Research › Search › Judgment

Kerala High Court · body

2025 DIGILAW 684 (KER)

Belwin Raj S/o. Siras Benson v. Muttayyan

2025-03-21

A.BADHARUDEEN

body2025
JUDGMENT : Plaintiffs 1 and 2 in O.S.No.1472 of 1995 on the files of the 1 st Additional Sub Court, Thiruvananthapuram, have filed R.F.A.No.52/2004, challenging the decree and judgment in the above suit dated 23.07.2003, arraying defendants in the suit as the respondents. In the meanwhile, the 1 st defendant died and defendants 2 to 4 were recorded as his legal heirs vide order dated 15.12.2023 in I.A.No.1/2023. 2. R.F.A.No.433/2004 is at the instance of defendants 1 to 4, challenging dismissal of a counter claim on disallowing the prayer for specific performance of agreement for sale. The respondents are the plaintiffs in the above suit. During pendency of this appeal, 1 st defendant died. Accordingly defendants 2 to 4/appellants 2 to 4 were recorded as the LR of the 1 st defendant. Apart from that additional 5th appellant also impleaded as LRs of the 1 st defendant. 3. Heard the learned counsel on both sides. Perused the verdict under challenge and the decisions placed by both sides. 4. In order to have an effective discussion of the case, the parties in these appeals will be referred as to their status before the trial court. 5. Plaintiffs filed suit for declaration of title in respect of plaint `A’ schedule property and possession over A and B schedule buildings therein and for recovery of possession of plaint `C’ schedule building, as that of the 1 st plaintiff, which is in possession of the 1 st defendant. Ext.A2 settlement deed No.108/1994 dated 12.12.1994 and Ext.A3 settlement deed No.720/1995 dated 08.08.1995 executed by the 2 nd plaintiff, are the title documents relied on by the 1 st plaintiff to assert title over the same. 6. Resisting title and possession over plaint `C’ schedule building and the property occupies the same, the defendants filed written statement initially. Ext.A2 settlement deed No.108/1994 dated 12.12.1994 and Ext.A3 settlement deed No.720/1995 dated 08.08.1995 executed by the 2 nd plaintiff, are the title documents relied on by the 1 st plaintiff to assert title over the same. 6. Resisting title and possession over plaint `C’ schedule building and the property occupies the same, the defendants filed written statement initially. Later incorporated counter claim seeking the relief of specific performance of Ext.B2 agreement by way of amendment, inter alia, contending that 10 cents of property along with B schedule building and 9 cents of property along with plaint `C’ schedule building were separated and according to the defendants, in respect of the 9 cents of property and building situated therein as `C’ schedule, the 2 nd plaintiff executed Ext.B2 agreement dated 16.04.1995 for sale of the same in favour of the 1 st defendant with undertaking to execute the sale deed for a total consideration of Rs.2,50,000/-, out of which, Rs.1,50,000/- was paid as advance. The plea to execute Ext.B2 agreement was incorporated by amending the written statement by filing I.A.No.1749 of 2002. 7. The trial court raised necessary issues. PW1 and PW2 were examined and Exts.A1 to A9 were marked on the side of the plaintiffs. DW1 to DW5 were examined and Ext.B1 was marked on the side of the defendants. Apart from that, Exts.C1 and C1(a) were marked as court exhibits. 8. On hearing both sides, the trial court dismissed the suit as well as the counter claim and accordingly both parties are in appeal. The respective counsel on both sides advanced arguments to justify their claims. Now the points arise for consideration are : (i) Whether the finding of the trial court holding that the counter claim relief for specific performance is barred by limitation, is justifiable? (ii)Whether the trial court went wrong in not granting specific performance of Ext.B2 agreement? (iii) Whether the trial court is right in finding that the 1 st defendant’s possession over `C’ schedule building is protected under Section 53A of the Transfer of Property Act, 1882 (`T.P Act’ for short hereafter) while denying right of recovery of possession in respect of `C’ schedule building sought for by the plaintiffs? (iv) Whether the trial court erred in not granting the declaration of title over plaint A and B schedule properties sought for by the 1 st plaintiff? (iv) Whether the trial court erred in not granting the declaration of title over plaint A and B schedule properties sought for by the 1 st plaintiff? (v)Whether the trial court is justified in not granting the recovery of possession of the plaint C schedule building sought for by the 1 st plaintiff? (vi) What are the essentials required to perfect possession and protection in terms of Section 53A of the Transfer of Property Act? (vii) Whether the verdict under challenge would require interference? (viii) Relief and costs? Point No.1 9. In the instant case even though the defendants had filed written statement on 21.07.1997, the relief to get specific performance of Ext.B2 agreement dated 16.04.1995, wherein the time to execute the same was fixed before 30.11.1997, got incorporated as per order in I.A.No.1749/2002 dated 24.07.2002. While addressing the question of limitation, the learned Sub Judge appraised the contention raised by the plaintiffs that the period to execute Ext.B2 sale deed would start from 30.11.1997 and the counter claim for specific performance of Ext.B2 ought to have been filed on or before 30.11.2000. On perusal of the records it is discernible that the prayer to amend the counter claim seeking specific performance of Ext.B2 agreement dated 16.04.1995, where the time for execution was fixed as on or before 30.11.1997, got incorporated on 24.07.2002. According to the learned counsel for the defendants, even