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2023 DIGILAW 66 (AP)

V. Subbamma v. Sure Butchamma

2023-01-05

V.R.K.KRUPA SAGAR

body2023
JUDGMENT : This second appeal under Section 100 C.P.C. is filed by defendant Nos.2 to 5 in the suit. Smt. Sure Butchamma was the sole plaintiff in the suit. She is 1st respondent herein and it seems that she died and 2nd respondent was brought on record as her legal representative. 2. Since notice before admission was ordered and since learned counsel on both sides appeared and argued the matter before admission, the same has fallen for consideration now. 3. O.S.No.790 of 2003 is a suit filed for declaration of title of the plaintiff that she is the owner of the plaint schedule property and consequently to evict the 1st defendant from the suit schedule property and put the plaintiff in possession of the same and for granting mesne profits and for costs and such other reliefs. 4. Plaintiff-Smt. Sure Butchamma pleaded that her husband Sri Sure Kotlu originally purchased the suit schedule property under a registered sale deed dated 10.01.1969 and during his lifetime he made a family arrangement during January 1988 in which Ac.0.62 cents which is the plaint schedule property was granted to the plaintiff while different extents of other properties were granted to the children. After the death of her husband, she was cultivating the plaint schedule lands. While so, defendant No.2, who is her son, was acting against her interest and duped her and brought into the lands defendant No.1 and thereafter they together by manipulation obtained mutation of entries in the revenue records and now defendant No.1 has been in possession of the properties without any manner of right. Since acts of defendant No.1 created cloud over the title of the plaintiff, the suit is filed for declaration of title and for recovery of possession and for mesne profits. 5. Contesting the suit, 1st defendant filed a written statement stating that by an agreement for sale dated 25.05.1995 executed by the plaintiff and 2nd defendant he purchased the property and paid Rs.66,000/- towards part of the sale consideration and he gained possession of the property and he has been cultivating the property and at the time of agreement for sale the vendors also gave him the original link document dated 10.01.1969. While 1st defendant was putting efforts to have the registered sale deed by placing the matter before elders, the present suit is filed. While 1st defendant was putting efforts to have the registered sale deed by placing the matter before elders, the present suit is filed. It is this defendant, who has been in possession and who has been in paying tax. For these reasons, he sought for dismissal of the suit. 6. The son of the plaintiff, who was shown as 2nd defendant, filed his written statement supporting the version of the 1st defendant. On these rival pleadings, learned trial Court settled the following issues for trial. 1. Whether the plaintiff is entitled to declaration prayed for? 2. Whether the plaintiff is entitled to permanent injunction as prayed for? 3. To what relief? 7. Both parties adduced their evidence. For plaintiff, PWs.1 to 4 were examined and Exs.A.1 to A.6 were marked. For defendants, DWs.1 to 3 were examined and Exs.B.1 to B.7 were marked. CWs.1 and 2 were examined and Exs.X.1 and X.2 were marked. 8. After due consideration of the evidence on record and on considering the arguments on both sides, learned trial Court decided all the issues against the plaintiff and dismissed the suit without costs. 9. Then the plaintiff carried the matter to first appellate Court/VII Additional District Judge, Eluru and filed A.S.No.95 of 2010. The learned first appellate Court recorded the various grounds urged in the appeal and settled the following points for consideration : 1. Whether the appellant/plaintiff is entitled for declaration as prayed for? 2. Whether the appellant/plaintiff is entitled for possession of the schedule property after evicting the respondents/defendants from the schedule property? 3. Whether there are any reasonable grounds to set aside the Judgment and Decree passed by the lower Court? 10. After deliberating upon the evidence and the precedent, the learned first appellate Court found that the judgment of the trial Court was erroneous and set aside the same and allowed the appeal and as a consequence decreed the suit as prayed for. 11. It is against that judgment of the first appellate Court, the defendants have carried the matter in this second appeal. 12. Originally in the suit there was one plaintiff and two defendants. 1st defendant died and therefore, defendant Nos.3 to 5 were brought on record as legal representatives. Thereafter, 2nd defendant died. It was recorded that there were no legal representatives known. 12. Originally in the suit there was one plaintiff and two defendants. 1st defendant died and therefore, defendant Nos.3 to 5 were brought on record as legal representatives. Thereafter, 2nd defendant died. It was recorded that there were no legal representatives known. Thus, by the time the trial Court rendered its judgment there were in the array defendant Nos.1 to 5. Out of whom, defendant Nos.1 and 2 died. These defendant Nos.3 to 5 are the appellants herein. However, in the appeal papers they are referred as defendant Nos.2 to 5 which is incorrect. 