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2012 DIGILAW 1242 (AP)

N. Krishna Rao v. Shaik Basheer Ahmed

2012-12-17

SAMUDRALA GOVINDARAJULU

body2012
Judgment : The plaintiff who lost his suit in both the Courts below, filed this second appeal. He filed the suit in the trial Court for declaration of his ownership to the plaint schedule property, for possession of the same by removing structures raised by the defendant therein and for mandatory injunction for demolition of illegal structures therein. The plaint schedule property consists of 1000 Sq. yards of site in S.No.101/E of Katedan Village, Rajendra Nagar Mandal, Rangareddy District. The defendant constructed six mulgis with old D.No.4-92/22 and present municipal Door Nos.6-3-197, 6-3-197/1 to 6. It is the plaintiff’s case that he is owner of Ac.4-20 guntas in S.No.101 having purchased the same from his vendors S.Ramireddy and S.Nagireddy under two separate registered sale deeds Exs.A-1 and A-2 dated 06.11.1963 and 26.03.1965 and that the defendant occupied the plaint schedule property out of the said extent without any authority and made constructions therein illegally and that subsequently after some litigation, the defendant entered into an agreement for sale for purchase of 1000 Sq. yards from the plaintiff on 18.12.1989 for total agreed consideration of Rs.1,00,000/- and paid advance sale consideration of Rs.30,000/- agreeing to pay balance of Rs.70,000/- by 03.02.1990 and that the defendant failed to comply with the said obligation and compelled the plaintiff to issue notice dated 26.04.1990 calling upon the defendant to pay balance sale consideration within one week from the date of receipt of that notice, failing which the agreement stands cancelled and that the defendant did not pay the balance of sale consideration and therefore, the sale agreement Ex.B-18 executed by the plaintiff in favour of the defendant stood cancelled. 2) The defendant resisted the plaintiff’s suit on the ground that he is absolute owner and possessor of 1000 Sq. yards having purchased the same under registered sale deed from its owner Sadala Pratap Reddy in the year 1988 and that after some litigation and disputes among the legal heirs of original owners Ramireddy and Nagireddy and the plaintiff, there was sub-division of the survey number after measurements and the defendant’s vendor Pratap Reddy was allotted Ac.0-38 guntas in new S.No.101/A2, out of which 1000 Sq. yards was sold by Pratap Reddy to the defendant and that in view of the previous litigation started by the plaintiff, to purchase peace and to save money already spent on the construction and to avoid multiplicity of litigation, the defendant entered in Ex.B-18 agreement for sale dated 18.12.1989 with the plaintiff for the said property and paid Rs.30,000/- to the plaintiff as advance under Ex.B-19 receipt and that it was confirmed by delivery of possession and that since the plaintiff did not receive balance of consideration of Rs.70,000/- in spite of approaching him before the due date, the defendant got issued Ex.B-5 legal notice dated 21.08.1990 and that subsequently the plaintiff received balance of sale consideration of Rs.70,000/- from the defendant in the presence of witness and that the plaintiff did not give any notice dated 26.04.1990 to the defendant. 3) After trial, the trial Court dismissed the suit; and on appeal by the plaintiff, the lower appellate Court dismissed the appeal. Both the Courts below non-suited the plaintiff mainly on the ground of part performance embodied in Section 53-A of the Transfer of Property Act, 1882 (in short, the Act). It is sought to be contended by the appellant’s counsel in this second appeal that since the agreement Ex.B-18 stood cancelled for non-compliance of the stipulation for payment of balance sale consideration of Rs.70,000/- within the time specified in the notice, the defendant is not entitled to the benefit of Section 53-A of the Act. Alternatively, the appellant’s counsel urged as substantial question of law that in any event, the defendant is not entitled to the benefits of Section 53-A of the Act since he was not put in possession of the property by the plaintiff under Ex.B-18 agreement for sale and that continuation of possession of the defendant of the suit property even after Ex.B-18 agreement would not make the defendant entitled for the protection under Section 53-A of the Act since the defendant’s previous possession was illegal possession as an encroacher. Placing reliance on Mallanna v Dr. Abdul Nabi, (AIR 1986 Karnataka 221) of the Karnataka High Court, it is contended by the appellant’s counsel that delivery of possession under the agreement for sale is most essential feature for invoking Section 53-A of the Act. Placing reliance on Mallanna v Dr. Abdul Nabi, (AIR 1986 Karnataka 221) of the Karnataka High Court, it is contended by the appellant’s counsel that delivery of possession under the agreement for sale is most essential feature for invoking Section 53-A of the Act. There is nothing in that Karnataka decision on the clause relating to the transferee continuing previous possession of the property