The & Ors. v. Pralhad Bhairoba Suryavanshi (dead) byL.Rs (2002) 3 SCC & Ors.

#2. The defendants are the appellants. The first respondentfiled O.S.No.208 of 1991 for declaration and recovery ofpossession from the third defendant. The third defendant expiredpending the suit. His wife and children were brought on recordand are the appellants in the present second appeal. The fifthappellant has since attained majority and the learned counsel forthe appellant undertakes to file vakalat for her. 3. The plaint averments are as follows:The suit property originally belonged to one ChinnaKannammal. The plaintiff purchased the property from thesuccessors-in-interest of Chinna Kannammal and has been inpossession. There was an agreement with the third defendant on28.4.1983 agreeing to purchase the property for a sum ofRs.7,920/-, after paying an advance of Rs.4000/-. When theplaintiff asked him to pay the balance, the third defendantrefused to pay and asked for return of the advance. Since thecontract was breached, this advance was forfeited. Thereafter, the third defendant has entered the suit land by force and hasbeen in unlawful possession from 23.09.1983. The suit propertywas classified as Tharisu poramboke without notice to the firstrespondent and therefore, the plaintiff issued a notice torespondents 2 and 3 to restore the suit land under its originalpatta and the suit was filed for declaration of the plaintiff'stitle and recovery of possession from the third defendant. 4. The second defendant filed a written statement in whichthe knowledge about the agreement between the plaintiff and thethird defendant was denied. According to the second defendant, the suit property was a dry assessed waste. It was also deniedthat the reclassification was done without notice to theplaintiff. 5. The fourth defendant, the third defendant's father fileda written statement denying the plaintiff's right. The sixthdefendant, who is the wife of the third defendant filed a writtenstatement on behalf of the other legal representatives. Sheadmitted that there was an agreement but contended that theplaintiff had misrepresented that the suit property was punjailand and that the third defendant verified with the revenuerecords and found out that it was Punjai Tharisu. and had alsoplanted Eucalyptus and Casuarina trees, in his own right. It wasalso alleged that the suit was barred by limitation. The trialcourt decreed the suit as prayed for and the Appellate Courtconfirmed the judgment. https://hcservices.ecourts.gov.in/hcservices/

#6. The second appeal was admitted on the following questionsof law:"1. Whether the appellants are entitled to be inpossession of the suit property though their limitationfor instituting the suit for specific performance hasalready expired?2. Whether the Courts below were correct in holdingthat the suit property is a tharisu land?"7. Learned counsel for the appellants admitted that theappellants are not denying the title of the first respondent, butthe appellants are entitled to be in possession and to invoke theprovisions of Section 53 A of the Transfer of Property Act as ashield to protect their possession. Learned counsel submittedthat the first respondent had come to Court with a case that therewas forceful and illegal dispossession in 1983 and having failedto prove the same, it is not open to him to take possession fromthe appellants. Learned counsel submitted that this is not a casewhere possession should follow title, in view of the peculiarcircumstances where both the sides admit the existence of anagreement. According to the learned counsel, once an agreement isadmitted, the presumption is, the possession of the appellants islegal until the contrary is proved. Learned counsel submittedthat huge improvements have been made in the property andtherefore, the equity between the parties should also be balancedby this Court. 8. Next, learned counsel submitted that when it is theplaintiff's case that there was illegal dispossession in 1983, itis difficult to believe that he would have kept quiet for 7 longyears without filing the suit and the fact that he has kept quietwould only show that he has acquiesced in the possession of theappellant and also to the improvements made on the suit property. Learned counsel submitted that even though possession in partperformance of the agreement has not been specifically pleaded, the attendant circumstances should be taken note of by this Courtto do justice to the parties. But this plea of acquiescence israised for the first time here and cannot be looked into.9. Learned counsel relied on the following judgments:AIR 1968 Andhra Pradesh 190 ( T.Venkata Subrahmanayam vs.V.Viswanatharaju and another ) wherein it was heldthat: https://hcservices.ecourts.gov.in/hcservices/ "The mere fact that the notice gave a certain timeto perform the contract would not necessarily lead to theconclusion that the time prescribed was the essence ofthe contract. In all such cases, the Court has to lookto the pith and substance of the notice and not at theletter of the notice and decide as to whether time was orwas not essential to the subsistence of the contract. The real intention of the party who gives notice must beclear from the notice itself."