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2016 DIGILAW 219 (HP)

Bachitar Singh v. Sandhya Devi

2016-03-09

SANJAY KAROL

body2016
JUDGMENT : Sanjay Karol, J. Plaintiffs-appellants have filed the present appeal under the provisions of Section 100 of the Code of Civil Procedure, assailing the judgment and decree dated 1.9.2003, passed by the learned District Judge, Kangra at Dharamshala, in Civil Appeal No.127-N/XIII/2001, titled Smt. Sandhya Devi & others v. Bachitar Singh & others, whereby judgment and decree dated 22.11.2000, passed by the Sub Judge (II), Nurpur, District Kangra, Himachal Pradesh, in Civil Suit No.311/93, titled as Bachittar Singh & others v. Daljit Singh, stands reversed. 2. From the revenue record (Ex.P-1), it is quite apparent that the land in question, situate in village Sanour, was owned by one Sudama, who sold it to Pratap Singh, predecessor-in-interest of the plaintiffs-appellants. With the death of Pratap Singh, his Legal Representatives filed a suit against original defendant Daljit Singh, claiming possession of the land, alleged to have been forcibly occupied by him. Present respondents are the successors-in-interest of said Daljit Singh. 3. For the sake of convenience, appellants are referred to as plaintiffs and successors-in-interest of Daljit Singh are referred to as the defendants. 4. On the strength of the pleadings of the parties, trial Court framed the following issues: 5. Whether plaintiff is entitled for vacant possession of the suit land as alleged? OPP 6. Whether the suit is not maintainable in the present form? OPD 7. Whether the plaintiff has no locus standi to file the present suit?OPD 8. Whether the defendant No.1 is in possession of the suit land on the basis of alleged agreement since the year 1978, if so, its effect?OPD 4 (a) If issue No.4 is proved, whether the defendant is in possession of the suit land in part performance of the alleged agreement dated 26.5.1979, if so, its effect? OPD 4 (b) Whether the defendants have become owners of the suit land by way of adverse possession? OPD 4 (c) Whether the predecessor-in-interest of plaintiffs received full and final consideration as alleged, if so, its effect? OPD 9. Relief. 5. Defendants' plea of having been put in possession of the suit land by Pratap Singh, pursuant to agreement dated 26.5.1979 (Ex.DW-3/A), did not find favour with the trial Court and as such the suit came to be decreed, in the following terms: ?In view of decision on issues No.1,4 & 4 (a) to 4 (c)especially, the suit of the plaintiffs is decreed. The plaintiffs are entitled for vacant possession of the land comprised in Khata No.96 min, khatauni No.364, khasra No.1981, measuring 0-39-39 HM, situated in Mohal and Mauza Sanour Mand, Tehsil Indora, District Kangra, H.P. by way of demolition of structure if any, raised on the above mentioned land. Keeping in view the facts and circumstances of the case, the parties are left to bear their own costs. Decree sheet be drawn accordingly and file after completion be consigned to record room.? 6. Such findings of fact, judgment and decree, so passed by the trial Court, stand reversed by the lower appellate Court. The Court has held the defendant to be in possession of the suit land, pursuant to agreement (Ex. DW-3/A). His plea of adverse possession rightly stands rejected. 7. Present appeal stands admitted on the following substantial question of law: Whether the lower appellate Court misconstrued and misapplied the provisions of Section 53-A of the Transfer of Property Act to the case without any foundation/evidence therefor? 8. Ex. P-1 is the Jamabandi (revenue record), which reveals that the land in question stood sold by the original owner Sudama to Pratap Singh. 9. Plaintiffs pleaded that the entry of mutation, recording the defendant to be in possession (Kabiz) is incorrect, for having been prepared behind their back. Such contention needs to be rejected. 10. In order to prove agreement (Ex. DW-3/A), defendant has examined attesting witness Dilabar Singh (DW-3). Perusal of his testimony reveals that Pratap Singh had agreed to sell entire land, comprising 15 Kanals 15 Marlas in favour of Daljit Singh. Since Pratap Singh was in possession of only half of the land, possession thereof, was handed over to Daljit Singh and the remaining half remained in possession of one Joginder Singh, who was occupying the same as a non-occupancy tenant. With the execution of the agreement to sell, Pratap Singh received Rs.4,000/- as earnest money. The land was to be sold for a consideration of Rs.3,200/- per Kila. Sale deed was to be executed on or before 15.6.1980. 11. Possession of the defendant also stands proved by Dev Raj (DW-2), who further states that the defendant cultivated the land and planted Orange trees, which fact was to the knowledge of Pratap Singh. 12. It is a matter of record that no sale deed could be executed, in terms of the agreement (Ex. DW-3/A). 11. Possession of the defendant also stands proved by Dev Raj (DW-2), who further states that the defendant cultivated the land and planted Orange trees, which fact was to the knowledge of Pratap Singh. 12. It is a matter of record that no sale deed could be executed, in terms of the agreement (Ex. DW-3/A). The reason is not far to seek. Physical possession of the land in possession of Joginder Singh could not be handed over to defendant Daljit Singh, resultantly Pratap Singh executed Power of Attorney (Ex. DW-1/A) dated 19.6.1980 in favour of the defendant, in terms whereof he was authorized to manage/sell/mortgage the land. Thus, Pratap Singh had intended to transfer the entire property in favour of the defendant. 