Madan Jha v. Smt. Nazneen Parween

favour of the plaintiff whereby right, title and interest of the plaintiff over the suit land was declared and the defendants were directed to deliver the possession of the suit land to the plaintiffs, within sixty days. The undisputed fact remains that the judgment passed by the Munsif, Chaibasa in Title Suit No.24 of 1986 has not been challenged in any superior court and the judgment and decree passed in the said Title Suit has reached finality. Even after expiry of sixty days, the defendant did not deliver the possession of the suit land to the plaintiff. The plaintiff of the suit namely Nazneen Parwin who is the sole respondent of this appeal, filed Execution Case No.08 of 1998 in the court of Munsif, Chaibasa for execution of the decree passed in Title Suit No.24 of 1986. In the said Execution Case, writ of delivery of Khas possession of suit land of Title Suit No.24 of 1986 was issued to the Nazir, Civil Court, Chaibasa upon which the Nazir went to the suit land on 18.02.2001 for execution of writ of the delivery of possession. The Nazir did not find the judgment debtors of the suit land but he found some female members of the appellant of this Second Appeal and one Vinod Kumar Sinha in the suit premises. As the delivery of possession was resisted by Madan Jha- the sole appellant of this Second Appeal, the Nazir returned the writ of delivery of possession unexecuted. Thereafter, the sole appellant of this Second Appeal namely Madan Jha filed an application under Order XXI Rule 97 read with Section 151 of the Code of Civil Procedure claiming his right, title and interest over the suit property of Title Suit No.24 of 1986 in the said Execution Case No.08 of 1998. The application filed by Mr. Madan Jha on 07.03.2001 under Order XXI Rule 97 of the Code of the Civil Procedure was registered as Misc. Case No.06 of 2002. Besides Misc. Case, 2 S.A.No.84 of 2019 the said Madan Jha also filed Title Suit No.12 of 2001 in the court of Munsif, Chaibasa against Nazneen Parween- the sole respondent of this Second Appeal. Madan Jha made the prayer for declaration of right, title and interest over the suit property of Title Suit No.24 of 1986 claiming his title on the same ground as that was contended by him in the application under Order XXI Rule 97 read with Section 151 of the Code of Civil Procedure. Nazneen Parween- the sole respondent of this appeal appeared in the title suit and filed her written statement. The plaintiff of Title Suit No.12 of 2001 filed an application under Order X read with Section 151 of Code of Civil Procedure for consolidating the proceeding of Title Suit No.12 of 2001 and Misc. Case No.06 of 2002 in order to avoid the conflicting findings in the two cases. Hence, both the Title Suit No.12 of 2001 and Misc. Case No.06 of 2002 were directed to be decided by a common order by the learned Munsif in order to avoid multiplicity of litigation and to avoid conflicting judgments.

#4. The case of the plaintiff of Title Suit No.12 of 2001 and the applicant of Misc. Case No.06 of 2002 who is the sole appellant of this Second Appeal is that he is a close relative of the defendant of Title Suit No.24 of 1986 namely Shatrughan Pathak. Shatrughan Pathak parted with the portion of his property being three kathas of land with house with the applicant/plaintiff by executing an agreement for sale for a consideration of Rs.20,000/- and put the applicant/plaintiff in possession of the property in part performance of the said agreement for sale and since

05.02.1978, the plaintiff of Title Suit No.12 of 2001 has been in continuous possession of the property and has been paying holding tax to the Municipal Authorities, hence, the plaintiff of Title Suit No.12 of 2001 has perfected his title over the suit property by way of adverse possession. The plaintiff of Title Suit No.12 of 2001 further pleaded that on the date of execution of the sale-deed by Shatrughan Pathak in favour of the plaintiff of Title Suit No.24 of 1986, Shatrughan Pathak was not competent to transfer the suit property, in view of execution of an agreement for sale in favour of the plaintiff of Title Suit No.12 of 2001. The said agreement for sale could not be acted upon because Shatrughan Pathak died before the permission of the sale could be accorded by the authorities concerned. 3 S.A.No.84 of 2019 The plaintiff of Title Suit No.12 of 2001 further pleaded that the decree passed in Title Suit No.24 of 1986 is not binding upon him; as he was not a party to that decree.