though the amendment was brought into force on 24.07.2002, i.e., before 29.11.2000, the amendment relates back to the date of filing of the counter claim and therefore the counter claim is not barred by limitation. In this connection, the learned counsel placed decision of this Court reported in [ MANU/KE/2843/2020 ], Sasidharan v. Sudarsanan & Ors. with reference to paragraph 32, wherein this Court held that, the general rule, no doubt, is that a party shall not be allowed by amendment to set up a new case or a new cause of action particularly when a suit on new case or cause of action is barred. But it is also well recognised that where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts to no more than, a different or additional approach to the same facts, the amendment will be allowed even after the expiry of the statutory period of limitation. But it is also well recognised that where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts to no more than, a different or additional approach to the same facts, the amendment will be allowed even after the expiry of the statutory period of limitation. When what is sought to be brought in by the amendment can be said in substance to be already in the pleading sought to be amended, bar of limitation is not a good ground to refuse amendment (See A.K. Gupta and Sons Limited v. Damodar Valley Corporation : MANU/SC/0014/1965 : AIR 1967 SC 96 ). Where the amendment does not constitute an addition of a new cause of action, or raise a new case, but amounts to no more than adding to the facts already on the record, the amendment would be allowed even after the statutory period of limitation (See Vineet Kumar v. Mangal Sain : MANU/SC/0333/1984: AIR 1985 SC 817 ). There is no absolute rule that in every case where a relief is barred because of limitation an amendment should not be allowed (See Pankaja v. Yellappa MANU/SC/0590/2004: AIR 2004 SC 4102 ). When the plea, that the relief sought by way of amendment is barred by time, is arguable in the circumstances of a case, amendment can be allowed and the plea of limitation, being disputed, could be made a subject matter of the issue after allowing the amendment prayed for (See Ragu Thilak v. Rayappan : MANU/SC/0057/2001: AIR 2001 SC 699 ). 10. In paragraph 32 what this Court held is that there is no absolute rule that there is no amendment should be allowed and the plea of limitation if disputed could be made as subject matter of the issue after allowing the amendment prayed for. As per Article 54 of the Limitation Act, the period to file a suit for specific performance of a contract is for 3 years and the time from which period begins to run is from the date fixed for performance or if no such date is fixed when the plaintiff notices that such performance has been refused. 11. As per Article 54 of the Limitation Act, the period to file a suit for specific performance of a contract is for 3 years and the time from which period begins to run is from the date fixed for performance or if no such date is fixed when the plaintiff notices that such performance has been refused. 11. In this connection it is necessary to mention the doctrine of `relation back’, which is a legal principle that allows acts done later are to be treated as acts done earlier in time, and it has application on various areas of law, including adoption, amendment of pleadings and contracts. In this connection, the following three Apex Court judgments are relevant and are as under: 12. In Vishwam Bhar v. Lakminarayana , AIR 2001 S.C. 2607 , (2001) 6 SCC 163 decided by the Supreme Court on the 20th July 2001 arose out of a suit by two sons against purchasers in possession of lands by virtue of sale deeds executed by their widowed mother during their minority without legal necessity and without permission under Section 8 of the Hindu Minority and Guardianship Act, 1956. Apart from the two purchasers, the mother and four sisters were impleaded as defendants. The plaintiff No. 1 Vishwambhar attained majority on 20th July, 1978, the plaintiff No.2 Digambar attained majority on the 5th of August 1975 and the suit was filed on the 30th of November, 1980. Article 60 of the Limitation Act lays down the period of limitation for setting aside such sale as three years from the date of attaining majority. Digambar's Suit therefore, was barred by Limitation. Basis of the suit originally was that the sale by the mother was void ab initio. Later on in December, 1985 by an amendment the prayer to declare the sale deeds as invalid and inoperative and to set them aside was added. The trial court applied the doctrine of relation back and decreed the suit of Vishambhar as if such a prayer was there on the date of institution of the suit. The first and the second appellate court refused to apply the doctrine and the dismissed the suit of Vishambhar as well. The Supreme Court observed thus :- "The basis of the suit before amendment was that sales were void ab initio and are liable to be ignored. The first and the second appellate court refused to apply the doctrine and the dismissed the suit of Vishambhar as well. The Supreme Court observed thus :- "The basis of the suit before amendment was that sales were void ab initio and are liable to be ignored. After amendment the basis is altered to say that sales are voidable and as such seeking setting aside. In such circumstances the suit for setting aside the transfer could be taken to have been filed on the date the amendment of the plaint was allowed and not earlier than that….” 