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2013 DIGILAW 887 (MP)

Bhavuti s/o Gorelal v. Alam

2013-08-01

ALOK ARADHE

body2013
JUDGMENT This appeal is filed by the plaintiff who has died during the pendency of the appeal and his legal representatives have been substituted. A bench of this Court had admitted the appeal on the following substantial question of law: “Whether the Courts below are right in holding that the defendants can retain their possession in view of Section 53-A of Transfer of Property Act, 1882. 2. The facts giving rise to filing of the appeal, briefly stated, are that the original plaintiff filed a suit inter alia on the ground that the defendant Nos. 1 and 2 are money lenders. The original plaintiff was in need of money, and therefore, from time to time he took loan from defendant Nos. 1 and 2. As a security for loan documents dated 12-07-1979, 29-06-1982 and 20-01-1983 (Exhibit D/1 to D/3) were executed in respect of the land admeasuring 4.5 acres and the possession of the land in question was handed over to the defendants. The original plaintiff from time to time made payment to the defendants on account of the loan taken by him. It is the case of the plaintiff that though he had repaid the entire amount of loan, yet the possession of the suit land was not handed over to him. Accordingly, the plaintiff filed a suit seeking relief of possession. 3. The defendant Nos. 1 and 2 filed a written statement in which inter alia it was pleaded that they are not money lenders. The defendants had entered into an agreement for sale with the plaintiff and on receipt of part of the sale consideration, possession of the land in question was handed over to the defendants. It was further pleaded that defendants are ready and willing to perform their part of contract and therefore, entitled to benefit of Section 53-A of Transfer of Property Act, 1882 (hereinafter referred to as the Act). 4. The trial Court vide judgment and decree dated 31-07-1991 inter alia held that the documents Exhibits D/1 to D/3 were not executed by way of security for loan and the plaintiff is not entitled to seek possession of the land in question, as the defendants in pursuance of the agreement Exhibit D/1 to Exhibit D/3 are in possession of the suit lands. Accordingly, the suit filed by the plaintiff is dismissed. Accordingly, the suit filed by the plaintiff is dismissed. The aforesaid decree has been affirmed in appeal by the lower appellate Court. 5. Learned counsel for the appellants submitted that the Courts below committed error of law in holding that the defendants are entitled to protect their possession under Section 53-A of the Act but it ought to have appreciated that protection under Section 53-A of the act can be availed only by a party who is ready and willing to perform his part of contract. In support of his submissions, learned counsel for the appellants has placed reliance on the decision of the Supreme Court in the cases of Mohanlal (deceased) through his LR Kachru and others v. Mira Abdul Gaffar and another, AIR 1996 SC 910 ,Roop Singh v. Ram Singh, 2000(3) MPHT 18 : ( AIR 2000 SC 1485 ) and Subhash Chandra and others v. Manjula and another, 2004(2) MPLJ 557 : ( AIR 2005 MP 72 ). On the other hand, learned counsel for the respondents submitted that the defendants out of the total sale consideration of Rs. 10,000/- had already paid a sum of Rs. 6900/- and are ready and willing to pay the remaining sale consideration. It is also urged that both the Courts below have recorded a concurrent findings of fact against the appellants which do not call for any interference by this Court in exercise of powers under Section 100 of Code of Civil Procedure. 6. I have considered the submissions made by learned counsel for the parties and have perused the record. The sole question which arises for consideration in the instant appeal is whether the defendants are entitled to retain their possession under Section 53-A of the Act. The relevant extract of Section 53-A of the Act reads as under :- “53A. 6. I have considered the submissions made by learned counsel for the parties and have perused the record. The sole question which arises for consideration in the instant appeal is whether the defendants are entitled to retain their possession under Section 53-A of the Act. The relevant extract of Section 53-A of the Act reads as under :- “53A. Part performance : Where any person contracts or 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, of 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. From a perusal of Section 53-A of the Act, it is evident that in order to avail the benefit of Section 53-A of the Act, the transferee has to show that he has done some act in furtherance of the contract and has performed or is ready and willing to perform his part of contract. 7. The provisions of Section 53-A of the Act were considered by the Supreme Court in the case of Mohanlal (deceased) through his LR Kachru and others v. Mira Abdul Gaffar and another, AIR 1996 SC 910 , wherein it was held that a person in possession in pursuance of the agreement for sale is entitled to protection under Section 53-A of the Act only, if he is ready and willing to perform his part of the contract. It is further held that mere statement of a person in possession of the property in pursuance of an agreement for sale, that he is ready and willing to perform his part of contract is not enough. Similar view has been taken in the case of Supreme Court in the case of Ram Kumar Agarwal and another v. Thawar Das (Dead) through LRs, AIR 1999 SC 3248 , Roop Singh (Dead) through LRs v. Ram Singh (Dead) through LRs, AIR 2000 SC 1485 ,Mool Chand Bakhru and another v. Rohan and others, AIR 2002 SC 812 and P.T. Munichikkanna Reddy and Ors. v. Revamma and others, AIR 2007 SC 1753 . 8. In the instant case, documents Exhibit D/1 to D/3 were executed on 12-09-1979, 29-06-1982 and 20-1-83 respectively. It is pertinent to mention here that in documents Exhibit D/1 and D/3 date of execution of the sale deed has been specified. Under the said documents, the original plaintiff had placed the defendants in possession in respect of 4.5 acres of land for a consideration of Rs. 6900/-. The plaintiff filed the suit on 22-06-1987 on the ground that he has repaid the entire amount of loan. However, there is no material on record to infer that either the defendants took any steps for execution of the sale deed or paid the balance amount of sale price. The defendants have also not filed any suit for specific performance of the contract despite expiry of the period of limitation. The aforesaid facts lead to irresistible conclusion that the defendants are not ready and willing to perform their part of contract. Consequently, they are not entitled to benefit of Section 53-A of the Act. 9. In view of the preceding analysis, substantial question of law is answered in the negative and in favour of the appellants. Accordingly, the judgment and decree passed by the trial Court and the lower appellate Court are set aside and the suit filed by the plaintiff is decreed with costs. 10. In the result, the appeal is allowed. Appeal allowed.