13. Learned counsel for appellants submits that the judgment of the first appellate Court is incorrect and erroneous that the suit was barred by limitation that though the plaintiff failed to prove her possession decree was passed erroneously in favour of the plaintiff. These appellants established their rights and possession by producing various witnesses and documents and the first appellate Court ought to have protected the possession of these appellants since their Ex.B.2-agreement for sale entitles them to hold on to the possession in terms of Section 53A of the Transfer of Property Act. The learned first appellate Court observed that these appellants did not take the plea of adverse possession, but it failed to consider the matter on record and mould the relief as is provided under Order VII Rule 7 C.P.C. It is on these submissions, learned counsel for appellants urge for admission of this appeal. 14. As against this, learned counsel for respondent submits that this appeal has not disclosed any substantial question of law and it requires dismissal at the stage of admission. Learned counsel further submits that the erroneous judgment of the trial Court was properly set aside by the first appellate Court on facts and law and therefore, there is absolutely no merit in this appeal. 15. During the course of hearing arguments, learned counsel for respondent submitted that subsequent to the judgment of the first appellate Court, which granted declaration of title and delivery of possession, the decree holder/respondent filed execution proceedings and property was delivered to the decree holder/respondent. This factual submission is admitted to be correct by the learned counsel for the appellants also. 16. Learned counsel on both sides during the course of hearing cited various legal authorities. 17. This factual submission is admitted to be correct by the learned counsel for the appellants also. 16. Learned counsel on both sides during the course of hearing cited various legal authorities. 17. As could be seen from the record that is made available to this Court the following facts are found undisputed either from the pleadings of both sides or from the established facts: An extent of Ac.0.62 cents of land is shown in the plaint schedule. It is about that the entire controversy that arose between parties. This property as per Ex.B.1-registered sale deed dated 10.01.1969, the registered extract of which was also filed on plaintiff’s side as Ex.A.1 belonged to Sri Sure Kotlu. Thus, he was the original owner. He died. Plaintiff Smt. Sure Butchamma is his wife and defendant No.2 Sri Sure Ranga Rao is his son and there are other sons and daughters also. Thus, the plaint schedule property belonged to the family of the plaintiff. Defendant No.1 whose legal representatives are the appellants here do not belong to that family and they are outsiders. They did not trace their title to late Sri Sure Kotlu. It is not their case that Sri Sure Kotlu executed any document in favour of defendant No.1. It is in the said background the suit came to be filed. The pleaded case of plaintiff and the evidence led by plaintiff indicated that way back in the year 1988 there was a family arrangement under which plaint schedule property was allotted to plaintiff, who is the wife of the original owner. Defendant No.1 was not a witness to those proceedings and did not have any particular knowledge to say anything contrary to that. It was on these suppositions after due consideration of evidence, learned first appellate Court declared that plaintiff is the title holder of plaint schedule property and accordingly a declaratory relief was granted. 18. The claim of defendant No.1 before the trial Court was that he was the owner of this property. His claim was based on Ex.B.2, which is an unregistered agreement for sale dated 25.05.1995. This was executed by the plaintiff and her son defendant No.2. Thus, 1st defendant by virtue of Ex.B.2 admits plaintiff as the owner of the plaint schedule property and under Ex.B.2 he agreed to purchase that property from her. His claim was based on Ex.B.2, which is an unregistered agreement for sale dated 25.05.1995. This was executed by the plaintiff and her son defendant No.2. Thus, 1st defendant by virtue of Ex.B.2 admits plaintiff as the owner of the plaint schedule property and under Ex.B.2 he agreed to purchase that property from her. While this was the matter that was available before the learned trial Court, the learned trial Court in its judgment at para No.7 while answering issue No.2 stated that plaintiff lost her title over the plaint schedule property as she executed the said agreement for sale in favour of defendant No.1 and therefore, plaintiff was not entitled for any relief. Thus, by virtue of an agreement for sale the trial Court was of the opinion that the plaintiff lost her title. The learned first appellate Court considered this aspect of the matter at length and reversed that finding stating that plaintiff never lost her title. Be it noted defendant No.1, whose legal representatives are the appellants herein, did not obtain any registered sale deed in pursuance of their Ex.B.2 agreement for sale. Transfer of ownership occurs, in cases of sale, as provided by Section 54 of the Transfer of Property Act, 1882. As per this provision, only by way of a