Legally Bharat

Andhra Pradesh High Court – Amravati

Allada Satyanarayana vs Kosaraju Sobhanamjali on 12 September, 2024

         THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

                      APPEAL SUIT No.708 OF 2006
JUDGMENT:

This Appeal, under Section 96 of the Code of Civil Procedure [for
short ‘the C.P.C.’], is filed by the Appellant/third defendant challenging
the Decree and Judgment, dated 04.08.2006, in O.S. No.105 of 2001
passed by the learned Additional Senior Civil Judge (Fast Track Court),
Gudivada [for short ‘the trial Court’]. The Respondents herein is the
plaintiffs and other defendants in the said Suit.

2. The respondents1 and 2/plaintiffs filed the Suit for (i) directing the
defendants 1 and 2 to deposit a sum of Rs.3,84,838. 64 paise together
with interest on the principal amount of Rs.2,08,970/- from the date of suit
till the date of deposit into a Nationalized Bank in the name of the first
plaintiff for her benefit; (ii) directing the third defendant to deposit a sum
of Rs.1,78,625.50 paise together with interest on the principal amount of
Rs.1,27,000/- from the date of the suit till the date of realization in the
name of the first plaintiff for her benefit; (iii) ejecting the defendants 1 and
2 from the plaint C schedule land and put the same in possession of the
maternal grand parent of the first plaintiff and to grant future profits on a
separate application filed in that behalf and the second plaintiff claims the
recovery of possession of plaint A schedule land from the third defendant
together with future profits from the date of plaint and for costs.

3. Both the parties in the Appeal will be referred to as they are
arrayed before the trial Court.

4. The brief averments of the plaint, in O.S. No.105 of 2001, are as
under:

2 VGKRJ
AS 708 of 2006

The second plaintiff is the wife of Sri Yalamanchili Gopala Krishna,
who is the maternal grand father and next friend of the minor first plaintiff
Sobhanamjali. Aruna Kumari is the mother of Sobhanamjali. The first
defendant is the father of the said Sobhanamjali. Aruna Kumari was the
daughter of the second plaintiff and wife of first defendant.

An extent of Ac.2.80 cents of wet land situated in Bommanampadu
village, Mudinepalli Mandal, Krishna District together with 31 coconut
trees and 6 Palmyrah trees, all fruit bearing trees, therein was given by
the second plaintiff to her daughter Aruma Kumari as Pasupukumkuma
and Sthreedhana at the time of her marriage with the first defendant. The
said Aruna Kumari was in possession and enjoyment of the said land
along with trees therein and she was also in possession and enjoyment of
another extent of Ac.0.30 cents got from her paternal grand mother. It
was also situated in Bommanampadu village. Out of said extent of
Ac.0.30 cents, an extent of Ac.0.20 cents was on the immediate North
and the remaining extent of Ac.0.10 cents was on the immediate South of
the said Ac.2.80 cents. The said Ac.2.80 cents is shown in the plaint A
schedule property.

The said Aruna Kumari paid cist in the name of her mother for the
said Ac.2.80 cents through her husband on 24.04.1994 for faslis 1400,
1401 and 1402. The defendants 1 and 2 wanted to sell away the said
Ac.2.80 cents together with the said trees therein and wanted to purchase
land with the sale proceeds that may be realized in the name of said
Aruna Kumari for her benefit. The said Aruna Kumari and her parents
made it clear to the third defendant that the said land together with trees
therein will be sold and a registered sale deed will be executed only if the
entire sale proceeds are utilized for the purchase of the land for the
3 VGKRJ
AS 708 of 2006

benefit of the said Aruna Kumari and the registered sale deed will be
executed in respect of the plaint A schedule land only after a sale deed is
obtained in the name of the said Aruna Kumari. The third defendant
agreed for the said conditions and wanted to purchase the plaint A
schedule land and the said trees therein. As there was no registered gift
deed in favour of the said Aruna Kumari in respect of the said land, and
the said trees, the third defendant wanted to obtain an agreement of sale
initially and a registered sale deed afterwards from the second plaintiff,
who already made over the said property to the said Aruna Kumari even
before her marriage and which was announced as Pasupukumkuma gift
at the time of her marriage. It was agreed upon between all the parties
concerned that the consideration for the land of Ac.2.80 cents should be
Rs.1,96,000/- and that the consideration for 31 coconut trees is
Rs.1,24,000/- and for 6 Palmyrah trees is Rs.3,000/-.

An amount of Rs.1,30,000/- was given by the third defendant to the
second defendant towards part of the sale consideration. At the time of
arrangement, Boppana Baburao and Kosaraju Ramarao were not present.
Only Paladugu Surya Prakasarao and Paladugu Ganga Satyanarayana
and the next friend of the first plaintiff were present, apart from the
defendant 1 to 3. On 23.11.1994, when a payment of Rs.68,970/-,
balance of sale consideration with interest, was made by the third
defendant to the second plaintiff, the defendants 1 and 2 were not
present at that time and they came after completion of entire writing etc.,
then the said amount of Rs.68,970/- was given to the second defendant
by the next friend of the first plaintiff. The third defendant did not demand
the execution of the registered sale deed because he has not fulfilled the
condition of getting a registered sale deed in favour of Aruna Kumari, with
the sale proceeds in the hands of second defendant and in view of the
4 VGKRJ
AS 708 of 2006

amount to be paid by the third defendant towards the value of the trees
and interest thereon. After the demise of Aruna Kumari, the third
defendant got issued a registered notice demanding the execution of the
sale deed, hence the plaintiffs are constrained to file the suit.

5. The defendants 1 and 2, son and father, filed a written statement
by admitting the relationship with the plaintiffs and they also contend that
the second plaintiff is the owner of the plaint A schedule property and
they have not received any sale consideration under plaint A schedule
property and they do not know about the alleged possessory agreement
of sale and they prayed the suit may be dismissed.

