Janardhanan vs Vikraman Nair

A. Badharudeen, J

This regular second appeal has been filed under order XLII Rule 1 read with Section 100 of the Code of Civil Procedure (“CPC” hereinafter) challenging the decree and judgment in A.S. No.215 of 2010 dated 19.02.2015 on the files of the Court of the District Judge-I, Palakkad arose from decree and judgment in O.S. No.230 of 2004 dated 30.03.2010 on the files of the Court of the Subordinate Judge, Palakkad. The appellants herein are defendants 4, 5 and 6 and the respondent is the plaintiff in O.S. No. 230 of 2004.

Heard the learned counsel for the appellants and the learned counsel appearing for the respondent. Perused the lower court records and the pleadings.

Parties in this appeal shall be referred as “plaintiff” and “defendants” with reference to their status before the trial court.

At the time of hearing, my learned predecessor raised the following substantial questions of law as per order dated 22.05.2015, which are as under:

i) On the facts and circumstances of the case, did the courts below go wrong in depriving the fifth defendant, the benefit under section 53A of the Transfer of Property Act on the basis of exhibit B1?

ii) Did the courts below go wrong in holding that the suit was not barred by limitation?

iii) When the plaintiff has failed to perform his obligation under Exhibit A2 judgment, did the courts below go wrong in decreeing the suit?

Initially, suit for recovery of possession, on the strength of title, was filed before the Munsiff's Court. According to the plaintiff, the plaint schedule property originally belonged to the plaintiff on the strength of assignment deed No.2032/1990 of Palakkad SRO. Thereafter, the same was given to late Easwaran. Later, Easwaran filed a suit as O.S.No. 92/1991. Thereafter, the plaintiff, Vikraman Nair and the 5th defendant entered into an agreement for sale of the property. Accordingly, possession of the plaintiff was sought to be recovered in the suit on the strength of title. The plaintiff also sought decree for damages for use and occupation of the building by the defendants at the rate of Rs.1,500/- per month.

The 5th defendant filed written statement and raised contention that he got possession over the plaint schedule property on the strength of sale agreement dated 09.05.1992 entered into between him and the plaintiff and the said possession is one protected under Section 53-A of the Transfer of Property Act, 1882 (hereinafter referred as ‘the TP Act’ for convenience).

The trial court ventured the matter relying on the evidence. PW1 examined and Exts.A1 to A6 marked on the side of the plaintiff. DW1 examined and Exts.B1 and B2 marked on the side of the defendants. Finally, the trial court decreed the suit as under:

In the result, the suit is decreed as follows:-

(a) The defendants are directed to surrender vacant possession of the plaint schedule property to the plaintiff within two months.

(b) The defendants 4 and 5 shall pay Rs.54,000/- to the plaintiff as damages for use and occupation till the date of institution of the suit and thereafter at the rate of Rs.1,500/- per month from the date of suit till the date of actual delivery of the plaint schedule property to the plaintiff or till the expiry of three years from the date of the decree, whichever event occurs first.

The parties are directed to bear their respective costs.

Though, appeal filed before the Appellate Court as A.S. No.215/2010 as per decree and judgment dated 19.02.2015, the learned District Judge, Palakkad, partly allowed the appeal and modified the verdict of the trial court. The Appellate Court confirmed the relief of recovery of possession while modifying decree for damages for use and occupation confining the same at the rate of Rs.1,500/- from the date of the suit till the date of actual delivery of the plaint schedule property to the plaintiff.

The learned counsel for the defendants submitted that the 5th defendant got possession of the plaint schedule property pursuant to Ext.B1 agreement in between the plaintiff and 5th defendant and the said possession is one protected under Section 53-A of the TP Act. Therefore, the same is liable to be protected. The learned counsel for the defendants further submitted that, O.S. No.92/1991 is a suit filed by Easwaran who initially entered into Ext.B2 agreement with the plaintiff for sale of the plaint schedule property, which was dismissed and in the said suit the 5th defendant herein was the 2nd plaintiff.

According to the learned counsel for the plaintiff, at present, the plaint schedule property is in possession of the plaintiff himself pursuant to an agreement executed in between the plaintiff and 4th defendant, who was in possession of the building as on 21.08.2019. Ext.R1(A) is the document so placed.

