Mrs. C. Saroja vs S. Rajalakshmi and 4 others

K. Raviraja Pandian, J.—This Appeal is directed against the judgment and decree of the learned single judge dated 28.1.1998 made in

C.S.No.638 of 1984 on the file of this Court. The plaintiff is the appellant. The suit was filed for recovery of possession of the suit property and for

damages for use and occupation. The case of the plaintiff is that originally the suit property belonged to one Nalina Sundari. On 30.8.1978, the

said nalina Sundari entered into an agreement with one K. Deivasaheyam for sale of the property for a sum of Rs. 42,000/-. The said Nalina

Sundari and Davasahayam have sold the property on 22.3.1983 to the plaintiff for Rs.1 lakh. The defendants were trespassers in occupation of the

property. On 22.7.1983, the plaintiff / appellant issued a notice requesting the defendants to vacate and give vacant possession. The said notice

was served on 6.8.1983. The defendants neither vacated the premises nor sent a replay to the notice. Hence the suit for recovery of possession

and damages.

The defendants filed written statement contending inter alia that in respect of the suit property, on 3.3.1979 the original owner Nalina Sundari as

well as Deivasahayam entered into an agreement for sale in favour of the defendants for a sum of Rs.64,000/-. Pursuant to the agreement, the

defendants were put in possession of the property. They are entitled to be in possession u/s 53A of the transfer of property Act. The sale in favour

of the appellant is not a bonafide sale and with out notice of the defendants. Hence the plaintiff is not entitled to the relief of recovery possession, as

the defendants are in possession and enjoyment of the suit property as part performance of an agreement dated 33.1979 and as such they are

entitled to protection available u/s 53A of the transfer of property Act.

Before the trial Court, the plaintiffs husband was examined as P.W.1. Deivasahayam was examined as P.W.2. The second Defendant-husband

of the first defendant was examined as D.W.I. D.W.2 -the lawyer, who drafted the draft deed dated 3.3.1979 was examined as D.W.2. The draft

deed has been marked as Ex.D.1.

The learned trial judge having regard to the pleadings and evidence adduced, both oral and documentary, has non-suited the appellant for the

relief of recovery of possession on the premise that the defendants are in possession and enjoyment of the property to an agreement dated

3.3.1979 entered into by the vendor of the plaintiff and as such they are entitled to be in pursuant possession of the property in terms of section

53A of the transfer of property Act.

On behalf of the appellant, it is contended that in order to have a protective possession under the cover of section 53A of the transfer of

property Act, the defendants have to establish that the contract pursuant to which they are in possession is a contract satisfying all the requisites of

the statutory provision. In this case the right of the defendants to be in possession of the property vest on the agreement dated 3.3.1979 and that

the said agreement was not even produced or marked by defendants. In the absence of vital document, the trial Court ought to have granted the

relief, which is based on a registered sale deed and ought to have rejected the defence of the defendants.

In order to establish his contention, the learned Senior Counsel appearing for the appellant has taken us through the evidence of P.W.1.,and also

Ex.D.1, the draft sale deed and Ex.D.2 series of receipts issued by Deivasahayam and ultimately argued that the defendants bad not established

before the court as to their entitlement of the protection u/s 53A of the transfer of property Act and inasmuch as the defendants have not

established such protection, this Court in an appeal against that decree has to interfere and grant the relief in favor of the appellant.

However, the contention of the learned Senior Counsel for the appellant was refuted by the learned Senior Counsel for the respondents by

contending that it is not as if the defendants failed to establish their case by necessary evidence. The learned trial Judge has meticulously considered

the evidence available on record and come to the conclusion that the defendants are entitled to the benefit u/s 53A of the Transfer of Property Act

which requires no interference.

We heard the argument of the learned Senior Counsel appearing on either side.

The legal requirement of Section 53A of the transfer of property Act are that contract pursuant to which possession claimed is a contract is in

respect of immovable property; that the contract must be in writing and signed ;that the contract from which the terms necessary to constitute the

transfer could be ascertainable with reasonable certainty; that the transferee has in part performance of the contract taken possession of the

property, 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.

The contention of the appellant / plaintiff mainly rests upon that the agreement with which reliance has been made by the defendants to be in

possession of the property has not been produced by them. It is the contention of the defendants rights through that the agreement has not been

made available to the defendants and the agreement has been kept by the said Deivasahayam. In the absence of the original document in order to

prove their possession by way of part performance of the agreement, they have produced Ex.D.1.draft sale deed, which refers to the agreement

dated 3.3.1979. It could be further seen that the appellant here in has filled a suit in O.S.No. 1961 of 1981 on the file of the city civil Court

seeking for the relief of injunction restraining the very same defendant from interfering in the any manner with the possession and enjoyment of the

plaintiff. In the suit it is the case of Deivasahayam that on 30.8.1978, he entered into a registered agreement of sale with the plaintiff in respect of

the property; that in the agreement she agreed to vacate the tenant by herself and deliver vacant possession to Deivasahayam before registration of

the sale deed; that as per the terms of the agreement, the said Nalina Sundari delivered vacant possession of the suit property to Deivasahayam on