6. The third defendant filed a written statement by denying all the
averments mentioned in the plaint and further contended as under: –

The second plaintiff as absolute owner of the plaint A schedule
property, entered into an agreement of sale with this defendant on
24.07.1994 and she executed an agreement of sale in favour of third
defendant. She sold the land, for the benefit of her family, for
Rs.1,96,000/- and on the date of agreement of sale from out of the sale
consideration, the second plaintiff received an amount of Rs.1,30,000/-

from the third defendant. According to the terms of the said agreement of
sale, this defendant has to pay the balance of Rs.66,000/- to the second
plaintiff, on the date of agreement of sale itself, the second plaintiff
delivered possession of the land to this defendant. Subsequently, on
23.11.1994 this defendant paid the second plaintiff the balance of sale
consideration of Rs.66,000/- and also interest due thereon Rs.2,970/- and
the second plaintiff got the payment endorsement made on the
agreement and signed under it and her husband also attested the same
payment endorsement along with another attestor Boppana Babu Rao.

5 VGKRJ
AS 708 of 2006

Subsequently, on 25.05.1995, this defendant requested the second
plaintiff to execute a registered sale deed in his favour, then the second
plaintiff stated that they are in difficulties due to the death of her daughter
and in next month, she will execute a sale deed. Subsequently also this
defendant demanded the second plaintiff on several occasions to execute
registered sale deed in his favour, but the second plaintiff has been
postponing the same on some pretext or other, he has been all through
ready and willing to perform his part of the contract. The defendants 1
and 2 were not present at the time of agreement of sale. The amount of
Rs.1,30,000/- from out of the sale consideration was paid by this
defendant to the second plaintiff at the time of agreement of sale and not
to second defendant.

7. The third defendant filed additional written statement; the contents
of the same, in brief, are as follows:

As can be seen from the agreement of sale executed by second
plaintiff in favour of this defendant and also from the written statement
filed by this defendant, an amount of Rs.1,30,000/- and also Rs.68,970/-
(balance of sale consideration with interest) was paid by this defendant to
the second plaintiff. The second plaintiff kept silent till this defendant got
issued registered notice dated 06.08.1995 through his advocate and the
second plaintiff came forward with a false case in her belated reply
registered notice dated 04.09.1995. It is a fact that possessory contract of
sale was written on Rs.100/- stamp paper on 24.07.1994. The second
plaintiff is not entitled to relief of possession of plaint A schedule land as
this defendant has performed his part of the contract and further the
plaintiffs have concede the rights of this defendant under the said
agreement of sale. In any event assuming for arguments sake though not
6 VGKRJ
AS 708 of 2006

conceding, that the plaintiffs are having a right to cancel the agreement of
sale, they have to seek such a relief in the suit, which was not done by
plaintiffs in the suit. Further the relief of cancellation of agreement of sale
can be asked within 3 years from the date of agreement of sale,
otherwise it is barred by limitation, since the relief is not asked within 3
years from the date of agreement of sale dated 24.07.1994, it is barred by
limitation.

8. Based on the above pleadings, the trial Court framed the following
issues:

(i) Whether the first plaintiff is the sole heir of her deceased
mother Aruna Kumari and her properties, as the first
defendant is disqualified to inherit the properties as a
murderer?

(ii) Whether the plaint schedule A, B and C properties and
another extent of Ac.0.30 cents of lands belonged to the
deceased mother of first plaintiff?

(iii) Whether the sale consideration of plaint schedule A land
and another extent of land Ac.0.30 cents is received by
the first and second defendants? If so, whether the said
amount of consideration was deposited the first
defendant in the Indian Bank, Vuyyuru Branch in the joint
names of the first defendant and the deceased mother of
first plaintiff? Whether first and second defendants are
liable to return the said sale consideration along with
interest to the first plaintiff?

(iv) Whether the plaint B and C schedule properties are in
the custody of the defendants 1 and 2? And If so,
whether they are liable to return the same to the first
plaintiff?

(v) Whether the third defendant is liable to pay the total
value of trees is Rs.1,27,000/- in the plaint A schedule
land and interest thereon at 18% p.a. to the first plaintiff?

7 VGKRJ
AS 708 of 2006

(vi) To what relief?

ADDITIONAL ISSUES

(i) Whether the second plaintiff is entitled to recover the
possession of plaint A schedule land from the 3rd
defendant?

(ii) Whether the second plaintiff is entitled of future profits
from the date of suit as against the 3rd defendant?

9. During the course of trial in the trial Court, on behalf of the Plaintiffs,
PW1 and PW2 were examined and Ex.A1 and Ex.A6 were marked. On
behalf of the Defendants DW1 to DW5 were examined, but no
documentary evidence was adduced on behalf of defendants.

10. After completion of the trial and on hearing the arguments of both
sides, the trial Court partly decreed the suit with costs vide its judgment,
dated 04.08.2006, against which the present appeal is preferred by the
appellant/third defendant in the Suit questioning the Decree and
Judgment passed by the trial Court.

11. Heard Sri Srinivasa Rao Velivela, learned counsel for
appellant/third defendant and Sri Sivalanka Ramachandra Prasad and Sri
P.Prabhakar Rao, learned counsels for the respondents.

12. Learned counsel for appellant would contend that the judgment and
decree passed by the trial Court is contrary to law, against the pleadings
and the evidence on record and the Court below erred in partly decreeing
the suit of the plaintiffs and directing the third defendant to deliver
possession of plaint A schedule property to the second plaintiff. He would
further contend that the trial Court failed to see that the second plaintiff
8 VGKRJ
AS 708 of 2006

should not be allowed to amend the plaint seeking the alternative relief for
her benefit without paying the required Court fees.

13. Per contra, the learned counsel for respondents would contend that
on appreciation of the entire evidence on record, the learned trial Judge
rightly decreed the suit in part by ordering recovery of possession of
plaint A schedule property from the third defendant and there is no need
to interfere with the finding given by the learned trial Judge.