#5. The defendant of Title Suit No.12 of 2001 in her written statement challenged the maintainability of the suit of the plaintiff of Title Suit No.12 of 2001 and pleaded that the alleged document of agreement for sale purportedly executed by Shatrughan Pathak is a sham and colourful document which has been created to deprive the opposite party/decree holder in getting the property of which she is the lawful owner. The defendant of Title Suit No.12 of 2001 further pleaded that Shatrughan Pathak through his attorney holder Gurumukh Singh Khokar applied for permission of transfer of land in favour of the defendant before the Town Khas Mahal Officer, Chaibasa which was registered as T.K.M. Case No.11 of 1983-84 and permission was granted by the Deputy Commissioner, Chaibasa and thereafter on 28.09.1995, the power of attorney holder namely Gurumukh Singh Khokar transferred the entire property including the property mentioned in Schedule A of Title Suit No.12 of 2001 vide registered sale-deed to the defendant of Title Suit No.12 of 2001 and thus, the defendant of Title Suit No.12 of 2001 acquired an absolute and indefeasible right, title and interest of the property in question. But in spite of execution of the sale-deed as Shatrughan Pathak did not deliver the possession of the land to the defendant of Title Suit No.12 of 2001 because of greed and lust of money, hence, the defendant of Title Suit No.12 of 2001 filed Title Suit No.24 of 1986 and the same was decreed. The defendant of Title Suit No.12 of 2001 further pleaded that the plaintiff of Title Suit No.12 of 2001 was fully aware of the proceeding and pendency of Title Suit No.24 of 1986.

#6. In view of the rival pleadings of the parties, the learned trial court settled the following six issues:- (1) Whether the applicant/petitioner can seek adjudication of his right, title and interest U/O XXI Rule 97 of C.P.C? (2) Whether the applicant/Plaintiff has acquired his absolute right, title and interest over the property in question by the principle of adverse possession? (3) Whether the decree passed in Title Suit No.24/86 is null, void and not executable? 4 S.A.No.84 of 2019 (4) Whether the applicant/Plaintiff has got any Title over the property in (5) Whether question pursuant to the said agreement to sell dated 05.02.1978? applicant/plaintiff Madan Jha in execution of the writ issued in execution case No.8/1998 was occasioned without any just cause? caused by obstruction resistance (6) Whether the separate Title Suit No.12 of 2001 filed by the applicant/plaintiff for declaration of his right, title and interest over the property in question is maintainable?

#7. In support of his case, the plaintiff of Title Suit No.12 of 2001 examined three witnesses and proved the documents which have been marked Ext.1 to 3 whereas the defendant examined only one witness.

#8. The learned trial court first took up issue/question No. (2) and after considering the evidence in the record, came to the conclusion that the plaintiff of Title Suit No.12 of 2001 has failed to establish his claim of title over the property by way of adverse possession and went on to hold that the applicant/plaintiff has not acquired any title over the property in question by way of adverse possession and he has no right, title and interest over the suit property in question.

#9. Then the learned trial court took up issue/question No. (4) and considering the materials in the record, came to the conclusion that the applicant/plaintiff has not got any right, title or interest over the property in question on the basis of the said agreement for sale dated 05.02.1978.

#10. In respect of issue/question No.(3), the learned trial court held that the decree passed in Title Suit No.24 of 1986 is not nullity and the same is executable.

#11. In respect of issue/question No. (1), the learned trial court concluded that the applicant/plaintiff is entitled to seek adjudication of his right under Order XXI Rule 97 and 99 of the Code of Civil Procedure.

#12. In respect of issue/question Nos. (6), the learned trial court came to the conclusion that in view of applicant/plaintiff having filed the petition under Order XXI Rule 97 of the Code of the Civil Procedure, the subsequent filing of Title Suit No.12 of 2001 was not maintainable under the provisions of Order XXI Rule 101 of the Code of Civil Procedure.

