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2009 DIGILAW 178 (KAR)

N. Basavaraj (Dead) by L. Rs. v. B. Sridhar

2009-03-03

S.ABDUL NAZEER

body2009
Judgment :- Abdul Nazeer, J. This is a plaintiffs appeal challenging the judgment and decree in O.S.No.7197/2001 dated 22.9.2004 passed by the 18th Additional City Civil Judge, Bangalore. The subject matter of the suit was site Nos.7 and 8 situated at B. Narayanappa @ Byatarayanapura Village, K.R. Puram Hobli, Bangalore South Taluk (hereinafter referred to as ‘suit schedule property'). The suit filed by the plaintiff was for permanent injunction restraining the defendants, their agents, servants or anybody claiming under or through them from interfering with his peaceful possession and enjoyment of the suit schedule property. The Court below has dismissed the suit by the impugned judgment and decree. 2. The plaintiff contends that originally Smt. M.V. Rajamma was the owner of the suit schedule property. Rajamma sold the suit schedule property along with certain other building sites to C.T. Basappa under a registered sale deed dated 6.10.1971. C.T. Basappa died leaving behind him his son Sridhar and daughter Smt. Uma (defendant Nos.1 and 2, who have succeeded to the said property. The defendants have agreed to sell the suit schedule property in favour of the plaintiff for a sum of Rs.70,000/- under an agreement dated 4.7.1986. The defendants received a sum of Rs.30,000/- on 4.7.1986 and delivered possession of the property to the plaintiff. As per the terms of the agreement, the balance of Rs.40,000/- has to be paid within three months and the defendant have to execute the sale deed conveying the suit schedule property in favour of the plaintiff. The plaintiff paid the balance of Rs.40,000/- on 30.8.1986. Thus, the entire sale consideration of Rs.70,000/- was paid to the defendants. It is the case of the plaintiff that he has been in lawful possession and enjoyment of the suit schedule property since 4.7.1986, without any objection from anybody. Since there was ban on sale of revenue lands during the relevant point of time, the parties agreed for execution and registration of the sale deed on a future date. The defendants agreed for the plaintiff enjoying the suit schedule property. It is contended that the plaintiff has paid entire sale consideration and he was always ready and willing to perform his part of the contract. But, the defendants have been postponing to further complete the transaction on one pretext or the other. The defendants agreed for the plaintiff enjoying the suit schedule property. It is contended that the plaintiff has paid entire sale consideration and he was always ready and willing to perform his part of the contract. But, the defendants have been postponing to further complete the transaction on one pretext or the other. It is further contended that the plaintiff permitted formation of a road on a portion of the suit schedule property measuring about 15 ft. x 50 ft. for an approach road to the properties situated on its southern side owned by certain other persons. Thus, the size of the suit schedule property was reduced due to the formation of the said road. It is further contended that a few days back, the defendants tried to disturb his possession of the suit schedule property. With the intervention of the neighbours, the plaintiff was able to send them away from the suit schedule property. The defendants are putting forward their untenable claim and are trying to trespass into the suit schedule property. Therefore, he has filed the suit for the aforesaid reliefs. 3. The defendants have entered appearance and filed their written statements separately. It is contended that the plaint does not disclose the cause of action. It is stated that in the suit, the plaintiff has sought for permanent injunction on the basis of his alleged possession under an agreement to sell dated 4.7.1986. He has not sought for specific performance of the said agreement to sell. Therefore, the suit is not maintainable. It is further contended that the plaintiff cannot enforce the agreement at this belated stage. In order to cover up his lapses, the plaintiff has filed the present suit after a long lapse of 15 years. The plaintiff has not approached the Court with clean hands. The plaintiff has executed an agreement dated 20.11.1998 agreeing to sell 15ft. x 50ft. out of the suit schedule property to Subramani and A.S. Gopal for a sale consideration of Rs.1,00,000/-. The defendants have denied that plaintiff has acquired right, title and interest over the suit schedule property. It is contended that M.V. Rajamma was the owner of the suit schedule property. C.T. Basappa purchased six sites in the said layout from M.V. Rajamma. The relationship between C.T. Basappa and the plaintiff was very cordial. The defendants have denied that plaintiff has acquired right, title and interest over the suit schedule property. It is contended that M.V. Rajamma was the owner of the suit schedule property. C.T. Basappa purchased six sites in the said layout from M.V. Rajamma. The relationship between C.T. Basappa and the plaintiff was very cordial. The defendants were brought up at Chennai since their childhood at the residence of M.V. Rajamma. As the plaintiff, C.T. Basappa and M.V. Rajamma were close relatives, the plaintiff was successful in persuading M.V. Rajamma to lend a sum of Rs.15,00,000/- and the plaintiff was paying interest by way of demand drafts regularly. The