Bhula Ram vs Narbir Singh

Arun Kumar Goel, J.—The Appellant has filed this appeal against the judgment and decree passed by Shri Jasbir S. Dhaliwal, District and Sessions Judge, Sirmaur District at Nahan dated 26-9-1991. By means of impugned judgment and decree, while allowing the appeal, first appellate Court has upset the judgment and decree of the trial Court passed in Civil Suit No. 158/1 of 1989/88, dated 7-12-1990, whereby the suit of the Respondent (hereinafter referred to as the ''Plaintiff'') had been dismissed. As a result of the allowing of the appeal by the District Judge, Simnaur the suit of the Plaintiff claiming decree and possession of'' land measuring 7 bigha 2 biswas has been decreed.

Suit was filed by the Plaintiff against the Appellant (hereinafter referred to as the ''Defendant''; for possession on the basis of title and that the Defendant is a trespasser over the land measuring 7 bighas 2 biswas (hereinafter referred to as the ''suit land'' and since the Defendant had encnroached upon the suit land without any right, as such, possession was claimed. The suit was contested and resisted by the Defendant, who pleaded that he is a non-occupancy tenant on payment of 1/4th of Galla-Batai in respect of land measuring 5 bigha 12 biswas comprised in khasra No. 431/322 mm under the Plaintiff. This land, according to the Defendant, was in the nature or Jhari Jhund and he made the same cultivable after spending huge amount

Since the relations between the parties were good, so the Defendant did not bother regarding revenue entries According to the Defendant, it was further held out by the Plaintiff that there is no need of getting the revenue entries corrected, although it had come in evidence; as also it was the case pleaded by the Defendant that he applied for correction of revenue entries. Plaintiff was holding good position as Joint Secretary, Transport and Tourism, Government of Himachal Pradesh and also remained as Collector and held other high positions, as such, the revenue officers did not carry out the necessary correction It was further the case of the Defendant that when he had applied for correction of revenue entries on 9-1-1979, Plaintiff executed a receipt/agreement whereby he agreed to sell 5 bigha 12 bighas of land for a sum of Rs 5,200. He also received Rs. 500 from the son of the Defendant namely Mangat Ram, who was also the attorney of the Defendant. However, when on 15-12-1979, the son of the Defendant went to pay the balance amount of sale consideration of Rs. 5,000, Plaintiff pretended that since he has not paid Mamla (land revenue) to the Government of H.P., as such, he his unable to execute the sale deed and get it registered in favour of Defendant as well as his son Mangat Ram. But the Plaintiff assured that the dispute would be settled soon and he would execute the necessary sale deed as also would receive the balance amount. Defendant being a simpleton and illiterate, accepted the word of the Plaintiff and continued paying the Galla Batai to the latter. In these circumstances, the dismissal of suit was prayed for.

In the replication filed by the Plaintiff to the written statement of the Defendant, he admitted the receipt of Rs. 500 in terms of the receipt dated 9-7-1979, but pleaded that there was failure on the part of the Defendant to get the needful done by payment of balance amount. It was further pleaded that the Defendant showed his inability to get the sale deed registered in his favour, as such, the latter was stated to be not entitled to take benefit of the said receipt in question and, therefore; the Defendant was bound to deliver possession and according to the Plaintiff. In the aforesaid circumstances, parties went to trial on the following issues:

Whether the Defendant is in possession of entire suit land? OPP.

Whether the Defendant is in possession of 3.12 bighas out of the suit land as tenant as alleged? OPD.

Whether the suit is not maintainable? OPD.

Relief.

Decision of the trial Court, dismissing the suit, was questioned in appeal by the Plaintiff. While allowing the appeal and setting aside the impugned judgment and decree, first appellate Court has decreed the suit of the Plaintiff for possession, hence, this appeal at the instance of the Defendant.

During the course of hearing of this appeal, the sole question pressed into service by the learned Counsel for the Defendant was that the Defendant having come into possession in part performance of the agreement dated 9-7-1979 vide Ext. D-1 his possession is protected in law. In support of this submission, it was further urged that the attorney and son of the Defendant went with the balance amount to the Plaintiff for payment thereof and getting the sale deed executed when the Plaintiff put off the execution and registration of the same and thus it was urged that so far the Defendant was concerned, he was always ready and willing to complete his part in terms of the receipt. On the other hand, it was the Plaintiff who was evading the issue on one pretext or the other. This plea has been controverted by the learned Counsel for the Plaintiff who urged that the Defendant was never a tenant and he was a trespasser over the suit land and thus there was no question of his possession being protected in part performance in accordance with Section 53-A of the Transfer of Property Act. Alternatively, it was urged that if it is held that Section 53-A supra covers the present case, then in that event, Defendant having failed to prove other requirements of law, viz. he is ready and willing to perform his part of the obligation in terms of Ext. D-1, decree passed by the first appellate Court was liable to be upheld. "

At this stage, it may be appropriate to point out here that so far the plea of tenancy is concerned, there is no evidence brought on record by the Defendant to rebut the entries made in revenue record viz. Exts. PA to PE Ordinarily, at the time when exhibit D-1 was executed, the Plaintiff had assured the Defendant not to continue with the'' application filed by him for correction of revenue entries. Thereafter; when again the Plaintiff put off the son and attorney of the Defendant, he ought to have initiated steps for correction of revenue entries or such other action as was permissible in law but nothing was done by the Defendant. In these circumstances, the findings of the lower appellate Court that Defendant was not a tenant over the suit land are correct in the face of the evidence both oral and documentary produced by the parties and thus, are upheld.