...... According to Section 55 of the Contract Act, itis no doubt true that in case the first defendant makestime the essence of contract and if the contract is notperformed by the other side, the contract becomesvoidable. It must however be remembered that the onlyright which the first defendant gets in such a case is toavoid the contract. The contract does not automaticallyget determined. He has to further expressly or inunambiguous words determine the contract under S.64 ofthe Contract Act. It is not in dispute that subsequentto Exhibit A-5, the first defendant did not issue anynotice cancelling the contract. His previous as well assubsequent conduct brings out prominently the fact thathe had never any intention to make time the essence ofcontract. The irresistible conclusion therefore is thatExhibit A-5 neither makes time the essence of contractnor does it conditionally or otherwise put an end to thecontract. The assertion that he will sell the propertyto others need not necessarily in all cases mean that hewanted to put an end to the contract."Learned counsel submitted, therefore, if the plaintiff wantedpossession, he ought to have issued notice. He should have beenwilling to part with the advance that he had derived from theagreement, viz., a receipt of Rs.4000/-. He cannot take thebenefit under the agreement and also take possession from theappellants who are in legal possession.10. Next learned counsel relied on the judgment reported inAIR 2004 Supreme Court 3854 (Mahadeva and Others vs. Tanabai)."8. The judgment of the High court is based on aquestion framed during the course of writing of thejudgment which is in departure from the two questions oflaw on which the appeal was admitted for hearing. Thewhole emphasis shifted from the core issues. Then theHigh Court has not discussed any law and has also notassigned reason, much less a satisfactory one for taking https://hcservices.ecourts.gov.in/hcservices/ a view different from the one concurrently taken by thetwo Courts below. The singular reason assigned by theHigh Court for denying the benefit of Section 53-A of theT.P.Act is not a sound reason by itself in view of thedecision of this Court in Shrimant Shamrao Suryavanshiand another v. Pralhad Bhairoba Suryavanshi (dead) byL.Rs and others (2002) 3 SCC 676. This Court has heldthat merely because the suit for specific performance atthe instance of the vendee has become barred bylimitation that by itself is not enough to deny thebenefit of the plea of part performance of agreement ofsale to the person in possession." Based on this the learned counsel wanted the appellant'spossession to be protected. Learned counsel also relied on AIR 1971 Madras 466 (PeriasamiNaicker vs. Sella Pillai)."In order to make Section 53-A applicable, thedefendant must establish some overt act in partperformance of the contract of sale. Mere payment ofsale consideration is not enough. Change in thepossession of land from the vendor to the vendee is anact of part performance, both of the person who gives andof the person who takes possession. It is therefore, contended that unless it is established that thedefendant was put in possession of the property inpursuance of the contract of sale, Section 53-A isinapplicable. In Morphett v. Jones (1818) 36 ER 344 atpage 348, Sir Thomas Plumar M.R. said that - "The acknowledged possession of a stranger inthe land of another is not explicable except onthe supposition of an agreement and has thereforeconstantly been received as evidence of anantecedent contract, and as sufficient toauthorise an enquiry into the terms: the Courtregarding what has been done as a consequence ofcontract or tenure". In Broughton v. Snook, 1938-1 All ER 411, it was heldby Farwell, J., that the expenditure on alterations anddecorations was an act which was in the circumstances ofthe case referable only to the contract. In the presentcase, the appellate court has held that the defendanthas been in possession of the property in pursuance ofthe contract of sale and that finding is supported bymaterials on record. The evidence of D.W.3 which has https://hcservices.ecourts.gov.in/hcservices/ been accepted by the appellate court clearly shows thatthe defendant was put in possession in pursuance of thecontract and 10 or 15 days thereafter the suit house wasconstructed."According to the learned counsel, the possession of the appellantsproves that there was part performance.In AIR 2004 Madras 450 (S.Ponnuthai vs. P.Muthusamy), it is heldas follows:"The decisions referred to on behalf of therespondent will not help. In fact, those decisions wouldgo against the respondent because one of the conditionsto be satisfied is proof of possession. Normally, thefindings of fact in suits for bare injunction are notinterfered with in second appeal. But, in this case, itis apparent that even the pleadings do not make out proofof possession or proof of interference with possession, so the suit must fail. The Lower Appellate Court holdsthat no document has been produced to show that Exs.A1 toA3 have