registered instrument title over immovable property worth more than Rs.100/- (in this case the property is worth more than Rs.100/-) stands transferred. This provision also makes it clear that a contract for sale shall take place on terms settled between the parties and the mere contract for sale does not create any interest over the property. Explaining this aspect of the matter the Hon’ble Supreme Court of India stated that an agreement to sell does not create any right or title in favour of intending buyer vide Meghmala v. G. Narasimha Reddy, (2010) 8 SCC 383 . In the case at hand, Ex.B.2 is not a registered sale deed. Therefore, defendant No.1 did not gain title over the property. By virtue of recitals in Ex.B.2 he admits the claim of the plaintiff that she was the owner of the property. The pleadings and the evidence of plaintiff and by virtue of Exs.A.1 and B.1 and the family settlement effected by her husband, who was the very original owner, she became the owner. By virtue of recitals in Ex.B.2 he admits the claim of the plaintiff that she was the owner of the property. The pleadings and the evidence of plaintiff and by virtue of Exs.A.1 and B.1 and the family settlement effected by her husband, who was the very original owner, she became the owner. It is in these circumstances, the judgment of the first appellate Court that the plaintiff was found to be the title holder of the plaint schedule property is perfectly correct. In fact, while arguing this appeal, the appellants did not seriously challenge the title declaration made by the first appellate Court. Therefore, to that extent no substantial question of law arises before this Court concerning title declaration that was prayed in the suit and was granted by the first appellate Court stands confirmed. 19. The main controversy in this appeal is on the question of possession of the property and the judgment of the first appellate Court in granting delivery of possession of property in favour of the plaintiff. A reading of the plaint and the relief claimed in the plaint and the evidence led by plaintiff clearly show that since 1995 the property has been in possession of defendant No.1. It is for that reason the plaintiff sought for recovery of possession of the property. On the evidence before the trial Court it was recorded that possession of defendant No.1 was established. That finding was approved in the first appellate Court’s judgment also. It was only after recognizing that defendant No.1 was in possession of the property the first appellate Court granted eviction of defendant No.1 and delivery of possession to plaintiff whose title was declared. It is that aspect of the matter which is now challenged in this second appeal. The submissions of the learned counsel for appellants revolve around Section 53A of the Transfer of Property Act. Therefore, it is relevant to notice the said provision. “53A. It is that aspect of the matter which is now challenged in this second appeal. The submissions of the learned counsel for appellants revolve around Section 53A of the Transfer of Property Act. Therefore, it is relevant to notice the said provision. “53A. Part performance.— Where any person contracts to transfer for consideration any immoveable 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 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.” 20. This provision makes it clear that the transferee, in part performance of the contract, if has taken possession of the property and has done some act in furtherance of the contract, then his right to protect his possession arises provided that transferee has performed or willingness to perform his part of the contract. As is seen from the appendix of evidence attached to the judgment of the trial Court, Ex.B.2, which is an unregistered agreement for sale dated 25.05.1995, was not marked for its terms, but it was marked only for collateral purpose. This aspect of the matter was not considered by the trial Court. As is seen from the appendix of evidence attached to the judgment of the trial Court, Ex.B.2, which is an unregistered agreement for sale dated 25.05.1995, was not marked for its terms, but it was marked only for collateral purpose. This aspect of the matter was not considered by the trial Court. However, this aspect of the matter was considered by the first appellate Court wherein it observed that for absence of required stamp and registration the document was not marked for primary purpose and in such an event, there was no possibility for the agreement holder/transferee to hold on to that document to argue possession. It is for the appellants to show as to how that finding of the first appellate Court is incorrect. It must be recorded that nothing worthwhile was submitted for appellants on this aspect of the matter. Viewed from this angle, it shall be stated that the approach of the first appellate Court is correct on facts and law. No substantial question of law arises in this second appeal. 21. Whether a decree for recovery of possession could be granted to transferor against transferee who had been put in possession in part performance of sale agreement when the transferor failed to enforce agreement for sale within limitation is a substantial question of law vide Huvappa Irappa Ballari v. Basava, (2005) 12 SCC 164 . It is on this principle learned counsel for appellants argued that this second appeal shall be admitted since similar situation has emerged from the record. 