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2009 DIGILAW 4770 (MAD)

N. Francis v. K. Mahadevan Nair

2009-11-06

G.M.AKBAR ALI

body2009
J U D G M E N T:-The appeal preferred against the judgment and decree in A.S.No.87 of 2002 on the file of the Principal District Court, Nagercoil reversing the judgment and decree in O.S.No.60 of 1998 on the file of the Sub Court, Padmanabapuram. 2.The defendant is the appellant. The respondent/plaintiff had filed a suit in O.S.No.60 of 1998 for recovery of possession of the suit property and for damages. 3.The brief facts of the case is as follows: The suit property originally belonged to one Harihara Iyer and his family. There was a suit in O.S.No.65 of 1981 for redemption of the property on usufructuary mortgage. Pending the suit, the said Harihara Iyer and their family members entered into an agreement of sale with the plaintiff on 12.05.1985. As per the agreement, the plaintiff was permitted to conduct the suit on behalf of the vendors, to satisfy the suit amount and other expenses, take possession and to get the sale executed on or before 05.06.1985 with usual default clauses. An advance amount of Rs.8,000/- was also paid for a sale consideration of Rs.75,200/-. 4.The plaintiff conducted the suit in O.S.No.65 of 1981 and paid a sum of Rs.7,601.60 towards the mortgage amount on 12.12.1989. He also took possession on behalf of the vendors through Court on 15.12.1989 and thereafter, continued to be in possession. However, the said Harihara Iyer and his family members filed a suit in O.S.No.87 of 1992 for an injunction and for mesne profits. It was dismissed. They had also filed an application in E.A.No.328 of 1992 in O.S.No.65 of 1981 under Section 47 of Civil Procedure code and the same was dismissed. Therefore, the plaintiff is in possession and enjoyment in pursuant to the sale agreement and also in pursuant to the possession taken in the redemption suit and his possession is protected under Section 53-A of the Transfer of Property Act. 5.However, the said Harihara Iyer and their family members executed two sale deeds dated 03.07.1996 and 12.08.1998 in favour of the defendant and based on which the defendant had trespassed and unlawfully dispossessed the plaintiff from the suit property and therefore, the suit is filed for recovery of possession and consequential reliefs. 5.However, the said Harihara Iyer and their family members executed two sale deeds dated 03.07.1996 and 12.08.1998 in favour of the defendant and based on which the defendant had trespassed and unlawfully dispossessed the plaintiff from the suit property and therefore, the suit is filed for recovery of possession and consequential reliefs. 6.The suit was resisted by the sole defendant on various grounds more particularly stating that the plaintiff was not ready and willing to perform his part of the contract in pursuance of the sale agreement and it has come to an end and it is also stated that in the delivery proceedings in O.S.No.65 of 1981 of the redemption suit, the plaintiff acted only as an agent of the lawful owner and the possession taken is only on behalf of the owners. It is also further contended that the defendant took possession of the suit property only from the lawful owners namely, Harihara Iyer and their family immediately after the sale and they are in possession and enjoyment and therefore, the plaintiff is not entitled for any relief. 7.Based on the above averments, the learned Sub Judge, Padmanapuram framed triable issues and found that the plaintiff had conducted the suit in O.S.No.68 of 1981 only as an agent of the original owners and took possession only in that manner and the sale agreement dated 12.05.1985 was rescinded and therefore, dismissed the suit. 8.On appeal filed by the plaintiff in A.S.No.87of 1992 the learned District Judge, framed an issue whether the defendant is a bonafide purchaser without notice for value. He found that the possession of the plaintiff is protected under Section 53A of the Transfer of Property Act and the defendant is not bonafide purchaser without notice and therefore, decreed the suit in favour of the plaintiff. Aggrieved by the judgment and decree of the First Appellate Court, the defendant has preferred the present second appeal on the following grounds: 1.The learned Principal District Judge failed to see that the respondent herein is merely an agent of the sellers of the appellant and is not entitled to the relief prayed for. 2.The learned Principal District Judge failed to see that the respondent took delivery of the suit property in the capacity of an agent and not in pursuance of the agreement. 2.The learned Principal District Judge failed to see that the respondent took delivery of the suit property in the capacity of an agent and not in pursuance of the agreement. 3.The learned Principal District Judge failed to interpret the conditions laid down under Ex.A.1 the agreement of sale which clearly says that only after execution of sale deed is the respondent herein entitled to take delivery of the property. 