14. In the suit proceedings, the plaintiffs sought relief of recovery of an
amount of Rs.3,84,838.64 paise and directing the third defendant to
deposit a sum of Rs.1,78,625.50 paise together with interest on principle
amount of Rs.1,27,000/- from the date of suit and evict the defendants 1
and 2 from the plaint C schedule property and to the possession of the
maternal grand parents of first plaintiff and the plaintiffs also sought
alternative relief of recovery of possession of A schedule property from
the third defendant. After completion of the trial and hearing arguments of
both sides, the learned trial Judge partly decreed the suit as under:

“The suit is partly decreed with costs and the third defendant is
directed to deliver the possession of plaint A schedule property to
the second plaintiff within 3 months from the date of this judgment
failing which the second plaintiff is entitled to execute this decree.
The recovery of sale consideration from defendants 1 and 2 is
dismissed. The recovery of plaint B schedule property in respect of
items other than gold and some of the domestic articles is
dismissed. As the first plaintiff is in the custody of the first
defendant, the first defendant is directed to return the half of the
amount of the value of 4 gold bangles and some of the domestic
articles of Sthridhanam property of late Aruna Kumari, which were
9 VGKRJ
AS 708 of 2006

in his possession to the first plaintiff after her attaining majority. As
no relief is sought against D4, the suit against D4 is dismissed. The
plaintiffs are directed to pay the Court fee due to the government.
The suit is disposed of accordingly”.

The plaintiffs or the defendants 1 and 2, have not filed any appeal
or cross objections against the said decree and judgment passed by the
trial Court. The present appeal is filed by the third defendant with a prayer
to set aside the relief of recovery of possession of plaint A schedule
property awarded by the trial Court from the appellant/third defendant.

15. Having regard to the pleadings in the suit, the findings recorded by
the trial Court and in the light of rival contentions and submissions made
on either side before this Court, the following points would arise for
determination:

1. Whether the appellant/third defendant is entitled
protection under Section 53-A of Transfer of
Property Act?

2. Whether the trial Court is justified in ordering the
recovery of possession of plaint A schedule property
from the appellant/third defendant to the second
plaintiff?

16. Point No.1:

                  Whether      the    appellant/third        defendant     is
                  entitled     protection under Section 53-A of
                  Transfer of Property Act?
                                   10                                VGKRJ
                                                             AS 708 of 2006




The case of the appellant is that an extent of Ac.2.80 cents of wet
land situated in Bomminampadu village, Mudinepalli Mandal, Krishna
District, together with 31 coconut trees and 6 Palmyrah trees, all fruit
bearing trees, therein was given by the second plaintiff to her daughter
Aruna Kumari as Pasupukumkuma and Sthridhana at the time of her
marriage with the first defendant. The plaintiffs further pleaded that the
said Aruna Kumari paid cist in the name of her mother Yelamanchili
Padmavathi for the said Ac.2.80 cents to the government through her
husband on 24.04.1994 for faslies 1400, 1401 and 1402. The defendants
1 and 2 wanted to sell away the said Ac.2.80 cents together with the said
trees therein and wanted to purchase land with the sale proceeds that
may be realized in the name of the said Aruna Kumari for her benefit at a
place convenient for them. The said Aruna Kumari and her parents made
it clear to the third defendant that the said land together with the trees
therein will be sold and a registered sale deed will be executed only if the
entire sale proceeds are utilized for the purchase of the land for the
benefit of the said Aruna Kumari and the registered sale deed will be
executed in respect of the plaint A schedule land only after a sale deed is
obtained in the name of the said Aruna Kumari. The third defendant
agreed for the said conditions and wanted to purchase the plaint A
schedule land and the said trees therein. As there was no registered gift
deed in favour of the said Aruna Kumari in respect of the said land and
the said trees, the third defendant wanted to obtain an agreement of sale
initially and a registered sale deed afterwards from the second plaintiff,
who already made over the said property to the said Aruna Kumari even
before her marriage and which was announced as Pasupukumkuma gift
at the time of her marriage. That is why the said Aruna Kumari paid cist to
the government for faslies 1396, 1397 on 25.12.1988. It was agreed upon
11 VGKRJ
AS 708 of 2006

between all the parties concerned that the consideration for the land of
Ac.2.80 cents should be Rs.1,96,000/- and that the consideration for 31
coconut trees Rs.1,24,000/- and 6 Palmyrah trees Rs.3,000/-

17. The plaintiffs further pleaded that interest should be paid by
appellant on the value of the trees at 18% p.a. from the date of delivery of
possession of the said land. The attestors Boppana Baburao and
Kosaraju Ramarao came after the completion of the writing of the
agreement and just before the second plaintiff signed the said agreement,
the defendants 1 and 2 were also present. An amount of Rs.1,30,000/-
was given by the third defendant to the second defendant towards part of
the sale consideration. One Paladugu Surya Prakasarao and Paladugu
Ganga Satyanarayana and the next friend of the first plaintiff were
present apart from the defendants 1 to 3. The third defendant is enjoying
the usufruct of the high income yielding coconut trees and the other
Palmyrah trees from the date of agreement. On 23.11.1994, when a
payment of Rs.68,970/-, balance of sale consideration with interest, was
made by the third defendant to the second plaintiff, the defendants 1 and
2 were not present at that time and they came some time after the said
payment and the completion of the entire writing etc., of the payment
endorsement by G.Koteswara Rao. Then the said amount of Rs.68,970/-
was given to the second defendant by the said next friend of the first
plaintiff in the presence of Paladugu Surya Prakasa Rao and Paladugu
Ganga Satyanarayana. Even though the entire sale consideration of the
land alone together with interest was paid, the third defendant cannot
insist upon the execution of the regular registered sale deed in respect of
the said plaint A schedule land, because it is incumbent on the part of the
second defendant to see that the land is purchased with the amount paid
and to be paid in respect of the value of the trees together with interest
12 VGKRJ
AS 708 of 2006

thereon by him and a regular registered sale deed is to be obtained in
favour of the said Aruna Kumari and that the plaintiffs are constrained to
file the suit against the defendants.