defendants have denied the execution' of an agreement dated 4.7.1986, and the receipt of Rs.30,000/-. They have also denied that there was a ban on registration of sale deeds during the relevant point of time. It is contended that the agreement is a fabricated one and that no consideration is passed on to them under the said agreement. It is further contended that they have been in possession and enjoyment of the suit schedule property and they had made an application to the Mahadevapura notified area committee for regularization of unauthorised construction thereon. They have sought for dismissal of the suit. 4. On the basis of the pleadings, the Court below has framed the following issues: "1. Whether the plaintiff proves that he is in lawful possession of the suit schedule property as on the date of suit? 2. Whether he further proves that the defendants are interfering with the possession over the suit schedule property? 3. Whether the plaintiff is entitled for the injunction as prayed for? 4. What order or decree?" 5. N. Sampathkumar, the power of attorney holder of the plaintiff was examined as P.W1. The plaintiff was examined as P.W.2. Documents Ex.P1 to Ex.P7 were marked in their evidence. On behalf of the defendants, the power of attorney holder of first defendant was examined as D.W1. Two witnesses, namely, Subramani and Mohan Shetty were examined as D.W.2 and D.W3. Documents Ex.D1 to Ex.D37(a) were marked in their evidence. The court below on consideration of the material on record has dismissed the suit. 6. I have heard the learned Counsel for the parties. 7. Learned Counsel for the appellant/plaintiff submits that in terms of the agreement Ex.P2 dated 4.7.1986. Documents Ex.D1 to Ex.D37(a) were marked in their evidence. The court below on consideration of the material on record has dismissed the suit. 6. I have heard the learned Counsel for the parties. 7. Learned Counsel for the appellant/plaintiff submits that in terms of the agreement Ex.P2 dated 4.7.1986. the defendants have put the plaintiff in possession of the suit schedule property. It is argued that the recitals in Ex.P2 would clearly disclose that the plaintiff is in possession of the property. It is argued that the contents of Ex.P2 was read over to the defendants at the time of its execution which is clear from the recitals in the said agreement. The plaintiff has paid a sum of Rs.30,000/- as advance. He has agreed to pay balance of Rs.40,000/- within three months from the date of the said agreement. Accordingly, the plaintiff has paid a sum of Rs.40,000/- on 30.10.1986 under Ex.P3 and the defendants have acknowledged the receipt of the said amount. The plaintiff has permitted K. Subramani and A. Gopal as per the agreement Ex.D1 to form a road on the land measuring 15 ft. x 50 ft. for their use which runs in the middle portion of the suit schedule property. This aspect has been admitted by the defendants themselves, which goes to show that plaintiff has been in possession of the suit schedule property. The defendants have not entered the witness box and the evidence of D.W1 is not worthy of acceptance. Since the plaintiff has been in possession of the said property, he can retain possession of the property in accordance with Section 53-A of the Transfer of Property Act (for short ‘the Act'). Therefore, the Court below ought to have granted an order of injunction as prayed for by the plaintiff. Since the defendants have not entered the witness box, adverse inference has to be drawn against the defendants under Section 114 of the Evidence Act. 8. On the other hand, learned Counsel for respondents has sought to justify the impugned judgment and decree. It is submitted that the plaintiff has not entered the witness box. It is further contended that Ex.P2 and Ex.P3 are concocted documents. The plaintiff was not put in possession of the suit property. Ex.P2 does not contain the signature of the plaintiff. Defendant Nos.1 and 2 do not know how to read and write in Kannada language. It is submitted that the plaintiff has not entered the witness box. It is further contended that Ex.P2 and Ex.P3 are concocted documents. The plaintiff was not put in possession of the suit property. Ex.P2 does not contain the signature of the plaintiff. Defendant Nos.1 and 2 do not know how to read and write in Kannada language. The description of the property in Ex.P2 is different from the suit schedule property. The plaintiff cannot maintain the suit for bare injunction without seeking specific performance of the agreement in question. It is further submitted that the defendants had filed an application seeking regularisation of unauthorised construction made on the suit schedule property as per Ex.D32. The plaintiff has not produced any material to show that he was in possession of the suit property as on the date of the suit. It is further contended that in order to claim the benefit under Section 53-A of the Act, the plaintiff has to establish that he has taken possession of the property in question and being in part performance of the contract, continues to be in possession and has done some act in furtherance of the contract. The plaintiff has failed to show that the agreement has been signed by the parties and he has not shown that he has done some act in furtherance of the contract and is willing to perform his part of the contract. Therefore, he is not entitled for the protection provided under Section 53A of the Act. 9. The trial Court has dismissed the suit of the plaintiff mainly on the ground that the description of the suit schedule property does not tally with the description contained in agreement Ex.P2, and that the plaintiff has failed to prove the existence of the suit schedule property and that the plaintiff has not produced any material to substantiate his contention that he has been in lawful possession of the suit schedule property since the date of execution of Ex.P2. 