Ashwath and Others vs Chanabasappa and Others

Aravind Kumar, J.—These two (2) appeals have been filed calling in question correctness and legality of judgment and decree passed by Senior Civil Judge, Belur dated 02.11.2011 in R.A. No. 76/2008 and R.A. No. 07/2009 whereunder judgment and decree passed by Civil Judge (Jr. Dn.), JMFC, Belur in O.S. No. 414/1996; and judgment and decree passed in O.S. No. 255/1996 dismissing the suit for specific performance and decreeing the suit for possession came to be affirmed. Since these appeals are of the year 2012 and records of trial Court having been secured and learned Advocates appearing for parties also having agreed for matter being taken up for final disposal, these two (2) appeals are taken up for final hearing and disposed of by this common judgment.

Learned Advocates appearing for parties namely appellant and respondent initially argued the matter with regard to admission of appeals and after having heard the learned Advocates appearing for parties, this Court was of the view that in RSA No. 235/2012 following Substantial Question of Law would arise for consideration:

(i) Whether Courts below erred in decreeing the suit for possession without considering the effect of Section 53-A of Transfer of Property Act, 1882?

OR

Whether defendant in O.S. No. 255/1996 had established that he is entitled for protection of his alleged possession over suit schedule property by taking umbrage under Section 53-A of Transfer of Property Act, 1882?

Before answering Substantial Question of Law formulated in RSA No. 235/2012, this Court is of the considered view that appeal RSA No. 234/2012 filed by unsuccessful plaintiff (who is defendant in O.S. No. 255/1996) is held liable to be dismissed without being admitted as it does not involve any Substantial Question of Law for reasons indicated hereinbelow:

FACTUAL MATRIX COMMON TO BOTH APPEALS:

Since facts relating to both appeals are common, it is narrated hereinbelow. Parties are referred to as per rank in OS. No. 255/1996.

Plaintiff filed a suit for permanent injunction and possession of suit schedule property (as described morefully in O.S. No. 255/1996) contending inter alia that he is the owner of suit schedule property and he had formed six (6) sites of various dimensions and had entered into an agreement of sale with first defendant on 01.07.1987 to sell site No. 1 measuring East to West 80 feet and North to South 40 feet for Rs. 5,000/- and had received sum of Rs. 4,500/- as earnest money and first defendant had agreed to get the sale deed registered on or before 30.09.1987, which was not acted upon by first defendant and defendants attempted to trespass and occupy sites bearing Nos. 1, 2 and 6 and put up thatched house overnight when plaintiff was out of station and same being illegal, suit for perpetual injunction to restrain defendants from constructing any house or structure on suit schedule property and also to remove thatched and mud wall structures and barbed wire fencing and ordering recovery of same from defendants and for possession of suit schedule property, came to be filed.

Defendants appeared, filed written statement and denied the averments made in plaint but admitted the agreement of sale dated 01.07.1987 having been entered by plaintiff and contended that plaintiff had sold the property measuring East to West 105 feet and North to South 40 feet and on 30.09.1987 has handed over possession of suit schedule property to first defendant under agreement dated 01.07.1987. It was contended that first defendant is in possession and enjoyment of same since 30.09.1987. It was also further contended that plaintiff had received total amount of Rs. 5,000/- and executed resale agreement in favour of defendant on 28.11.1993 since time for executing first agreement of sale dated 01.07.1987 had completed. It was also contended that balance Rs. 500/- has been paid on 28.11.1993 and defendant asserted his possession and enjoyment over suit schedule site along with house. It was also contended that defendant had already instituted a suit for specific performance in O.S. No. 414/1996 and it was also contended that he had put up construction in the suit schedule property six (6) years prior to filing of written statement. On these amongst other grounds, he sought for dismissal of the suit.

Before trial Court parties tendered their oral and documentary evidence and plaintiff was examined as P.W. 1 and defendant was examined as D.W. 1. On behalf of plaintiff six (6) documents were produced and it was got marked as Exs. P-1 to P-6 and on behalf of defendants 19 documents were produced and got marked as Exs. D-1 to D-19.

