Gangaram vs Smt. Ramkanwar and Others

R.R. Yadav, J.—The instant first appeal is directed against the judgment and decree dated 5.2.1980 passed by the learned District Judge, Merta in civil suit No. 5/73.

The fact of the present case lies in a short campus. Shri Kamalchand, since dead, and his son Ratanchand filed the above suit Inst. the opulent and his brother Shri Jagdish, respondent No. 3 on the round inter-alia that the plaintiff Kamalchand purchased disputed land from Shri Mahphoo Khan for Rs. 2,500/- by a registered sale-deed on 30.8.1950. It was then stated that Shri Mahphool Khan handed over the Patta of the sia land (Ex.3) to Shri Kamalchand at the time of the sale. It was then alleged that Kamalchand got the pata renewed (Ex.1) in his name and in the name of his son Shri Ratanchand and, therefore, it was alleged that Shri Ratanchand had been made a plain tiff in the above suit. It was further averred that the above land was delivered to the defendants in Sept., 1967 for temporary use on their request and when the plaintiff demanded the possession of the land from the defendants they refused and instead of handing over possession sent a notice alleging that they are in possession in part performance as contemplated u/s 53A of the Transfer of Property Act.

After receiving the aforesaid notice from the defendants the plaintiff immediately revoked the licence and possession of the disputed land was demanded. After service of summons the defendants contested the above case by filing a joint written statement. Practically the defendant-appellants denied the plaint allegation. They also denied in their written statement that they had obtained possession of the land in dispute by way of licence. It was also stated in their written statement that Kamalchand put the defendant No. l Gangaram into possession of the disputed land in pursuance of the oral agreement and as such the defendants had set up a plea of part performance as contemplated u/s 53A of the Transfer of Property Act.

On the basis of the aforesaid pleading of the parties the learned District Judge, Merta framed the following issues:

�1� D;k oknhx.k ls izfroknhx.k us tehu eqn~nk fn;k flrECj 1967 es vkjkth rkSj ij cjrus ds fy, ekax dj yh\\ ih-

�2� D;k oknhx.ku tehu eqn~nfo;k tks izfroknhx.k dh vkjkth rkSj ij ekaxus ij nh Fkh mlds ckcr ykblsUl 22-8-68 dks uksfVl nsdj lekIr dj fn;k \\ ih-

�3� D;k izfroknhx.k us tehu eqruktk es if''pe dh rjQ cuh fnokj es uhos dks rksM+ fn;k tks fnokj lok QhV ls MkbZ QhV rd cuh gqbZ Fkh blh izdkj eqn~bZ dks 500@& dk uqdlku igqapk;k\\ ih-

�4� D;k oknhx.k izfroknh es tehu eqrnfo;k dk dCtk ikus ds gdnkj gS\\ ih-

�5� D;k oknhx.k izfroknhx.k ls 50@& :0 ekgokj ds fglkc ls tehu eRnkfo;k dks dke es ysus ds gjtkus ds rhu o"kZ ds 1800@& ikus dk gdnkj gS\\ ih-

�6� D;k 22-8-1968 dks ykbZlsUl lekIr djus ds ckn Hkh eqnk;rk }kjk tehu eqnbZ;ku dks lqiqnZ u djds tehu dks cjrus ds gtkZuk ds :- 3@& izfrfnu ds fglkc ls rkjh[k 16-4-73 ls dCtk tehu izkIr gksus rd izkIr djus ds gdnkj gS\\ ih-

�7� D;k izfroknhx.k us oknhx.k dh iV~Vklqn dCtklqn 2752 A oxZxt tehu es ls 2000 oxZ xt tehu mrjknh fgLls dh 8@& :0 izfr oxZ xt dh nj ls 1967 ds vDVwcj ekl es [kjhn dj yh vkSj lkbZ isVs 3000@& oknh dks vnk dj fn;s A ;fn ,slk gS rks nkos ij D;k vlj gksxk \\ Mh