13. In Siddalingamma and another v. Mamtha Shenoy [ AIR 2001 S.C. 2896 , (2001)8 SCC 561 ], decided by a Three Judge Bench of the Supreme Court on the 18th of October, 2001 arose out of a petition for eviction on the ground of bonafide requirement under the Karnataka Rent Control Act. The landlord having died during pendency the bonafide requirement of the widow of the landlord was inserted as a ground of eviction through an amendment. The petition succeeded before the trial Court but the High Court reversed the decision. The Supreme Court spoke thus :- "Even the High Court in its impugned Order has not found fault with the Order of the trial court permitting the amendment nor has it expressed an opinion that leave granted by the trial court for amendment in the eviction petition suffered from any error of jurisdiction or discretion. On the doctrine of relation back, which generally governs amendments of pleadings unless for reasons the Court excludes the applicability of the doctrine in a given case the petition for eviction as amended would be deemed to have been filed originally as such and the evidence shall have to be appreciated in the light of the averments made in the amended petition. 14. Cogent reasons for non application the doctrine of relation back and a few other salient aspects of the principles governing amendment of pleadings can be read in Sampath Kumar v. Ayyakannu and another , [ AIR 2002 S.C. 3369 , (2002) 7 SCC 559 ] decided by the Supreme Court on the 13th September 2002. Brief of the facts therein was that the plaintiff filed the suit in 1988 for perpetual injunction alleging possession over the suitland. Brief of the facts therein was that the plaintiff filed the suit in 1988 for perpetual injunction alleging possession over the suitland. The defendant pleaded that on the date of institution of the Suit he was in possession and sought dismissal of the Suit. In 1999 before the trial commenced the plaintiff moved an application under Order VI Rule 17 of the Code alleging that in January, 1989 the defendant forcibly dispossessed him. One such averment the plaintiff sought the relief of declaration of title and consequential relief of recovery of possession on payment of the requisite court-fee. Trial Court refused the amendment observing that appropriate course for the plaintiff is to file a fresh suit. The High Court agreed with the view of the Trial Court. The question before the Supreme Court was "whether it is permissible to convert through amendment a suit merely for permanent injunction into a suit for declaration of title and recovery of possession." In answering the above question the Supreme Court observed :- Firstly, since "the basic structure of the suit is not altered by the proposed amendment and only the nature of relief is sought to be changed allowing the amendment would curtrail multiplicity of legal proceedings. Secondly, the question of delay in seeking the amendment, in the case almost 11 years after the date of the suit, should be decided not by calculating the period from the date of the suit alone but by reference to the stage of the suit. Pre-trial amendments are allowed more liberally than those sought to be made after commencement or conclusion of trial. In the latter case question of prejudice to the opposite party may arise and has to be answered by reference to facts and circumstances of each case. Mere delay cannot be a ground for refusing a prayer for amendment. Thirdly, the merits of the averments sought to be incorporated by way of amendment are not to be judged at the stage of allowing the prayer for amendment. Fourthly, an amendment once incorporated relates back to the date of suit. Mere delay cannot be a ground for refusing a prayer for amendment. Thirdly, the merits of the averments sought to be incorporated by way of amendment are not to be judged at the stage of allowing the prayer for amendment. Fourthly, an amendment once incorporated relates back to the date of suit. However the doctrine of relation back in the context of amendment of pleadings is not one of Universal Application and in appropriate cases the Court is competent while permitting the amendment to direct that the amendment permitted by it shall not relate back to the date of the suit and that it shall operate from the date of filing of the application for amendment. Fifthly, since the defendant allegedly has perfected his title his right should not be allowed to be defeated by permitting the new relief to relate back to the date of the suit which would amount to excluding a period of about 11 years in calculating the period of prescriptive title. Thus to avoid multiplicity of legal proceedings as well as to avoid prejudice to the defendant the relief of declaration of title and recovery of possession was allowed to be inserted by amendment operative only from the date of the application for amendment. 15. Both Vishwambhar (supra) and Sampath Kumar (supra) are primarily cases dealing with amendment of the relief sought in the respective suits. The difference is that while relief sought to be inserted in the former case was without any alteration in the material facts the amended relief in the latter case was accompanied by alteration of the material facts. In para 10 of the judgment in Vishwambhar (supra) the observation is as under: "From the averments of the plaint, it cannot be said that all the necessary averments for setting aside the sale-deeds executed by Laxmibai were contained in the plaint and adding specific prayer for setting aside the sale-deed was a mere formality." The hint is clear enough to indicate that addition of further or proper relief flowing from the existing pleadings may amount to correction of an error, defect within Section 153 of the Code. In such a case doctrine of relation back will apply.” 16. In the instant case admittedly the relief of specific performance was introduced after the period of limitation by way of amendment. In such a case doctrine of relation back will apply.” 