4.The learned Principal District Judge failed to see that the protection under Section 53-A can be used only as a shield not a sword and that if the respondent herein is in possession of the property in pursuance of the agreement he could have availed the same but admittedly now he is not in possession he could not take protection under the same. 5.The learned Principal District Judge failed to see that there respondent herein were in possession of the suit property only as agents to the real owners and that they can in no way prevent the appellant herein from enjoying the property. 9.While admitting the second appeal, this Court has framed the following substantial question of law: “Whether the learned Principal District Judge is right in decreeing the suit for possession and mandatory injunction, when the plaintiff has not proved that possession was given in pursuance of the agreement as under Section 53-A of the Transfer of Property Act?” Before going into the merits of the case, let us see certain admitted facts and the background of the case. 10.The suit property originally belonged to one Harihara Iyer and his brother Venugopala Iyer. The son of the said Harihara Iyer and Venugopala Iyer entered into an sale agreement with the plaintiff on 12.05.1985 for a sale of the suit property for a sum of Rs.75,200/- and received a sum of Rs.8,000/- as advance. There are certain conditions stipulated in the sale agreement. There was a suit in O.S.No.65 of 1981 for redemption of usufructuary mortgage of the suit property. Therefore, the agreement stipulated that the agreement holder shall conduct the case on behalf of the vendors and shall pay the decretal amount and take possession. Another condition was that sale has to be executed on or before 05.06.1985. If either of the party fail to execute, the advance shall stand forfeited and the executant will be liable for all damages. Another condition was that sale has to be executed on or before 05.06.1985. If either of the party fail to execute, the advance shall stand forfeited and the executant will be liable for all damages. 11.The suit in O.S.No.65 of 1980 was decreed the plaintiff paid a sum of Rs.1,601.60 towards the decree amount on 12.12.1989, he also took possession of the property through Court on 15.12.1989. However the sale deed was not executed and the balance of sale consideration was not paid fully. The relationship got strained in the year 1992 which leads to civil proceedings between the vendors and the agreement holder. 12.It is an admitted case of the parties that petition under Section 47 of C.P.C. was filed by the said Harihara Iyer and his family members for recovery of possession from the plaintiff and the same was dismissed as not maintainable. They had also filed a suit in O.S.No.87 of 1992 for an injunction but failed. Meanwhile they have executed two sale deeds in favour of the defendant under sale deed dated 03.07.1996 under Ex.B1.and sale deed dated.12.05.98 under Ex.B2. 13.The case of the plaintiff is that he was in possession of the property pursuant to the sale agreement dated 12.05.1985 under Ex.A1 and conducted the suit and paid the decree amount under Ex.A2 dated 12.12.1989 and took possession of the suit property under Ex.A3 dated 15.12.1989 and continued to be in possession and has been advancing various amounts towards sale consideration to the vendors. According to the plaintiff, he was unlawfully dispossessed by the defendant on 24.08.1996 and therefore, filed the present suit for recovery of possession and other consequential reliefs. The case of the plaintiff is that he was in possession and his possession is protected under Section 53-A of the Transfer of Property Act. 14.The case of the defendant is that the plaintiff took possession only as an agent of the original owners and he was not willing to perform his part of contract and the property was sold to this defendant and he had purchased the property for a value without notice and he is a bonafide purchaser and he took possession from his vendors and continues to be in possession. 15.Mrs.N.Krishnaveni,the learned counsel for the appellant would submit that the lower Appellate Court was wrong in holding that the plaintiff was in possession in pursuance to the sale agreement and is protected under Section 53-A of the Act. The learned counsel pointed out that the plaintiff took possession of the property in the redemption suit only as an agent of the original owners and his possession should not be deemed to be a possession under the sale agreement. The learned counsel also pointed out that the protection under Section 53-A is not available to the plaintiff as he cannot use the same as sword. 16.The learned counsel also relied on AIR 1995 Kerala 249(M/s. Jaccob Pvt. Ltd. V. Thomas Jaccob) wherein it has held as follows: “Section 53A makes it clear by employing the word “then” after laying down the prerequisites that a transferee seek refuge under it only after satisfying the prerequisites. In other works, the bar envisaged in the section against enforcement of the transferor's right can be exercised only on compliance with the postulates. Willingness to perform the roles ascribed to a party in a contract is primarily a mental disposition. However, such willingness in the context of Section 53A of the T.P., Act must be absolute and unconditional. If willingness is studied with a condition, it is in fact no more than an offer and cannot be termed as willingness. Where the vendee. Company expresses its willingness to pay the amount provided the plaintiff clears his income-tax arrears, there is no complete willingness but a conditional willingness or partial willingness which is not sufficient to arm the company with the shield provided by Section 53A of the T.P.Act”. 