Now, the sole question that needs to be considered is whether the Defendant while invoking the doctrine of Section 53-A supra is there anything to show that the Defendant has performed or was willing to perform his part of the obligations in terms of exhibit D l. Once it is held that he was ready and willing, his possession needs to be protected and the claim of the Plaintiff must fail, otherwise the claim of the Plaintiff is likely to succeed if it is not proved. "

Shri K. D. Sood, learned Counsel for the Appellant has placed reliance on Sheth Maneklal Mansukhbhai Vs. Hormusji Jamshedji Ginwalla and Sons, ; Chaman Lal Vs. Surinder Kumari, ; State of Madras v. Ramalingam and Co. AIR 1956 Mad On the other hand, Shri D. D. Sood, learned Counsel appearing for the Respondent has placed reliance on Nathulal Vs. Phoolchand, ; Sardar Govindrao Mahadik and Another Vs. Devi Sahai and Others, ; Mahibuddin Ahmed Bora v. Dandiram Koch and Anr. AIR 1966 Assam 46; Devisahai Premraj Mahajan Vs. Govindrao Balwantrao and Others, and K. Venkatasubbayya v. K. Rosayya and Ors. AIR 1957 AP 58.

So far the principles underlined in Section 53-A of the Transfer of Property Act are concerned, there is no dispute in this behalf. The question to be examined in this case is whether the Defendant who is invoking this doctrine has been able to establish the requirements of law or not. In this behalf, again a reference has to be made to the written statement of the Defendant as well as to the pleadings made by him. While considering the case of the Plaintiff, this Court cannot ignore the fact that the Defendant is a rustic illiterate villager, whereas it has come in evidence that the Plaintiff was working as Secretary, Transport and Tourism besides having occupied senior positions like Collector etc. In this background the plea of the Defendant has to be examined Defendant has categorically stated that his son had gone to pay the balance amount, but the Plaintiff assured that he would take the money later on and also did not get the sale deed registered nor accepted the money and the Plaintiff held out that he would get the sale deed registered later on. In this behalf, it may be appropriate to mention here that the Plaintiff had not said a word in his plaint regarding Ext. D-1 It was only in his replication that while admitting the execution of Ext D-1 and receipt of Rs. 500, he held out that the failure was on the part of the Defendant to fulfil his part of the obligation This position does not seem to be correct. It appears that not only the Plaintiff evaded the receipt of money when it was offered and thereafter to execute the sale deed, but he also allured the Defendant to withdraw his application for correction of revenue entries filed by him. In the ordinary course of things, Defendant would not have withdrawn the application unless he was assured by the Plaintiff and this Court has no hesitation in holding that the Defendant was trapped in Withdrawing his application for correction of revenue entries and at the same time he evaded the execution of the sale deed. No doubt, Defendant did not issue any notice or initiate any steps in the direction of implementing the receipt Ext. D-1 through process of law, but that would not erase the fact and take away the right accrued in favour of the Defendant qua the land in suit which he was occupying in part performance after Ext, D-1 had been executed by the Defendant in terms thereof.

In view of the aforesaid findings, this Court is of the view that the Defendant was always ready and willing to perform his part of the agreement, but the Plaintiff was evading the issue on one pretext or the other and finally he came to file the present suit.

On consideration of the evidence on record as well as in view of the discussion made hereinabove, it is clear that the Defendant was always ready and willing to fulfil his part of the application in terms of Ext. D-1 and there can be hardly any doubt in that behalf. Thus; he has rightly pressed into service Section 53-A of the Transfer of Property Act to protect his possession Not only this, it was the Plaintiff who was putting off the Defendant after having received a sum of Rs 500 from the former. No notice of forfeiture or revocation of Ext. D-1 was issued by the Plaintiff. In this view of the matter, the persistance on the part of the learned Counsel for the Plaintiff that it was the Defendant who failed to perform his part of the obligation in terms of Ext. D-1 is hereby rejected.

As a result of the aforesaid discussion and in view of evidence produced by the parties, it is held that the possession of the Defendant is protected u/s 53-A of the Transfer of Property Act. Consequently the suit filed by the Plaintiff had rightly been dismissed by the trial Court No other point has been urged by the learned Counsel for the parties.

In view of the above discussion, this appeal is allowed. Consequently the impugned judgment and decree passed by the lower appellate Court is hereby set aside and that of the trial is ordered to be restored resulting in the dismissal of the suit filed by the Plaintiff Costs on the parties.