16. In the instant case admittedly the relief of specific performance was introduced after the period of limitation by way of amendment. Whether the amendment would relate back to the date of filing of the written statement is to be understood from the legal principles discussed herein. The normal rule is that the doctrine of relation back, which generally governs amendments of pleadings would be deemed to have been filed originally as on the date of filing of the original pleadings unless for reasons the court excludes the applicability of the doctrine in a given case. When the basic structure of the suit/counter claim is not altered by the proposed amendment and only the nature of relief is sought to be changed allowing the amendment with a view to curtail multiplicity of legal proceedings, the doctrine of relation back would apply. Here while allowing the amendment incorporating the relief of specific performance, the court did not exclude the applicability of the doctrine of relation back. Therefore, an amendment introduced w.e.f 24.07.2002, after 3 years' period in respect of a cause of action arose on 30.11.1997, by applying the doctrine of relation back is held as not barred by limitation. Therefore the trial court’s finding in this regard is not justifiable. Accordingly it is held that the relief of specific performance sought for in the counter claim filed by the 1 st defendant is not barred by limitation. Point Nos.2 to 8 17. Here the case of the 1 st defendant is that since the defendants got possession of the 9 cents of property and C schedule building therein on the strength of Ext.B2 agreement, they are entitled to protect their possession without being disturbed in terms of Section 53A of T.P Act. According to the learned counsel for the plaintiffs, in order to get protection under Section 53A of the T.P Act, it is essential for the defendants to prove the genuineness and execution of Ext.B2 agreement at the first instance. According to him, Ext.B2 and its execution are in the midst of doubts. Therefore, no relief could be granted relying on Ext.B2. According to him, Ext.B2 and its execution are in the midst of doubts. Therefore, no relief could be granted relying on Ext.B2. That apart, in order to get protection under Section 53A of the T.P Act, 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. According to the learned counsel for the plaintiffs, here as per the contention raised by the 1 st defendant in the written statement plaint C schedule building along with 9 cents of property was separated and given in possession of the 1 st defendant and the 1 st defendant made construction of wall therein in the year 1989 and cement plastering was also done with consent of the 2 nd plaintiff. Thus it appears that even before execution of Ext.B2 sale agreement as on 16.04.1995, the 1 st defendant has been in possession of the property and in the written statement there is no contention that the 1 st defendant had done anything in furtherance of Ext.B2 so as to get protection under Section 53 of the T.P Act. For this the learned counsel for the plaintiffs read out relevant paragraphs in the written statement wherein no such plea could be found. The learned counsel placed decision of the Apex Court reported in [1982 KHC 394 : 1982 (1) SCC 237 : AIR 1982 SC 989 ], Sardar Govindrao Mahadik and another v. Devi Sahai and others , in this regard. The facts in the case is narrated in paragraph 2 as under: “2.Facts first. Sardar Govindrao Mahadik original plaintiff I (now deceased prosecuting These appeals through his legal representatives) and Gyarsilal original plaintiff 2 (appellant 2) filed Civil Suit No. 14/51 in the Court of the District Judge, Indore, for redemption of a mortgage in respect of house No. 41 more particularly described in plaint paragraph 1, dated Feb. 22, 1951. A loan of Rs. 10,000/- was secured by the mortgage. The mortgage was mortgage with possession. Plaintiff 1 was the mortgagor and the sole defendant Devi Sahai was the mortgages. Plaintiff 2 is a purchaser of the mortgaged Property from plaintiff I under a registered sale deed Ex. P1, dated Oct 14, 1950. 22, 1951. A loan of Rs. 10,000/- was secured by the mortgage. The mortgage was mortgage with possession. Plaintiff 1 was the mortgagor and the sole defendant Devi Sahai was the mortgages. Plaintiff 2 is a purchaser of the mortgaged Property from plaintiff I under a registered sale deed Ex. P1, dated Oct 14, 1950. Plaintiff 1 will be referred to as mortgagor, defendant Devi Sahai as a. mortgagee and plaintiff 2 Gyarsilal as subsequent purchaser in this judgment. Even though the mortgage was mortgage with possession, it was not a usufructuory mortgage but an anomalous mortgage in that the mortgagor had agreed to pay interest at the rate of 12% and the mortgagee was liable to account for the income of the property earned as rent and if the mortgagee himself occupied the same he was bound to account for the rent at the rate of Rs. 515/- per annum. Mortgagor served notice dated Oct. S.1945. calling upon The mortgagee to render true and full account of the mortgage transaction. The mortgagee failed to comply with the notice. Subsequently it appears that there were sonic negotiations between the mortgagor and the mortgagee which according to the mortgagee, culminated in a sale of the mortgaged property in favour of mortgagee for Rs. 50,000/-. Account of the mortgage transaction was made and the consideration of Rs. 50,000/- for the sale of the house which would mean sale of equity of redemption was worked out as under: Rs. 25,000/- Principal mortgage money plus the amount found due as interest on taking accounts of mortgage. Rs. 17,735/- Given credit for the amounts taken from time to time by the mortgagor from the mortgagee for domestic expenses. This is disputed as incorrect and it was suggested that the entry be read before the Sub-Registrar. Rs. 50,000/- Requisite stamps were purchased and the draft sale dead was drawn up on Oct. 10, 1950, but it was never registered. On Oct. 14, 1950, 1st plaintiff mortgagor sold the suit house by a registered sale deed to plaintiff 2 Gyarsilal for Rs. 50,000/- with an agreement for resale. Thereafter the mortgages and the subsequent purchaser as plaintiffs 1 and 2 respectively filed a suit on Feb. 22, 1951 against mortgagee defendant Devi Sahai for taking accounts of the mortgage transaction and for a decree for redemption." 