11.3.1979; that nevertheless on 3.3.1979 itself the said Deivasahayam and the said Nalina Sundari entered into an agreement of sale with the first

defendant Rajalakshmi for the sale of suit property for a sum of Rs.64,000/- and a sum of Rs.2,500/- was paid as advance; that the sale was

agreed to be concluded on or before 1st May,1979; that in the month of April, 1979 the defendants requested the plaintiff to permit them to

occupy a portion of the suit property on the premise that they would complete the sale transaction before 1st May, 1979 as agreed by them and

taken the possession of the entire suit property from the plaintiff; and that the plaintiff gave leave and license to the defendants to occupy the

property on 10.4.1979 as they are very badly in need of a residence. It was the further case of Deivasahayam in that suit that as the defendants

forfeited her right for the advance amount of Rs.2,500/-and forfeited the right under the said agreement of sale; and that despite the plaintiff

revoked the leave and license granted in favour of the defendants, the defendants wrongly contended that the agreement of sale deed dated

3.3.1979 is still in force. With these allegation, the suit has been filled for injunction. In the suit, the agreement dated 3.3.1979 which formed the

basis for filling the suit has been filled as a suit document.

Further, P.W.4, an advocate, who drafted the draft sale deed, has spoken to about the preparation of the sale deed, which was marked as

Ex.D.1. On a perusal of the same, it is clear that the draft sale deeds has been approved by the said Nalina Sundari and her husband N.Mandira

Nadar and agreed for engrossing the approved draft on the stamp papers. In the said approved draft sale deed, the agreement dated 3.3.1979,

has been referred to. The possession of the defendants has been admitted in evidence, it is obvious that despite the production of the agreement of

sale dated 3.3.1979, the factum of the agreement as required u/s 53A of the Transfer of property Act is held to be established.

On behalf of the appellant, a further contention was raised that defendants have not established their readiness and willingness to purchase the

property. It is well recognized principle of law, rather the statutory requirement that in a suit for possession where the defendant seeks the aid of

Section 53A of the Transfer of property Act, the readiness and willingness to perform his part of the contract must be established by evidence and

that readiness and willingness must be shown to have existed ever since the time of the agreement and not necessarily when the suit is filed. There is

no requirement that there must be a plea to the effect in the written statement, vide T.S. Karthikeya Mudaliar Vs. Singaram Pillai and Another,

It could be seen from paragraph No.7 of the written statement filed by the defendants that the defendants claimed that they are entitled to be in

possession of the suit property till the suit property is conveyed to them and they are entitled to purchase the property. This averment could be

regarded as existence of some element of willingness and readiness on the part of the defendants to perform their part of the contract. In addition

to that, it could be seen from the evidence of D.W.1 Sathyamurthy, who deposed an answer to a question put whether they were willing and ready

to go on with the transaction, the answer is that he was always ready and willing to complete the document. He further deposed that all the other

actions they are required to be taken are taken by them and they have taken possession of the property with the knowledge of the contracting

party and were in possession of the house without any interference. P.W.1 had also spoken to while answering the question which is available at

page No.88 of the typed set of papers by saying that ?he was trying to get through the transaction. A major part was over. The defendants were in

possession without any interference. Substantial portion of the consideration was also paid.? It was further strengthened by the evidence of D.W.I

to the effect that the agreement dated 3.3.1979 was a concluded agreement and they are very much ready and willing to perform their part of

contract and having sufficient means. The said evidence has not been demolished by the plaintiff in his cross examination and it stands.

The Supreme Court in the case of Shrimant Shamrao Suryavanshi Vs. Prahlad Bhairoba Suryavanshi reported in (2003) 3 SCC 676, in a

somewhat comparable facts to the case on hand have held that the person who obtained the possession of the property in part- performance of an

agreement of sale, can defend his possession in a suit for recovery of possession filed by the transferor or by subsequent transferee of the property

claiming under him, even if a suit for specific performance of the agreement of sale has become barred by limitation. Here again, the condition to be

fulfilled as contained in section 53A of the transfer of property Act has been stated. In respect of adducing evidence of the present nature, we are

of the view that right through the case of the defendants is that the agreement was not available with him and the agreement has been cleverly kept

with Davasahayam only, which factum has been established placing reliance on the earlier suit filed by Davasahayam in which the original

agreement dated 3.3.1979 has been marked by him. Thus the non-availability of the agreement has been proved beyond doubt. In such

circumstances the secondary evidence could be let in. (vide Bingo Behera Vs. Kishore Nanda (2007) 5 MLJ (SC) = 2008-1-L.W 241).

It is enough if it is established that when there was a document of description as envisaged in Section 53A, parole evidence could be adduced

to prove it''s existence and the contents of the document. In construing Section 53A resort could be had to Section 65 of the Evidence Act, in

other words, the existence and context of the document could be established by secondary evidence. This was the view taken by the Division

bench of the Andhra Pradesh High Court in the case of Smt. Bobba Suramma Vs. Smt. Peddireddi Chandramma, where in the Judgments

rendered by other high courts including that of the Full Bench of this Court Reported in AIR 1950 Madras 514 have been taken note of. In view of

the fore-going discussion, we are of the view that the appellant has not made out any case to interfere with the Judgment of the learned trial Judge.

Hence, the appeal is dismissed as devoid of merits. No cost. Consequently, the connected C.M.P. is also dismissed.