Ghulam Qadir and another vs Ghulam Hussain

S. Murtaza Fazl Ali, C. J.

This is a defendant's appeal in a suit brought by the plaintiff for recovery of possession of the land in dispute from the defendant. The facts giving

rise to this appeal may be summarized as follows.

The plaintiff respondent filed a suit for recovery of possession of 1 kanal and 6 marlas of land comprising Khasra No. 1850 in Tehsil Kishtwar.

The proposed vendor, Qudus. executed an agreement to sell the land in dispute for a sum of Rs. 400/- in favour of the appellant Ghulam Qadir.

This agreement was executed on 21st Chet 1998 (Bikrami), Possession of the land in dispute was delivered to the proposed vendee at the time of

execution of the agreement. The proposed vendor Qudus received the entire consideration money of Rs. 400/- but did not execute the sale deed.

The present suit for possession was instituted on 17th Assuj 2021 = 1-10-1964.

The suit was resisted by the defendant mainly on the ground that his possession under the agreement of sale became adverse from the date of its

execution and therefore the defendant acquired title by adverse possession.

Both the courts below have negatived the contention of the defendants but held that as the possession of the defendants was purely permissive

the plaintiffs suit was entitled to succeed.

This case was originally heard by Jaswant Singh, J. sitting singly but in view of the point of law involved he has referred this case to the Full

Bench.

One of the points involved in this case is the same which we have decided in Civil Revn. No. 100 of 1969, Shiv Kumar v. Ajodhia Nath

(reported in AIR 1972 J & K 125). In the case we have clearly held that to begin with the possession of the proposed vendee under an agreement

to sell will be permissive unless it is converted into an adverse one by a disclaimer of the title of the landlord or by assertion of other hostile acts.

We have further held that the possession of the defendant will become adverse from the date when the right to sue for specific performance

becomes barred. In the instant case, however, under the terms and recitals of the agreement to sell, no time limit was fixed for execution of the sale

deed and in these circumstances time would continue to run from the date when the plaintiff had notice that performance was refused. No evidence

was adduced before the courts below regarding there being any refusal on the part of the plaintiff to execute the sale deed and yet the defendants

remained in possession of the property without the sale deed being executed for more than 22 years, before the filing of the present suit.

The only point that has been argued before us is where the vendor had delivered possession of the property in dispute to the defendant and had

received the entire consideration money and remained silent for a long period of 22 years, he will be stopped from recovering possession of the

property, even apart from the question of adverse possession. It is true that the question of adverse possession in this case does not arise because

there has been no refusal on the part of the proposed vendor to execute the sale deed, but we are rather impressed with the argument of the

learned counsel for the appellant that as the plaintiff himself had given possession and received the entire consideration money, he cannot be

allowed to take advantage of his own fraud, so as to recover possession from the defendants after such a long time. In Venkatesh Damodar v.

Mallappa Bhimappa, ILR 46 Bom 722, 724, 726 = (AIR 1922 Bom 9 (2)) a Division Bench of the Bombay High Court, in almost similar

circumstances, observed as follows:-

The result is that Damodhar has agreed to sell the property to the first defendant who was then in possession, and had all along been in possession

since the time of the decree, and the defendant paid the purchase price. It is quite true that the defendant has not got a sale deed, and the time has

passed within which he could have sued Damodar to get a sale deed. But the equitable principles which should be applied to these facts are. in my

opinion, perfectly clear.

X X X X X X X

That decision was based on the fiduciary aspect of the vendor's position and the impropriety of permitting him to succeed against his vendee in a

suit for possession. That argument must also apply where the vendee in possession has allowed the time for filing a suit for specific performance to

expire.

Their Lordships relied on an earlier Full Bench decision of the same court in Bapu Apaji v. Kashinath. ILR 41 Bom 438, 451. 452 = (AIR 1916

Bom 1 F3) where C. J., Scott speaking for the Full Bench observed as follows:-

Once it is recognized that the plaintiff is violating his fiduciary obligation, it is clear that the court cannot grant him the relief which he seeks, for it

will not aid him in committing a breach of trust and his suit must fail; the defendant is no trespasser, but is in possession under the contract which

the plaintiff has bound himself to carry out.

* * * * * *

Upon a legitimate application of these principles not only is the purchaser who has obtained possession entitled to enforce specific performance of

the contract for sale, but if an attempt be made by the seller to evict him by an action in ejectment he would have a valid answer to the action on

the ground of fraud. The same ground would be available to him to entitle him to recover possession in the event of his being ousted by the seller.

To the same effect is another decision of the Allahabad High. Court in Begum v. Mohd. Yakub, (1894) ILR 16 All 344 (FB).

We find ourselves in complete agreement with the observations made by their Lordships in the aforesaid case. It is manifestly clear that where

the plaintiff voluntarily executes a contract of sale puts the proposed vendee in possession of the property and receives the entire consideration

money, there is no special equity in his favour to allow him to turn round and claim the property after a long time merely because the price of the

property has increased. He cannot be allowed to repudiate the fiduciary obligation arising out of the contract nor can the court aid him to commit

fraud by dispossessing a prospective vendee who has done all that was required of him to do for purchasing the Property.

For these reasons we find that even though the possession of the defendant may be permissive, since the plaintiff has received the entire

consideration money and allowed the position to be changed to the prejudice of the defendant. he will be estopped from repudiating the sale

transaction and recovering possession from the defendant. On this ground alone, in our opinion, the defendant is entitled to succeed.

So far as the two important facts namely that the defendant was given possession under an agreement to sell and that the plaintiff received full

consideration money of Rs. 400/- are concerned they are not at all disputed before us.

For these reasons we allow this appeal, set aside the judgment and decree of the courts below and dismiss the plaintiff's suit. There will be no

order as to costs.

J. N. Bhat, J.

I agree.

Jaswant Singh, J.

I also agree.