18. The defendants 1 and 2 pleaded that they do not know about the
alleged possessory agreement of sale and they have not received any
consideration either from the third defendant or from the plaintiffs in
respect of plaint A schedule property. The case of the appellant/ third
defendant is that the unregistered possessory sale agreement is admitted
by the plaintiffs, therefore, the appellant is entitled protection under
Section 53(A) of Transfer of Property Act. It is an admitted fact that the
alleged possessory agreement of sale is not filed by the appellant, though
he is in possession of the same. It is the specific case of the appellant
that the alleged unregistered possessory agreement of sale is with him. It
is admitted by both the parties that the second plaintiff is the owner of the
plaint A schedule property. The case of the plaintiffs is that the third
defendant was in possession under possessory agreement of sale dated
24.07.1994. There was exchange of notices in between the appellant and
the plaintiffs prior to institution of the suit. The suit is instituted by the
plaintiffs in the year 1996 by way of pauper suit vide O.P.No.93 of 1996.
As per the case of the third defendant he is in a possession of the plaint A
schedule property under unregistered alleged possessory agreement of
sale dated 24.07.1994. It is not in dispute that the third defendant has not
filed any suit for specific performance of agreement of sale dated
24.07.1994. As stated supra, as per the case of the appellant, the alleged
unregistered possessory agreement of sale is drafted on hundred-rupee
stamp paper; therefore, it is not sufficiently stamped. No doubt, the case
of the plaintiffs is also the same that the third defendant came into
possession of the plaint A schedule property under the alleged
13 VGKRJ
AS 708 of 2006

unregistered possessory agreement of sale dated 24.07.1994, but the
contention of the plaintiffs is that the second plaintiff has not received any
sale consideration. The same is stated by PW1 and PW2 in their
evidence.

19. As stated supra, there was an exchange of notices in between the
alleged transferee and transferor. Ex.A1 is the legal notice said to have
been issued by the third defendant dated 06.08.1995 to the second
plaintiff. In Ex.A1 legal notice, the third defendant demanded the second
plaintiff to execute a regular registered sale deed in favour of the
appellant herein. Ex.A2 is the reply registered notice dated 04.09.1995
said to have been issued by the second plaintiff to the third defendant. In
the said legal notice, the second plaintiff pleaded that the defendants 1
and 2, who are the husband and father-in-law of her daughter wanted to
sell away the said Ac.2.80 cents which was given by her towards
Pasupukumkuma at the time of her marriage. She also further pleaded
that the said Aruna Kumari and her parents made it clear to the intending
purchasers that the said land together with the trees therein will be sold
and a registered sale deed will be executed only if the entire sale
proceeds are utilized for the purchase of the land for the benefit of the
said Aruna Kumari and the registered sale deed will be executed only
after the sale deed is obtained in the name of said Aruna Kumari. In
Ex.A2 legal notice, the second plaintiff also specifically pleaded that at
the time of agreement the alleged attestors were not present and the
consideration under the alleged possessory agreement of sale is not at all
received by the second plaintiff. In Ex.A2 reply notice, the plaintiffs
specifically pleaded that the third defendant did not demand the execution
of sale deed because he has not fulfilled the conditions of getting
registered sale deed in favour of Aruna Kumari with the sale proceeds in
14 VGKRJ
AS 708 of 2006

the hands of the said Narasaiah. Ex.A3 is the registered re-joinder notice
said to have been issued by the appellant dated 04.11.1995. Ex.A4 is the
reply registered notice dated 11.11.1995 to Ex.A3 notice said to have
been issued by the second plaintiff by informing the third defendant that
he is not at all entitled to claim any relief against the second plaintiff
unless and until he fulfilled his contractual obligations as detailed in the
first registered notice. It is not in dispute that the appellant received the
said reply notice. Therefore, it is clear that there was exchange of notices
in between the appellant and the second plaintiff. It is also made it clear
that after receipt of legal notice within 3 years from the date of denial, the
appellant has not filed any suit for specific performance of agreement of
sale. If the appellant is having any strong defense, he has to file a suit for
specific performance of agreement of sale within 3 years from the date of
alleged denial made by the second plaintiff. Admittedly, the original
alleged possessory agreement of sale dated 24.07.1994 is with the third
defendant and the third defendant purposefully withhold the same and the
same is not filed either before the trial Court or before the appellant Court
herein. It is also to be noted that the alleged unregistered possessory
agreement of sale is dated 24.07.1994, as stated supra, there is
exchange of notices in between both the parties prior to institution of the
suit by the transferor for recovery of possession in the year 1996, but the
appellant did not choose to file any suit for specific performance of
agreement of sale within 3 years from the date of receipt of notice from
the second plaintiff. For the reasons best known to the appellant, the
appellant did not choose to file the suit for specific performance of
agreement of sale till so far, even though 30 years has been elapsed. As
stated supra, the alleged agreement of sale which was drafted on
hundred-rupee stamp paper and which was insufficiently stamped is not
15 VGKRJ
AS 708 of 2006

at all filed by the appellant and the appellant purposefully withhold the
same.

20. Section 53A of Transfer of Property Act reads as under:

53A. Part performance.– Where any person contracts to transfer
for consideration any immoveable property by writing signed by him
or on his behalf from which the terms necessary to constitute the
transfer can be ascertained with reasonable certainty, and the
transferee has, in part performance of the contract, taken
possession of the property or any part thereof, or the transferee,
being already in possession, continues in possession in part
performance of the contract and has done some act in furtherance
of the contract, and the transferee has performed or is willing to
perform his part of the contract, then, notwithstanding that, where
there is an instrument of transfer, that the transfer has not been
completed in the manner prescribed therefor by the law for the time
being in force, the transferor or any person claiming under him shall
be debarred from enforcing against the transferee and persons
claiming under him any right in respect of the property of which the
transferee has taken or continued in possession, other than a right
expressly provided by the terms of the contract: Provided that
nothing in this section shall affect the rights of a transferee for
consideration who has no notice of the contract or of the part
performance thereof.

