Punjab-Haryana High Court
(O&M) Surinder Kumar vs Ram Pal on 4 October, 2024
Author: Pankaj Jain
Bench: Pankaj Jain
Neutral Citation No:=2024:PHHC:132642
RSA No.820 of 1991 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Reserved on 20th of August, 2024
Pronounced on 4th October, 2024
Regular Second Appeal No.820 of 1991 (O&M)
Surinder Kumar Kuthiala since deceased through his LRs and others
....Appellants
Versus
Ram Pal since deceased through his LRs ....Respondents
CORAM: HON'BLE MR. JUSTICE PANKAJ JAIN
Present : Mr. Vinay Kuthiala, Sr.Advocate (in person) with
Ms. Vandana Kuthiala, Advocate
Mr. Shaurya Kuthiala, Advocate and
Mr. Munish Behl, Advocate for the appellants.
Mr. Sunil Chadha, Senior Advocate with
Mr. Parvinder Singh, Advocate and
Mr. Tara Dutt, Advocate for the respondents.
PANKAJ JAIN, J.
Plaintiffs are in second appeal.
2. For convenience, the parties hereinafter are referred to by
their original position in the suit i.e. the appellants as the plaintiffs and
the respondent as the defendant.
3 Plaintiffs filed suit for possession of a land measuring 79
Kanal 9 Marlas situated in village Jahan Khelan, Tehsil & District
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Hoshiarpur as detailed out in the plaint. As per the pleadings raised in
the plaint, the defendant along with Mohinderpal, Parkash and Bant
Ram entered into an agreement to purchase suit land for a valuable
consideration of Rs.37,000/- with the plaintiffs on 12th of August, 1967.
Amount of Rs.37,000/- was received by the plaintiffs vide subsequent
agreement dated 19th of August, 1967. Actual possession of the land
was delivered to the defendant with a right to cut trees from the suit
land. Defendant sold trees. Three of the proposed transferees but for
defendant in the present suit, filed suit for possession by way of
specific performance of agreement to sell and in the alternate prayed
for recovery of Rs.37,000/-. Defendant was impleaded as defendant
No.1 in the said suit. Decree was passed qua alternate relief and
recovery of Rs.18,500/- was ordered. The judgment attained finality.
In order to recover possession from the defendant instant suit was filed.
However, he filed written statement showing his unwillingness to get
specific performance.
4. Defendant resisted the suit. Defendant claimed that the
plaintiffs have no share in the suit land as they have already sold their
respective shares in favour of one Niranjan Singh son of Ran Singh.
Having lost their subsistent interest, they have no locus standi to
maintain the suit. It was further claimed that the plaintiffs through their
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counsel served legal notice dated 6th of November, 1968 calling upon
the defendant to treat the agreement to sell cancelled. The defendant
continued in possession of the suit land thereafter, and thus has become
owner by way of adverse possession.
5. On the basis of the pleadings of the parties, Trial Court
framed the following issues:
“1. Whether the plaintiffs are the owners of the land in dispute
and there was any family settlement as alleged? If so its
effect? OPP.
2. Whether the plaintiffs delivered the possession to the
defendants and are entitled to recover the same as alleged in
the plaint? OPP.
3. What is the effect of the decisions dated 7.5.83 and 11.6.74?
Parties.
4. Whether plaintiffs are entitled to possession of the land in
dispute as alleged in the plaint? OPP.
5. Whether Niranjan Singh and other co-sharers are necessary
parties to the suit? OPD.
6. Whether plaintiffs have no locus standi to file the suit?
OPD.
7. Whether the plaintiffs are estopped by their own acts and
conduct from filing the suit? OPD.
8. Whether the defendant has become owner of the suit land
by adverse possession? OPD.
9. Whether the defendant is entitled to retain possession of
suit land as per agreement dated 12.367 and 6.2.68? OPD.
10. Whether the defendant is entitled to specific performance of
the contract in this suit? OPD.
11. Whether the suit is time barred? OPD.
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12. Whether the defendant is estopped by his own acts and
conduct from resisting the delivery of the possession to the
plaintiffs? OPP.
13. Whether the defendant and Mohinder Pal etc. have
committed breach of agreement to sell? If so to what effect
in the suit? OPD.
14. Whether the plaintiffs are entitled to special costs of
Rs.2000/- under Section 35-A CPC? OPP.
