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2013 DIGILAW 896 (HP)

Lashkari Ram v. Bakshi Ram

2013-10-18

KULDIP SINGH

body2013
JUDGMENT Kuldip Singh, Judge. The appellant having lost in both the courts has filed second appeal against the judgement, decree dated 31.8.2006 passed by learned District Judge, Hamirpur in Civil Appeal No. 37 of 2005, affirming judgement, decree dated 6.12.2004 passed by Civil Judge (Junior Division) Court No. 1, Hamirpur in Civil Suit No. 311 of 1993. 2. The facts in brief are that appellant had filed a suit for permanent prohibitory injunction, in the alternative for possession regarding land comprising in khasra No. 168 measuring 10 marlas, Tikka Dadu, Tappa Mewa (for short, suit land) on the plea that he is owner in possession of the suit land, the respondent is stranger to the suit land and has no right, title or interest over the suit land . On 20.11.1993 in the demarcation given by kanungo the house of respondent was found over adjoining khasra No. 167. The respondent had collected material for covering best portion of the suit land. He was requested not to interfere over the suit land, but in vain, therefore, the suit was filed. 3.The suit was contested by the respondent by filing written statement. He took several preliminary objections, such as, locus-standi, cause of action, estoppel, valuation and maintainability. On merits, the respondent denied the ownership and possession of the appellant. He took the plea that suit land is owned and possessed by him since 3.10.1984 over which he has constructed a house. The appellant is out of possession. The respondent is in possession of the suit land in view of agreement dated 3.10.1984. The house of the respondent is over the suit land and remaining portion of the suit land is used by the respondent as courtyard, which has been fenced since 3.10.1984. 4. The appellant has concealed material facts. The appellant had agreed to sell the suit land alongwith house for a consideration of Rs. 9,000/- on 3.10.1984 and received Rs.7,000/- at the time of execution of the agreement. The remaining Rs. 2,000/- were to be paid to appellant at the time of execution of the sale deed. The appellant did not execute the sale deed. The respondent is ready and willing to perform his part of the agreement. The appellant had handed over the possession of the house and the land on 3.10.1984 as per agreement and since then the respondent is in possession of the suit land. 5. The appellant did not execute the sale deed. The respondent is ready and willing to perform his part of the agreement. The appellant had handed over the possession of the house and the land on 3.10.1984 as per agreement and since then the respondent is in possession of the suit land. 5. On the pleadings of the parties, the following issues were framed by the trial court:- 1. Whether the plaintiff is entitled for the relief of permanent prohibitory injunction as prayed? OPP 2. Whether the plaintiff has no locus standi and cause of action to file the suit? OPD. 3. Whether the plaintiff is estopped by his own act and conduct from filing the suit? OPD 4. Whether the suit is not properly valued for the purpose of court fee and jurisdiction as alleged? OPD. 5. Whether the suit is not maintainable in the present form? OPD. 6. Whether the plaintiff entered into an agreement with the defendant to sell the disputed property on 3.10.1984 for a sum of Rs.7000/- and consequently the defendant was put in possession over the disputed property as alleged in para Nos. 3 and 4 of the written statement, if so, its effect? OPD.7. Relief. The issues No. 1, 4 were answered in negative, issues No. 2, 3, 5 and 6 in affirmative and suit was dismissed by the trial court on 6.12.2004. The appeal filed by the appellant was also dismissed by learned District Judge on 31.8.2006, hence second appeal, which has been admitted on the following substantial question of law:-Whether the defendant- respondent was entitled to the protection of his possession under Section 53-A of Transfer of Property Act and there has been misreading of evidence in this regard? 6.I have heard the learned counsel for the parties and have also gone through the record. On behalf of the appellant, it has been submitted that two courts below have misconstrued, misinterpreted section 53-A of Transfer of Property Act. The courts below have also misread the evidence. It has been wrongly held that possession of the suit land was handed over to respondent in pursuance of agreement dated 3.10.1984. It has been wrongly held that respondent is ready and willing to perform his part of the contract. On behalf of the respondent, it has been submitted that two courts below have concurrently held that appellant had executed agreement to sell Ex. It has been wrongly held that respondent is ready and willing to perform his part of the contract. On behalf of the respondent, it has been submitted that two courts below have concurrently held that appellant had executed agreement to sell Ex. D-1 dated 3.10.1984 and on the basis of agreement the respondent is in possession of the suit land, the respondent remained ready and willing to perform his part of the contract. It has been submitted that no substantial question of law is involved in the appeal. The evidence cannot be re-appreciated in second appeal. The respondent has prayed for dismissal of the appeal. 7.In the plaint, the appellant has prayed for permanent prohibitory injunction and in alternative possession. In the written statement, the respondent has pleaded possession over suit land on the basis of agreement dated 3.10.1984. Ex. D-1 is the agreement dated 3.10.1984 for sale of suit land between appellant and respondent. 