10. Therefore, the question for consideration in this appeal are as under: (i) Whether the defendants have agreed to sell the suit schedule property to the plaintiff and put him in possession of the same as per the agreement to sell at Ex.P2? 10. Therefore, the question for consideration in this appeal are as under: (i) Whether the defendants have agreed to sell the suit schedule property to the plaintiff and put him in possession of the same as per the agreement to sell at Ex.P2? (ii) Whether the plaintiff is entitled to protect his possession under Section 53-A of the Transfer of Property Act without filing a suit for specific performance of the agreement at Ex.P2? Reg. Point No.(i): 11. It is not in dispute that M.V. Rajamma was the owner of the suit schedule property along with other building sites in the layout formed in Sy. No.122 of Byatarayanapura Village, KR. Puram Hobli, Bangalore South Taluk. Rajamma had sold the suit schedule property in favour of C.T. Basappa under a registered sale deed dated 6.10.1971. C.T. Basappa died leaving behind him defendant Nos.1 and 2 as his heirs and legal representatives. The first and second defendants thus succeeded to the property of C.T. Basappa. 12. It is the case of the plaintiff that the defendants have agreed to sell the suit schedule property in his favour for a consideration of Rs.70,000/ - as per an agreement to sell dated 4.7.1986. The defendants received a sum of Rs.30,000/- on the 4.7.1986 and delivered possession of the property to the plaintiff. As per the terms of the agreement, the balance of sale consideration of Rs.40,000/- has to be paid within three months and the defendants have to execute the sale deed conveying the suit schedule property in favour of the plaintiff. The plaintiff contends that he has paid the balance of Rs.40,000/- on 30.8.1986 as per the document Ex.P3 and that he has been in lawful possession and enjoyment of the suit schedule property since 4.7.1986. 13. Sri N. SampathKumar, the power of attorney holder of the plaintiff was examined as P.W1. P.W1 in his evidence states that the plaintiff is his younger brother and that he is not keeping well. His kidneys have failed and that one kidney has been transplanted. He has lost his eyesight and his left leg has been amputated and the right leg has swollen. He is unable to move about. That is why he is not in a position to attend the Court to give evidence. His kidneys have failed and that one kidney has been transplanted. He has lost his eyesight and his left leg has been amputated and the right leg has swollen. He is unable to move about. That is why he is not in a position to attend the Court to give evidence. In his cross-examination, P.W1 has stated that he was present at the time when the transaction took place and he can identify the signatures of the parties to the transaction. Therefore, the plaintiff was justified in examining P.W1. P.W1 has further stated that the defendants have agreed to sell the suit schedule property for a sum of Rs.70,000/- and have executed the agreement dated 4.7.1986. He has further stated that the payments have been made to the defendants under Ex.P2 and Ex.P3. He has further stated that Ex.P2 was written by one Kalachari, the husband of second defendant. The plaintiff has been in lawful possession and enjoyment of the suit schedule property since 4.7.1986. It is further stated that the plaintiff is ready and willing to incur necessary expenses required for stamp duty and registration charges and to perform his part of the obligation under the agreement. However, defendant Nos.1 and 2 have postponing to, complete the transaction by giving one reason or the other. It is further stated that a portion of suit schedule property measuring 15 ft. x 50 ft. has been left for forming a road for having an approach to the property situated to the south of the suit schedule property owned by other parties. They took permission from the plaintiff to form a road. Now the road passes through the suit schedule property. He admits that there is no mention of survey number in Ex.P2 and no boundaries have been mentioned by describing the suit schedule property in Ex.P2. He has denied the suggestion that the description of the suit schedule property does not tally with the schedule in Ex. P3. He reiterates that Ex.P3 has been signed by the husband of the second defendant-Kalachari. He has stated that he does not know that the defendants have made an application for regularisation of site Nos.7 and 8 to Mahadevapura Nagara Palike on 28.5.1985. 14. P.W2 is the scribe of Ex.P2. P3. He reiterates that Ex.P3 has been signed by the husband of the second defendant-Kalachari. He has stated that he does not know that the defendants have made an application for regularisation of site Nos.7 and 8 to Mahadevapura Nagara Palike on 28.5.1985. 