15. Relief.”
6. Trial Court decided issue No.1 w.r.t. ownership of the land
against the plaintiffs. Issues No.2, 3 and 4 were decided together and
in favour of defendants against the plaintiffs. Issue No.5, 6, 7, 9 and 10
were decided against the defendant and in favour of the plaintiffs.
Issue No.11 and 12 were decided against the plaintiff and the suit was
ordered to be dismissed.
7. In appeal preferred by the plaintiffs, Appellate Court
affirmed the findings recorded by the Trial Court and dismissed the
appeal holding that the limitation for the plaintiffs to seek possession
started running from the day the plaintiffs refused performance of
agreement vide notice Exhibit D1 i.e. 6th of November, 1968. The suit
preferred on 7th of August, 1987 was beyond the prescribed period of
limitation i.e. 12 years from the said date. Resultantly, the defendant
has become owner by way of adverse possession.
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8. The appellant/plaintiff Mr. Vinay Kuthiala, who appears in
person submits that the Courts below erred in ignoring the fact that the
defendant came in possession of the suit land on the strength of
agreement to sell executed by the plaintiffs in favour of the defendant
along with other three persons. Thus for all intents and purposes the
possession of the defendant over the suit land remained permissive and
cannot be held to be adverse. He submits that it is settled proposition
of law, that merely long and continuous possession cannot ripen-up into
an adverse possession till the possessee is able to show that his
possession was hostile to the title of the plaintiffs. He further submits
that the stand of the defendant in the written statement is sufficient to
demolish the plea of adverse possession. He refers to specific plea
raised by the defendant claiming that he is still ready and willing to pay
balance sale consideration and get the sale deed executed in terms of
the contract and further pleaded that the defendant was entitled to retain
possession pleading part performance of the contract to sell. He further
submits that so far as finding on issue No.1 w.r.t. ownership of the land
against the plaintiffs is concerned, the same also needs to be reversed as
the plaintiffs have become owners in possession of the suit land in
terms of the family settlement which has been held to be valid in a
subsequent decree passed by Competent Court. Though the appellant
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claimed that the said judgment and decree whereby the land has come
to share of the plaintiffs, has been placed on record but there is no such
application for placing on record the judgment and decree being
referred to by the appellant. Nor was he able to supply the same during
the course of arguments. In support of his contention he has relied
upon law laid down in Civil Appeal No.83 of 2008 titled as
Dagadabai (dead) through LRs. vs. Abbas @ Gulab Rustum
Pinjari, Shambhu Prasad Singh vs. MST. Phool Kumari and
others, (1971) 2 SCC 28, State Bank of Travancore vs. Aravindan
Kunju Panicker and others, (1972) 4 SCC 274, Achal Reddi vs.
Ramakrishna Reddiar and others, AIR 1990 SC 553, Mohan Lal
(deceased) through LRs Kachru and others vs. Mirza Abdul Gaffar
and another, (1996) 1 SCC 639, Sajjadanashin Sayed MD. B.E.
EDR (D) by LR’s vs. Musa Dadabhai Ummer and others, (2000) 3
SCC 350, Roop Singh (Dead) through LRs vs. Ram Singh (Dead)
through LRs, (2000) 3 SCC 708, Virendra Nath through P.A.
Holder R.R. Gupta vs. Mohd. Jamil and others, (2004) 6 SCC 140,
Karnataka Board of Wakf vs. Govt. of India and others, (2004) 10
SCC 779, Corporation Bank vs. Saraswati Abharansala and
another, (2009) 1 SCC 540, D.L.F. United Private Ltd. vs. Pt. Prem
Raj and others, AIR 1981 SCC 805, State of Rajasthan vs. Stone
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Industries (Kotah) Ltd. AIR 1985 SCC 466, Khepa Gorain vs. Kus
Gorain, (1998) 9 SCC 144, State of Haryana vs. Mukesh Kumar
and others, SLP(C) No.28034 of 2011, D.L.F. United Private
Limited vs. Prem Raj and others (1981) 1 SCC 433, Uttam Chand
(Dead) through vs. Nathu Ram (Dead) through LRs and others,
(2020) 11 SCC 263, L.N. Aswathama and another vs. P. Prakash
(2019) 13 SCC 229, P.T. Munichikkanna Reddy and others vs.