8. DW 5 Basant Ram, marginal witness has proved agreement Ex. D-1 and has stated that Lashkari had sold the land to Bakshi Ram for Rs. 9,000/- who paid Rs. 7,000/- in his presence. He signed Ex. D-1 as witness, which was also signed by Lashkari. He has stated that Nathu Ram another marginal witness of the agreement has died. Bakshi Ram is coming in possession over the said land on the basis of agreement. 9.DW 1 Bakshi Ram has also stated that Lashkari had signed agreement Ex. D-1. He is coming in possession of land and house since the date of agreement. He had applied for correction of entries in the year 1993. PW 1 Rattan Chand s/o Lashkari is the power of attorney of appellant Lashkari Ram. He has stated that respondent has no right over the suit land. He denied that his father has sold any house to Bakshi. He has also denied that on 3.10.1984 his father after receiving Rs.7,000/- had entered into an agreement for sale of land and house for a consideration of Rs. 9,000/- in presence of Nathu Ram and Basant Ram. The suit land is comprised in khasra No. 168. 10. The statement of DW 6 Shiv Ram was recorded on 17.2.1998. He remained President of the Panchayat. He has been seeing the possession of Bakshi Ram for the last 14-15 years over the said house. 9,000/- in presence of Nathu Ram and Basant Ram. The suit land is comprised in khasra No. 168. 10. The statement of DW 6 Shiv Ram was recorded on 17.2.1998. He remained President of the Panchayat. He has been seeing the possession of Bakshi Ram for the last 14-15 years over the said house. He came to know that Bakshi Ram had purchased the house from Lashkari. DW 7 Mahant Ram has stated that he has been seeing the possession of Bakshi over the disputed house for the last 14-15 years. The statement of DW 7 was recorded on 13.5.1998. DW 8 Beli Ram, who was Ward Panch in the year 1995 has stated that possession of respondent over the suit land and house is for the last 15 years, which he purchased from the appellant. The statement of DW 8 was recorded on 20.6.1998. Ex. PB and Ex. D-4 are the jamabandies for the year 1989-90 regarding khasra No. 168 showing abadi. Ex. D-5 is the copy of missal hakiyat for the year 1984-85 showing abadi over khasra No. 168. 11. The execution of agreement dated 3.10.1984 Ex. D-1 between the appellant and respondent for sale of suit land has been proved. It has also been proved that land comprised in khasra No. 168 measuring 10 marlas with abadi is in possession of respondent in pursuance of agreement Ex. D-1. It is admitted case of the parties that no sale deed on the basis of agreement Ex. D-1 came to be registered in favour of the respondent. The court below in view of Section 53-A of Transfer of Property Act dismissed the suit of the appellant. The point for consideration is whether respondent is entitled to protection of section 53-A of Transfer of Property Act in view of proved title of appellant over khasra No. 168. 12.The Section 53-A of Transfer of Property Act at the relevant time was as follows:- “53A. Part performance. The point for consideration is whether respondent is entitled to protection of section 53-A of Transfer of Property Act in view of proved title of appellant over khasra No. 168. 12.The Section 53-A of Transfer of Property Act at the relevant time was as follows:- “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 therefor 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.” 13. In SHRIMANT SHAMRAO SURYAVANSHI AND ANOTHER Vs. PRALHAD BHAIROBA SURYAVANSHI (DEAD) BY LRS. AND OTHERS (2002) 3 SCC 676 , the Supreme Court 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 53A of the Act. In SHRIMANT SHAMRAO SURYAVANSHI AND ANOTHER Vs. PRALHAD BHAIROBA SURYAVANSHI (DEAD) BY LRS. AND OTHERS (2002) 3 SCC 676 , the Supreme Court 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 53A of the Act. 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, or 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.” 14.In Sardar Govindrao Mahadik and another vs. Devi Sahai and others AIR 1982 SC 989 , in paragraph-41 of the report, it has been held as follows:- “Section 53-A requires that the person claiming the benefit of part performance must always be shown to be ready and willing to perform his part of the contract. And if it is shown that he was not ready and willing to perform his part of the contract he will not qualify for the protection of the doctrine of part performance .... There is no such statement in the written statement but even in his evidence at the trial he has not been able to show that he has paid any creditor or made any attempt to pay any of the creditors All this would conclusively show that the mortgagor himself was not willing to perform his part of the contract “ 15.A learned Single Judge of this court in Sita Ram vs. Smt. Kanta Devi and others 1981 Sim. L.C. 239, has held as follows:- `“A person seeking protection of doctrine of part performance as enunciated in Section 53-A of the Transfer of Property Act has thus to plead and prove inter alia that he has in part performance of the contract taken possession of the property or any part thereof and in case he was already in possession, he continues to be in such possession in part performance of the contract and has done some act in furtherance of the contract. In addition he has also to allege and prove that he has performed or is willing to perform his part of the contract “ 16.In Sohan Singh and other vs. Gulzari AIR 1997 HP 12 , again it has been held as under:- “One of the