14. P.W2 is the scribe of Ex.P2. He has stated that defendant Nos.1 and 2 had agreed to sell site Nos.7 and 8 in the layout formed in Sy.No.122 of Byatarayanapura village, K.R. Puram Hobli, Bangalore South Taluk, in favour of the plaintiff for a sum of Rs.70,000/-. The transaction took place in the house of the plaintiff and he was present on 4.7.1986 when the transaction took place. The plaintiff has paid Rs.30,000/- to defendant Nos.1 and 2 and defendant Nos.1 and 2 agreed that the balance of Rs.40,000/- has to be paid within three months. The defendant Nos.1 and 2 have delivered the possession of the property to the plaintiff on 4.7.1986 itself. He further states that plaintiff and defendant Nos.1 and 2 instructed him to draft an agreement in respect of the said transaction. He wrote the agreement on 4.7.1986. Therefore, he read over and explained the same. Kalachari also read over and explained the same. Plaintiff and defendant Nos.1 and 2 have accepted the same to be correct. Defendant Nos.1 and 2 singed the document and Kalachari husband of the second defendant signed as witness in his presence. He has put his signature as a scribe of the document. In his presence Xerox copies of the title deeds relating to the sties were handed over the plaintiff by the first defendant. In his cross-examination, he states that he wrote Ex.P2 on 4.7.1986 at 12.00 noon in the house of the plaintiff. N. Kalachari had brought the stamp paper. He admits that in Ex.P2, boundaries are not being mentioned. He admits that his younger sister is married to the son of elder brother of the plaintiff. He admits having filed a case against M.V. Rajamma in the Court at Mysore and that defendants are not made parties to the said case. He had denied the suggestion that Ex.P2 is a fabricated document and that second defendant has not signed Ex.P2. He denies that the signature of the second defendant in Ex.P2 is a forged signature. He admits having filed a case against M.V. Rajamma in the Court at Mysore and that defendants are not made parties to the said case. He had denied the suggestion that Ex.P2 is a fabricated document and that second defendant has not signed Ex.P2. He denies that the signature of the second defendant in Ex.P2 is a forged signature. He has also denied the suggestion that a sum of Rs.30,000/- was paid on 4.7.1986 to defendant Nos.1 and 2 in his presence when Ex.P2 was executed. 15. Defendants have not entered the witness box. N. Basavaraj, the power of attorney holder of the defendants was examined as D.W1 on behalf of the defendants. D.W1 states that he is conversant with the facts of the case on the basis of the written statement and the documents produced by defendant No.1. He further states that defendant No.1 has given him instructions to give evidence on his behalf. According to the instructions given to him, both defendant Nos.1 and 2 have not executed an agreement of sale on 4.7.1986 in respect of the suit schedule property. He further states that the signature of defendant Nos.1 and 2 found in Ex. P2 and Ex. P3 are not their signatures. At no point of time, defendant Nos.1 and 2 have executed any document in favour of the plaintiff and plaintiff was never in possession and enjoyment of the suit schedule property. In his cross-examination, he states that defendant Nos.1 and 2 were not able to come before the Court because of the distance from their residence, otherwise, both of them are hale and healthy. It is admitted that second defendant is residing at Bangalore in the address, given in the cause title. He admits that Kalachari, the husband of the second defendant. He had no occasion to see signatures of defendant Nos.1 and 2. He admits that he was instructed to deny the signatures in Ex.P2. He states that as told by defendants, himself and second defendant had applied for regularization of unauthorised construction made on the suit schedule property. 16. Subramani and Mohan Shetty were examined as D.W2 and D.W3. Nothing has been elicited through D.W2 and D.W3 in support of the case of the defendants. 17. Defendant Nos.1 and 2 in their written statement do not dispute the existence of the property described in the plaint schedule. 16. Subramani and Mohan Shetty were examined as D.W2 and D.W3. Nothing has been elicited through D.W2 and D.W3 in support of the case of the defendants. 17. Defendant Nos.1 and 2 in their written statement do not dispute the existence of the property described in the plaint schedule. At paragraph 9 of the written statement, the first defendant has averred as under: "The contention of the plaintiff that out of the suit schedule property a portion measuring 15 ft. x 50 1. has been left out for forming a road to have an approach to the properties situated to the northern side of the suit schedule property owned by other private parties is true. However, it is incorrect to state that permission to form road was obtained by the plaintiff. It is the defendants who allowed the formation of the road for the beneficial enjoyment of other site." 18. In his plaint, the plaintiff has stated that he has been in lawful possession and enjoyment of the suit schedule property since 4.7.1986 without any objection by anybody. In paragraph 6, he has stated that "out of the suit schedule property, a portion measuring 15ft. x 50ft. has been left out for forming a layout for having an approach to the property situated to the south of the suit schedule property owned by other private parties. They took permission of the plaintiff and formed a road. Thus, the size of the suit schedule property has been reduced with the formation of road out of the said site". Thus, there is no dispute as to the formation of the road measuring 15ft. x 50ft. out of the said site. In other words, the defendants admit the existence of the approach road formed out the suit schedule property. Thus, there cannot be any dispute as to the existence of the property as described in the plaint. 