Ishwara Ganu Nimbalkar vs Ananda Balwant Karnekar

A.B. Chaudhari, J.—Being aggrieved by the judgment and decree dated 16th June, 1992 passed by the 4th Additional District Judge, Kolhapur in Reg.Civil Appeal No. 369 of 1990 by which he reversed the judgment and decree dated 10th August, 1990 passed by Civil Judge, Junior Division, Panhala in Regular Civil Suit No. 45 of 1978 for possession, the original defendant had preferred the instant appeal in this court.

In support of the appeal Mr. P.D. Dalvi, the learned counsel for the appellant made the following submissions:

That the learned trial judge dismissed the suit filed by the respondent plaintiff after holding that the appellants defendants were entitled to remain in possession of the suit property under agreement Exh.35 dated 13.4.1959 by virtue of the provisions of section 53-A of the Transfer of Property Act particularly when he had paid total amount of Rs. 450/- + Rs. 300/- out of the total consideration of Rs. 1300/-. According to him under the written agreement Ex.35, the appellants defendants were in possession which was given to him pursuant to the said agreement and were in possession since then. He was therefore, clearly entitled to protect his possession u/s 53-A of the Transfer of Property Act. He submitted that the lower appellate court committed an error in relation to the law laid down by the full bench of this court duly approved by the Apex Court and consistently followed by the Apex Court thereafter. He referred to the decision of the full bench of this court in the case of Mahadeo Nathuji Patil Vs. Surjabai Khushalchand Lakkad and Others, and submitted that the said full bench decision was approved by the judgment of the Supreme Court in the case of Shrimant Shamrao Suryavanshi and Another Vs. Pralhad Bhairoba Suryavanshi by Lrs. and Others,

Per contra, the learned counsel for the respondent supported the impugned judgment and decree passed by the lower appellate court and submitted that the respondent is at no fault since the suit remained pending for number of years. Even the suit that was filed by the respondent for specific performance of the contract was dismissed which decree was never questioned by him. Thus, the counsel for the respondent vehemently submitted that the decree for specific performance of the contract was refused to the appellants by the competent court which became final and conclusive between the parties. The appellants whatsoever had no right to remain in possession even on the application of section 53-A of the Transfer of Property Act. She therefore, submitted that the respondent cannot be allowed to suffer due to the delay in the adjudication of the litigation.

It was then submitted that this court while admitting this appeal refused to grant stay of possession and therefore, respondent is in possession since then. Even from that date number of years have passed and the respondents have been in possession and therefore, the respondents should not be deprived of the possession now. She further fairly stated the law laid down by this court in the full bench decision in the case of Mahadeo Nathuji Patil Vs. Surjabai Khushalchand Lakkad and Others, and approved by the Supreme Court in the case of Shrimant Shamrao Suryavanshi and Another Vs. Pralhad Bhairoba Suryavanshi by Lrs. and Others, even now holds the field.

I have heard the learned counsel for the rival parties. I have perused the impugned judgment and the reasons recorded by the courts below. I find that the following substantial question of law arise for my consideration:

Question:

(a) Whether the judgment and decree made by the lower appellate court relying on the Division Bench judgment of this court in the case of Adinath Limbaji Navale and Another Vs. Policeman Housing Society and Another, thereby, relying on the judgment and decree of the Trial Court is rendered illegal in view of the judgment in the case of Adinath Limbaji Navale and Others v. Policeman Housing Society (Supra) being overruled by the Full bench in the case of Mahadeo Nathuji Patil Vs. Surjabai Khushalchand Lakkad and Others, approved by the Supreme Court in the case of Shrimant Shamrao Suryavanshi and Another Vs. Pralhad Bhairoba Suryavanshi by Lrs. and Others,

(b) What order?

Answer

(a) Yes

(b) Second Appeal is allowed.