At this juncture itself it would be appropriate to note that since first defendant had pleaded that he had already filed a suit for specific performance in O.S. No. 414/1996, trial Court has clubbed these two suits and recorded common evidence. Hence, it would be appropriate to note the pleadings of O.S. No. 414/1996 also and it reads as under:

Defendant had filed a suit for specific performance against plaintiff contending inter alia that plaintiff had entered into an agreement of sale dated 01.07.1987 and had paid a sum of Rs. 4,500/- towards part of sale consideration and balance was agreed to be paid on 30.09.1987 and plaintiff took time till 30.09.1987 for getting the property surveyed and even after such survey plaintiff went on postponing the execution of regular register sale deed, on account of which panchayat was convened and on account of agreement of sale dated 01.07.1987 having expired, plaintiff on his own accord executed fresh agreement of sale on 28.11.1993 explaining in said document about earlier agreement of sale dated 01.07.1987. Despite defendant approaching plaintiff to execute sale deed and to pay balance consideration of Rs. 500/-, plaintiff for reasons best known did not receive the same and execute sale deed in favour of defendant and went on postponing the same and as such, defendant filed suit O.S. No. 414/1996 for relief of granting a decree for specific performance by directing defendant to execute and register sale deed after receiving balance sale consideration of Rs. 500/-.

Plaintiff in said suit i.e., O.S. No. 414/1996 on service of suit summons, appeared and filed written statement and denied the averments made in plaint except to the extent of expressly admitting certain facts as indicated in the written statement and sought for dismissal of the suit.

On the basis of pleadings of parties trial Court framed following issues for its consideration in both the suits:

RE. O.S. No. 255/1996:

1) Whether plaintiff proves that defendants are illegally put their structure on suit site No. 1, 2 and 6 which was formed on Sy. No. 405/2(a) of Halebeedu Village?

2) Whether plaintiff proves that he is in peaceful possession and enjoyment of suit site No. 1, 2 and 6 which was formed on Sy. No. 405/1(a) of Halebeedu Village?

3) Whether plaintiff proves that defendants illegally put their structure and fence on the suit site No. 1, 2 and 6? If so, whether plaintiff proves that he is entitled to get removed structure and fence put by defendant on suit site No. 1, 2 and 6?

4) To what relief parties are entitled?

5) What order or decree?

RE. O.S. No. 414/1996:

1) Whether plaintiff proves that on 1.7.1987 he paid Rs. 4,500/- as a part of the contract in respect of suit property to the defendant?

2) Whether plaintiff proves that he is ever ready and willing to perform his part of the contract?

3) Whether plaintiff proves that his suit is well in time?

4) What order or decree?

After considering the pleadings of parties and evaluating the evidence tendered by them trial Court was of the view that defendant had failed to prove the execution of agreement of sale dated 01.07.1987 and he was not ready and willing to perform his part of the contract and suit for specific performance was also not well within time or in other words, it was barred by limitation. It is also held that plaintiff had proved that defendant had illegally put up structure on site Nos. 1, 2 and 6, which had been formed in Sy. No. 405/2(A) situated at Halebeedu village and fencing put up of construction by defendant was also illegal, as such on appreciation of entire evidence trial Court decreed the suit for possession i.e., O.S. No. 255/1996 and dismissed the suit for specific performance i.e., O.S. No. 414/1996.

Being aggrieved by judgment and decree passed in these two suits defendant filed two appeals R.A. No. 76/2008 (against judgment and decree in O.S. No. 414/1996) and R.A. No. 07/2009 (against judgment and decree passed in O.S. No. 255/1996). First Appellate Court after hearing the arguments advanced by respective learned Advocates appearing for parties and after securing the records from trial Court formulated following points for its consideration:

Whether plaintiff reagreed or novated previous agreement dtd: 1.7.1987 through Ex. D2 alleged defendant''s suit schedule property for valuable sale consideration through agreement dtd. 28.11.1993?

Whether the possession of first defendant''s suit schedule property was delivered in favour of first defendant in pursuance of agreement to sell either Ex. D-1 or Ex. D-2?