18. In paragraph 32, the Apex Court held as under: “32. 50,000/- with an agreement for resale. Thereafter the mortgages and the subsequent purchaser as plaintiffs 1 and 2 respectively filed a suit on Feb. 22, 1951 against mortgagee defendant Devi Sahai for taking accounts of the mortgage transaction and for a decree for redemption." 18. In paragraph 32, the Apex Court held as under: “32. We may recall here that the acts preliminary to the contract would be hardly of any assistance in ascertaining whether they were in furtherance of the contract. Anything done in furtherance of the contract postulates the pre existing contract and the acts done in furtherance thereof. Therefore, the acts anterior to the contract or merely incidental to the contract would hardly provide any, evidence of part performance.” 19. The learned counsel for the defendants argued that even though no mode of construction was effected by the 1 st defendant to take the same as an act done in furtherance of the contract and no such plea was raised in the written statement, Ext.B2 itself would show that at the time of execution of Ext.B2 the 1 st defendant advanced Rs.1,50,000/- and therefore advancement of Rs.1,50,000/- is to be held as an act done in furtherance of the contract so as to get protection under Section 53A of the T.P Act. 20. Relying on Halsbury’s Laws of India Volume 12, it is argued by the learned counsel for the defendants that (240.265), where the transferee is already in possession of the property under an agreement of sale and the transferor accepts delayed payment of installment under the agreement by the transferee and the transferee was willing to fulfill his part of the contract the benefit of part performance would be available to him. That apart, the learned counsel placed decision of the Apex Court reported in [AIR 1984 P&H 95 : MANU/PH/0202/1984], Teja Singh v. Ram Prakash Talwar & Ors. to contend that in this decision the Punjab and Haryana High Court considered the question as to whether the transferee has done some act in furtherance of the agreement where the agreement for sale was entered into between the parties on 08.07.1959 fixing sale consideration as Rs.3,200/-, out of which Rs.500/- was paid at the time of the agreement and the balance amount was to be paid in five installments, the four installments were of Rs.500/- each and the last installment was of Rs.700/-. The installments were to be paid during the months of January, 1960, June, 1960, January, 1961, June, 1961and January, 1962. He also paid the 3 installments which fell due in January 1960, June 1960 and January 1961. Hence in this case by making payment of three installments, the appellants had done some act in furtherance of the agreement. 21. Another decision of the Rajasthan High Court at Jodhpur reported in [MANU/RH/0065/1952], Ratanlal v. Kishanla & O rs. has been placed by the learned counsel for the defendants where the Rajasthan High Court while considering a case, it was observed that: “In the present case, the transferees were already in possession as mortgagees and, as stated above, nothing further was required to convey an absolute title except the execution of the deed of sale and the receipt of consideration. Something had I been done by the transferees in this case by paying Rs. 30/- to the transferor and the transferor had mentioned in the deed that he was making the sale by executing that agreement of sale.” 22. Another decision of the Madhya Bharat High Court reported in [ AIR 1955 M.B. 49 (Vol.42, C.N.14)], Pannalal v. Labhchand has been placed by the learned counsel for the defendants with reference to paragraph 21, where the Madhya Bharat High Court held that, it is not correct to say that no payment of money can be an act in furtherance of the contract. If a connection is established by evidence between the payment and the contract, then the payment would be an un-equivocal act referable to and in furtherance of the alleged contract. 23. Another decision of the Madhya Pradesh High Court reported in [ AIR 1965 MP 275 : MANU/MP/0075/1965], Devisahal Premraj Mahajan v. Govindrao Balwantrao & Ors. , has been placed with reference to paragraph 21, where the Madhya Pradesh High Court held that, it would not be correct to say that no payment of money can be an act in furtherance of the contract. The learned Judges laid down that if a connection be established by evidence between the payment and the contract in that event, the payment would be an unequivocal act referable to and in furtherance of the alleged contract. We are in agreement with the view expressed in the said case. The learned Judges laid down that if a connection be established by evidence between the payment and the contract in that event, the payment would be an unequivocal act referable to and in furtherance of the alleged contract. We are in agreement with the view expressed in the said case. Therefore, what is to be seen is whether there is connection established between the payment and the contract. If no such connection be established, any payment cannot be availed of to attract the doctrine of part performance. In the present case, the connection is clearly established, inasmuch as it was a term of the contract that the first respondent should bear the expenses of the sale deed, and he requested the appellant to advance the amount of Rs.1,000/- to meet those expenses. Therefore, this advance was made at the request of the first respondent, and cannot be considered to be a voluntary act on the part of the appellant. This payment was undoubtedly in pursuance of the terms of the contract, as it was the first respondent, who was liable to bear the expenses, which he was unable to meet but for the advance payment by the appellant. 