21. There is no averment in the written statement that he has been
claiming possession of the property in part performance of the contract.
To claim the benefit under Section 53-A of Transfer of Property Act, there
shall be necessary pleadings. In the absence of necessary pleadings, the
benefit under the provision cannot be claimed. The law in this regard is
16 VGKRJ
AS 708 of 2006

well settled in Shyam Narayan Prasad vs. Krishna Prasad1, that “the
defendant who intends to avail the benefit of Section 53-A of Transfer of
Property Act must plead that he has taken possession of the property in
part performance of the contract….. No relief can be granted to a party
without the pleadings”.

It is the case of the appellant that the alleged possessory
agreement of sale is dated 24.07.1994 and it is also the contention of the
appellant that he purchased the property for an amount of Rs.1,96,000/-
under the alleged unregistered possessory agreement of sale dated
24.07.1994 and it was drafted on hundred-rupee stamped paper,
therefore, it is clear that the alleged agreement of sale is not sufficiently
stamped and it is also invalid document for claiming the rights of the party.
As stated supra, though the appellant is having original agreement in his
possession, for the reasons best known to him, he did not choose to file
the same either before the trial Court or before the appellate Court. As
noticed supra, the alleged possessory agreement of sale as pleaded by
the appellant is not a registered one. Therefore, the benefit of Section 53-
A of Transfer of Property Act 1882 cannot be extended to him and the
unregistered possessory agreement of sale shall not have any effect for
the purpose of Section 53-A of Transfer of Property Act 1882, if it is not a
registered document, the only consequence provided in the provision is to
declare that such document shall have no effect for the purpose of
Section 53-A of Transfer of Property Act 1882.

1

2018 (4) ALT(sc) 40
17 VGKRJ
AS 708 of 2006

22. In a case of Shrimant Shamrao Suryavanshi vs. Pralhad
Bhairoba Suryavanshi 2 , the Apex Court held that the necessary
conditions are invoking Section 53-A of Transfer of Property Act are given
as under:-

1) there must be a contract to transfer for consideration 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.

That was a case where there was a written agreement for sale and its
existence was proved. That is one marked difference that has to be kept
in mind for the purpose of the present case. As in the present case, the
alleged unregistered possessory agreement of sale which was not
sufficiently stamped was never exhibited. Mere surmise that it could have
been inexistence is of no consequence as long as the person claiming
benefit under such agreement for sale failed to produce the same before
the Court. The content of the document are to be proved by the
production of the document itself and not otherwise. Moreover, the
averments in the written statement are inadequate and insufficient to
attract the provision under Section 53-A of Transfer of Property Act, 1882,

2
2002 3 SCC 676
18 VGKRJ
AS 708 of 2006

since it does not contain the time within which the sale deed has to be
executed, as to who has to expend money towards stamp and
registration and about the readiness and willingness on the part of the
appellant to obtain a sale deed and other such necessary particulars. In
the case on hand, for the reasons best known to the appellant though the
appellant is having the possession of alleged unregistered possessory
agreement of sale for Rs.1,96,000/- which is not sufficiently stamped is
purposefully withhold by the appellant, in such an event, he is not entitled
protection under Section 53-A of Transfer of Property Act 1882.

23. The learned counsel for appellant placed a reliance in Sarva
Shramik Sangh vs. Indian Oil Corporation Ltd. ,3 in that decision, the
Apex Court held as follows:

The assumption that there is an absolute bar on inconsistent pleas
being taken by a party, is also not sound. What is impermissible is
taking of an inconsistent plea by way of amendment thereby
denying the other side, the benefit of an admission contained in the
earlier pleading. Mutually repugnant and contradictory pleas,
destructive of each other may also not be permitted to be urged
simultaneously by a plaintiff/petitioner. But when there is no
inconsistency in the facts alleged, a party is not prohibited from
taking alternative pleas available in law. Similarly, on the same
facts, different or alternative reliefs can also be claimed.

24. The learned counsel for appellant placed another reliance in Steel
Authority of India Ltd., vs. Union of India and others4, in that case, the
Apex Court held as follows:

3

(2009) 11 SCC 609
4
(2006) 12 SCC 233
19 VGKRJ
AS 708 of 2006

It is true that some general principles are certainly common to both,
but the rules that the plaintiff cannot be allowed to amend his
pleadings so as to alter materially or substitute his cause of action
or the nature of his claim has necessarily no counterpart in the law
relating to amendment of the written statement. Adding a new
ground of defense or substituting or altering a defense does not
raise the same problem as adding, altering or substituting a new
cause of action.

25. In the case of Sampath Kumar vs. Ayyakannu and another5, the
Apex Court held as follows:

An amendment once incorporated relates back to the date of the
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 an
amendment to direct that the amendment permitted by it shall not
relate back to the date of the suit and to the extent permitted by it
shall be deemed to have been brought before the Court on the date
on which the application seeking the amendment was filed.

In the case on hand, the plaintiffs filed a petition to amend the
plaint before the Court below and on hearing both sides, the learned trial
Judge allowed an application filed by the plaintiffs to amend the plaint.
Therefore, it is for the defendants to challenge the same before the
competent Court if they aggrieved, without challenging the same, the
appellant is not supposed to take the said defense before the appellate
Court that the plaintiffs are not entitled to take the destructive plea to their
convenience before the trial Court by amending the plaint and the

5
2002 6 ALD(SC) 63
20 VGKRJ
AS 708 of 2006

appellant cannot contend that the alleged amendment which was done
before the trial Court is not a legal.

26. The learned counsel for appellant placed another reliance in Rani
Sambhi and others vs. Lt.Col. (Retd). R.L.Vashisht6. In the aforesaid
case, the Apex Court held as follows:

Protection under Section 53-A of the Transfer of Property Act is an
independent right and a person in part performance of the
agreement, if shown that he was always ready and willing to
perform his part of agreement and had been delivered the
possession in performance of the agreement was entitled to the
said protection. It was not required that he should have filed a suit
for specific performance within limitation.

