Raj Pal Singh v. Smt. Harbans Kaur

plaintiff/appellant, was dismissed. The plaintiff/appellant, filed a suit for mandatory injunction, by claiming to be the owner of kothi No. 132, Allenby Lines, Ambala Cantt. The pleaded case of the plaintiff/appellant was, that one Puran Singh was inducted as licencee in the kothi, who died. Defendant i.e. widow of Puran Singh, was thereafter inducted as licencee, on payment of licence fee of Rs.500/- (Rupees five hundred only) per month. The plaintiff/appellant claimed, that the licence of the defendant/respondent, was terminated by means of registered notice dated 11.7.1985, but she failed to deliver the possession, which led to R.S.A. No. 3106 of 1996 (O&M) filing of the suit. -2- The suit was contested by the defendant/respondent, by denying that the plaintiff/appellant, was the owner of kothi. The defendant claimed her ownership over the disputed kothi. The defendant/respondent, denied that Puran Singh was inducted as licencee in the kothi. The defendant, claimed to have come in possession of the disputed kothi in the year 1958, and since then her possession was uninterrupted, open and hostile to the knowledge of everyone, including the plaintiff/appellant. She, thus, claimed, ownership by way of adverse possession. The defendant/respondent also asserted ownership, by way of part performance of the contract, by taking a stand, that the plaintiff/appellant, along with Jaipal Singh and Satpal Singh, had executed an agreement to sell dated 5.11.1958 in favour of the defendant/respondent, and that the defendant/respondent, was in possession of the suit property under part performance of the agreement. On the pleadings of the parties, the learned trial Court framed the following issues: - “1. Whether the plaintiff is entitled for vacant possession of the property mentioned in the plaint? OPD

2. Whether the plaintiff was not owner of the above referred property? OPD

3. Whether the defendant has become the owner of the property in dispute by way of adverse possession? OPD

4. Whether the defendant has become owner of the kothi in question by part performance of contract as alleged in the additional plea? OPD

5. Relief.” R.S.A. No. 3106 of 1996 (O&M) -3- On appreciation of evidence, the learned Courts below recorded, a concurrent finding of fact, that the plaintiff/appellant was not entitled to vacant possession of the property in dispute. The plaintiff/appellant, was held to be owner of the disputed property, as the defendant/respondent had not perfected her title by way of adverse possession. This finding was recorded in view of the stand taken by the defendant/respondent that she was in possession of kothi under the agreement to sell. On issue No.4, the learned Courts below recorded, that though the defendant has not become owner of the property in dispute, but, she was entitled, to protect her possession by virtue of Section 53-A of the Transfer of Property Act. Mr. H.S. Gill, learned senior counsel, appearing on behalf of the appellant, contends that the following substantial questions of law arise for consideration in this appeal: - “1. Whether protection under Section 53-A of the Transfer of Property Act is available to the defendant when it is not pleaded in the written statement that she was ready and willing to perform her part of the contract?

2. Whether mere marking of a document as an exhibit can dispense with the proof of the document particularly when the document in question is only a photostat copy?

3. Whether the plea of part performance of a contract is available to a person who is merely a licencee?

4. Whether material evidence was ignored from consideration?” In support of the first substantial question of law, the learned R.S.A. No. 3106 of 1996 (O&M) -4- senior counsel for the appellant contended, that in order to claim protection under Section 53-A of the Transfer of Property Act, it was incumbent upon the defendant/respondent to have pleaded and proved that she was willing and always willing to perform her part of the contract. In absence of these pleadings, the learned Courts below committed, an error in applying the provisions of Section 53-A of the Transfer of Property Act, to protect the possession of the defendant/respondent. In support of this contention, the learned senior counsel placed reliance on the judgment of this Court, in Om Parkash Vs. Sharma Electric Company, 1985 PLR 198. On consideration, I find no force in the contention raised by the learned senior counsel for the appellant. The judgment in Om Parkash Vs. Sharma Electric Company (supra) is on the facts of that particular case. Section 53-A of the Transfer of Property Act protects the possession of the person who may have acted on a contract of sale but in whose favour no legally valid sale deed may have been executed or registered. In dealing with the doctrine of part-performance the Apex Court in Hamzabi and others Vs. Syed Karimuddin and others, 2001(1) RCR (Civil) 522 (SC) : 2001(1) MPLJ (S.C.) 373 : 2001(1) SCC 414 held as under: - “Section 53-A provides for another equitable principle viz., the doctrine of part-performance, it protects the possession of persons who may have acted on a contract of sale but in whose favour no legally valid sale deed may have been executed or registered. The language of R.S.A. No. 3106 of 1996 (O&M) -5- Section 53-A is mandatory. The conditions necessary under this Section for making out the defence of part- performance to an action in ejectment by the owner have been extricated in Nathulal v. Phoolchan, (SCC p. 123 para 9): “(1) that the transferor has contracted 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; (2) that 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; (3) that the transferee has done some act in furtherance of the contract; and (4) that the transferee has performed or is willing to perform his part of contract.” After the agreement to sell was executed and possession given to the defendant/respondent, the plaintiff/appellant, on receipt of balance sale consideration, entered into another agreement dated 8.12.1958, vide which the defendant/respondent was allowed to use the premises as an absolute owner. The defendant/respondent was permitted to get the electric connection, make improvements and take all other necessary steps. This proved the willingness of the defendant/respondent to perform her part of contract. The Hon'ble Supreme Court in Mahadeva and others Vs. Tanabai, AIR 2004 Supreme Court 3854 has been pleased to lay down as under: - R.S.A. No. 3106 of 1996 (O&M) -6- “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 reason, much less a satisfactory one, for taking a view different from the one 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 T.P. Act is not a sound reason by itself in view of the decision of this Court in Shrimant Shamrao Suryavanshi and another v. Pralhad Bhairoba Suryavanshi (dead) by Lrs. and others, (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.” Thus, it would be seen that the condition stipulated to invoke Section 53-A of the Transfer of Property Act, stood duly fulfilled by execution of the second agreement. The first substantial question of law is answered against the appellant. The learned senior counsel for the appellant, thereafter contended, that the learned Courts below, wrongly placed reliance on the agreement to sell, which was not proved in accordance with law. Merely, because the document was exhibited, it cannot be read in evidence, in absence of the document having proved in accordance with law. This contention, again deserves to be noticed to be rejected, R.S.A. No. 3106 of 1996 (O&M) -7- for the reasons, that it is not in dispute that the plaintiff/appellant, during his cross-examination, admitted the execution of the agreement. No fault, therefore, can be found with the judgment passed by the learned trial Court, holding that the defendant/respondent, was in possession of the kothi in part performance of the agreement. Even otherwise, once the plaintiff/appellant, had failed to prove that the defendant/respondent, was a licencee under him, the suit for mandatory injunction, as framed, was not competent. In view of the findings recorded, the substantial questions of law are answered against the appellant and the appeal is ordered to be dismissed, but with no order as to costs. March 18, 2010 R.S. (Vinod K. Sharma) Judge