24. In reply to this contention, the learned counsel for the plaintiffs submitted that if at all payment of Rs.1,50,000/- while executing Ext.B2 is considered, the same also to be reckoned as payment contemporaneous to the execution of Ext.B2 or prior to that and, therefore, the same would not come within the ambit of Section 53A of the T.P Act and hence the 1 st defendant could not succeed to protect his possession, where he failed to file a suit for the specific performance of Ext.B2 agreement within the period of limitation. 25. Section 53A of the T.P Act provides as under: “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. 25. Section 53A of the T.P Act provides as under: “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 me act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that, 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. " 26. On perusal of Section 53A of the T.P Act, 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. " 26. On perusal of Section 53A of the T.P Act, 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. (i) in part performance of the contract, taken possession of the property or any part thereof, or (ii) 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 (iii) the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that, 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. 27. In the decision reported in [ (2002) 3 SCC 676 ], Shrimant Shamrao Suryavanshi and another v. Pralhad Bhairoba Suryavanshi (dead) by LRs. and others, the Apex Court considered the essentials to be fulfilled under Section 53A of the Transfer of Property Act with reference to the legislative intent behind this provision. The facts of the case are as under: "In CA No. 2706 of 1991 Respondent 3 executed an agreement for sale of an agricultural land in favour of Appellant 1 for a total consideration of Rs 9000. The appellant paid Rs 5700 towards earnest money and was put in possession over the property in pursuance of the agreement. Subsequently, the appellant having noticed that the transferor was negotiating for sale of the said land in favour of Respondent 1, he brought a suit for injunction restraining the transferor from selling the land to Respondent 1. The injunction was granted. However, according to the appellant, the transferor sold the land to Respondent 1 despite the injunction. After execution of the sale deed Respondent 1 filed a suit for recovery of possession of the land. The trial court dismissed the suit. A Single Judge of the High Court dismissed the appeal preferred by Respondent 1. The injunction was granted. However, according to the appellant, the transferor sold the land to Respondent 1 despite the injunction. After execution of the sale deed Respondent 1 filed a suit for recovery of possession of the land. The trial court dismissed the suit. A Single Judge of the High Court dismissed the appeal preferred by Respondent 1. But a Letters Patent Bench allowed the further appeal filed by Respondent 1 holding that the protection as regards possession was not available to the defendant-appellant as the suit for specific performance of the agreement for sale was barred by limitation. A common question of law, which arose in all the present group of appeals, was as follows: "whether in a suit brought by a transferor for recovery of possession of the suit property, a defendant transferee can defend or protect his possession over the suit property obtained in pursuance of a part-performance on an agreement to sell under Section 53-A of the Transfer of Property Act (hereinafter referred to as 'the Act'), even if a suit for specific performance of an agreement to sell is barred by limitation". 28. In paragraph 15, the Apex Court observed that the Special Committee's report which is reflected in the aims and objects of the amending Act, 1929 shows that one of the purposes of enacting c 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. In that view of the matter, Section 53-A is required to be interpreted in the light of the recommendation of the Special Committee's report and aims, objects contained in the amending Act, 1929 of the Act and specially when Section d 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 . 29. Finally, the Apex Court held in paragraph 21 that in the present case, it is not disputed that the transferee has taken possession over the property in part-performance of the contract. It is also not disputed that the transferee has not brought any suit for specific performance of the agreement to sell within the period of limitation. 29. Finally, the Apex Court held in paragraph 21 that in the present case, it is not disputed that the transferee has taken possession over the property in part-performance of the contract. It is also not disputed that the transferee has not brought any suit for specific performance of the agreement to sell within the period of limitation. It is also not disputed that the transferee was always and is still ready and willing to perform his part of the contract. Further, the view taken by the High Court in judgment under appeal was overruled by the Full Bench of the Bombay High Court in the case of Mahadeo Nathuji Patil v. Surjabai Khushalchand Lakkad which, according to our view, lays down the correct view of law. In that view of the matter these appeals deserve to be allowed. 