It has to be seen rights of an agreement holder is having limited
rights only, but not absolute rights. It is also well settled that unregistered
possessory agreement holder cannot be continued in possession through
out his life under the guise of unregistered possessory agreement of sale,
undoubtedly, he has to obtain a sale deed as provided under Section 54-
A of Transfer of Property Act.

27. The learned counsel for appellant placed another reliance in Union
of India and another vs. K.C.Sharma and Company and others 7, the
Apex Court held as follows:

As it is clear from the evidence that the respondents were put in
possession and they continued in possession by cultivating the land
the said judgments would not render any assistance in support of

6
2003 SCC online P & H 701
7
(2020) 15 SCC 209
21 VGKRJ
AS 708 of 2006

the case of the appellants. On the other hand in the case of
Maneklal Mansukhbhai (supra) relied on by learned senior counsel
for the respondents it is clearly held by this Court that defence
under Section 53A of the Transfer of Property Act, 1882 is available
to a person who has agreement of lease in his favour though no
lease has been executed and registered. Similar proposition is also
approved in the judgment of this Court in the case of Hamzabi
(supra) wherein this Court has held that Section 53A of the Transfer
of Property Act, 1882 protects the possession of persons who have
acted on a contract of sale but in whose favour no valid sale deed
is executed or registered.

The aforesaid case law relates to lease, but not unregistered
possessory agreement of sale.

28. The learned counsel for appellant placed another reliance in
Ghanshyam vs. Yogendra Rathi8, in that case, the Apex Court held as
follows:

Legally an agreement to sell may not be regarded as a transaction
of sale or a document transferring the proprietary rights in an
immovable property but the prospective purchaser having
performed his part of the contract and lawfully in possession
acquires possessory title which is liable to be protected in view of
Section 53A of the Transfer of Property Act, 1882. The said
possessory rights of the prospective purchaser cannot be invaded
by the transferor or any person claiming under him.

Notwithstanding the above as the plaintiff-respondent admittedly
was settled with possessory title in part performance of the

8
(2023) 7 SCC 361
22 VGKRJ
AS 708 of 2006

agreement to sell dated 10.04.2002 and that the defendant-

appellant has lost his possession over it and had acquired the right
of possession under a licence simpliciter, exhausted his right to
continue in possession after the licence has been determined. Thus,
the defendant-appellant parted with the possession of the suit
property by putting the plaintiff-respondent in possession of it under
an agreement to sell. The plaintiff-respondent in this way came to
acquire possessory title over the same. The defendant-appellant,
as such, ceased to be in possession of it as an owner rather
occupied it as a licencee for a fixed period which stood determined
by valid notice, leaving the defendant-appellant with no subsisting
right to remain in possession of the suit premises.

29. In a case of Sardar Govindrao Mahadik and another vs. Devi
Sahai and others9, the Apex Court held as follows:

To qualify for the protection of the doctrine of part-performance it
must be shown that there is a contract to transfer for consideration
immovable property and the contract is evidenced by a writing
signed by the person sought to be bound by it and from which the
terms necessary to constitute the transfer can be ascertained with
reasonable certainty. These are pre-requisites to invoke the
equitable doctrine of part-performance. After establishing the
aforementioned circumstances it must be further shown that
transferee had in part performance of the contract either taken
possession of the properly 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. There must be a real nexus between the contract

9
AIR 1982 SC 989
23 VGKRJ
AS 708 of 2006

and the acts done in pursuance of the contract or in furtherance of
the contract and must be unequivocally referable to the contract.

In the case on hand, as per the case of the appellant, he came into
the possession of the A schedule property under unregistered possessory
agreement of sale, but for the reasons best known to the appellant, he did
not choose to file the said agreement either before the Court below or
before this appellant Court. To fulfil the conditions under Section 53-A of
Transfer of Property Act, the transferee failed to file the agreement and
purposefully withhold the same, therefore, he is not at all entitled
protection under Section 53-A of Transfer of Property Act.

30. The learned counsel for the appellant also relied on Shrimant
Shamrao Suryavanshi vs. Pralhad Bhairoba Suryavanshi (Dead) by
L.Rs. and others10, in that case, the Apex Court held as follows:

The defendants in the suit brought by the plaintiff-respondents for
recovery of the suit property and for mesne profit. On 9th July, 1964,
respondent No. 3 executed an agreement for sale of an agricultural
land in favour of appellant No. 1 for a total consideration of
Rs.9,000/-. Appellant No. 1 paid a sum of Rs.5,700/- towards
earnest money. The appellants in pursuance of the said agreement
for sale was put in possession over the said property. After the
execution of the said agreement, it came to the notice of the
appellant that the transferor is negotiating for sale of the said land
in favour of respondent No. 1. Under such circumstances, the
appellant brought a suit on 2nd August, 1965 for injunction
restraining the transferor from selling the said land in favour of
respondent No. 1. On 30th April, 1966 the trial court granted

10
(2002) 3 SCC 676
24 VGKRJ
AS 708 of 2006

injunction as prayed for. It is the case of the appellants that despite
the said injunction order, the transferor sold the said property
through a registered sale deed dated 24th May, 1966 in favour of
respondent No. 1.

In the case on hand, the alleged possessory agreement of sale
was never exhibited. It is the case of the appellant when the second
plaintiff herself admitted the agreement, there is no need for him to
produce the alleged agreement. Here, in the case on hand, the second
plaintiff is contending that she never received any consideration and there
was an agreement in between both the parties that the defendants 1 and
2 have to purchase the land with the name of her daughter and later only
the second plaintiff will execute the sale deed in favour of the appellant
and the appellant agreed the said terms, but he failed to fulfil the same
and for the reasons best known to the appellant, the appellant kept quite
and suddenly after the death of her daughter, the appellant issued a
notice in the year 1995. Admittedly, the first notice is issued by the
appellant to the second plaintiff with a demand to execute a regular
registered sale deed and the second plaintiff pleaded in the reply notice
specifically that she has not received any consideration and the appellant
has to fulfil other terms and conditions of the agreement. As noticed
supra, the possession of the appellant is only under the alleged
unregistered possessory agreement of sale, but he failed to produce the
same for the reasons best known to him and purposely detained with him
and moreover, the said alleged possessory unregistered agreement was
never exhibited and never placed either before the trial Court or before
the appellate Court. As stated supra, mere surmise that it could have
been inexistence is of no consequence as long as the person claiming
25 VGKRJ
AS 708 of 2006

benefit under such agreement for sale failed to produce the same before
the Court.