#13. This observation of the learned trial court appears to be apparently erroneous as it is crystal clear from the number assigned to the Suit and 5 S.A.No.84 of 2019 the Misc. Case that the Title Suit No.12 of 2001 was filed prior to filing of Misc. Case 06 of 2002.

#14. Lastly, the learned trial court took up issue/question No.(5) and after considering the materials in the record, came to the conclusion that since the applicant/plaintiff has not acquired any right, title and interest over the property in question nor has he got any title on the basis of the agreement for sale dated 05.02.1978, the obstruction and resistance in execution of the decree passed in Title Suit No.24 of 1986 was caused by the applicant/plaintiff without any just cause and at the instigation of the judgment debtors of the execution case. Hence, Title Suit No. 12 of 2001 is not maintainable and the applicant/plaintiff has no just cause to resist the decree passed in Title Suit No.24 of 1986 and dismissed both Misc. Case No.06 of 2002 and Title Suit No.12 of 2001 and directed that the proceeding of Execution Case No.08 of 1998 shall proceed and Nazneen Parween be put into the possession of the property in question.

#15. Being aggrieved by the judgment and decree passed by the trial court, the plaintiff of Title Suit No.12 of 2001 filed Title Appeal No.03 of 2006 in the court of Principal District Judge, West Singhbhum at Chaibasa which was ultimately heard and disposed of by the learned First Appellate Court by the impugned judgment and decree.

#16. The learned First Appellate Court after considering the materials available in the record and submissions made before it, formulated the following three points to decide in the appeal:-

#1. Whether the applicant/plaintiff acquired right, title and interest over the suit property on the basis of adverse possession which he claims to get in part performance U/s 53-A of T.P. Act through agreement to sale dated 05.02.1978 executed by the lessee Shatrughan Pathak. 2. Whether decree obtained by the defendant in Title Suit No.24 of 1986 was null, void and not executable? 3. Whether the applicant/ plaintiff has valid cause of action to file Misc. Case No.06/2002 and Title Suit No.12/2001?

#17. The learned First Appellate Court first considered the first point for determination formulated by it and considering the fact that the applicant/plaintiff the A.W.3 himself admitted in his plaint as well as in para-2 of his examination-in-chief that he is in possession of the suit house 6 S.A.No.84 of 2019 pursuant to the agreement for sale marked Ext. 1, therefore, the possession of the plaintiff of Title Suit No.12 of 2001 is permissive possession and relying upon the judgments of Hon’ble Supreme Court of India in the cases of Achal Reddy vs. Ramkrishna Reddiar & Others reported in AIR 1990 SC 553, Thakur Kishan Singh (Dead) vs. Arvind Kumar reported in (1994) 6 SCC 591, Roop Singh (Dead) through LRS. vs. Ram Singh (Dead) through LRS. reported in (2000) 3 SCC 708 and S. M. Karim vs. Most. Bibi Sakina reported in AIR 1964 SC 1254, came to the conclusion that permissive possession, howsoever long, cannot confer title by way of adverse possession and the possession pursuant to the sale agreement marked Ext. 1, cannot be termed as adverse possession in terms of Section 53-A of the Transfer of Property Act and went to hold that the applicant/plaintiff has not got any right, title and interest over the suit land by way of adverse possession.

#18. Then the learned First Appellate Court then took up the second point for determination and considering the fact that the defendant of Title Suit No.24 of 1986 contested the said suit and the minor Sharwan Kumar who was represented by his mother and natural guardian, the learned First Appellate Court came to the conclusion that the decree passed in Title Suit No.24 of 1986 does not suffer from nullity and it is executable.