Whether the first defendant has established his readiness and willingness to perform his part of contract as per law?

Whether suit of first defendant is barred by time?

Whether the Trial Court has properly appreciated pleas and materials of parties in proper perspective and it is justified in dismissing the suit of first defendant and decreeing the suit of plaintiff through impugned judgment?

Whether impugned judgment calls for interference of this Court?

What order?

First Appellate Court on reappreciation of entire evidence found that findings recorded by trial Court was in consonance with material evidence available on record and there is no infirmity in appreciation of available evidence by trial Court and findings recorded by trial Court are not at the variance with evidence available on record. As such, First Appellate Court on reappreciation of entire evidence found that judgment and decree passed by First Appellate Court in both suits deserves to be confirmed and accordingly confirmed the same by dismissing both the appeals by its judgment and decree dated 02.11.2011.

It is against these two judgments rendered by First Appellate Court plaintiff in O.S. No. 414/1996, has preferred these two appeals as already indicated hereinabove.

RE. RSA No. 234/2012:

Defendant in O.S. No. 255/1996, who was plaintiff in O.S. No. 414/1996 had sought for relief of specific enforcement of agreement of sale dated 01.07.1987. It is not in dispute that parties had entered into such agreement of sale, in fact plaintiff in O.S. No. 255/1996 admits the execution of such agreement not only in his written statement filed in O.S. No. 414/1996 but also in written statement filed in O.S. No. 255/1996. There is also no dispute with regard to fact that plaintiff in O.S. No. 255/1996 is the owner of suit schedule property. Even according to plaintiff in O.S. No. 414/1996 agreement of sale dated 01.07.1987 had lapsed or in other words, it had become time barred as could be seen from the averments made in plaint. It is rather intriguing to note at this juncture itself that in suit for specific performance defendant introduced an amendment to plaint schedule namely, he contended that measurement of suit schedule property measures East to West 105 feet though initially he had pleaded that it measured 80 feet. However, other averments made in plaint has not been amended and it remained as it is.

Contention put forward by the defendant in suit for specific performance was that on account of earlier agreement of sale dated 01.07.1987, which was marked as Ex. D-1, having lapsed a fresh agreement came to be executed by plaintiff on 28.11.1993 reiterating the execution of earlier agreement of sale dated 01.07.1987. Execution of said second agreement dated 28.11.1993, Ex. D-2 was specifically denied by plaintiff and as such, onus of burden was on defendant to prove the execution of said agreement.

A perusal of Ex. D-2 - sale agreement dated 28.11.1993 would indicate that balance sale consideration agreed to be paid under Ex. D-1 was Rs. 500/- and same has been paid on execution of Ex. D-2. However, contrary to said recital it has been pleaded in plaint in O.S. No. 414/1996 that there is balance consideration of Rs. 500/- to be paid by defendant to plaintiff at the time of registration and this inconsistency in the pleadings and documentary evidence is writ large remained unexplained. In order to prove execution of Ex. D-2 defendant examined a witness by name Sri. Panchanksharaiah, who is said to be witness to both Exs. D-1 and D-2. Both Courts disbelieved his evidence and rightly so and reason assigned by them is just and correct. A perusal of said evidence of D.W. 2 would indicate that he has tendered evidence at the behest and instance of defendant and he is not a dependable witness. His testimony cannot be accepted. Though he says that he was present when Ex. D-2 was executed, in his cross-examination he has stated that second agreement i.e., dated 28.11.1993 - Ex. D-2 was written before the Sub Registrar Office by Sri. Ningegowda. He has also stated that Sri. Ningegowda wrote Ex. D-2 in his own handwriting in the presence of parties. His cross-examination itself is sufficient to discard the evidence of D.W. 2, inasmuch as, perusal of Ex. D-2 would indicate that it is a typed document and not handwritten as stated by him. Hence, his very presence at the time of execution of Ex. D-2 has remained doubtful.