17.The learned counsel also relied on 2002(3) SC 676( Shrimant Shamrao Suryavanshi and another V. Pralhad Bhairoba Suryavanshi by L.Rs and others) wherein it has held as follows: “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. 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, of 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”. 18.The learned counsel also relied on 1996(7) SC 690( Patel Natwarlal Rupji V. Kondh Group Kheti Vishayak and another) wherein it has held as follows: “Though the doctrine of part performance embodied in Section 53-A of the Act is part of equitable doctrine in English law, Section 53-A gives statutory right which is available to the transferee for consideration in possession of the property under the contract. In terms of the section, so long as the transferee has done and is willing to perform his part of the contract or, in other words, is always ready to abide by the terms of the contract and has performed or is always ready and willing to perform his part of the contract, the transferee is entitled to avail of this statutory right to protect his possession as a shield but not as a sword. The right to retain possession of the property rests on the express provisions of the Act and on his compliance thereof. Section 53-A confers no title on the transferee but imposes a statutory bar on the transferee to seek possession of the immovable property from the transferee. Equally, Section 53-A does not confer any title on the defendant in possession nor can he maintain a suit on title. The benefit of Section53-A can be availed of as a shield to retain possession”. 19.Mr.k.Sreekumaran Nair, the learned counsel for the respondent would submit that the plaintiff took possession in pursuant to the sale agreement dated 12.05.65 under Ex.A1. The learned counsel pointed out that the under condition No.2, he was authorized to conduct the suit and took possession of the suit property on payment of the decree amount and consequently he had paid the amount under Ex.A2 and took possession under Ex.A3. The learned counsel pointed out that the under condition No.2, he was authorized to conduct the suit and took possession of the suit property on payment of the decree amount and consequently he had paid the amount under Ex.A2 and took possession under Ex.A3. The learned counsel also pointed out that the original owners tried to recover the possession from the plaintiff and failed and therefore, the possession continued to be with the plaintiff pursuant to the sale agreement which is protected under Section 53-A of the Act. The learned counsel also pointed out that when there is no proof to show that the defendant took possession pursuant to the execution of the sale deed dated 03.07.96 under Ex.B1, his present possession has to be presumed as unlawful. The learned counsel further pointed out that when the plaintiff's possession was proved till he was dispossessed, the plaintiff is entitled for recovery of possession. 20.The learned counsel relied on 2004(4) CTC 465 (Sadashiv Chander Bhamgare Vs. Eknath Pandharinath Nangude)wherein the Full Bench of the Bombay High Court has held as follows: “It is clear form the observations of the Supreme Court quoted above that Section 53-A of the Act imposes a statutory bar on the transferor to seek possession of the immovable property from the transferee in possession. In other words, therefore, it disentitles the transferor from seeking possession from the proposed transferee in possession. Therefore, if the transferor, though he has been denied that right by Section 53-A, tries to take possession forcibly, the proposed transferee in possession would be entitled to institute a suit to enforce the bar of Section 53-A against the transferor. In such a situation, when the proposed transferee in possession comes to the court seeking a decree of perpetual injunction restraining the transferor from disturbing his possession, he does not come to the court for enforcement of any rights conferred on him, but he comes to the court for enforcement of the bar created by Section 53-A against the transferor”. 21.The learned counsel also relied on AIR 2003 SC 2508(Ramesh Chand Ardawatiya Vs. 21.The learned counsel also relied on AIR 2003 SC 2508(Ramesh Chand Ardawatiya Vs. Anil Panjwani) wherein it has held as follows: “So, the person in possession may not have title to the property yet if he has been inducted into possession by the rightful owner and is in peaceful and settled possession of such property he is entitled in law to protect the possession until dispossessed by due process of law by a person having a title better than what he has. A person in possession of the property cannot be forcibly dispossessed by another rank trespasser and even if the latter does so, the former may be entitled to restoration of possession, because the law respects peaceful possession and frowns upon the person who takes the law in his own hands”. 