#19. Lastly, the learned First Appellate Court considered the third point for determination and considering the fact that the plaintiff’s possession was permissive and not adverse by observing that the trial court has rightly considered the applicant/plaintiff has knowledge of pendency of Title Suit No.24 of 1986 and also considered that since claim and title of the defendant over the suit land has already been adjudicated by the trial court in Title Suit No.24 of 1986, the applicant/plaintiff of Title Suit No.12 of 2001 cannot be permitted the raise the same and similar issue in the garb of an application under Order XXI Rule 97 of the Code of the Civil Procedure and went on to hold that the applicant/plaintiff has no valid cause of action to file Misc. Case No.06 of 2002 or for that matter, the Title Suit No.12 of 2001 for declaration of the right, title and interest of the plaintiff of Title Suit No.12 of 2001 over the suit premises and went on 7 S.A.No.84 of 2019 to dismiss the appeal and affirmed the judgment and decree of the trial court.

#20. At the time of admission of this appeal vide order dated 19.02.2020, the following substantial question of law was formulated by the learned predecessor Judge in the roster:- “Whether the appellate court below has failed to appreciate the ambit and scope of Section 53-A of the Transfer of Property Act, 1882 which makes provision that if the transferee has in part performance of 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 contract then notwithstanding that where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed, the transferee or any person claiming under him shall be debarred from enforcing against the transferee and person claiming under him any right in respect of the property, and it is in teeth of violation of (2002) 3 SCC 676 or not ?”

#21. Mr. S. K. Sharma- learned counsel for the appellant submits that there is error in the substantial question of law formulated by the predecessor Judge and the predecessor Judge ought to have mentioned that the transfer has not been completed in the manner prescribed, the ‘transferor” instead of ‘transferee’ as mentioned in the said substantial question of law; or any person claiming under him shall be debarred from enforcing against the transferee.

#22. Mr. Sharma relies upon the judgment of the Hon’ble Supreme Court of India in the case of Shrimant Shamrao Suryavanshi and Another vs. Pralhad Bhairoba Suryavanshi (Dead) by Lrs. and Others reported in (2002) 3 SCC 676 paragraphs-15 and 16 of which read as under:- “15. 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 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 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. 8 S.A.No.84 of 2019

#16. But there are certain conditions which are required to be fulfilled if a transferee wants to defend or protect his possession under Section 53- A of the Act. The necessary conditions are: (1) there must be a contract to transfer for consideration of any immovable property; (2) the contract must be in writing, signed by the transferor, or by someone on his behalf; (3) the writing must be in such words from which the terms necessary to construe the transfer can be ascertained; (4) the transferee must in part-performance of the contract take possession of the property, or of any part thereof; (5) the transferee must have done some act in furtherance of the contract; and (6) the transferee must have performed or be willing to perform his part of the contract.” and submits that since in view of Section 53A of Transfer of Property Act, as it stood before its amendment by Act No.48 of 2001 with effect from 24.09.2001, the appellant who is the plaintiff of Title Suit No.12 of 2001 and the applicant of Misc. Case No.06 of 2002 is protected from the defendant of Title Suit No.24 of 1986 from enforcing the right in respect of the property over which the applicant/plaintiff of Title Suit No.12 of 2001 was in possession; hence the plaintiff of Title Suit No.12 of 2001 and the applicant of Misc. Case No.06 of 2002 , has been deprived of such protection in view of the decree passed in Title Suit No.24 of 1986. It is then submitted that since, the plaintiff of Title Suit No.24 of 1986 is claiming the title accrued from the vendor of the plaintiff of Title Suit No.12 of 2001, hence, both the courts below failed to consider that the defendant of Title Suit No.12 of 2001 is also debarred from dispossessing the plaintiff of Title Suit No.12 of 2001 and at best the defendant of Title Suit No.12 of 2001 could have enforced the agreement for sale entered into between Shatrughan Pathak and plaintiff of Title Suit No.12 of 2001. In this respect, Mr. Sharma relies upon the judgment of the Hon’ble Supreme Court of India in the case of Mahadeva and others v. Tanabai reported in (2004) 5 SCC 88 paragraph-8 of which reads as under:- “8. The judgment of the High Court is based on a question framed during the course of writing of the judgment which is in departure from the two questions of law on which the appeal was admitted for hearing. The whole emphasis shifted from the core issues. Then, the High Court has not discussed any law and has also not assigned any reason, much less a satisfactory one, for taking a view different from the one 9 S.A.No.84 of 2019 concurrently taken by the two courts below. The singular reason assigned by the High Court for denying the benefit of Section 53-A of the TP Act is not a sound reason by itself in view of the decision of this Court in Shrimant Shamrao Suryavanshi v. Pralhad Bhairoba Suryavanshi [(2002) 3 SCC 676] . This Court has held that merely because the suit for specific performance at the instance of the vendee has become barred by limitation that by itself is not enough to deny the benefit of the plea of part-performance of agreement of sale to the person in possession.”