salient condition to be fulfilled by the transferee for invoking the principle of part performance is that he has performed or is willing to perform his part of the contract. Section 53-A, Transfer of the Property Act requires that the person claiming the benefit of part performance must always be shown to be ready and willing to perform his part of the contract and if it is shown that he was not ready and willing to perform his part of contract, he will not qualify for the principle of doctrine of part performance. ( See Kuldip Singh Sawhney v. Mrs. Parkash Chand, AIR 1985 Punj. & Har. 222 and Sardar Govindrao Mahadik v. Devi Sahai, AIR 1982 SC 989 ). “ 17.In the written statement, no doubt, the respondent has pleaded that he is ready and willing to perform his part of the agreement, but mere reproduction of statutory provision in the pleadings for taking benefit of section 53-A of the Transfer of Property Act is not enough unless such averment is proved. The respondent while appearing his own witness as DW 1 has stated that he had paid Rs 7,000/- at the time of agreement and Rs. 2,000/- was to be paid at the time of execution and registration of sale deed. In agreement Ex. D-1 one month time from 3.10.1984 was provided for execution and registration of the sale-deed with further stipulation that in case respondent would fail to execute and register the sale- deed within the prescribed period then the advance given by him would be forfeited. In agreement Ex. D-1 one month time from 3.10.1984 was provided for execution and registration of the sale-deed with further stipulation that in case respondent would fail to execute and register the sale- deed within the prescribed period then the advance given by him would be forfeited. In his statement, respondent has not uttered a word that he remained ready and willing to perform his part of the contract nor he has stated that after the agreement dated 3.10.1984 he ever offered Rs 2,000/- balance sale consideration to the appellant nor from his statement it emerges that he was ready and willing to perform his part of the contract on the basis of the agreement dated 3.10.1984 Ex. D-1. There is no evidence that within one month time provided in agreement Ex. D-1 respondent took steps for execution and registration of the sale-deed as per agreement. There is no evidence that respondent issued any notice to appellant even till the filing of the suit indicating that he was ready and willing to perform his part of the agreement and it was appellant who failed to execute and register the sale-deed as per agreement Ex. D-1. 18.In paragraph- 28 of the judgement dated 6.12.2004 the trial court has observed that defendant is still ready and willing to perform his part of the contract. The first appellate court on 31.8.2006 has affirmed the judgement, decree of the trial court without recording specific finding that respondent was ready and willing to perform his part of the contract as per agreement Ex. D-1. The two courts below have misconstrued, misinterpreted the evidence for giving protection of section 53-A of Transfer of Property Act to the respondent. In absence of evidence and proof of readiness and willingness on the part of the respondent to perform his part of contract as per agreement Ex. D-1, the respondent is not entitled to protection of section 53-A of Transfer of Property Act. 19. The appellant has filed the suit for permanent prohibitory injunction, in the alternative for possession. The appellant has failed to prove his possession over the suit land. On the contrary, it has been proved that respondent is in possession of the suit land. The title of the appellant over the suit land has been proved. The respondent has failed to prove his right, title or interest over the suit land. The appellant has failed to prove his possession over the suit land. On the contrary, it has been proved that respondent is in possession of the suit land. The title of the appellant over the suit land has been proved. The respondent has failed to prove his right, title or interest over the suit land. It has already been held that respondent is not entitled to protection of section 53-A of Transfer of Property Act. 20. In Nathu Ram vs. Smt. Kallan Devi and others 1997 (3) Sim. L.C. 373, the appellant therein had filed a suit for declaration and injunction and in the alternative for possession. The trial court decreed the suit. The learned lower appellate court held Mangat Ram defendant No. 1 in unauthorized occupation of certain khasra numbers and therefore, judgement and decree of the trial court to that extent were set-aside and appeal was partly allowed. The High Court held title of appellant and defendant No. 2 therein on the suit land, the tenancy of defendant No. 1 was not established. The High Court set-aside the judgement, decree of the lower appellate court and restored the judgement and decree of the trial court with the modification that appellant and defendant No. 2 therein were held owners of the land detailed in the report and a decree for possession was passed in favour of appellant and defendant No. 2 with mesne profits till the date of delivery of possession. In the present case also, the appellant is entitled to alternative relief by way of decree of possession on the basis of title. The substantial question of law noticed above is decided in favour of the appellant and against the respondent. 21. In view of above, the appeal is allowed.The judgements, decrees passed by two courts below are set-aside and suit of the appellant- plaintiff for possession of the suit land is decreed with no order as to costs.