22.Mrs.N.Krishnaveni, learned counsel for the appellant would submit that the plaintiff has taken possession of the property only as an agent and there is no express recital in the sale agreement that he has taken possession in pursuant to the sale agreement. The learned counsel also pointed out that the plaintiff is not entitled to the protection under Section 53-A of the Transfer of Property Act and he cannot maintain the suit for recovery of possession. 23.Mr.k.Sreekumaran Nair, the learned counsel appearing for the respondent would submit that the plaintiff was possession pursuant to the sale agreement and therefore, is protected under Section 53-A of the Transfer of Property Act. He further submitted that once the possession of the plaintiff is proved the subsequent purchaser cannot dispossess the plaintiff without due process of law and the plaintiff's possession is well protected under Section 53-A of the above said Act. 24.Admittedly, the possession was given to the plaintiff in satisfaction of the mortgaged suit on 15.12.1989 under Ex.A.3. The efforts of the transferee namely, the original owner to take possession in the judicial proceedings in O.S.No.87 of 1992 and in E.A.No.328 of 1992 were failed. They never took possession from the agreement holder. The recital under Ex.A.1 would show that the agreement holder is to conduct the suit and take possession of the suit property. Only on this authority, the plaintiff had taken possession therefore, the possession of the plaintiff is only in pursuant to the sale agreement dated 12.05.1985. This possession squarely comes under the purview of Section 53-A of Transfer of Property Act. Only on this authority, the plaintiff had taken possession therefore, the possession of the plaintiff is only in pursuant to the sale agreement dated 12.05.1985. This possession squarely comes under the purview of Section 53-A of Transfer of Property Act. However, he has not performed his part by obtaining the sale deed from the transferor. 25.It is well settled that the contract of sale does not confer title in immovable property. Section 54 of the Transfer of Property Act, provides that the contract for sale of immovable property is a contract that the sale of said property shall take place of terms settled between the parties. The sale agreement by itself will not create any interest in such immovable property. 26.If a person has entered into possession over an immovable property under a contract for sale and is in peaceful and settled possession of the property with the consent of the person in whom vests the title, he is entitled to protect his possession against the whole world, excepting a person having title better than what he or his vendor possesses. If he is in possession of the property in part performance of contract for sale and the requirements of Section 53-A of the Transfer of Property Act are satisfied, he may protect his possession even against the true owner, as held in Shirmant Shamrao Suryavansi and another vs. Pralhad Bhairoma Suryavanshi and others reported in 2002(3) SCC 676 . 27.In the instant case, the plaintiff/respondent is entitled to protect his possession under Section 53-A of the Transfer of Property Act. However, he was dispossessed without his consent and without due course of law by the subsequent purchaser. 27.In the instant case, the plaintiff/respondent is entitled to protect his possession under Section 53-A of the Transfer of Property Act. However, he was dispossessed without his consent and without due course of law by the subsequent purchaser. 28.Section 53-A of the Transfer of Property Act, which reads as follows: “53-A 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 where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed thereof 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”. 29.A perusal of the provisions of Section 53-A shows that before the transferee becomes entitled to claim protection he has to satisfy the following conditions: (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, of 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. 30.If the plaintiff has complied with all these conditions, which are necessary to be complied with in terms of the provisions of Section 53-A of the Transfer of Property Act, his possession can be protected. But in the present case, the question is whether the transferee is entitled to maintain the suit for recovery of possession when he was dispossessed by the subsequent purchaser. There is no doubt that the contract for sale does not confer title by itself and if he has entered into possession in pursuant to a contract of sale, he is entitled to protect only his possession even against the true owner who has a better title. 