22. Person obtaining possession of the property in part performance of an agreement for sale can defend his possession in terms of Section 53A of the Transfer of Property Act, 1882 when a suit for recovery of possession is filed against him and this right is available despite the fact that the possible suit for specific performance is barred by law of limitation vide Shrimant Shamrao Suryavanshi v. Pralhad Bhairoba Suryavanshi, (2002) 3 SCC 676 . Based on this legal proposition, the learned counsel submits that despite the fact of bar of limitation in filing a suit for specific performance, the possession of the appellants, being legal representatives of the deceased 1st defendant, shall be protected. 23. As against the above arguments, learned counsel for respondent cited A. Lewis v. M.T. Ramamurthy, (2007) 14 SCC 87 . 23. As against the above arguments, learned counsel for respondent cited A. Lewis v. M.T. Ramamurthy, (2007) 14 SCC 87 . In this case, the Hon’ble Supreme Court of India held that benefit of Section 53A of the Transfer of Property Act is not available if transferee kept quiet and remained passive without taking any effective steps when a suit for declaration and recovery of possession is filed against him and the protection of Section 53A of the Transfer of Property Act in the above referred circumstances cannot be availed. 24. Learned counsel for respondent also recited Shivaji Yallappa Patil v. Ranajeet Appasaheb Patil, 2018 SCC OnLine SC 383. Their Lordships of the Hon’ble Supreme Court of India held that Section 53A of the Transfer of Property Act confers no right on a party who was not willing to perform his part of the contract. Every transferee has to prove that he was honestly ready and willing to perform his part under the contract. 25. Learned counsel for respondent also cited Shyam Narayan Prasad v. Krishna Prasad, (2018) 7 SCC 646 . Their Lordships of Hon’ble Supreme Court of India held that one who intends to avail the benefit of Section 53A of the Transfer of Property Act must plead that he has taken possession of the property in part-performance of the contract. If such a plea is not raised in the written statement filed by the intending purchaser in defence of a suit filed against him, he cannot avail the benefits of the above said provision. 26. In the light of the above governing ratios now the fact of the matter has to be decided. It is already stated that Ex.B.2-agreement for sale, which is under stamped and unregistered, was not marked for its primary purpose and thus, the entire theme raised by the appellants about holding possession in pursuance of agreement for sale does not survive. The judgment of the first appellate Court very elaborately discussed the evidence that was adduced at trial and concluded by saying that though the agreement for sale was of the year 1995 and though the suit was filed in the year 2003, any time in between them there was absolutely no positive move from defendant No.1/proposed purchaser expressing his willingness to pay the balance sale consideration and willingness to obtain the registered sale deed. He neither issued a notice nor filed a suit nor did anything in pursuance of the said agreement for sale. That being finding of fact this Court cannot go behind it. Even in terms of Section 103 C.P.C. when this Court considers the material on record and considers the facts, this Court finds no infirmity or perversity in the approach of the learned first appellate Court. Therefore, irrespective of the fact whether the suit for specific performance was barred by time or not, the protection under Section 53A of the Transfer of Property Act could not be prayed for by the appellants by their sheer inaction in pursuance of their agreement for sale. It is for these reasons, this Court finds that in the case at hand no substantial question of law is seen to emerge especially in the context that Ex.B.2-agreement for sale was not accepted for its primary purpose by the trial Court itself against which there is absolutely no challenge in this second appeal. For these reasons, this second appeal cannot be admitted. 27. The submissions of appellants are that though there were no averments in the written statement, the case of appellants could be considered under the doctrine of adverse possession. It is also argued that suit was barred by limitation. These submissions are meritless. Possession of defendant No.1/ predecessor in interest to the appellants commenced in 1995. Suit was filed by respondent/plaintiff in 2003. Thus within 8 (eight) years from the time of dispossession suit on title and recovery of possession based on title was filed. As per Article 65 of Schedule to the Limitation Act, 1963 the possession of defendant No.1 becomes adverse only on expiry of 12 years to have the title prescribed in terms of Section 27 of the Limitation Act, 1963. Since within that twelve years the suit was filed, the suit is neither barred nor there was prescription of title by adverse possession. Hence, the contention is against law and is thus negatived. 28. In the result, this Second Appeal is dismissed at the stage of admission. There shall be no order as to costs. As a sequel, miscellaneous applications pending, if any, shall stand closed.