this distant point of time, negativing the benefit under Section 53-A of the Transfer of Property Act 1882 to the appellant-1st defendant and his legal representatives may not be just and proper especially taking the conduct of the parties into consideration the subsequent conduct of payment of taxes and improvement made and enjoyment for a long lapse of time and hence both in law and also on the ground of equity, especially in the light of the several admissions made by P.W.1, the findings recorded by the appellate Court cannot be sustained in this regard, having held that the benefit of Section 53-A of the Transfer of Property Act 1882 to be made applicable to the appellant-1st defendant and his legal representatives, who are at present prosecuting the present litigation, this Court is also of the further opinion that it would be unjust to deprive the plaintiffs of the remaining sale consideration due to them i.e., Rs.1,500/-, even as per the admitted facts which is the rest of the sale consideration to be paid under Ex.B.8. Hence, this Court is of the considered opinion that it would be just and proper to allow the present Second Appeal on condition of appellants 2 to 12, the present legal representatives of the appellant-1st defendant, depositing or paying an amount of Rs.1,500/- with an interest of 6% per annum from the date of the institution of the suit till the date of deposit, within a period of six months from today. 19. In the light of the above directions, the Second Appeal is hereby allowed to the extent indicated above. The parties to bear their own costs.