31. The learned counsel for appellant and respondents placed a
reliance in Mohan Lal (Deceased) Through His L.Rs. Kachru and
others vs. Mirza Abdul Gaffar and another11, in that decision, it was
held as follows:

When the transferee seeks to avail of Section 53-A to retain
possession of the property which he had under the contract, it
would be incumbent upon the transferee to plead and prove his
readiness and willingness to perform his part of the contract. Under
Section 16(c) of the Specific Relief Act also the plaintiff must plead
in the plaint, his readiness and willingness from the date of the
contract till the date of the decree. The plaintiff who seeks
enforcement of the agreement is enjoined to establish the same. In
a suit for possession filed by the respondent, successor-in-interest
of the transferor as a subsequent purchaser, the earlier transferee
must plead and prove that he is ready and willing to perform his
part of the contract so as to enable him to retain his possession of
the immovable property held under the agreement. In this case
except vaguely denying that he was not ready and willing to
perform his part, he did not specifically plead it.

In the case on hand, as stated supra, except exchange of notices
in between the transferee and transferor, no suit is filed by the appellant
for specific performance of agreement of sale. The plaintiffs pleaded that
the defendant No.3 is not abiding the terms and conditions agreed
between both the parties. But the alleged agreement of sale is withhold

11
(1996) 1 SCC 639
26 VGKRJ
AS 708 of 2006

by the appellant, he failed to produce either before the trial Court or
before this appellate Court and the appellant purposefully withhold the
same, therefore, he is not entitled an equities.

32. In a case of A.Lewis and another vs. M.T.Ramamurthy and
others12, the Apex Court held as follows:

As rightly pointed out by the High Court, the existence of right to
claim protection under Section 53-A of the Transfer of Property Act
would not be available if the transferee just kept quiet and remained
passive without taking effective steps. Further, he must also
perform his part of the contract and convey his willingness. On the
other hand, the factual finding is that there was no intimation by
defendant Nos. 3 and 4 to perform their part of contract to claim
protection of Section 53-A of the Transfer of Property Act. Likewise,
as rightly concluded by the courts below, there is no material to
show that the plaintiff had notice of agreement of sale Ex.D-1 in
favour of defendant Nos. 3 and 4. The conclusion of the High Court
that defendant Nos. 3 and 4 or even defendant No.1 who claims
through them are not entitled to protection of Section 53-A of the
Transfer of Property Act is acceptable and the argument contrary to
the said conclusion is liable to be rejected.

In the case on hand, the plaintiff No.2 pleaded that the appellant is
not abiding the terms and conditions in between both the parties and to
fulfil the conditions under Section 53-A of Transfer of Property Act 1882,
the transferee shall file an original agreement of sale. As noticed supra,
the said alleged possessory agreement of sale is unregistered one and it
was drafted on a hundred-rupee stamped paper and it is insufficiently

12
(2007) 14 SCC 87
27 VGKRJ
AS 708 of 2006

stamped and the appellant purposefully withhold the same, therefore, the
appellant is not entitled protection under Section 53-A of Transfer of
Property Act 1882. Furthermore, the appellant has not filed any suit for
specific performance of agreement of sale within three years of the date
of denial by the transferor i.e., second plaintiff. The case of the appellant
is that he came under the possession of plaint A schedule property by
virtue of unregistered possessory agreement of sale dated 24.07.1994
and it was prepared on hundred rupee stamped paper and the property
was purchased for Rs.1,96,000/-. The said document is relates to
immovable property worth of Rs.1,96,000/- and it is also not sufficiently
stamped and it is invalid document. Therefore, the appellant is not at all
enjoyed the benefit under Section 53-A of Transfer of Property Act 1882,
the said alleged unregistered agreement of sale, which is insufficiently
stamped shall have no effect for the purpose of Section 53-A of Transfer
of Property Act 1882 and the appellant cannot seek a protection in a suit
for recovery of possession of the immovable property filed by the
respondents/plaintiffs, accordingly, point No.1 is answered against the
appellant.

33. Point No.2:

Whether the trial Court is justified in ordering the
recovery of possession of plaint A schedule property
from the appellant/third defendant to the second
plaintiff?

The case of the plaintiffs is that plaint A schedule property is the
self acquired property of the second plaintiff, the same is not at all
disputed by any of the defendants. It is also a specific case of the
28 VGKRJ
AS 708 of 2006

defendants 1 to 3 that the second plaintiff is the original owner of the
plaint A schedule property. The appellant/ third defendant pleaded that he
came into possession of plaint A schedule property by virtue of
unregistered possessory agreement of sale dated 24.07.1994 which was
prepared on hundred-rupee stamp paper. It is not in dispute that as per
the case of the plaintiffs, the worth of the plaint schedule property is
Rs.1,96,000/- and the same is mentioned on the possessory agreement.

Therefore, certainly it is not sufficiently stamped. The title of the second
plaintiff in respect of plaint A schedule property is not at all disputed by
any of the defendants. The third defendant has not acquired any title by
obtaining a registered sale deed from second plaintiff. Though, the
alleged unregistered possessory agreement of sale is with the third
defendant, he did not choose to file the same either before the trial Court
or before this appellant Court.