been cancelled and unless and until they arecancelled, the respondent's possession cannot bedisturbed. The averments in the plaint have been lostsight of, wherein the respondent admits the revocation ofEx.A.3 and that "Another telegram addressed to theplaintiff's wife by the defendant's counsel wherein it ismentioned that the agreement dated 7.5.1989 islapsed...." The Lower Appellate court has concluded thatsince Ex.C1, the Commissioner's Report (appointed pendingappeal), speaks of foundation work in 9 out of 10 pits, the respondent must have taken possession of . Thisconclusion is erroneous. The pillars found in theproperty in the year 1996 are not proof of possession onthe date of the suit (20.08.1992). The categoricaladmission by the respondent that he was not put inpossession on the date of Exs.A1 to A3 was ignored. Theeffect of the continuance of the possession of theappellant at least with regard to 350 sq.ft. was ignored. The total absence in the oral evidence with regard tothreat or interference was also ignored. Conclusions notbased on pleadings or legal evidence cannot beconfirmed."According to the learned counsel without any proof, the plea ofillegal dispossession cannot be accepted. https://hcservices.ecourts.gov.in/hcservices/

#11. Learned counsel appearing for the respondent submittedthat there is no denial of title and therefore, possession shouldfollow. While the case of the plaintiff that there was illegaldispossession must be accepted and in any event, the appellantsare not entitled to invoke Section 53-A since the sine qua nonfor invoking the same is to show that the appellants were readyand willing to perform their part of the agreement. There arematerials on record to show that the third defendant was notwilling to perform his part of the agreement so the appellants arenot entitled to Section 53-A protection.12. The suit property is an extent of 3.30 acres in Paloorvillage, Chingleput Taluk. The third defendant was an Advocate. There appears to have been an agreement, which agreement has notbeen produced into Court, under which a mere sum of Rs.4,000/- hasbeen paid. For Rs.4,000/- , the appellants claim right over 3.30acres of valuable land.13. Learned counsel for the appellant repeatedly urged thatinjustice would be done if this Court does not take note of thecircumstances under which the appellant had come into possession, which is pursuant to the agreement and to protect the possession. 14. Section 53 A of the Transfer of Property Act reads asfollows: "Where any person contracts to transfer forconsideration any immovable property by writing signed byhim or on his behalf from which the terms necessary toconstitute the transfer can be ascertained withreasonable certainty, and the transferee has, in part performance of thecontract, taken possession of the property or any partthereof, or the transferee, being already in possession, continues in possession in part performance of thatcontract and has done some act in furtherance of thecontract, and the transferee has performed or is willing toperform his part of the contract, then notwithstandingthat the contract, though required to be registered, hasnot been registered, or, where there is an instrument oftransfer, that the transfer has not been completed in themanner prescribed therefor by the law for the time beingin force, the transferor or any person claiming under himshall be debarred from enforcing against the transfereeand persons claiming under him any right in respect of https://hcservices.ecourts.gov.in/hcservices/ the property of which the transferee has taken orcontinued in possession, other than a right expresslyprovided by the terms of the contract.PROVIDED that nothing in this section shall affectthe rights of a transferee for consideration who has nonotice of the contract or of the part performancethereof".15. The circumstances under which the possession of theperson invoking Section 53-A should be protected shall beestablished by pleadings and proved by acceptable evidence. Itis not possible to look at any circumstance or to come to theconclusion that the appellants are in possession, in partperformance of an agreement, without there being pleadings to thateffect. 16. Learned counsel for the appellant submitted that theoriginal agreement holder was the third defendant, who diedpending suit and therefore, the lacunae in the pleadings must beviewed from that perspective. I do not think that anycircumstance would justify a Court of law to arrive at aconclusion for which there are no pleadings. It was repeatedlyurged on behalf of the appellants that if the matter is sent backto the trial Court, evidence can be let in. It is needless to saythat judgments which are rendered on the available pleadingscannot be set aside merely to afford indulgence to a litigant whohas not been vigilant in producing the evidence required tosupport his case. In the present case, even the foundation forthe substantial question of law is absent since he has not pleadedpart performance.17. In 2001 (1) CTC 559 (P.Subramanian Udayar vs. Eswari and4 others), the learned Judge observed that a person who invokesthe