That apart, defendant has failed to examine either the scribe or other witness Sri. H.K. Kumar, who was very much alive as on that date as admitted by D.W. 2 in his Cross-examination dated 31.01.2005, as such no infirmity can be found in the finding recorded by the trial Court.

A perusal of pleading in O.S. No. 414/1996 would indicate that there is no explanation forthcoming as to why a second agreement of sale, Ex. D-2 was executed by plaintiff in favour of defendant. If the evidence of defendant is to be accepted as gospel truth namely that balance sale consideration was also paid on 30.09.1987 and possession was delivered, there was no necessity for second agreement of sale being executed and what remained was only registration of sale deed. A difference in time between first agreement and second agreement is six (6) years. This would only indicate that from 1987 to 1993 defendant did not raise his voice as to why plaintiff has not executed sale deed and after a lapse of 9 years from the date of execution of first sale agreement dated 01.07.1987, on the basis of alleged second agreement dated 28.11.1993 he filed a suit for specific performance and as such, it has been rightly held by both Courts that it was barred by limitation. Said finding arrived by Courts below is also in consonance with documentary evidence available on record.

Courts below have also held that except self serving testimony of defendant with regard to readiness and willingness, there was no other material to show that defendant always was ready and willing to perform his part of the contract. As rightly observed by Courts below after execution of first agreement of sale in the year 1987 under which plaintiff had paid consideration amount of Rs. 4,500/- and thereafter, allegedly on 30.09.1987 a further sum of Rs. 500/- it was not explained by defendant as to why he did not take steps to call upon plaintiff to execute sale deed, which is expected of a normal prudent person. On these grounds, trial Court dismissed the suit filed by the defendant for specific performance and on reappreciation of evidence First Appellate Court has also found that there is no material contradiction available on record to disbelieve the findings recorded by trial Court. Hence, findings recorded by trial Court has been rightly affirmed by Appellate Court.

As noticed hereinabove, these findings recorded by Courts below are on proper appreciation of facts and evidence and it does not detain this Court further from affirming the judgment and decree passed by the First Appellate Court in R.A. No. 76/2008 whereunder judgment and decree passed in O.S. No. 414/1996 dismissing the suit for specific performance came to be affirmed. In that view of the matter, this Court is of the considered view that RSA No. 234/2012 fixed by defendant in OS No. 255/09 is liable to be rejected.

RE. RSA No. 235/2012:

Short but interesting question of law involved in this appeal is as to whether in the facts obtained in the present case defendant would be entitled to protect his alleged possession over suit schedule property by taking protection of Section 53-A of Transfer of Property Act, 1882 or not?

In order to answer this question it would be necessary to note the arguments advanced by respective learned Advocates appearing for parties. On one hand Sri. Nitish, learned counsel appearing on behalf of Sri. K.V. Narasimhan, for appellant - defendant would concisely contend that admission of P.W. 1 available on record would suffice for granting relief sought for by plaintiff namely to dismiss the suit for possession filed by defendant and in support of his submission he has relied upon the judgment of Hon''ble Apex Court in the case of Shrimant Shamrao Suryavanshi and Another Vs. Pralhad Bhairoba Suryavanshi by Lrs. and Others, .

Per contra, Sri. Anupama Hegde, learned counsel appearing on behalf of respondent/plaintiff, has strongly supported the judgment and decree passed by Courts below and she would elaborate her submission by contending that defendant would be entitled to press into service Section 53-A of Transfer of Property Act, 1882 only in the event of suit for specific performance having not been filed and if it is proved that he has been always ready and willing to perform his part of contract, as otherwise protection available to a person in possession under Section 53-A of Transfer of Property Act, 1882, would not be available. She would also contend that stray admission of P.W. 1 would not by itself be sufficient to deny the relief of possession to plaintiff particularly when entire material evidence available on record would indicate that plea of defendant with regard to possession is bereft of particulars not supported by any material evidence and it is a self serving testimony and even otherwise, there being inconsistency in the pleadings and evidence she prays for answering Substantial Questions of Law against the appellant in RSA No. 235/2012.

