Lakhminath Dutta vs Gunin Bora and Others

J.N. Sarma, J.—Heard Sri. G.N. Sahewalla, learned Advocate for the Appellant and Sri. N.K. Barua, learned Advocate for the Respondents.

A suit was filed by the Plaintiff for ejectment of the Defendants from a house situated at Sibsagar Town. The suit was covered by the Urban Areas Rent Control Act, 1972. The suit was filed on the ground of nonpayment of rent from 1976. This suit was filed in the year 1982 and later on it was registered as Title Suit No. 2/84. The Defendant/tenant took up a plea that there is no relationship of landlord and tenant between the Plaintiff and the Defendants inasmuch as there was a document Ext. 3 by which he purchased the land and house at Rs. 10,000/- and but of it an amount of Rs. 9,000/- was paid. This document Ext. 3 was sent to an expert and the expert opined that this document is a forged one meaning thereby that Late Tankeswar Bora did not execute this document and the hand writing expert was examined as a witness. Having found that this document is a forged one the trial Court found that the Defendants are not entitled to protection u/s 53(A) of the Transfer of Property Act and accordingly, the suit was decreed both on the ground of default as well as bonafide requirement. There was an appeal being Title Appeal No. 10/93 before the Learned Asstt. District Judge, Sibsagar and the Learned Asstt. District Judge, Sibsagar found that the finding of the Learned Munsiff that the Ext. 3 document is a forged one is not a correct finding and he did not place reliance on the opinion of hand writing expert as well as to the evidence and came to the finding that after all it is not expected that human hand is like a printing machine and it is always possible that signature made at one time may be different with the signature made in the other time. Accordingly, it was found that Ext. 3 is a valid document but the next question which arose before him for determination was whether the Defendants are protected u/s 53(A) of the Transfer of Property Act. The appellate Court came to the findings that the Defendants are not protected u/s 53(A) of the Transfer of Property Act. On this finding, no doubt, the Learned Asstt. District Judge took into consideration certain irrelevant matters i.e. regarding question of limitation and other things and the failure of the Defendants to file a suit for specific Performance of the Contract. In order to claim protection u/s 53(A) of the T.P. Act, there is no necessity that a suit for Specific Performance of Contract has to be filed. The question of limitation also in such a situation is irrelevant inasmuch as u/s 53(A) gives right to person to use as a shield particular document at any point of time on satisfaction of certain requirement but that does not sort out the matter. We are to decide whether the Defendants are protected as claimed by them u/s 53(A) of the Transfer of Property Act. The law on this point has been crystalised by number of decisions of the Apex Court as well as by this Court. In 1970 SC 546 (Nathulal v. Phoolchand) the Supreme Court pointed out conditions necessary for making out the defence of part performance to an action in ejectment by the owner as follows:

(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.

Another case on this point is 1987 (2) GLR 402 (On the death of Sunil Kr. Sarkar by His Legal representatives Smt. Hena Sarkar and Ors. v. On the death of Aghor Kr. Basu his heirs Smti. Nilima Basu and Ors.). There also the tenant claimed protection u/s 53(A) on the basis of registered document and that came up for consideration before the Single Judge of this Court and in paragraphs 9 and 10 of the judgment the law has been laid down as follows:

Para 9:

The question then is, whether a tenant continuing in possession after a contract to transfer written and signed by the landlord is protected or u/s 53A? The prerequisites for invoking the equitable doctrine of part performance are: (a) that there must be a contract to transfer for consideration immovable property in writing signed by the persons sought to be bound by it and from which the term necessary to constitute the transfer can be ascertained with reasonable certainty; (b) that it must be shown that the transferee has, in part performance of the contract, either taken possession of the property or any part thereof, or the transferee being, already in possession, continues in possession and has done some act in furtherance of the contract; and (c) that the transferee has performed or is willing to perform his part of the contract.