19. Now the question for consideration is whether the suit schedule property and the property described in Ex.P2 are one and the same? A perusal of Ex.P2 shows that the property has been described as site Nos.7 and 8 each measuring 50ft. x 40ft. situated in B. Narayanapura Village, K.R. Puram Hobli, Bangalore South Taluk. The said document does not contain the boundaries of the property nor does it contain the survey number in which the sites have been formed. A perusal of Ex.P2 shows that the property has been described as site Nos.7 and 8 each measuring 50ft. x 40ft. situated in B. Narayanapura Village, K.R. Puram Hobli, Bangalore South Taluk. The said document does not contain the boundaries of the property nor does it contain the survey number in which the sites have been formed. The first defendant in his written statement has stated that M.V. Rajamma was the owner of the sites formed in Sy. No.122 of B. Narayanapura Village, K.R. Puram Hobli, Bangalore South Taluk. Those sites were formed originally by Chikkasubbanna. C.T. Basappa, the father of defendant Nos.1 and 2 had purchased those sites formed in the said layout from M.V. Rajamma. C.T. Basappa and M.V. Rajamma were close relatives. C.T. Basappa expired in the year 1982. Plaintiff was instrumental in selling two sites belonging to defendant Nos.1 and 2 to third parties in the year 1985. He has witnessed those sale transactions. Therefore, purchase of two sites by M.V. Rajamma is not in dispute. It is also not in dispute that C.T. Basappa was the owner of two sites and existence of the two suit schedule properties are also not in dispute. In paragraph 3, the defendant has categorically stated that plaintiff has agreed to sell 15 ft. x 50 ft. vacant land out of the suit schedule property to one Subramani and A.S. Gopal. Purchase of two sites by C.T. Basappa from M.V. Rajamma on 6.10.1971 is also not in dispute. It is not the case of the defendants that two sites purchased by Sri C.T. Basappa are existing somewhere else. It is common knowledge that when several sites are formed in a particular survey number and site numbers are assigned to each of the sites, survey number is not commonly mentioned in the sale deeds. Therefore, by no stretch of imagination, it can be held that sites as described in Ex.P2 are different from the sites described in the plaintiff schedule. 20. It is the case of defendant Nos.1 and 2 that Ex.P2 is a concocted document. In the written statement, they have denied their signatures in Ex.P2 and Ex.P3. P.W.1 is none other than the brother and power of attorney holder of the plaintiff. He has assigned cogent reasons for not leading evidence of the plaintiff in the suit. 20. It is the case of defendant Nos.1 and 2 that Ex.P2 is a concocted document. In the written statement, they have denied their signatures in Ex.P2 and Ex.P3. P.W.1 is none other than the brother and power of attorney holder of the plaintiff. He has assigned cogent reasons for not leading evidence of the plaintiff in the suit. P.W1 has stated in his evidence that the plaintiff is not well and that his kidneys have failed and that one of the kidney has been transplanted. He has lost his eyesight, his left leg has been amputated and the right leg has swollen and is unable to move about. Therefore, no adverse inference can be drawn against him for not stepping into the witness box. It is only when a party capable of giving evidence fails to step into the witness box, then alone adverse inference can be drawn against him (See Arjun Singh Vs. Virendra Nath and Another, 1971 ALL. 29). P.W1 has categorically stated that he was present at the time of the transaction. He has further stated that he can identify the signatures of defendant Nos. 1 and 2 in Ex.P2 and the signature of the husband of the second defendant Kalachari, who is a witness. He has stated that Ex.P2(a). Ex.P2(h) and Ex.P2 (c) are the signatures of defendant Nos. 1 and 2 and the witness Kalachari respectively. Ex.P3 is the receipt issued by defendant Nos. 1 and 2 to the plaintiff for having received a sum of Rs.40,000/-. Ex.P4 is the demand register extract. Encumbrance Certificates are at Ex.P5 and Ex.P6. He has denied the suggestion that the description of the suit property does not tally with the schedule in the plaint. 21. The scribe of the document is examined as P.W2. He has stated that defendant Nos.1 and 2 have executed Ex.P2 on 4.7.1986 agreeing to sell site Nos.7 and 8 in the layout formed in Sy. No.122 of Byatarayanapura Village also called as B. Narayanapura Village of K.R. Puram Hobli, Bangalore South Taluk, for a sum of Rs.70,000/-. The transaction took place in the house of the plaintiff and he was present on 4.7.1986 when the transaction took place. The plaintiff has paid Rs.30,000/- to defendant Nos.1 and 2 and they agreed that the balance of Rs.40,000/- has to be paid within three months. The transaction took place in the house of the plaintiff and he was present on 4.7.1986 when the transaction took place. The plaintiff has paid Rs.30,000/- to defendant Nos.1 and 2 and they agreed that the balance of Rs.40,000/- has to be paid within three months. Defendant Nos.1 and 2 delivered the possession of the property to the plaintiff on 4.7.1986 itself. The plaintiff and