Revamma and others, (2007) 6 SCC 59, M. Redheshyamlal vs. V
Sandhya and another, Civil Appeal Nos. 4322-4324 of 2024,
Government of Kerala and another vs. Joseph and others, Civil
Appeal No.3142 of 2010, Qadir Bux vs. Ram Chand (Died) after
him Gyan Singh and others, AIR 1970 ALL 289 and Mohini Mohan
Dawn vs. Sris Chandra Hati, AIR 1978 CAL 434.
9. Per contra, Senior Counsel for the respondent submits that
the ownership is sine qua non to maintain the suit for possession.
Plaintiffs having failed to prove their ownership over the suit land
cannot maintain the present suit for possession. In support of his
contention, he relies upon ratio of law laid down in the case of Delhi
Diocesan Trust Association vs. Ashwani Kumar, 2014 (3) R.C.R.
(Civil) 985 and that in the case of Hukum Chand and others vs. Daya
Ram and others, 2015 (34) R.C.R. (Civil) 804. Senior Counsel
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further submits that admittedly the defendant is in possession of the suit
land since 6th of February, 1968 on the strength of agreement to sell
dated 12th of August, 1967/19th of October, 1967. Plaintiffs vide notice
dated 6th of November, 1968 cancelled the aforesaid agreement to sell.
The notice has been proved on record as Exhibit D-1. Thus, after 6th of
November, 1968 the possession of the defendant over the suit land
became adverse and, therefore, the present suit is barred by the
provisions of Section 27 read with Article 65 of the Limitation Act. In
order to hammer-forth his contention, counsel for the respondent has
relied upon ratio of law laid down by the Apex Court in the case of M/s
Shyam Sunder Prasad and others vs. Mr. Raj Pal Singh and
another, (1995) 1 SCC 311, Nelapatla Ramaiah and others vs.
Kamatam Bikshamaiah and others, (2010) 2 SCC 139.
10. I have heard both the parties and have carefully gone
through records of the case.
11. Facts are not much in dispute. The plaintiffs entered into
agreement to sell dated 12th of August, 1967 qua suit property in favour
of agricultural land measuring 79 Kanal 9 Marlas in favour of
Mohinderpal, Parkash, Bant Ram son of Labhu Ram and Ram Pal, the
defendant in the present case. As per the terms of the agreement to sell
total sale consideration was agreed to be Rs.37,000/-. Rs.13,000/- were
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paid as earnest money. It was also agreed between the parties that the
defendant i.e. Ram Pal will be entitled to cut and sell the trees standing
on the suit land and Rs.13,000/- would be paid over and above the
earnest money. It was also agreed that the balance amount of
Rs.7,000/- will be paid at the time of the execution of the sale deed.
Amount of Rs.17,000/- was paid to the plaintiffs/appellants on 19th of
October, 1967 and 6th of February, 1968. The three vendees i.e.
Mohinderpal, Parkash and Bant Ram filed suit for specific performance
against the plaintiffs in the present suit seeking decree of specific
performance of agreement to sell dated 12th of August, 1967.
Defendant was also impleaded as defendant No.1 in the said suit. A
finding was recorded to the effect that it is defendant No.1 Ram Pal
alone who sold the trees worth Rs.15,000/- and is liable to account for
the said amount to his partners. The stand taken by defendant No.1 in
the said suit was that defendants No.2 and 3 i.e. the present appellants
are the actual owners of the suit land. He further pleaded that the three
are not entitled for decree of specific performance.
12. Specific issues No.2 and 4 were framed in the said suit to
the following effect:
“2. Whether the plaintiff and defendants No.1 were given the
vacant possession of the suit land? If so its effect on the
present suit ? OPD9 of 25
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3. xxx
4. Whether the plaintiffs are entitled to the decree for the
specific performance of the contract ? OPP.”
13. Trial Court returned the finding on the issue No.2 that it is
only the present defendant Ram Pal who was in possession of suit land.