In this case, even though, the learned counsel for the 5th defendant pressed for protection as provided under Section 53-A of the TP Act, it is emphatically clear that in Ext.B1 there is no recital as to entrustment of possession in part performance of Ext.B1, in any manner.

In this context, in a decision reported in [2023 ICO 1737] Ratnam and Others v. Alice and Others, this Court observed as under:

At the outset, in case where, possession of the immovable property/building was given to the vendee by the vendor, in part performance of a contract of sale, the essential ingredients to get protection under Section 53A of the TP Act must be satisfied. Section 53A provides as under:-

“53A. Part performance.—Where any person contracts to transfer for consideration any immoveable 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, 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 furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that 2[***] where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor 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.”

In the decision reported in [AIR 2012 SC 1440], Raheja Universal Limited v. NRC Limited, the Apex court held that the provisions of Section 53A of the TP act recognize the right of a transferee, where a transfer has been given and the transferee has taken possession of the property or any part thereof. Even this provision does not create title of the transferee in the property in question, but gives him a very limited right, that too, subject to the satisfaction of the conditions as stated in Section 53A of the TP Act.

Indubitably, as per the mandate of Section 53A of the TP Act, the transferee/vendee is entitled to resist any attempt on the part of the transferor/vendor to disturb transferee’s lawful possession under the contract of sale subject to conditions stipulated in Section 53A of the TP Act. Although, one view is precinct that the said resistance could be used as shield, affirming such a view, would have far reaching ramifications. Therefore, while enforcing the said resistance the position of the transferee/vendee either as a plaintiff or as a defendant would make no difference. Contra view holding that the resistance shall not be used as a sword, would be detrimental to the legislative intend behind Section 53A of the TP Act, as the same would frogmarch the transferor/vendor to forcibly dispossess the transferee/vendee even against the covenants in the contract without a legal remedy to the transferee/vendee.

Thus, it appears that the protection under Section 53-A of the TP Act, as canvased by the learned counsel for the 5th defendant, on the basis of Ext.B1 could not sustain, particularly, in view of the fact that the 5th defendant did not file any suit for the specific performance of Ext.B1 and the suit filed on the basis of Ext.B2 agreement was dismissed.

On perusal of Ext.B1, the protection canvased by the 5th defendant under Section 53-A of the TP Act shall not sustain and therefore the plaintiff is entitled to get recovery of possession of the plaint schedule property on the strength of Ext.A1 title.

When the matter was heard on 17.11.2023, the learned counsel for the plaintiff submitted that, in so far as the grant of amount for the purpose of damages for use and occupation, the plaintiff is ready to relinquish the same. Accordingly, an affidavit sworn in by the plaintiff has been placed relinquishing the said remedy stating as under:

However, during the course of the argument, my counsel submitted before this Honourable Court that my counsel will make me/the respondent to agree to waive or relinquish the (b) relief granted in the decree of trial court and modified in the appeal judgment dated 19.02.2015 in AS No. 215/2010 of the Additional District Court-1, Palakkad as "It is decreed that the plaintiff is entitled to get damages for use and occupation at the rate of Rs.1,500/- per month from the date of suit till the date of actual delivery of the plaint schedule property to the plaintiff, from the defendants 4 and 5" as a part of leniency to end a long litigation and on that situation, this Honourable Court instructed to file party affidavit in this behalf.

Thus, the first substantial question of law formulated in this second appeal is answered holding that the courts below did not went wrong in depriving the 5th defendant the benefit under Section 53-A of the TP Act on the basis of Ext.B1.

As far as the second substantial question of law is concerned, in fact, the suit was filed by the plaintiff for recovery of possession on the strength of title. Therefore, it could not be held that the suit filed when the demand for recovery at the instance of the plaintiff was refused by the defendants, is barred by limitation.

In so far as the third substantial question of law is concerned, as of now, the plaintiff relinquished the entire amount granted towards damages for use and occupation and therefore, even though the plaintiffs in Ext.A2 judgment did not execute the decree, it could not be held that the courts below went wrong in decreeing the present suit granting recovery of possession.

Holding so, this appeal stands allowed in part. The verdicts under challenge granting recovery of possession of the plaint schedule property to the plaintiff is confirmed while disallowing the relief for recovery damages for use and occupation granted by the Appellate Court, since the said claim was relinquished by an affidavit filed by the plaintiff before this Court.

Accordingly, this regular second appeal stands allowed in part as indicated above.