defendant Nos.1 and 2 instructed him to draft the agreement in respect of the said transaction. He had written the agreement on 4.7.1986. Thereafter, he read over and explained the same. One Kalachari also read over and explained the same. The plaintiff and defendant Nos.1 and 2 accepted the same as correct. Defendant Nos.1 and 2 signed the document and one Kalachari, the husband of the second defendant signed as a witness in his presence. He has put his signature as scribe of the said document. Though he was cross-examined, nothing worthwhile has been elicited in his cross-examination. No doubt the other witness Kalachari was not examined by the plaintiff. Learned Counsel for the appellant contends that since Kalachari is none other than the husband of the second defendant, (Smt. Uma), no purpose would have been served if he was examined in support of the plaintiff. It is relevant to note here that the defendants have also not examined Kalachari. Even the defendants have not entered the witness box. D.W1 was the power of attorney holder of the defendants. However, he has clearly stated that he was conversant with the facts of the case on the basis of the written statement, documents produced by defendant No.1 and that he is stating that defendant Nos.1 and 2 have not executed the document Ex.P2 on the instructions given to him by the defendant No.1. D.W1 clearly states that defendants are hale and healthy and the second defendant is residing n Bangalore in the address given in the cause title. He also admits that Kalachari whose name is shown in the witness list is the husband of the second defendant. He had no occasion to see the signatures of defendant Nos.1 and 2. He states as under: "N. Kalachari whose name is shown in the witness list is the husband of 2nd defendant. I am not acquainted with his signature. I had no occasion to see the signatures of defendant Nos.1 and 2. He had no occasion to see the signatures of defendant Nos.1 and 2. He states as under: "N. Kalachari whose name is shown in the witness list is the husband of 2nd defendant. I am not acquainted with his signature. I had no occasion to see the signatures of defendant Nos.1 and 2. It is true that as I was informed to deny Ex.P2, I am denying the same." When one of the defendants is residing at Bangalore, there is no reason why she should not have stepped into the witness box. The evidence of D.W1 is hearsay evidence. It is difficult to accept the submission of defendant Nos.1 and 2 that the document Ex.P2 is a concocted document. Assuming that defendant Nos.1 and 2 do not know the kannada language, there is a clear statement in Ex.P2 itself that the document has been explained to defendant Nos.1 and 2 before signing. Even the scribe P.W2 has stated that the documents were read over to them and thereafter, the defendant Nos.1 and 2 have signed the same document. 22. I have already taken a view that defendant Nos.1 and 2 have failed to prove that Ex.P2 is a concocted document as contended by them. Ex.P2 contains a recital that plaintiff was put in possession of the suit schedule property on the same day. Defendant Nos.1 and 2 have not produced any material to contend that they continued to be in possession of the property in question even after the date of execution of the sale deed. No doubt they rely on Ex.D32, a receipt for having filed an application seeking regularisation of unauthorised construction over the suit schedule property. However, Ex.D32 does not contain the date or the description of the property. Once the possession has been delivered to the plaintiff, the burden is on defendant Nos.1 and 2 to establish that they continued to be in possession of the property, which has not been discharged by them. From the material placed on record, it is clear that plaintiff is in possession and enjoyment of the suit schedule property from the date of execution of Ex.P2. 23. As noticed above, the case of the defendants is that they have not executed either agreement Ex.P2 or the receipt at Ex.P3. From the material placed on record, it is clear that plaintiff is in possession and enjoyment of the suit schedule property from the date of execution of Ex.P2. 23. As noticed above, the case of the defendants is that they have not executed either agreement Ex.P2 or the receipt at Ex.P3. However, the scribe has clearly stated that the has read over the document to the defendants and thereafter they have signed the document. The other witness was one Sri Kalachari, who is none other than the husband of the second defendant. The plaintiff has assigned cogent reasons for not examining Kalachari. However, neither the defendants have entered the witness box nor Kalachari was examined by them. Though the defendants examined their power of attorney holder D.W1, he has clearly stated that, as stated by the defendants, he is deposing on their behalf. He was not aware of the transaction nor he was present at the time of execution of Ex.P1 and Ex.P2. His evidence is hear say evidence. One of the defendants is admittedly residing at Bangalore. Non-examination of defendants is fatal to their case. The defendants having not entered the witness box and having not presented themselves for cross-examination, an adverse assumption has to be drawn against them on the basis of the principles contained in illustration(g) of Section 114 of the Evidence Act. As early as in 1927, the Privy Council in Sardar Gurbaksha Singh Vs. Gurdial Singh, AIR 1927 PC 230, took note of the practice