#23. Mr. Sharma next relies upon the judgment of the co-ordinate Bench of this Court in the case of Smt. Gita Devi and Others vs. Mrs. Sobha Agarwalla and Others reported in 2017 (2) JCR 135 paragraph-17 of which reads as under:- “17. Learned counsel for the plaintiffs in this regard has relied upon the Judgment reported in AIR 1987 Patna, Page-5 but the facts in the case at hand are different. The appellants were not occupying smaller portion of the property rather they were in occupation and possession of Plot No. 151. Sitaram Agarwalla and his three brothers had executed single Sale Deed pertaining to Plot Nos. 151, 152 and 153 in favour of Gajanand Agarwalla. All the three plots were having their different identity which also reveal from the fact that Plot No. 153 was recorded in the name of Purni Devi and, therefore, Gajanand Agarwalla got the Sale Deed executed by Purni Devi in his favour pertaining to Plot No. 153. Since the plaintiffs did not make enquiry about the authority under which the appellants were occupying their possession over the suit property, they cannot be considered bonafide purchaser. For reference, Explanation-III of Section 3 of the Transfer of Property Act is being given hereunder:- “Explanation – III. – A person shall be deemed to have had notice of any fact if his agent acquires notice thereof whilst acting on his behalf in the course of business to which that fact is material: Provided that, if the agent fraudulently conceals the fact, the principal shall not be charged with notice thereof as against any person who was a party to or otherwise cognizant of the fraud.” The plaintiffs themselves have proved Khatian (Exhibits-9, 9/A and 9/B. In Exhibit-9, under Khata No. 413, the land is recorded in the name of Anabad Bihar Sarkar but against the Plot Nos. 151 and 152, illegal possession of Sitaram and against plot no. 153, possession of Purni Devi has been recorded but the plaintiffs did not make State of Bihar a party to the suit. Again it is observed that the documents brought on record by parties concerned have not properly been appreciated and both the courts misconstrued the documents in arriving at the conclusion.” and submits that the document put forth by the applicant/plaintiff 10 S.A.No.84 of 2019 of Title Suit No.12 of 2001 has not properly been appreciated by both the courts below and both the courts below have misconstrued the evidence put forth by the applicant/plaintiff of Title Suit No.12 of 2001 and arrived at a wrong conclusion.

#24. Mr. Sharma next relies upon the judgment of Hon’ble Supreme Court of India in the case of Tanzeem-E-Sufia v. Bibi Haliman and Others reported in (2002) 7 SCC 50 paragraph-13 of which reads as under:- “13. In support of the contention raised on behalf of the appellant, Shri Sanyal placed reliance upon a decision of this Court reported in Shreenath v. Rajesh [(1998) 4 SCC 543] . It has been held in this case that the term “any person” includes even a person not bound by the decree who shall also be entitled to file objections. It has been so provided to widen the scope of Order 21 Rule 97, so that all such matters may be decided at the execution stage itself to curtail the lengthy procedure of an independent suit claiming a right not to be dispossessed from the property covered by the decree of a court. Another decision relied upon is reported in Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal [(1997) 3 SCC 694] . It has been held that the executing court must first adjudicate upon the objection of the objector on merits under Rule 97(2) of Order 21 CPC. It is also observed that it should not be insisted that possession be handed over first and an application under Order 21 Rule 99 be moved later on complaining about dispossession.” and submits that any person as mentioned in Rule 97 of Order XXI of the Code of Civil Procedure includes even a person not bound by the decree who shall also be entitled to file objections and all such matters are to be decided at the execution stage itself to curtail the lengthy procedure of an independent suit claiming a right not to be dispossessed from the property covered by the decree of a court. Hence, it is submitted that the application under Order XXI Rule 97 of the Code of Civil Procedure is maintainable. Hence, it is submitted that the impugned judgment and decree passed by both the courts below be set aside and the Title Suit No.12 of 2001 as well as Misc. Case No.06 of 2002 be allowed.