It is not in dispute that the appellants defendants had taken the possession of the suit property pursuant to the written agreement dt. 13.04.1959 Exh.35 from the respondent plaintiff and that since then, they remained in possession. It is also not in dispute that out of the total consideration of Rs. 1300/- they had paid the total amount of Rs. 750/- duly proved by the receipts Ex.36 and 37. It is also not in Mohite 4/9 dispute that the appellants had filed R.C.S. No. 7 of 1972 for claiming a decree for specific performance of the contract. The suit was dismissed. Admittedly, the appellants continued to be in possession pursuant to the said agreement Ex.35 even after the dismissal of the suit for specific performance of the contract. The Trial Court held that the act on the part of the appellants defendants in filing the suit for specific performance of the contract clearly showed that they were ready and willing to perform their part of the contract while remaining in possession of the suit property. Though their suit for specific performance was dismissed. The respondent plaintiff claimed possession from the appellant. The lower appellate court however, in the light of the above undisputed facts found that the decision of the Division Bench of this court in the case of Adinath Limbaji Navale and Another Vs. Policeman Housing Society and Another, was binding on him and therefore, he allowed the appeal by following the said decision. However, I find that the decision in the case of Adinath Limbaji Navale and Others v. Policeman Housing Society being in conflict with the decision in the case of Nanasaheb Gujaba Bankar Vs. Appa Ganu Bankar and Others, was referred to the full bench and the full bench in the case of Mahadeo Nathuji Patil vs. Surjabai Khushalchand Lakkad and others (Supra) overruled the decision in the case of Adinath Limbaji Navale and Others v. Policeman Housing Society and held that the protection u/s 53-A was available to the person in possession pursuant to the written agreement. I quote paragraph 44 and 45 and 46 from the said decision as under:

It is thus clear from the above authoritative books on law of contract that by lapse of time for a suit for enforcement thereof, the rights and obligations under a contract do not come to an end. The well known rule is limitation bars a remedy and not a right to which the only exception carved out by statute is in regard to the title to an immovable property which is extinguished on expiry of limitation for instituting a suit for possession. Section 27 of the Limitation Act, 1963 which corresponds to Section 28 of the Limitation Act, 1908 contains the above exception to the well recognised rule that lapse of time bars only the remedy, but does not extinguish the right. Section 27 of the 1963 Act provides that when the period of limitation under the said Act for any person to institute a suit for possession of any property expires his right to such property is also extinguished. The said Section 27 (old Section 28) thus assists the person in possession to acquire prescriptive title, by adverse possession.

See Fakirappa Jotappa Malemani Vs. Ningappa Shidlingappa Matti,

What is however material of our purpose to be seen is that Section 27 of the 1963 Act (section 28 of the 1908 Act) cannot apply to persons who are in possession. The said section presupposes that a person who is not in possession of the property has by force of limitation lost his remedy to bring a suit for possession against the person, who is in possession of the same, it is held in the following cases that the above Section 27 (old Section 28) of the Limitation Act is not applicable to the defendant who relies on his actual possession of the property which has not been disturbed.

See : Bagauandas v. Bajibhai, 14 Bom. 222, Gopal Bhaurao Jape Vs. Jagannath Pandit Vasudeorao Pandit Maharaj, which have been considered along with others in paras 12 and 13 of the Judgment.

For all the above foregoing reasons our view is that the Statutory protection granted u/s 53A of the Act to a transferee in possession to continue his possession under an unregistered contract or instrument of transfer is not lost by lapse of time to file the suit for specific performance of contract for acquiring title if he satisfies the essential requirements of the said Section 53A of the Act and it is not incumbent upon him to file such a suit within time to protect his possession after the lapse of time. The law is therefore correctly laid down in Nana Saheh''s case and not in Adinath''s case."

The decision of the full bench of this court thereafter fell for consideration of the Apex Court in the case of Shrimant Shamrao Suryawanshi and another vs. Pralhad Bhairoba Suryawanshi and another wherein in paragraph 21 the Apex Court held as under:

"21. In the present case, it is not disputed that the transferee has taken possession over the property in part performance of the contract. It is also not disputed that the transferee has not brought any suit for specific performance of the agreement to sell within the period of limitation. It is also not disputed that the transferee was always and still ready and willing to perform his part of the contract. Further, the view taken by the High Court in judgment under appeal was overruled by the Full Bench of the Bombay High Court in the case of Mahadeo Nathuji Patil Vs. Surjabai Khushalchand Lakkad and Others, which, according to our view, lay down the correct view of law. In that view of the matter these appeals deserve to be allowed."

To sum up, in the light of the above discussion, the question framed by me above must be answered in the affirmative. In the result, the following order is inevitable.

ORDER

a. Second Appeal No. 331 of 1992 is allowed.

b. The impugned judgment and decree dated 16th June, 1992 passed by the 4th Additional District Judge, Kolhapur in Reg.Civil Appeal No. 369 of 1990 is set aside.

c. Judgment and decree dated 10th August, 1990 passed by Civil Judge, Junior Division, Panhala in Regular Civil Suit No. 45 of 1978 is restored.

d. No order as to costs.