prevalent in those days of not examining the parties as witness in the case. It has been observed as under: "But, in any view', her non-appearance as a witness, she being present in Court, would be the strongest possible circumstance going to discredit the truth of her case." The said decision has been followed by various High Courts consistently. The Allahabad High Court in Arjun Singh's case (supra) has held as under: "The explanation of any admission or conduct on the part of a party must, if the party is alive and capable of giving evidence, come from him and the Court would not imagine an explanation which a party himself has not chosen to give." The Apex Court in Iswar Bhai C. Patel @ Bachu Bhai Patel Vs. Harihar Behera and Another, AIR 1999 SC 1341 , has held as under: "29. Harihar Behera and Another, AIR 1999 SC 1341 , has held as under: "29. Applying the principles stated above to the instant case, it would be found that in the instant case also the appellant had abstained from the witness box and had not made any statement on oath in support of his pleading set out in the written statement. An adverse inference has, therefore, to be drawn against him. Since it was specifically stated by respondent No.2 in his statement on oath that it was at the instance of the appellant that he had issued the cheque on the account of respondent No.1 in the Central Bank of India Ltd., Sambalpur Branch, and the appellant, admittedly, had encashed that cheque, an inference has to be drawn against the appellant that what he. stated in the ‘written statement was not correct. In these circumstances, the High Court was fully justified in decreeing the suit of respondent No.1 in its entirety and passing a decree against the appellant also." In Vidyadhar Vs. Mankikrao and Another, AIR 1999 SC 1441 , the Apex Court was considering an almost similar case where the defendants therein contended that the sale agreement executed by defendant No.2 in favour of the plaintiff was fictitious and the whole transaction was a bogus transaction. It has been held that where a party to a suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross-examined by the other side, the assumption would arise that the case set up by him is not correct. It has been held as under: “Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct. In the instant case-defendant No.1 alleged that the sale deed executed by defendant No.2 in favour of the plaintiff was fictitious and the whole transaction was a bogus transactions as only Rs.500/- were paid as sale consideration to defendant No.2. But this plea was not supported by defendant No.1 as he did not enter into the witness box. In the instant case-defendant No.1 alleged that the sale deed executed by defendant No.2 in favour of the plaintiff was fictitious and the whole transaction was a bogus transactions as only Rs.500/- were paid as sale consideration to defendant No.2. But this plea was not supported by defendant No.1 as he did not enter into the witness box. He did not state the facts pleaded in the written statement on oath in the trial Court and avoided the witness box so that he may not be cross-examined. This, by itself: is enough to reject the claim that the transaction of sale between defendant No.2 and the plaintiff was a bogus transaction.” Therefore, the Court below was not right in holding that the description of the suit schedule property does not tally with the description contained in Ex.P2. I am of the view that plaintiff has been in lawful possession of the suit schedule property since the date of execution of Ex.P2. Point. No.(i) is answered in the affirmative and in favour of the plaintiff. Reg. Point No. (ii): 24. The doctrine of part performance embodied in Section 53-A of the Transfer of Property Act is an equitable doctrine. The object of this Section is to prevent a transferor or his successor in interest from taking any advantage on account of the non-registration of the document, provided the transferee has performed his part of the contract and in pursuance thereof has taken possession of some immovable property. Section 53-A of the Act is as under: "53A. The object of this Section is to prevent a transferor or his successor in interest from taking any advantage on account of the non-registration of the document, provided the transferee has performed his part of the contract and in pursuance thereof has taken possession of some immovable property. Section 53-A of the Act is as under: "53A. 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 certainty, 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." 25. The essentials of this Section are, (i) a contract to transfer immovable property; (ii) the contract must be for consideration; (iii) it must be in writing signed by or on behalf of the transferor; (iv) the terms can be ascertained from the writing; (v) the transferee has taken possession or is already in possession of the property; (vi) he has done ,some act in furtherance of the contract; and (vii) he has performed or is willing to perform his part of the contract. 26. In the present case, after entering into contract as per Ex.P2, the plaintiff was put in possession of the property. He was required to pay a sum of Rs.40,000/- within a period of three months from the date of Ex.P2. 