30. Readiness or willingness to perform his part of the contract, is one of the essential ingredients on the part of the person invoking the doctrine of part performance and without proving such willingness, protection under Section 53A of T.P Act cannot be claimed. In the decision of the Apex Court reported in [ AIR 1999 SC 3248 ], Ram Kumar Agarwal and another v. Thawar Das (dead) through Lrs , wherein this Court held in paragraph No.8 as under: `8. …………. That apart, performance or willingness to perform his part of the contract is one of the essential ingredients of the plea of part performance. Thawar Das having failed in proving such willingness protection to his possession could not have been claimed by reference to Section 53- A of the Transfer of Property Act.‘ 31. In the original written statement filed jointly by defendants 1 to 4, the 1 st defendant reserved the right to move the court for specific performance at the proper time. Thereafter on 24.07.2002, the written statement was amended and the relief of specific performance of Ext.B2 agreement was sought and thereby it was pleaded in paragraph 35 that the 1 st defendant was always ready and willing to get the sale deed executed as per the agreement, apart from his willingness at present also. Therefore, it could be held that the 1 st defendant has been ready and willing to execute Ext.B2 agreement. 32. Therefore, it could be held that the 1 st defendant has been ready and willing to execute Ext.B2 agreement. 32. In the instant case on perusal of paragraph 3 of the plaint averments, the specific case of the plaintiffs is that as per Ext.A2 settlement deed, the 2 nd plaintiff transferred the entire property where plaint B and C schedule building as on 12.12.1994 and at the time of execution of Ext.B2 agreement on 16.04.1995, plaint `B’ and `C’ schedule buildings were not transferred in the name of the 1 st plaintiff. After the execution of Ext.B2, the 2 nd plaintiff transferred her right in respect of B and C schedule building also in favour of the 1 st plaintiff as per settlement dated 08.08.1995. It is strange to note that even though the 2 nd plaintiff transferred the entire right over the property excluding B and C schedule building as per Ext.A2 in favour of the 1 st plaintiff, the case of the 1 st defendant is that the 2 nd plaintiff executed Ext.B2 on 16.04.1995 in his favour. On perusal of Ext.B2, the recitals would show that the 2 nd plaintiff agreed to sell C schedule building along with 9 cents of property though 9 cents of property also transferred in favour of the 1 st plaintiff by Ext.A2, as on 12.12.1994, exactly before one year from the date of execution of Ext.B2. It is at this juncture, the learned counsel for the plaintiffs vehemently denied execution of Ext.B2 and submitted that Ext.B2 itself is a concocted document and the same in no way would give any right on the 1 st defendant. Here the entire dispute centres on execution of Ext.B2 and thereby the 1 st defendant, who has been in possession of plaint C schedule in part performance of contract, had done some acts in furtherance of the contract. 33. Evidently apart from raising contention that payment of Rs.1,50,000/- was advanced at the time of execution of Ext.B2 is an act to be read as an act done in furtherance of the contract, no contention raised to see that anything done other than that done after execution of Ext.B2. 33. Evidently apart from raising contention that payment of Rs.1,50,000/- was advanced at the time of execution of Ext.B2 is an act to be read as an act done in furtherance of the contract, no contention raised to see that anything done other than that done after execution of Ext.B2. In Sardar Govindrao Mahadik and another v. Devi Sahai and others 's case (supra), in paragraph 33 a contention was raised to the effect that payment of Rs.1,000/- for purchase of stamps is an act done in furtherance of the contract. Addressing the said contention, the Apex Court held that same could not be accepted for two reasons and one being that Rs.700/- out of the amount of Rs.1,000/- has been paid on 09.10.1950, that is prior to the date of contract. Then there is a serious dispute as to the nature of contract which was negotiated in 9 th October, 1950, the date on which Rs.700/- was made. 34. In the instant case first of all it is relevant to decide whether Ext.B2 is a genuinely executed document by the 2 nd plaintiff, that too, after execution of Ext.A2 deed in favour of the 1 st plaintiff for the entire property excluding B and C schedule buildings therein, in favour of the 1 st defendant. As of now, the absolute title in respect of plaint A to C schedule items is at the hands of the 1 st plaintiff in view of Ext.A2 and A3 settlement deeds. It is true that before execution of Ext.A3 settlement deed, whereby the building also was transferred in the name of the 1 st plaintiff, Ext.B2 was executed. There is no difficulty in considering the rights of the parties over the building apart from the land on which it stands, since in India a building can be owned separately from the land on which it stands and the English Maxim Quicquid inaedificatur solo solo cedit has no application (See Dr.K.A.Dhairyawan v. J.R.Thakur, [A.I.R. 1958 S.C.789] and Chellappan Nadar v. Krishnan Nair, [1963 KerLT 750 ( AIR 1963 Ker 297 )]. This Court has occasion to consdier the applicability of this doctrine in the decision reported in [2024 KHC 60 : 2024 KHC OnLine 60 : 2024 KER 6819 : 2024 KLT OnLine 1204 : 2024 (2) KLT SN 25], Omana v. Leela and held that this doctrine is not applicable in India and in cases involving such claims the court must ascertain what was the intention of