protection of Section 53-A should be ready and willing toperform his part of contract. The documentary evidence producedbefore this Court indicates otherwise. Ex.P3 was produced by thefirst respondent to show that the suit agreement was in thecustody of the third defendant. Ex.P3 is a letter in which it isstated as follows:@j';fs; epyk; th';FtJ Fwpj;J ngrntz; Lk;. jp';fs; my; yJ brt; tha; (9/1/1973) md;W cld; fpsk; gp tut[k;@ vd;W5/8/1983 md;W vGjpa fojk;/ mnjnghy; th/rh/M/4 vd; gJ mnj 3Mk; gpujpthjp thjpf;F 23/9/83 y;@ @tpy;y';fKs;s epyj; ijtpw; gjpy; c';fSf;F ,yhgk; ,Uf;fyhk;/ tpy;y';fk; cs; sepyj; ij th';FtJ vdf;F ec&;lk; jhd;/ ,e;j khjk; 15 k; njjp https://hcservices.ecourts.gov.in/hcservices/ nehpy; te;J mf; hpbkz;l; nghpy; tuntz; oa U:/4.000-jpUg;gpj; jUtjhf vGjpf; bfhLj;Jtpl;L brd; wPh;/ ,J ehs; tiuapy; tutpy; iy/ tpy;y';fk; ,Ug;gjhf bjhpe;J jhd; mg; govGjpf; bfhLj;jPh;@Therefore, the deceased third defendant had informed the firstrespondent that it may be profitable to him to sell the propertywhich is not free from cloud on its title but would definitely bedisadvantageous to the third defendant to purchase the propertyand therefore, the third defendant stated that the plaintiff hadagreed to refund Rs.4,000/- but, he failed to do so. Therefore, the third defendant was neither ready nor willing to perform hispart of the contract since he felt that the title to the propertywas not free from doubt. Firstly, without pleadings theappellants cannot seek the protection of Section 53-A. Secondly, in view of Ex.P.3, even if the appellants had pleaded that theywere in possession in part performance of the contract by theirclear unwillingness to complete the contract, they are disentitledfrom invoking the protection of the section. Much was said aboutthe non-production of the agreement. But it is the evidence ofPW1 that the agreement is with the Advocate. Therefore, adverseinference should be drawn against the appellants. Even foracquiescence there is no pleading, so the submission in thisregard cannot be considered. DW1 the Tahsildar has given evidencethat the third defendant's possession is illegal. So, the findingof the Courts below is based on evidence and is a finding of fact. The decision reported in 1998 (1) CTC 186 (Vasantha and others vs.M.Senguttuvan) answers the questions raised here. There two suitswere tried together, a suit for recovery of possession filed bythe owner and suit for specific performance by the agreementholder. "18. Even if we accept the finding of the trialCourt that the appellant has sufficient funds since hehad put up construction, that will not show hiswillingness. "Willingness" must be to implement thecontract in accordance with terms, within the stipulatedperiod, or within a reasonable time thereafter. If hehad the necessary funds, he has to explain why he did notoffer or tender the balance sale consideration and getthe sale deed. That was not the conduct of theappellant. In spite of putting up a construction, he wasnot prepared to take a sale deed. It shows that theconduct of the appellant, namely, that he was not readyand willing to perform his part of the contract. Thatwill be sufficient to dismiss Second Appeal No.314 of1986. https://hcservices.ecourts.gov.in/hcservices/

#19. That apart, a recent judgment of the SupremeCourt also has to be taken into consideration whileexercising the discretion. It is well settled that evenif the appellant proves all the ingredients of Section, he cannot claim specific performance as of right. It isonly a discretion and that discretion will have to beexercised on well established judicial principles. Inthis case, the discretion has been rightly exercised bythe lower appellate Court, declining the relief. Unlessthe appellant shows that the discretion exercised bylower appellate Court is perverse in this Second Appealthat finding cannot be disturbed. Even though the SecondAppeal was filed in 1986, it is now more than 11 years, when the matter is heard. The sale agreement is in theyear 1978, and the property is also situated close toMadras City at Saidapet Taluk.21. The other question that arises forconsideration is whether the respondent is entitled torecover the property. Admittedly, he is the owner. Thesuit for specific performance also stands dismissed. Thetrial Court entered a finding that the appellant cannotbe treated as a trespasser, ' not as a person inpossession without consent of the owner. This finding ofthe trial Court was not accepted by the lower AppellateCourt. The lower appellate Court held that theconstruction put up by the appellant was withoutauthority and the owner's consent was not obtained. Oncethe suit for specific performance is dismissed, the onlyquestion that arises for consideration is whether theappellant is entitled to the benefit of Section 53-A ofthe Transfer of Property Act. Once I hold that theplaintiff was not ready and willing to take the saledeed, even if the appellant claims the benefit of Section53-A of the said Act, that also will have to be foundagainst him.22. In a recent decision of the Supreme Courtreported in Mohan Lal vs. Mirza Abdul Gaffar, 1996 (1)SCC 