after obtaining agreement for sale from the transferor. It was not such a case where the transferee was earlier in possession of the property and continued to be in possession of the property even after execution of agreement for sale. 4) To appreciate contentions of the appellant’s counsel under Section 53-A of the Act, a reference to that provision becomes essential. Section 53-A of the Act 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 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 part performance thereof.” The said provision contemplates either of the two contingencies viz., delivery of possession or part thereof under the agreement or continuation of possession in furtherance of the agreement, if the transferee was already in possession. There is no indication in the said provision that previous possession of the purchaser which is continued in furtherance of the agreement for sale, to be legal possession or illegal possession. It is contended by the appellant’s counsel that previous possession contemplated under the above provision should be legal possession like possession of a tenant or possession of a licensee or possession by usufructuary mortgagee and the like and not previous possession of an encroacher like in the present case of the defendant. In the absence of any such distinction made by Section 53-A of the Act, this Court does not intend to create such an embargo on the said beneficial and equitable provision making a distinction between continuation of a legal possession and continuation of illegal possession which is legalized under the agreement for sale. If the said rider as contended by the appellant’s counsel is added in the provision, I am afraid, it would not be interpretation of the said provision but would amount to incorporating a word which the Parliament did not intend to incorporate in that provision making distinction between continuation of legal possession and continuation of illegal possession after the agreement for sale. Therefore, I find that Section 53-A of the Act is applicable not only to the case of continuation of previous legal possession of the agreement holder but also to the case of continuation of illegal possession by the agreement holder in furtherance of the agreement by way of regularizing or legalizing previous illegal possession. In that view of the matter, assuming for a moment for the sake of argument that previous possession of the defendant anterior to Ex.B-18 agreement for sale is legal or illegal, the defendant/respondent is entitled to the protection under Section 53-A of the Act as against the transferor/plaintiff. 5) It is contended by the appellant’s counsel that since the defendant’s previous possession was illegal, he would not be entitled to the equitable defence under Section 53-A of the Act, because the defendant is expected to do equity and approach the Court with clean hands before seeking protection under Section 53-A of the Act. This submission of the appellant’s counsel is untenable because it is not the defendant who approached the Court seeking any legal remedies basing on equitable principles. This submission of the appellant’s counsel is untenable because it is not the defendant who approached the Court seeking any legal remedies basing on equitable principles. The said contention based on equities may be applicable to a case of the plaintiff; and the question of the defendant approaching the Court with clean hands will not arise. When the plaintiff entered into Ex.B-18 agreement with the defendant for the said property with his eyes wide open and with knowledge of the alleged illegal possession of the defendant of the suit property and accepted for regularization or legalization of the previous possession of the defendant of the suit property, it does not lie in the mouth of the plaintiff to contend that the defendant is not entitled to the benefit of equitable doctrine of Part Performance under Section 53-A of the Act. 6) Both the Courts below noticed that it is the plaintiff who took a false plea of cancellation of Ex.B-18 agreement for sale after issuing a notice dated 26.04.1990. The defendant denied receipt of such notice. The plaintiff failed to produce office copy of the said notice dated 26.04.1990 in Court together with proof of dispatching the same by post and proof of receipt of the same by the defendant through post. This is a false plea put forward by the plaintiff. Both the Courts below accepted evidence of D.Ws 5 and 6 in whose presence the defendant paid balance of sale consideration of Rs.70,000/- to the plaintiff at Nizam Club in the first week of September, 1990. It is the defendant’s contention that on elderly advice given by the plaintiff, he did not insist the plaintiff for execution of registered sale deed even after payment of the entire sale consideration. Both the Courts below rightly held that Ex.B-18 agreement did not stand cancelled. I find no error muchless legal error in the decisions of both the Courts below; and I also do not find any substantial question of law to be decided in this second appeal. 7) In the result, the second appeal is dismissed with costs.