�8� D;k okn i= es tks dksVZ Qhl yxkbZ x;h gS o ukdkQh gS \\ Mh-

�9� nknjlh

After framing all the aforesaid issues the attention of the parties were focused by the learned District Judge to adduce evidence in support of their respective claim. Both the plaintiff as well as the defendants were afforded an opportunity to adduce oral and documentary evidence on record. After analytical discussion of the oral and documentary evidence on record, the learned District Judge came tot his conclusion that the defendants have no right title over the disputed lnd. Therefore, he decreed the suit for possession as well as mesne profit of Rs. 1800/- and further directed to pay mesne profit @ Rs. 90/- per month. Aggrieve end against the aforesaid judgment and decree of possession and mesne profit the defendant-appellant had come up before this Court by filling the present first appeal challenging the impugned judgment and decree passed by the learned District Judge, merta.

I have hear learned Counsel for the defendant-appellant as well as counsel for the plaintiff-respondents. I have gone through the oral and documentary evidence adduced by the parties.

A close scrutiny of the judgment and decree passed by the learned District Judge go long way to prove that the finding recorded by the learned District Judge regarding the title of the plaintiff-respondents is based on oral and documentary evidence on record. The learned District Judge has given cognate and convincing reasons in support of his finding regarding title of the plaintiff-respondents.

I am in full agreement of the finding recorded by the learned District Judge. It is important to mention that one brother of defendant-appellant has submitted to the judgment and decree passed by the learned District Judge. The only argument raised by the learned Counsel for the defendant-appellant is that he is coming in possession in pursuance of the oral agreement and he is entitled to get the protection as contemplated u/s 53A of the Transfer of Property Act. The learned Counsel for the plaintiff-respondents had refuted the aforesaid contention raised on behalf of the counsel for the defendant-appellant. The learned Counsel for the plaintiff respondents had invited my attention to Section 53A of the Transfer of Property Act which is reproduced here-in extenso:

53-A. Where any person contracts to transfer for consideration any immovable property by writting 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 furherance of the contract, and the transferee has performed or is willing to perform his part of the contract. Than, notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transer, that the transfer has not been complete in the manner prescribed therefore by the law for the time being in force, the tanseror 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.

The learned Counsel for the plaintiff-respondents had also invited my attention towards a decision of the apex Court given in the case of Nathulal Vs. Phoolchand, wherein their lordships'' had laid down four norms for extending the benefit u/s 53A of the Transfer of Property Act. The conditions necessary for making out the defence of part performance to an action in ejectment by owner of the land the defendant-appellants are required to fulfil the following conditions:

(1) that the transferor has contracted to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty;

(2) that the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession continues in. possession in part performance of the contract;

(3) that the transferee has done some act in furtherance of the contract; and

(4) that the transferee has performed or is willing to perform his part of the contract.

According to the ratio of the case of Nathulal (supra) if these conditions are fulfilled then notwithstanding that the contract, though required to be registered, has not been registered or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefore by the law for the time being in force, the transferor or any person claiming under him is debarred from enforcing against the transeree any right in respect of the property of which the transfer has taken or continued in possession, other than a right expressly provided by the terms of the contract.

It is not disputed in the present case that there was no agreement in writing signed by plaintiff-respondents or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty. In my humble opinion according to the aforesaid norm laid down by their lordships of the Hon''ble Supreme Court benefit u/s 53A of the Transfer of Property Act can be extended to a person in a case where all the four contions co-exist. According to me if any of the condition is missing, the person claiming benefit u/s 53A of the Transfer of Property Act is not entitled to get the benefit of the said section. In the present case admittedly there is no written agreement between the parties which can said to be signed by or on behalf of the plaintiff-respondents from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty.

Since in the present case the defendant-appellant failed to establish the first condition laid down by their lordships of Hon''ble Supreme Court in case on Nathulal (supra) hence the defendant-appellant is not entitled to get the benefit of Section 53A of the Transfer of Property Act. The learned Counsel for the defendant-appellant has not argued any other point before me except the argument mentioned above.

In view of the aforementioned discussion, the instant first appeal lacks merit and hereby dismissed with cost and the judgment and decree passed by the learned District Judge, Merta on 5.2.1980 is affirmed.