Para 10:

If the tenant was already in possession of the property at the time of contract, what has to be decided is whether he continues in possession in part performance of the contract. Therefore, mere continuance in possession does not satisfy the requirements u/s 53A. Whether the tenant is already in possession of the property as a tenant and continues in possession in his capacity as a tenant after the contract it does not necessarily follow that he continues in possession in part- performance of the contract. It is for the reason that a tenant is estopped from questioning the title of the landlord u/s 116 of tlie Evidence Act. Therefore, the tenant must show either from the contract or some other materials or evidence that he continued to possess the property not in the capacity as a tenant, for example, he does not pay the rents under one of the terms of contract to sale in order to show that he has done some act in furtherance of the contract, such as payment of necessary taxes to show that he was liable to pay the taxes as his possession was no longer as that of a tenant. Therefore, if a tenant has been in possession in his capacity as a tenant and not in part-performance of the contract, he cannot take the plea of protection u/s 53A.

In that particular case the agreement in question was a registered and written contract Exts. 4 and 6 and this Court pointed out that inspite of it the tenant will not be entitled to the protection inasmuch as the tenant must show either from the contract or from other materials or evidence that he continued to possess the property in his own capacity not as tenant and on his own right. He has to show that he has done some action in furtherence of the contract such as payment of necessary taxes to show that he has exercised his own right and his possession was no longer that of a tenant. It is the specific case in para 6 of written statement that the Defendant by way of agreement on 12.3.76 made an agreement for sale of the land only measuring 7 1/2 lechas and not the house of which he was the tenant. It is the further case that thereafter the house was purchased orally and by demolishing old house he constructed a new house. So, no protection u/s 53A will be available for the house as there was no written agreement. In this particular case the house is situated in an urban area. There is no evidence whatsoever that the tenant, after this agreement in question, paid rent/tax to the Municipal Board and/or got mutated in his name in respect of the land or house. So, it must be held as was found in that particular case (supra) that he must be deemed to have continued in his capacity as a tenant and not in part performance of contract and in such a situation he cannot take the plea of protection u/s 53(A) of the T.P. Act.

Next case relied on is 1993 (1) GLR 518 (Sri Sadek Ali Anr. v. Ananda Ram Gogoi). That was a case of tenant who claimed protection u/s 53(A) of the Transfer of Property Act and in paragraphs 9.10 and 11 this Court held as follows:

Para 9:

In this connection, I may refer to two decisions of the Apex Court. In Delhi Motor Company and Others Vs. U.A. Basrurkar and Others, the Apex Court in para 6 of the judgment has clearly held that Section 53A of T.P. Act is only available as a defence to a lessee and not as conferring a right on the basis of which the lessee can claim right against the lessor. The Apex Court referred to a decision of the Privy Council reported in AIR 1940 1 (Privy Council) The same view was also taken in Ram Gopal Reddy Vs. Additional Custodian Evacuee Property, Hyderabad,

Para 10:

Now what is the legal status of a person who has entered into the land as a tenant and thereafter there was an agreement for sale. This question was duly considered by a Division Bench of the Orissa High Court in Baruna Giri and Others Vs. Rajakishore Giri and Others, The Division Bench after considering the decision of the Apex Court reported in AIR 1954 SC 758 and also Madras High Court reported in ILR (1965) Mad 254 has held that if there is no intention to hold any property adversely, the possession cannot be said to be adverse and a person who claims title by adverse title must show by clear and unequivocal evidence that his possession was adverse to the real owner. The Court also held that even after a contract to sell is executed the title clearly resides with the vendor and even though the proposed vendee has taken possession, his possession is under the contract and is therefore, clearly permissive. Court further held that where, the origin of possession of the proposed vendee is proved to be permissive it will be presumed to be so unless and until something has happened to make it adverse. I am in respectful agreement with the above views.

Para 11:

Keeping in view the above ratio, I hold that in the case in hand Plaintiff cannot claim his right on the basis of Section 53A of the T.P. Act, I further hold that after the execution of the alleged contract for sale. Exhibit 1 even if I accept that entire amount was paid by the Plaintiff, his possession continued to be only permissive.

I respectfully agree with these two decisions of this Court and in this case also I find that the tenant, the present Petitioner, has failed to show that he has done anything in furtherance of the contract as required to claim/seek protection u/s 53A of the Transfer of Property Act. Further, there was no written contract for sale of the house.

This being the position, there is no merit in this revision and the same is dismissed. However, I leave the parties to bear their own cost. Stay order, if any passed earlier, shall stand vacated. Sri Sahewalla, learned Advocate for the Petitioner prays for some time to file appeal before the Apex Court. Time for three months granted.