26. In the present case, after entering into contract as per Ex.P2, the plaintiff was put in possession of the property. He was required to pay a sum of Rs.40,000/- within a period of three months from the date of Ex.P2. Accordingly, the plaintiff has paid a sum of Rs.40,000/- as per Ex.P3 within the said period. Thus, he has done something in furtherance of the contract and he was always been ready and willing to perform the contract. 27. A Division Bench of this Court in Smt. Mahadevamma Vs. B.S. Lingaraju and Others, ILR 1981 Kar. 1410 has held that a suit of a transferee who is in possession in part performance under Section 53-A for the possessory remedy of an injunction protecting his possession is a mere defensive suit in which plaintiff is merely using the shield of passive equity. The words of the Section do not warrant a conclusion that the plaintiff, as such, is necessarily debarred from the benefit of the Section. Therefore, the plaintiff can institute a suit for injunction against the defendant basing his suit under Section 53-A of the Transfer of Property Act. A Full Bench of this Court in Narasimhasetty Vs. Padmasetty, ILR 1998 Kar. 3230 has held that the right of the transferee to retain his possession envisaged under Section 53-A of the T.P. Act is statutory in nature and it has not been subjected to any limitation either express or implied. It has been further held that the law of limitation does not apply to defence raised under Section 53-A of the Act since the Section does not provide for any limitation on expiry thereof. It has been further held that notwithstanding the fact that a transferee in possession pursuant to a contract of sale fails to file a suit for specific performance within the prescribed period of limitation, till in law, the contract remains valid and operative entitling him to exert his right to retain the possession over the property in exercise of his statutory right conferred by Section 53A of the Act by way of defence in a suit brought against him by his transferor, for recovery of possession. In Shrimant Shamrao Suryavanshi and Another Vs. In Shrimant Shamrao Suryavanshi and Another Vs. Pralhad Bhairoba Suryavanshi (Dead) by LRs and Others, AIR 2002 SC 960 , the Apex Court has held that Section 53-A does not forbid a defendant transferee from taking a plea in his defence to protect his possession over the suit property obtained in part performance of a contract even though the period of limitation for bringing a suit for specific performance has expired. 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. In absence of such a provision, Court has to interpret the provisions of Section 53-A in a scientific manner. It means to look in to the legislative history and structure of the provisions of Section 53-A of the Act. Similarly, the Apex Court in Mahadeva and Others Vs. Tanabai, ILR 2004 KAR 3203 (SC), has 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 by itself is not enough to deny the benefit of the plea under Section 53-A of the T.P. Act. 28. There is no merit in the contention of the learned Counsel for the defendants that the agreement Ex.P2 is unenforceable because it does not contain the signature of the transferee. In Chandranath Mukherjee Vs. Chulaipashi and Another, AIR 1960 CAL 40, the Calcutta High Court hat) held that the provisions of Section 53-A of the Transfer of Property Act comes into operation when there is same writing signed by the transferor and not when there is some writing signed by the transferee. In Ramakrishna Singh Vs. Mahadei Haluai and Another, AIR 1965 Patna 467, the Patna High Court has held that to attract the applicability of Section 53-A, the contract need not have been signed by the lessee. It has been held thus: "It is true that one of the conditions to be fulfilled before Section 53-A of the Transfer of Property Act can be taken recourse to is the existence of a completed contract but it is not necessary that the contract of lease should be signed both by the lessor and the lessee. It has been held thus: "It is true that one of the conditions to be fulfilled before Section 53-A of the Transfer of Property Act can be taken recourse to is the existence of a completed contract but it is not necessary that the contract of lease should be signed both by the lessor and the lessee. From the opening words of Section 53-A, it is clear that all that the law requires is (1) that there should be a contract to transfer any immovable property (2) that the contract should be signed by the transferor and (3) that the terms necessary to constitute the transfer can be ascertained with reasonable certainty from such document." 29. From the discussion made above, it is dear that the plaintiff has established that the defendants have agreed to sell the suit schedule property to the plaintiff under the agreement at Ex.P2 and that the plaintiff has been in possession and enjoyment of the said property from the date of the said document. The plaintiff is therefore entitled to institute a suit for injunction against the defendants basing his suit under Section 53-A of the Transfer of Property Act, even though the period of limitation for bringing a suit for specific performance has expired. 30. In the result, I pass the following: Order (i) The appeal is allowed and the judgment of decree in O.S. No.7197/2001 dated 22.9.2004 on the file of the XVII Additional City Civil Judge, Bangalore, is hereby set aside. (ii) The defendants are hereby restrained from interfering with the plaintiffs possession and enjoyment of the suit schedule property. The suit filed by the plaintiff is according decreed. No costs. (iii) Draw the decree accordingly.