In support of her submission she has relied upon the judgment of Honnle Apex Court in the case of Jawahar Lal Wadhwa and Another Vs. Haripada Chakroberty, .

Having heard the learned Advocates appearing for parties and on perusal of judgment and decree passed by Courts below and also pleadings as well as evidence available on record, it would emerge that appellant in RSA No. 235/2012, who was defendant in O.S. No. 255/1996, had filed above referred suit for specific performance i.e., in O.S. No. 414/1996 subsequent to filing of suit O.S. No. 255/1996. In other words, O.S. No. 255/1996 for possession was filed on 26.07.1996. Defendant in said suit entered appearance on 09.08.1996. It is thereafter suit O.S. No. 414/1996 came to be filed by him on 22.11.1996. Thus, as on the date of filing of suit O.S. No. 414/1996 defendants were fully aware as to what was specific stand of plaintiff in O.S. No. 255/1996. It is in this background pleadings of parties are required to be scrutinized and appreciated.

A bare perusal of plaint in O.S. No. 255/1996 would clearly indicate that initially suit was filed for perpetual injunction and for pulling down thatched shed and mud wall structure which had been put up on suit schedule property by way of mandatory injunction and it is thereafter defendant in the said suit i.e., plaintiff in O.S. No. 414/1996 appeared and filed written statement and on 10.01.1998 asserting his possession. Hence, amendment of plaint was sought for and plaintiff sought for alternate relief of possession of suit schedule property. In the written statement filed by defendant it has been contended that possession of suit schedule property was delivered on 30.09.1987 pursuant to agreement of sale dated 01.07.1987. It has been specifically contended in paragraph 9 of written statement that defendant has been in possession of suit schedule property and he had put up a hut in said property and on account of increase in monsoon for the past 6 years, he demolished said thatched hut and has put up a building with Mangalore tiles and residing therein. Said written statement is filed on 10.08.1998. Having said so, he has tried to assert his possession over suit schedule property. However, as already noticed hereinabove as on the date of filing of written statement i.e., on 10.08.1998 plaintiff had already filed suit for specific performance in O.S. No. 414/1996. In the said plaint there is not even whisper about putting up a thatched hut or Mangalore tiled house in suit schedule property by him. In fact description of suit schedule property in O.S. No. 414/1996 is suit schedule property is a vacant site. It has been described as under:

"Vacant site bearing Sy. No. 405/2P, dry land, measuring in all 0-23gts, which is being alienated vide No. 2/86-87 of the Belur Tahsildar order and this vacant site being sold in favour of the Plaintiff, is situate towards the northern side of the entire land, measuring East-West-80 feet and South-North 40 feet, bounded as follows:-- As per Court order dated 17/9/2002 schedule amend

East - Vacant site of Lakshmaiah;

North - Houses of Muriyachari and Soorachari

West - 10 feet road belonged to Sy. No. 405/5P;

South - Defendant''s Vacant Site."

This is the first stage where a doubt arises as to claim made by defendant with regard to possession as well as alleged construction of Mangalore tiled house over suit schedule property. In fact, actual date of delivery of possession of suit schedule property is not pleaded in O.S. No. 414/1996. Property in question is located in Halebeedu Town, Belur Taluk. For putting up construction within town municipality, building licence will have to be obtained from local municipality. Same is also not forthcoming from the records. In fact, plaintiff has also admitted in his evidence that he had not obtained any such permission or approval from the Competent Authority at the time of putting up of construction. This is the second stage at which doubt arises as to how plaintiff can assert his possession over property by allegedly putting up a construction over suit schedule property without due approval from Competent Authority.