639, their Lordships considered the scope of Section53-A of the Transfer of Property Act. Paragraph 6 of thejudgment reads thus:"Even otherwise, in a suit for possession filed by therespondent, successor-in-interest of the transferor asa subsequent purchaser, the earlier transferee mustplead and prove that he is ready and willing to performhis part of the contract so as to enable him to retain https://hcservices.ecourts.gov.in/hcservices/ his possession of the immovable property held under theagreement. The High Court has pointed out that he hasnot expressly pleaded this in the written statement. Wehave gone through the written statement. The High Courtis right in its conclusion. Except vaguely denying thathe is not ready and willing to perform his part, he didnot specifically plead it. Under Section 16(c) ofSpecific Relief Act, 1963, the plaintiff must plead inthe plaint, his readiness and willingness from the dateof the contract till date of the decree. The plaintiffwho seeks enforcement of the agreement is enjoined toestablish the same. Equally, when the transferee seeksto avail of Section 53-A to retain possession of theproperty which he had under the contract, it would alsobe incumbent upon the transferee to plead and prove hisreadiness and willingness to perform his part of thecontract. He who comes to equity must do equity. Thedoctrine of readiness and willingness is an emphaticway of expression to establish that the transfereealways abides by the terms of the agreement and iswilling to perform his part of the contract. Partperformance, as statutory right, is conditioned uponthe transferee’s continuous willingness to perform hispart of the contract in terms covenanted thereunder." All the ingredients that are essential for specificperformance should be proved in a claim under Section 53-A of the Transfer of Property Act also. In fact, beforethe lower appellate Court, I do not find any seriousarguments was put forward by the appellant under Section53-A of the Transfer of Property Act. Ex.B1 does not saythat possession was handed over to the appellant. It isalso admitted that on that date, possession did not passto the appellant. The respondent is residing far awayfrom the plaint property and it no no man's land. It ishis case that except for a shed, it is being used by anyone. It was under those circumstances, appellanttrespassed into the shed and let out the building to athird person thereafter. Of course the trial Court hasentered a different finding. A witness was also asked toswear to a statement that the respondent's friend alsoattended a house-warming ceremony after a newconstruction was put up. But the lower appellate Courthas entered a finding that the construction isunauthorised, and the appellant has exploited the absenceof the respondent in the locality. This finding is basedon the appreciation of facts, and it cannot be said asperverse. In second appeal, I do not think I should re-appreciate the evidence for the purpose of entering adifferent finding. https://hcservices.ecourts.gov.in/hcservices/

#23. A question arises as to what has to be doneregarding the constructions. The lower appellate Courthas found the constructions to be unauthorised. Naturally, appellants can only be directed to remove thesame. I direct the appellants to remove the same withina period of two months from today failing which therespondent will be entitled to take possession of theproperty, and hie is also entitled to have the structuresremoved at the expense of the appellants. Second AppealNo.2101 of 1986 is also dismissed with the abovedirections. This Second appeal is dismissed withcosts." 18. Once the plaintiff's title is declared, possessionshould follow unless the suit is filed beyond 12 years from thedate on which the plaintiff has been dispossessed. In this case, both the parties agree that the suit agreement was in 1983,dispossession can only date from then. It has not been provedthat the third defendant was put in possession. So the suitfiled in 1991 is in time. Neither the third defendant nor hislegal representatives can resist the plaintiff's claim forpossession consequent to the declaration of the plaintiff's title. Therefore, substantial question of law No.1 is answered asagainst the appellants. As regards substantial question of lawNo.2, it is for the Government to object to the finding of theboth the courts that the reclassification of the land as Tharisuwas done in accordance with law and that the plaintiff is notentitled to joint patta No.25 as he claimed. The Government hasnot challenged the decree passed against them in the suit andtherefore, it is not for the appellants to raise this as asubstantial question of law. 19. For the above reasons, this second appeal is dismissedwith costs.vj2Sd/Asst. Registrar/true copy/Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To1. The I Additional District Judge (Fast Track Court No.I), Chingleput 2. The District Munsif, Chingleput.3. The Record Keeper, VR Section, High Court, Madras.+ 1 cc to Mr. Mr. Rajan, Advocate, SR No.41449+ 1 cc to Mr. V. Girish Kumar, Advocate, SR No.41477 S.A.No.2171 of 2004RL(CO)SR/20.8.2007