On issue No.4 the Trial Court concluded that since one of the parties
i.e. Ram Pal-the defendant No.1 in the said suit has shown his
unwillingness to execute the sale deed, suit for specific performance
cannot be decreed. Observations made by this Court in RFA No.636 of
1974 read as under:
“On material Issue No.3, the trial Court found that it were
defendants who were not ready and willing to perform their part of
agreement. Under issue No.4, the trial Court concluded that since
one of the parties, that is, defendant No.1, Ram Pal has shown his
unwillingness to get the sale-deed executed although he is proved
to be in possession of the suit land, so the suit for specific
performance could not be decreed. Under Issue No.6 the trial
Court found that trees worth Rs.15,000/- were curt by defendant
No.1 Ram Pal alone and he is liable to account for this amount to
the defendants-appellants. While discussing Issue No.5, the trial
Court held that the plaintiffs are proved to have paid half of the
amount as they were to get half share in the suit land, and,
therefore, they are entitled to recover their half share of
Rs.37,000/-. As a result of these findings the plaintiffs’ suit for
Rs.18,500/- was decreed with costs.”
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14. The issue w.r.t. restoration of possession was raised and the
same was dealt by this Court observing as under:
“The learned counsel for the defendant-appellant has
contended that Ram Pal, Defendant No.1 who has been found in
possession of the suit land should be directed to land over the
possession on receipt of the decretal amount. According to the
learned counsel, the present suit being one for specific performance
of the agreement, P/5 agreement as such should be enforced and in
case the plaintiffs are allowed to claim damages, they must hand
over the possession of the suit land to the defendant-appellants.
After hearing the learned counsel for the appellants I do not
find any merit in this appeal. According to the findings of the trial
Court Ram Pal, Defendant No.1, was in possession of the suit land
and not the plaintiffs and, therefore, under these circumstances no
such direction or decree could be passed as to restore the
possession to the defendant-appellants. Once it is found that the
defendant-appellants were not ready and willing to perform their
part of the agreement, then on the facts and circumstances of the
present case, the trial Court rightly found that the plaintiffs are
entitled to the damages under the agreement Exhibit P.1. Thus, I
do not find any infirmity or illegality in the findings of the trial
Court which are to be affirmed. Consequently, the appeal fails and
is dismissed with costs.”
15. After the aforesaid appeal preferred by the appellants were
dismissed on 3rd of May, 1983, the present suit was instituted on 17th of
April, 1984.
16. From the rival contentions raised by the parties and the fact
as noticed herein-above, this Court finds that following two questions
arise for the determination of this Court:
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(i) Whether the plaintiff can maintain suit for possession being
a vendor against his vendee to whom he delivered
possession as a part of contract dehors the fact that the
defendant/vendee claims that the plaintiff is no more owner
of the suit property? and
(ii) Whether the defendant can claim adverse possession over
the suit land admitting that the possession was delivered to
him pursuant to agreement to sell by the plaintiffs/
appellants?
17. Law recognizes difference between petitorium (a
proprietary suit) and possessorium (a possessory suit). The issue was
dealt by Supreme Court in the case of Nair Service Society Ltd vs.
Rev. Father K.C. Alexander and others, AIR 1968 SC 1165 dealing
with the plea of ‘jus tertii’ pleaded by the defendant in possession. Apex
Court observed as under:
“18. The proposition of law on the subject has been summed up
by Salmond on Torts (13th Edn.) at page 172 in the following
words :
“The mere de facto and wrongful possession of land is a
valid title of right against all persons who cannot show a
better title in themselves, and is therefore sufficient to
support an action of trespass against such persons. Just as a
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for this purpose, so conversely the possession of it without
legal title is enough. In other words, no defendant in an
action of trespass can plead to jus tertii-the right of
possession outstanding in some third person-as against the
fact of possession in the plaintiff.” The maxim of law is
Adversus extraneous vitiose possession prodesse solet,* and
if the plaintiff is in possession the jus tertii does not afford
a defence. Salmond, however, goes on to say:
* Prior possession is a good title of ownership against all
who cannot show a better.
“But usually the plaintiff in an action of ejectment is not in
possession: he relies upon his right to possession,
unaccompanied by actual possession. In such a case he
must recover by the strength of his own title, without any
regard to the weakness of the defendants. The result,
therefore, is that in action of ejectment the jus tertii is in
practice a good defend. This is sometimes spoken of as the
doctrine of Doe d. Carter v Barnard. (1849) 13 QB 945.”
Salmond, however, makes two exceptions to this statement and the
second he states thus :
“Probably, if the defendant’s possession is wrongful as
against the plaintiff, the plaintiff may succeed though he cannot
show a good title: Doe d. Hughes v. Dyball, (1829) 3 C. and P. 610
Davison v. Gent., (1857) 1 H and N 744. But possession is prima
facie evidence is not displaced by proof of title. If such prima facie
evidence is not displaced by proof of title in a third person the
plaintiff with prior possession will recover. So in Asher v.