Sri. Nitish, learned counsel appearing for appellant has vehemently contended that admission of P.W. 1 in his cross-examination dated 05.07.2004 which is to the effect that plaintiff is in possession of suit schedule property from 01.07.1987 was sufficient to protect possession of plaintiff in respect of suit schedule property by applying Section 53-A of Transfer of Property Act, 1882 and as such trial Court could not have granted relief of possession. Though, at first blush said argument looks attractive, same cannot be accepted for myriad reasons, which are as under:

As already noticed hereinabove as on the date of filing of suit O.S. No. 414/1996 if plaintiff had already put up construction in suit schedule property and residing therein along with his family members nothing prevented from saying so in his plaint (O.S. No. 414/1996). On the other hand, it is his specific case that suit schedule property is a vacant site;

Agreement of sale dated 01.07.1987 does not indicate that parties were at ad-idem with regard to delivery of possession or in other words, in part performance of agreement of sale dated 01.07.1987, Ex. D-1 possession of suit schedule property was not handed over. In fact this is not disputed by plaintiff;

Alleged delivery of possession on 30.09.1987 by defendant to plaintiff is not supported by any other evidence except self serving testimony of plaintiff;

Admission of plaintiff in cross-examination dated 05.07.2004 in the latter portion would indicate that though P.W. 1 had admitted that defendant is residing in suit schedule property after having put up a thatched hut from 01.07.1987, he has however in the later portion of cross-examination on the same day denied the possession of plaintiff over suit schedule property.

A bare reading of Section 53-A of Transfer of Property Act, 1882, would clearly indicate that any person who contracts to transfer for consideration any immovable property by writing signed by him or on his behalf, which terms necessary to constitute the transfer can be ascertained with reasonable certainty, and transferee has, in part performance of the contract, taken possession of the property or any part performance of such contract or being already in possession continues in possession in part performance of contract or has done some act in furtherance of such contract, then notwithstanding that transfer has not been completed in the manner prescribed by law, the transferor or any person claiming under him would be debarred from enforcing against the transferee and persons claiming under him any right in respect of property of which the transferee has taken or continued in possession. In other words, Section 53-A of Transfer of Property Act, 1882, recognizes the right of a transferee though it does not create a title in the transferee. Under this provision transferee is entitled to resist any attempt on the part of transferor to disturb transferee''s lawful possession.

This provision was the subject matter of consideration by Hon''ble Apex Court in the case of Shrimant Shamrao Suryavanshi and Another Vs. Pralhad Bhairoba Suryavanshi by Lrs. and Others, and after having analysed said provision it has been held that conditions which are required to be fulfilled by a transferee who wants to defend or protect his possession would have to be as explained their. It has been held by Hon''ble Apex Court paragraph 14 of the judgment as under:

"14. But there are certain conditions which are required to be fulfilled if a transferee wants to defend or protect his possession under S. 53-A of the Act. The necessary conditions are:--

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."

Keeping these contours in mind when the facts on hand are examined it would indicate that in the instant case neither under Ex. D-1 nor Ex. D-2 possession was delivered and possession of suit schedule property was not taken over by defendant in part performance on agreement of sale, Ex. D-1. Ex. D-2 agreement of sale has been held by both Courts rightly so, as not proved. The issue regarding readiness and willingness which also come to be examined by the Courts below that there was no readiness and willingness on the part of defendant. If really possession had been delivered as contended by plaintiff in the year 1987 when second agreement came to be executed on 28.11.1993 as per Ex. D-2, nothing prevented parties to specifically say so in the said agreement. This aspect was also not been indicated in the said agreement. Same is conspicuously absent. As such, contours defined by the Hon''ble Apex Court in Shrimant Shamrao Suryavanshi and Another Vs. Pralhad Bhairoba Suryavanshi by Lrs. and Others, is not attracted to the facts on hand and said judgment referred to hereinsupra would not come to the rescue of appellant in the facts obtained in the present case. In that view of the matter, this Court is of the considered view that Substantial Question of Law formulated deserves to be answered against appellant and in favour of respondent. Accordingly, I proceed to pass the following:

(i) Appeals are hereby dismissed.

(ii) Judgment and decree passed by Senior Civil Judge, Belur dated 02.11.2011 in R.A. No. 76/2008 and R.A. No. 07/2009 affirming the judgment and decree passed by Civil Judge (Jr. Dn.), JMFC, Belur in O.S. No. 414/1996 and O.S. No. 255/1996, are hereby affirmed.

(iii) No order as to costs.