34. The learned counsel for appellant would contend that without
seeking relief of cancellation of unregistered possessory agreement of
sale, the suit filed by the plaintiffs for recovery of possession of A
schedule property is not at all maintainable. Admittedly, as per the own
case of the appellant, the alleged document under which he came into
possession of the A schedule property is unregistered possessory
agreement of sale and it was prepared on stamp paper of Rs.100/-, the
property is worth about Rs.1,96,000/-, therefore, it is not sufficiently
stamped. It is also well settled that the appellant cannot get any title by
virtue of unregistered possessory agreement of sale in respect of
immovable property which is worth of Rs.1,96,000/-, unless he get the
registered document for the same property, moreover, the alleged
document was prepared on hundred rupee stamp paper, since the
subject matter of the value of the property is Rs.1,96,000/-, it is invalid
29 VGKRJ
AS 708 of 2006

document and it is not sufficiently stamped, therefore, it cannot be looked
into since it is an invalid document and it cannot be received as evidence
in a suit for recovery of possession. Since the alleged document is invalid
document, the second plaintiff can maintain the suit for recovery of
possession without seeking the relief of cancellation of alleged
unregistered possessory agreement of sale. Moreover, the plaintiffs filed
the suit for recovery of possession within 2 years of alleged possessory
agreement of sale.

35. The appellant cannot be continued in a possession of the
immovable property under invalid document throughout his life without
obtaining a valid sale deed. During the pendency of suit, sole appellant
died, his legal representatives are brought on record and the second
plaintiff i.e., owner of plaint A schedule property is also died, her legal
representatives are also brought on record. Admittedly, no sale deed is
obtained by the appellant till so far, though 30 years have been elapsed.
It is also relevant to say within 3 years from the date of denial by the
second plaintiff he has not filed any suit for specific performance of
agreement of sale, till so far, though 30 years have been elapsed from
the date of alleged unregistered possessory agreement of sale dated
24.07.1994. Furthermore, within 2 years, from the date of alleged
agreement, the plaintiffs filed the pauper suit vide O.P.No.93 of 1996
subsequently, it was numbered as a suit.

36. As per the case of the plaintiffs, the second plaintiff is the absolute
owner of the plaint A schedule property. It is not at all disputed by
defendants 1 to 3 in the suit. It is also the specific case of the appellant
that he was in possession of plaint A schedule property under
unregistered possessory agreement of sale for Rs.1,96,000/-, dated
30 VGKRJ
AS 708 of 2006

24.07.1994, but it is drafted on hundred rupee stamp paper, therefore, it
is invalid document, no sale deed is obtained, though 30 years have been
elapsed. As stated supra, the sale agreement did not create any interest
in immovable property indispensability of registering sale deed during
transfer, registering a conveyance deed offers a notice to the entire world
regarding the execution of such a document. It is also protect the interest
of the parties particularly the buyer, by providing legal proof of ownership.

37. It is also settled that sale of immovable property can be made only
by way of registered instrument and an agreement of sale does not
create any interest or charge on its subject matter of the property. It is
also well settled that the agreement to sell does not create any interest of
the proposed vendee in the suit schedule property. As per Section 54 of
Transfer of Property Act, the title in immovable property valued at more
than hundred rupee can be conveyed only by executing a registered sale
deed. Section 54 specifically provides that a contract for sale of
immovable property was a contract evidencing the fact that the sale of
such property shall take place on the terms settled between the parties,
but does not, of it self create any interest in or charge on such property. It
is also not in dispute that the suit land sought to be conveyed is of the
value of more than hundred rupees. Therefore, unless there was a
registered document of sale in favour of the third defendant, the title of
the suit land continued to vest in second plaintiff only and remain in her
ownership. It is obvious that an agreement of sale create no interest in
the land. Therefore, unless there was a registered document of sale in
favour of proposed transferee, the title of the land would not get divested
from the vendor. In the case on hand, admittedly, no title was conveyed
to the appellant/third defendant from the plaintiff No.2 under a registered
sale deed. As per the case of the appellant the worth of the plaint
31 VGKRJ
AS 708 of 2006

schedule property in the year 1994 is Rs.1,96,000/-, therefore, the
appellant would not get any title in the plaint A schedule property. As
stated supra, it is the case of the appellant that originally the plaint A
schedule property belongs to second plaintiff and the second plaintiff is
the owner of the schedule property and he came into the schedule
property by virtue of unregistered possessory agreement of sale dated
24.07.1994. As stated supra, the appellant is not entitled protection under
Section 53 of Transfer of Property Act. It is not in dispute that no title is
conveyed to the wife of first defendant, the same is not at all disputed by
the first defendant. Therefore, second plaintiff being the absolute owner
of the A schedule property is entitled possession of the plaint A schedule
property. Therefore, I do not find any illegality in ordering the recovery of
possession of plaint A schedule property from the appellant to the second
plaintiff, as ordered, by the learned trial Judge. The point No.2 is
answered accordingly.

38. In the result, the Appeal Suit is dismissed, confirming the decree
and Judgment dated 04.08.2006, in O.S.No.105 of 2001 passed by the
learned Additional Senior Civil Judge (Fast Track Court), Gudivada that
the second plaintiff is entitled the possession of plaint A schedule
property from the appellant/third defendant. Three (3) months time is
granted to the L.Rs. of sole appellant i.e., appellants 2 to 9 to deliver the
vacant possession of the plaint A schedule property to the L.Rs. of
second plaintiff i.e., respondents 6 to 8. Considering the facts and
circumstances of the case, each party do bear their own costs in the
appeal.

32 VGKRJ
AS 708 of 2006

As a sequel, miscellaneous petitions, if any, pending in the Appeal
shall stand closed.

_________________________
V.GOPALA KRISHNA RAO, J
Date: 12.09.2024
sj
33 VGKRJ
AS 708 of 2006

THE HON’BLE SRI JUSTICE V.GOPALA KRISHNA RAO

APPEAL SUIT No.708 OF 2006

Date: 12.09.2024

sj

Source link

Leave a Reply

Your email address will not be published. Required fields are marked *