Whitlock, (1865) 1 QB 1 where a man in closed waste land and
died without having had 20 years’ possession, the heir of his
devisee was held entitled to recover it against a person who entered
upon it without any title. This decision, although long, doubtful.
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recognition of the Judicial Committee in Perry v. Clissold, 1907
AC 73.”
18. The same was further followed by Supreme Court in the
case of Ramesh Chand Ardawatiya vs. Anil Panjwani (2003) 7 SCC
350 holding as under :
“34. …..Section 6 of the Specific Relief Act, 1963,
provides for any person dispossessed without his consent of
immovable property otherwise than in due course of law
being entitled to claim and successfully sue for recovery of
possession thereof, notwithstanding any other title that may
be set up in such suit if the suit is brought before the expiry
of six months from the date of dispossession except against
the Government. Article 64 of Limitation Act 1963
contemplates a suit for possession of immovable property
based on previous possession, and not on title, being
brought within twelve years from the date of dispossession.
Such a suit is known in law as a suit based on possessory
title as distinguished from proprietary title. The law
discourages people from taking the law into their own
hands, howsoever good and sound their title may be.
Possession is nine points in law and law respects peaceful
and settled possession. Salmond states in Jurisprudence
(12th Edition)- “These two concepts of ownership and
possession, therefore, may be used to distinguish between
the de facto possessor of an object and its de jure owner,
between the man who actually has it and the man who
ought to have it. They serve also to contract the position of
one whose rights are ultimate, permanent and residual with
that of one whose rights are only of a temporary nature.”
(P.59)
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“In English law possession is a good title of right against
any one who cannot show a better. A wrongful possessor
has the rights of an owner with respect to all persons except
earlier possessors and except the true owner himself. Many
other legal systems, however, go much further than this,
and treat possession as a provisional or temporary title even
against the true owner himself. Even a wrongdoer, who is
deprived of his possession, can recover it from any person
whatever, simply on the ground of his possession. Even the
true owner, who takes his own, may be forced in this way
to restore it to the wrongdoer, and will not be permitted to
set up his own superior title to it. He must first give up
possession, and then proceed in due course of law for the
recovery of the thing on the ground of his ownership. The
intention of the law is that every possessor shall be entitled
to retain and recover his possession, until deprived of it by
a judgment according to law. Legal remedies thus
appointed for the protection of possession even against
ownership are called possessory, while those available for
the protection of ownership itself may be distinguished as
proprietary. In the modern and medieval civil law the
distinction is expressed by the contrasted terms petitorium
(a proprietary suit) and possessorium (a possessory suit).”
(P.60)
35. The law in India is not different. In Nair Service
Society Ltd. v. K.C. Alexander and Ors. -, the Court
held–“the uniform view of the courts is that if Section 9 of
the Specific Relief Act is utilized the plaintiff need not
prove title and the title of the defendant does not avail him.
When, however, the period of 6 months has passed
questions of title can be raised by the defendant and if he
does so the plaintiff must establish a better title or fail. In
other words, the right is only restricted to possession only
in a suit under Section 9 of the Specific Relief Act but that
does not bar a suit on prior possession within 12 years and
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title need not be proved unless the defendant can prove one.
The present amended Article 64 and 65 bring out this
difference. Article 64 enables a suit within 12 years from
dispossession, for possession of immovable property based
on possession and not on title, when the plaintiff while in
possession of the property has been dispossessed. Article
65 is for possession of immovable property or any interest
therein based on title. The amendment is not remedial but
declaratory of the law. (Para 14)
19. In view of the aforesaid proposition of law, it is thus
evident that the suit for possession by a vendor/plaintiffs seeking
recovery of possession is maintainable and is not dependent on their
ownership.
20. Coming on to the second issue i.e. the defendant/vendee
having acquired ownership by prescription, the provisions as contained
under Section Articles 64 and 65 of the Limitation Act, 1963 need to be
analysed. The evolution of the provisions as contained under Articles
64 and 65 of the Limitation Act, 1963 viz-a-viz provisions contained
under Article 142 and 144 of the Limitation Act, 1908 was considered
by the Apex Court in the case of C. Natrajan vs. Ashim Bai, (2007) 14
SCC 183 to conclude as under :
“16. The law of limitation relating to the suit for
possession has undergone a drastic change. In terms of
Articles 142 and 144 of the Limitation Act, 1908, it was
obligatory on the part of the plaintiff to aver and plead that16 of 25
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he not only has title over the property but also has been in
possession of the same for a period of more than 12 years.