the parties when the property in goods belonging to one person and affixed to the property of another person got involved with reference to the facts of each case. According to the plaintiffs, the defendants are occupying the building on the basis of the permission granted by the 2 nd plaintiff. DW1, the 1 st defendant deposed in terms of the contention in the written statement by examining DW2, the document writer who authored Ext.B2. Apart from that, DW5 an attestor to Ext.B5, also was cited to prove execution of Ext.B2. According to DW5, he is a neighbour of the plaintiffs and the defendants and as requested by the 2 nd plaintiff that the agreement was written and the agreement was written at the house of the 2 nd plaintiff where he put his signature in Ext.B2. In fact, the evidence of DW1, DW2 and DW5 not at all shaken during cross examination. The trial court took the risk of comparing the admitted signatures of the 2 nd plaintiff in Exts.A2 and A3 with that of Ext.B2 to conclude that the signatures in Ext.B2 is also similar while holding that execution of Ext.B2 agreement was proved. Insofar as Ext.B2 is concerned, the finding of the trial court that it was executed by the 2 nd plaintiff in favour of the 1 st defendant is only to be confirmed. However the operation of Ext.B2 agreement and specific performance on the strength of the same can be considered only in respect of the `C’ schedule building since at the time of execution of Ext.B2, the 2 nd plaintiff had only saleable interest in respect of `C’ schedule building alone as the property already sold in favour of the 1 st plaintiff before execution of Ext.B2. Now comes the question whether the 1 st defendant complied the essentials of Section 53A of the contract? Now comes the question whether the 1 st defendant complied the essentials of Section 53A of the contract? In the instant case, viz.(ii) 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 (iii) the transferee has performed or is willing to perform his part of the contract. 35. In the instant case at the time of execution of Ext.B2 agreement, payment of Rs.1,50,000/- as advance consideration, is to be read as an act done in furtherance of the contract by the 1 st defendant, who continues in possession of plaint C schedule building. Since the execution of Ext.B2 agreement is proved and plea is not barred by limitation, the interest of justice warrants grant of specific relief on the strength of Ext.B2 in favour of the 1 st defendant (now to the legal heirs) by exercising the discretionary power of this Court in respect of plaint C schedule building alone as it is found already that the property, where C schedule building situates, was already sold in favour of the 1 st plaintiff. At the same time, the title and possession of the 1 st plaintiff over plaint A schedule property and B schedule building, excluding C schedule building stand proved by Ext.A1 and the settlement deeds to be declared. Thus it is held that the trial court went wrong in not granting specific performance on Ext.B2 agreement. Even though the trial court granted protection under Section 53A of the T.P Act in favour of plaint C schedule building and the property thereof, protection must be limited in respect of plaint `C’ schedule building alone. Similarly, the trial court went wrong in not declaring title of the 1 st plaintiff over plaint A and B schedule properties. Accordingly, the judgment and decree of the trial court require interference. 36. In the result, both appeals are allowed in part and the decree and judgment impugned stand set aside. The suit and counter claim are decreed as under: i) It is declared that the 1 st plaintiff is the title holder in possession over plaint A schedule property and B schedule building excluding C schedule building alone. 36. In the result, both appeals are allowed in part and the decree and judgment impugned stand set aside. The suit and counter claim are decreed as under: i) It is declared that the 1 st plaintiff is the title holder in possession over plaint A schedule property and B schedule building excluding C schedule building alone. ii) The 2 nd plaintiff is directed to execute sale deed in respect of C schedule building alone in favour of the appellants in RFA.No.433/2004 on receipt of balance consideration of Rs.1,00,000/- (Rupees One lakh only) within a period of one month from today, otherwise, they shall deposit Rs.1,00,000/- (Rupees One lakh only) before the trial court and to execute the sale deed in respect of plaint C schedule building alone through process of law. iii) It is specifically ordered that right of the appellants in RFA.No.433/2004 to own and possess the plaint `C’ schedule building even after execution of the sale deed shall be confirmed in respect of C schedule building alone and not on the property where the building lies, for which title already declared in the name of the 1 st plaintiff. iv) It is ordered that if the appellants in RFA.No.433/2004 fail to deposit the balance sale consideration within one month from today, the period for deposit shall not be extended for any reason and failure to deposit the balance sale consideration as directed will be their unwillingness in performing their part of contest, disentitling protection under Section 53A of TP Act. If so, the 1 st plaintiff shall become the title holder of plaint `C’ schedule building in view of Ext.A3 title deed and the 1 st plaintiff is entitled to recover possession of the plaint `C’ schedule building from the appellants in RFA.No.433/2004 through process of law. v) Considering the particular nature of this case, both parties are directed to suffer their respective cost. All the interlocutory applications pending in both the appeals stand dismissed and all the interim orders stand vacated.