#25. Learned counsel for the respondent on the other hand defends the impugned judgment and decree passed by both the courts below and draws the attention of this Court to the proviso of Section 53 A of Transfer of Property Act which reads as under:- 11 S.A.No.84 of 2019 [53-A. 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 ***, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed there for 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. (Emphasis supplied) And submits that since it has been categorically mentioned in Section 53 A of the Transfer of Property Act itself that provisions of Section 53 A of the Transfer of Property Act is not applicable in affecting the rights of a transferee for consideration who has no notice of contract or part performance thereof and there is absolutely no dispute that the sole respondent who was the plaintiff of Title Suit No.24 of 1986 was the transferee for consideration of the property having been purchased the same from Shatrughan Pathak after obtaining the permission from the Town Khas Mahal Authority being the Deputy Commissioner concerned and there is absolutely no pleading or evidence in the record put forth by the plaintiff of Title Suit No.12 of 2001 who was the applicant of Misc. Case No.06 of 2002 also, in the Title Suit No.12 of 2001 or in the application of Misc. Case No.06 of 2002 that the defendant of the said suit who is the sole respondent of this appeal, had notice of contract or part performance of the such contract between the plaintiff Title Suit No.12 of 2001 and Shatrughan Pathak and in the absence of that pleading or evidence there is no way the provisions of Section 53 A of the Transfer of Property Act can be made applicable to the defendant of Title Suit No.12 of 2001 in the facts of this case. It is further submitted that the suit land is 12 S.A.No.84 of 2019 not an ordinary land but admittedly the same was a Khas Mahal Land and since the undisputed settled position of land is that a Khas Mahal Land cannot be transferred without the prior permission of the Khas Mahal Authority and as admittedly the agreement for sell entered into by the plaintiff of Title Suit No.12 of 2001 and Shatrughan Pathak is without the permission of Khas Mahal Authority and such agreement even do not come under the ambit of agreement as envisaged under Section 53 A of the Transfer of Property Act. On the other hand the defendant of Title Suit No.12 of 2001 has undisputedly purchased the land by way of sale-deed after obtaining the permission of the Khas Mahal Authority being the Deputy Commissioner, so, indefeasible right, title and interest in respect of the suit property has accrued in favour of the defendant of Title Suit No.12 of 2001. Hence, it is submitted that the objector of Execution Case No.08 of 1998 neither having any right, title and interest over the suit land as held by both the courts below nor the benefit under Section 53 A of the Transfer of Property Act, 1882 is applicable to him. Hence, it is submitted that the sole substantial question of law be answered in the negative and this appeal, being without any merit, be dismissed.

#27. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is crystal clear that in order to apply the either provisions of Section 53 A of the Transfer of Property Act, 1882 to a transferee for consideration from the vendor of an agreement for sell the sine qua non is that such transferee must have notice of the contract or part performance thereof between its vendor and the person who entered into the agreement for sale with the vendor prior to such transfer, to the subsequent purchaser.