However, if the plaintiff has filed the suit claiming title
over the suit property in terms of Articles 64 and 65 of the
Limitation Act, 1963, burden would be on the defendant to
prove that he has acquired title by adverse possession.
17. In Md. Mohammad Ali (dead) by LRs. v. Jagdish
Kalita and Ors. [(2004)1 SCC 271], it was held : “By
reason of the Limitation Act, 1963 the legal position as was
obtaining under the old Act underwent a change. In a suit
governed by Article 65 of the 1963 Limitation Act, the
plaintiff will succeed if he proves his title and it would no
longer be necessary for him to prove, unlike in a suit
governed by Articles 142 and 144 of the Limitation Act,
1908, that he was in possession within 12 years preceding
the filing of the suit. On the contrary, it would be for the
defendant so to prove if he wants to defeat the plaintiff’s
claim to establish his title by adverse possession.”
{See also P.T. Munichikkanna Reddy & Ors. v. Revamma
& Ors., 2007(2) RCR (Civil) 847 : 2007(2) R.A.J. 621 :
[(2007)6 SCC 29]; Binapani Paul v. Pratima Ghosh & Ors.,
2007(2) RCR (Civil) 801 : 2007(3) R.A.J. 7 : [(2007)6 SCC
100]; Kamakshi Builders v. Ambedkar Educational Society
& Ors., 2007(3) RCR (Civil) 222 : 2007(1) RCR (Rent)
627 : 2007(3) R.A.J. 219 : [ AIR 2007 Supreme Court
2191] and Bakhtiyar Hussai (dead) throuth LRs v. Hafiz
Khan & Ors. [CA Nos. 497-498/01 decided on
24.09.2007]}.
18. In S.M. Karim (supra), this Court was considering a
question of Benami as also adverse possession. In the
aforementioned context, it was opined : “Adverse
possession must be adequate in continuity, in publicity and
extent and a plea is required at the least to show when
possession becomes adverse so that the starting point of
limitation against the party affected can be found. There is17 of 25
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no evidence here when possession became adverse, if it at
all did, and a mere suggestion in the relief clause that there
was an uninterrupted possession for “several 12 years” or
that the plaintiff had acquired “an absolute title” was not
enough to raise such a plea. Long possession is not
necessarily adverse possession and the prayer clause is not
a substitute for a plea. The cited cases need hardly be
considered, because each case must be determined upon the
allegations in the plaint in that case. It is sufficient to point
out that in Bishun Dayal v. Kesho Prasad and another ( AIR
1940 Privy Council 202), the Judicial Committee did not
accept an alternative case based on possession after
purchase without a proper plea.”
{See also Prem Lala Nahata & Anr. v. Chandi Prasad
Sikaria, 2007(1) RCR (Civil) 870 : 2007(1) R.A.J. 588 :
[(2007)2 SCC 551]}. Such a question does not arise for our
consideration herein.
19. We have noticed hereinbefore that the defendant,
inter alia, on the plea of identification of the suit land vis-a-
vis the deeds of sale, under which the plaintiff has claimed
his title, claimed possession. The defendant did not accept
that the plaintiff was in possession. An issue in this behalf
is, therefore, required to be framed and the said question is,
therefore, required to be gone into. Limitation would not
commence unless there has been a clear and unequivocal
threat to the right claimed by the plaintiff. In a situation of
this nature, in our opinion, the application under Order 7
Rule 11(d) was not maintainable. The contentions raised by
the learned counsel for the respondent may have to be gone
into at a proper stage. Lest it may prejudice the contention
of one party or the other at the trial, we resist from making
any observations at this stage.
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21. In case the present suit is to be taken as merely a suit based
upon possessory rights, limitation will be governed by Article 64 of
1963 Act. As per the same, the limitation shall commence from the
date of dispossession.