13. There is nothing on record to establish that during his life time, Pratap Singh or for that matter his successors-in-interest took any action of either cancelling the agreement to sell/power of attorney or informing the defendant of having committed breach of any of the terms of the agreement. Non-performance of the terms of the agreement on the part of the defendant was never any issue, either with Pratap Singh or his successors, which came to be reflected only with the presentation of plaint on 14.5.1993. 14. Defendant was put in possession of the suit land pursuant to and in terms of the agreement (Ex. DW-3/A). 15. The Apex Court in Shrimant Shamrao Suryavanshi & another v. Pralhad Bhairoba Suryavanshi (Dead by LRs & others, (2002) 3 SCC 676 , has observed as under: ?Section 53-A was inserted in the Transfer of Property Act on the basis of recommendations of the Special Committee set up by the government of India. The Special Committee's report which is reflected in the aims and objects of Amending Act, 1929 shows that one of the purposes of enacting Section 53-A was to provide protection to a transferee who in part performance of the contract had taken possession of the property even if the limitation to bring a suit for specific performance has expired. The Special Committee's report which is reflected in the aims and objects of Amending Act, 1929 shows that one of the purposes of enacting Section 53-A was to provide protection to a transferee who in part performance of the contract had taken possession of the property even if the limitation to bring a suit for specific performance has expired. Therefore, Section 53-A is required to be interpreted in the light of the recommendation of Special Committee's report and aims, objects contained in Amending Act, 1929 of the Act and specially when Section 53-A itself does not put any restriction to plea taken in defence by a transferee to protect his possession under Section 53-A even if the period of limitation to bring a suit for specific performance has expired. But there are certain conditions which are required to be fulfilled if a transferee wants to defend or protect his possession under S. 53-A of the Act. The necessary conditions are- (1) there must be a contract to transfer for consideration 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. If the conditions enumerated above are complied with, the law of limitation does not come in the way of a defendant taking plea under Section 53-A of the Act to protect his possession of the suit property even though a suit for specific performance of a contract is barred by limitation.? 16. Subsequently, the Apex Court in Saraswati Devi (Dead) by LR v. Delhi Development Authority & others, (2013) 3 SCC 571 , has held that transfer of possession, in terms of a contract to sell, creates encumbrance of property upon such transferee in possession. 17. 16. Subsequently, the Apex Court in Saraswati Devi (Dead) by LR v. Delhi Development Authority & others, (2013) 3 SCC 571 , has held that transfer of possession, in terms of a contract to sell, creates encumbrance of property upon such transferee in possession. 17. Also, in Ramesh Chand Ardawatiya v. Anil Anil Panjwani, (2003) 7 SCC 350 , the Court has held that if a person has entered into possession over immovable property under a contract for sale and is in peaceful and settled possession thereof, with the consent of the person in whom the title vests, he is entitled to protect his possession against the whole world, except a person having a title better than what he or his vendor possesses. Further, if he is in possession of the property in part performance of the contract for sale and the requirements of Section 53-A of the Transfer of Property Act (hereinafter referred to as the Act) are satisfied, he may protect his possession even against the true owner. 18. In Mahadeva & others v. Tanabai, (2004) 5 SCC 88 , the Court has dilated on the object behind the enactment of Section 53-A, clarifying the same to also provide protection to a transferee, who in part-performance of the contract, had taken possession of the property, even if limitation for filing a suit for specific performance stands expired. 19. The aforesaid principle stands reiterated in Lakshmi alias Bhagyalakshmi & another v. E. Jayaram (Dead) by LR, (2013) 9 SCC 311 . 20. Evidence led by the defendant establishes fulfillment of the essential conditions so as to constitute a defence under the provisions of Section 53-A of the Act. Transfer, of an immoveable property, in writing and consent of the vendor, was for a valuable consideration. In part-performance thereof the defendant was put into possession by the vendor. In furtherance thereof, the defendant has tilled the land and put it to his personal use by planting Orange trees and reaping fruits thereof. He had been willing and ready to perform all conditions of the agreement and at no point in time, denied the same. Also, no obligation to be performed by him remained unfulfilled. 21. Significantly, defendant continued to remain in possession of the suit land since the year 1979 and none objected to the same till the year 1993. 22. He had been willing and ready to perform all conditions of the agreement and at no point in time, denied the same. Also, no obligation to be performed by him remained unfulfilled. 21. Significantly, defendant continued to remain in possession of the suit land since the year 1979 and none objected to the same till the year 1993. 22. As such, it cannot be held that findings returned by the first Appellate Court are illegal, perverse and erroneous, warranting interference by this Court. Substantial question of law is answered accordingly. For all the aforesaid reasons, the appeal is dismissed. Cross-Objections and pending application (s), if any, also stand disposed of.