#28. Now, coming to the facts of the case this Court after carefully going through the materials available in the record as well as the evidence in the case, finds that it is not a case at all the case of the plaintiff of Title Suit No.12 of 2001 who was the applicant of Misc. Case No. 06 of 2002 that the defendant of Title Suit No.12 of 2001- who is undisputedly the transferee for consideration of the suit land, from the vendor of the plaintiff of Title Suit No.12 of 2001, had at any point of time any knowledge about the contract or part performance thereof between the plaintiff and Shatrughan 13 S.A.No.84 of 2019 Pathak and in the absence of any such pleading or proof, this Court has no hesitation in holding that appellate court has not failed to appreciate Section 53 A of the Transfer of Property Act; as the benefit of the same cannot be given to the plaintiff of Title Suit No.12 of 2001, in the absence of any notice of contract or part performance thereof; between the plaintiff of Title Suit No.12 of 2001 and the vendor Shatrughan Pathak, ; to the plaintiff of Title Suit No.24 of 1986, before the property being transferred for consideration to the plaintiff of Title Suit No.24 of 1986 or to the defendant of Title Suit No.12 of 2001.

#29. This Court also finds force in the contention of the learned counsel for the respondent that the agreement between Shatrughan Pathak and the plaintiff of Title Suit No.12 of 2001 is not a valid agreement for sale in the absence of any permission from the Khas Mahal Authority as such agreement would defeat the provision of seeking permission of the Khas Mahal Authority for transfer of the land. The Hon’ble Supreme Court of India in the case of Murlidhar Dayandeo Kesekar vs. Vishwanath Pandu Barde and Another reported in 1995 Supp (2) SCC 549 had the occasion to consider an agreement in respect of a tribal land vis-a-vis the applicability of Section 53 (A) of the Transfer of Property Act and observed as under in paragraph-22:- “22. It is seen that prior permission for alienation of the land was a condition precedent. Before permission is given, the competent authority is enjoined, by operation of Article 46 of the Constitution, to enquire whether such alienation is void under law or violates provisions of the Constitution and whether permission could be legitimately given. In that behalf, the competent authority is enjoined to look to the nature of the property, subject-matter of the proposed conveyance and pre- existing rights flowing thereunder and whether such alienations or encumbrances violate provisions of the Constitution or the law. If the answer is in the positive, then without any further enquiry the permission straightaway would be rejected. Even in case the permission is granted, it would be decided on the anvil of the relevant provisions of the Constitution and the law. In this case, the authorities, though had not adverted to the aspect of the matter, broadly refused permission on the ground that the assigned land cannot be permitted to be sold or converted to non-agricultural use. The action refusing permission, therefore, is in consonance with the constitutional scheme in Part IV of the Directive Principles. The agreement is, therefore, void under Section 23 of the Contract Act as opposed to public policy, vide judgment in Delhi Transport Corpn. v. D.T.C. Mazdoor Congress [1991 Supp (1) SCC 600 : 1991 SCC (L&S) 1213 : 1990 Supp (1) SCR 14 S.A.No.84 of 2019 142] , by one of us Ramaswamy, J. with whom Sawant and Ray, JJ. agreed by separate but concurring judgment and the permission was rightly refused to be given for alienation. The possession is unlawful. Section 53-A of Transfer of Property Act is not attracted. The appellant’s possession continues to be unlawful and he is not entitled to any improvement made on the lands. The Collector is directed to resume the lands immediately and assign the same to the legal representatives of first respondent, if found eligible or to any other eligible tribal.” (Emphasis supplied) and in this case prior permission of the Khas Mahal Authority for alienation of the land was a condition precedent but admittedly the agreement for sell was entered into without seeking the permission of the Khas Mahal Authority, certainly the same is another ground because of which, the shield provided to a person who has entered into an agreement for sell and has taken possession of the land in part performance of the contract, it is envisaged under Section 53 A of the Transfer of Property Act, 1882; cannot be given.

#30. Accordingly, this Court answers the sole substantial question of law framed in this appeal in the negative by holding that the appellate court below has not failed to appreciate the ambit and scope of Section 53 (A) of the Transfer of Property Act, 1882.

#31. Because of the discussions made above, this Court has no hesitation in holding that there is no merit in this Second Appeal. Accordingly, the same is dismissed on contest but under the circumstances without any costs.

#32. Let a copy of this judgment along with the Lower Court Records be sent to the courts concerned forthwith. High Court of Jharkhand, Ranchi Dated the 09th of May, 2023 AFR/ Animesh (Anil Kumar Choudhary, J.) 15