22. The word ‘dispossession’ has been interpreted by Supreme
Court in the case of Dhondiram Tatoba Kadam vs. Ramchandra
Balwantrao Dubal (1994) 3 SCC 366 wherein the Apex Court held as
under :
“Voluntary giving up of possession does not amount to
dispossession unless the law provides for it. ‘Dispossess’
according to Black’s Law Dictionary means: “To oust from
land by legal process; to eject, to exclude from realty.” The
dispossession should have been, therefore, either by legal
process or by physical act of exclusion. It would not include
leaving possession voluntarily or by surrender.”
23. It being a case where a vendor parted with the possession in
favour of the vendee in terms of an agreement to sell, this Court does
not find that the plea raised by the defendant that the limitation to file
suit shall commence from the service of notice, can be accepted as the
possession of the defendant since inception remained permissive.
24. The issue involving nature of possession of a vendee on
account of part performance of agreement to sell was dealt by Supreme
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Court in the case of Mohan Lal vs. Mirza Abdul Gaffar (1996) 1
SCC 639 holding as under:
“3. The only question is whether the appellant is entitled to
retain possession of the suit property. Two pleas have been raised
by the appellant in defence. One is that having remained in
possession from March 8, 1956, he has perfected his title by
prescription. Secondly, he pleaded that he is entitled to retain his
possession by operation of Section 53A of the Transfer of Property
Act, 1882 (for short, ‘the Act’)
4. As regards the first plea, it is inconsistent with the second
plea. Having come into possession under the agreement, he must
disclaim his right thereunder and plead and prove assertion of his
independent hostile adverse possession to the knowledge of the
transferor or his successor in title or interest and that the latter had
acquiesced to his illegal possession during the entire period of 12
years, i.e., upto completing the period of his title by prescription
‘nec vi nec clam nec precario’. Since the appellant’s claims is
founded on Section 53A, it goes without saying that he admits by
implication that he came into possession of the land lawfully under
the agreement and continued to remain in possession till date of the
suit. Thereby the plea of adverse possession is not available to the
appellant.
5. The question then is whether he is entitled to retain
possession under Section 53A. It is an admitted fact that suit for
specific performance had been dismissed and became final. Then
the question is whether he is entitled to retain possession under the
agreement. Once he lost his right under the agreement by dismissal
of the suit, it would be inconsistent and incompatible with his right
to remain in possession under the agreement. Even otherwise, a
transferee can avail of Section 53A only as a shield but not as a
sword. It contemplates that where any person contracts to transfer
for consideration any immovable property by writing signed by
him or on his behalf from which the terms necessary to constitute
the transfer can be ascertained with reasonable certainty and the
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transferee has performed or is willing to perform his part of the
contract, he would be entitled to retain possession and to continue
in possession which he has already received from the transferor so
long as he is willing to perform his part of contract. Agreement
does not create title on interest in the property. Since the agreement
had met with dismissal of the suit his willingness to perform his
part of the contract does not arise.
6. Even otherwise, in a suit for possession filed by the
respondent, successor-in-interest of 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. The High Court has pointed out that he has not
expressly pleaded this in the written statement. We have gone
through the written statement. The High Court is right in its
conclusion. Except vaguely denying that he is not ready and
willing to perform his part, he did not specifically plead it. Under
Section 16(c) of Specific Relief Act, 1963, the plaintiff must plead
in the plaint, his readiness and willingness from the date of the
contract till date of the decree. The plaintiff who seeks
enforcement of the agreement is enjoined to establish the same.
Equally, when transferee seeks to avail of Section 53A to retain
possession of the property which he had under the contract, it
would also be incumbent upon the transferee to plead and prove
his readiness and willingness to perform his part of the contract.
He who comes to equity must do equity. The doctrine of readiness
and willingness is an emphatic way of expression to establish that
the transferee always abides by the terms of the agreement and is
willing to perform his part of the contract. Part performance, as
statutory right is conditioned upon the transferee’s continuous
willingness to perform his part of the contract in terms covenanted
thereunder.
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25. The aforesaid view was reiterated by Supreme Court in the
case of Roop Singh (dead) through LRs vs. Ram Singh (dead)
through LRs, (2002) 3 SCC 708 observing as under :
……If the defendant got the possession of suit land as a lessee or
under a batai agreement then from the permissive possession it is
for him to establish by cogent and convincing evidence to show
hostile animus and possession adverse to the knowledge of the real
owner. Mere possession for a long time does not result in
converting permissive possession into adverse possession. {Re:
Thakur Kishan Singh (Dead) vs. Arvind Kumar, [(1994) 6 SCC
591]. Hence, the High Court ought not to have interfered with the
findings of fact recorded by both the courts below.