31.Under Section 6 of the specific Relief Act 1963, if any person is dispossessed without his consent from an immovable property otherwise than in due course of law, he is entitled to claim and successfully sue for recovery of possession thereof, notwithstanding any other title that may be set up in such a suit if the suit is brought before the expiry of six months from the date of dispossession. 32.Article 64 of the Limitation Act, 1963 provides for a suit for possession of immovable property based on previous possession and not on title, being brought within twelve years from the date of dispossession. Therefore a suit can be filed within 6 months under section 6 of the Specific Relief Act which will be a summary suit or the plaintiff can sue for recovery of possession in a regular suit based on the protection under section 53A of Transfer of Property Act and the limitation will be 12 years from the date of dispossession. 33.Even assuming that the plaintiff has taken possession as an agent of the vendors, the fact remains that he was in possession of the property till he was dispossessed in the year 1996. The case of the defendant is that he has taken possession in pursuant to the sale deed. On execution of sale deed, the vendor is bound to put the purchaser in possession. If the vendor's possession is disproved the defendant would not have taken possession from vendor or from any person on his behalf. Even a wrongful possessor has the rights of an owner with respect to all persons except the true owner. On execution of sale deed, the vendor is bound to put the purchaser in possession. If the vendor's possession is disproved the defendant would not have taken possession from vendor or from any person on his behalf. Even a wrongful possessor has the rights of an owner with respect to all persons except the true owner. Such a wrong doer, who is deprived of his possession, can recover his possession from any person, simply on the ground of his previous possession. Even the true owner, who takes his own possession without due process of law, may be forced in this way to restore the possession. The law discourages people from taking the law into their own hands, howsoever, good and sound their title may be. In a case, where the plaintiff has been in peaceful and settled possession of the suit property is dispossessed by the defendant, otherwise than by due process of law, the status quo anti to the date of cause of action must be restored followed by consequential reliefs. The defendant may then seek recovery of possession by due process of law from the plaintiff. Simply because the defendant has a better title than the plaintiff, he cannot be permitted to do a wrong and the same cannot be allowed to be continued even after the lapse of 10 years. 34.Following the judgment in AIR 2003 SCC 2598(stated supra), I am of the considered view that the plaintiff/respondent is entitled for recovery of possession and consequential reliefs as granted by the first appellate court. Hence the substantial question of law is decided, accordingly, the Second Appeal is liable to be dismissed. 35.Pending Second Appeal, a contempt petition is filed by the petitioner /plaintiff to punish the respondent/defendant under the Contempt of Courts Act for the willful disobedience of the order made in C.M.P.No.1457 of 2004. The petitioner filed an application for injunction restraining the defendant/appellant from cutting the trees and also restraining him from putting up any construction in the suit property and this court had passed an order on 03.11.2004, stating that “Neither party should cut the trees and not put up any construction pending disposal of the Second Appeal”. According to the petitioner, on 09.09.2007 and on 10.09.2007, the respondent/defendant cut and removed trees worth of Rs.50,000/- and thereby committed contempt of court. According to the petitioner, on 09.09.2007 and on 10.09.2007, the respondent/defendant cut and removed trees worth of Rs.50,000/- and thereby committed contempt of court. 36.The petitioner is the plaintiff in O.S.No.60 of 1998 and the suit is for recovery of possession and other reliefs and the same was dismissed by the trial court and on appeal by the petitioner, it was allowed and the appellate court granted a decree as prayed for, against which, the defendant has preferred the second appeal. 37.Now, the second appeal has been heard and dismissed confirming the decree and judgment of the first Appellate Court. In the contempt application, the plaintiff/respondent would state that the defendant has disobeyed the order by cutting and removing the trees by worth of Rs.50,000/-. Though, it is stated that immediately, the petitioner has given a complaint, the copy of the complaint or the F.I.R has not been produced. However, now the second appeal itself is dismissed and the decree is granted in favour of the petitioner, this court is not inclined to proceed further in the contempt application as the interim order has merged with the final order. Hence, the contempt petition is closed. 38.In the result, the second appeal is dismissed and the decree and judgment of the first appellate court is confirmed. Consequently, the connected Civil Miscellaneous Petition is also closed. No costs.