……It is also to be stated that plea of adverse possession and
retaining the possession by operation of Section 53-A of the
Transfer of Property Act are inconsistent with each other. Once it is
admitted by implication that plaintiff came into possession of the
land lawfully under the agreement and continued to remain in
possession till the date of the suit, the plea of adverse possession
would not be available to the defendant unless it has been asserted
and pointed out hostile animus of retaining possession as an owner
after getting in possession of the land. (Re: Mohan Lal vs. Mirza
Abdul Gaffar and Anr., {(1996) 1 SCC 639}.
26. The aforesaid principle was again relied upon in the case of
Mool Chand Bakhru vs. Rohan and others, (2002) 2 SCC 612
holding as under:
“8. The High Court relying upon a judgment of this Court in
Mohan Lal (deceased) through his Lrs. Kachru and others v.
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Mirza Abdul Gaffar and another, 1996(1) SCC 639, came to the
conclusion that since the respondents were claiming to be in
possession of the property in part performance of the agreement to
sell, the plea of acquisition of title by adverse possession was not
available to them. Learned counsel appearing for the respondents
did not assail this finding of the High Court. The view expressed in
Mohan Lal (deceased) through his LRs. Kachru and others case
(supra) has been reiterated by this Court in Roop Singh v. Ram
Singh, 2000(3) SCC 708 : 2000(2) RCR (Civil) 592 (SC). It has
been held in the latter judgement that the pleas of adverse
possession and retaining the possession by operation of Section
53A of the Act are inconsistent with each other. Such a plea is not
available to a proposed vendee.”
27. Plea raised by the defendant in his written statement needs
to be noticed :
“5. Para 5 of the plaint is wrong. As stated above the defendant
has become owner of suit land by adverse possession & the
plaintiffs have no right to interfere in his possession. Even in case
it is not proved that defendant has become owner by adverse
possession which is not admitted by defendant. The defendant is
entitled to remain in possession under the agreements to sell dated
12.3.1967 and 6.2.1978. The defendant has already paid
Rs.30,000/- out of Rs.37000/- the price of suit land agreed between
parties. The defendant is ready and has always been ready to pay
balance of sale consideration & get the sale deed executed in terms
of contract. The defendant is entitled to retain possession on the
basis of part performance of contract to sell.”
28. Applying the ratio of law in Mohan Lal’s case (supra) to
the instant suit, once the defendant himself pleaded that he is in
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possession under the agreement to sell dated 12th of March, 1967 and
6th of February, 1968 and to retain possession relies on the part
performance of contract to sell, he cannot plead adverse possession.
Needless to reiterate that the possession of a proposed vendee under
agreement to sell always is a permissive possession under the vendor
till he pleads and proves that he gave up the permissive possession and
re-entered into possession which was open and hostile to the
knowledge of the true owner. There is no such plea raised in this suit.
29. In view of the aforesaid facts, this Court is of the
considered opinion that both the Courts below erred in non-suiting the
plaintiffs holding that the defendant has become owner of the suit
property on the strength of adverse possession without even going
through the pleadings raised by the parties.
30. There is another aspect to the aforesaid proposition.
Admittedly, the defendant came in possession on the strength of
agreement to sell executed in his favour by the plaintiffs. The
defendant claims that the plaintiffs have lost their title over the suit
land. Thus, in other words the defendant asserts that the contract
stands frustrated after the plaintiffs lost their title to the property and
has been rendered void in term of Section 56 of the Contract Act. That
being so, the defendant being a beneficiary under the void contract
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needs to restore back the advantage that he received under the void
agreement as per the mandate of Section 65 of the Contract Act. This is
what the ‘principle of restitution’ is.
31. In view of above, this Court finds that the present second
appeal merits acceptance. Consequently, the same is allowed. The
impugned judgment and decree passed by both the Courts below are
hereby set aside. The suit filed by the plaintiff is ordered to be decreed.
Decree be drawn.
32. Ordered accordingly.
33. Pending application(s), if any, shall also stand disposed off.
October 04, 2024 (Pankaj Jain)
Dpr Judge
Whether speaking/reasoned : Yes
Whether reportable : Yes
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