Pandurang vs Baby and Others

P.B. Varale, J—Heard.

With the consent of the learned Counsel appearing for the parties, the appeal is taken up for final hearing by admitting the same.

In the present second appeal, on 18/12/2012 the learned Single Judge of this Court framed the substantial question of law viz. (I) Whether the Courts below were right in dismissing Regular Civil Suit No. 80/2004 filed by the appellant for recovery of possession on the ground that the decision in Regular Civil Suit No. 41/1995 does not come in the way of the defendants to establish their readiness and willingness to perform their part of contract? and issued notice of final disposal making the same returnable. On 22/11/2013, the learned Single Judge on the backdrop of the submission of the learned Counsel for the appellant formulated an additional substantial question of law viz. Whether the parties, whose suit for specific performance of the contract has been abated, are still entitled for protection of possession under Section 53-A of the Transfer of Property Act?

The facts can be summarized in brief giving rise to the present appeal:

The appellant-Pandurang Sarode presented Regular Civil Suit No. 80/2004 before the learned Civil Judge Junior Division, Katol against the respondent-defendant Baby wd/o Sheshrao Shende and others for possession of the suit property i.e. house and damages. The claim of the plaintiff was that, he is the owner of the house property. The husband of defendant No. 1 Sheshrao Shende filed Regular Civil Suit No. 41/1995 for the specific performance of contract of the property i.e. the house. Since Sheshrao, who was the plaintiff in Regular Civil Suit No. 41/1995, died on 08/09/1995, the defendants viz. Smt. Bebi and others filed an application for bringing the legal heirs of late Sheshrao Shende on record on 22/03/1999. The application was rejected and thus the Court had abated the suit on 31/03/2000. It was submitted by the plaintiff that Sheshrao, the husband of defendant No. 1 and father of defendant Nos. 2 to 6, was in possession of the suit house and as such Regular Civil Suit No. 41/1995 was abated and the defendants were not entitled to reside in the said house property. It was submitted that the plaintiff stood retired and was in need of the suit house property for his residence. It was further submitted that as the suit house was in dilapidated condition, the plaintiff had issued notice through his advocate, but the defendant No. 1 neither accepted the notice nor handed over the possession of the suit house. It was submitted that on account of not handing over the possession of the property, the plaintiff was subjected to damages @ Rs. 10/- per day. The plaintiff thus claiming possession of the suit house along with the damages.

The defendant Nos. 1, 2, 5 and 6 by filing written statement opposed the claim of the plaintiff. The defendants have admitted the ownership of the plaintiff over the suit house property and filing of the suit i.e. Regular Civil Suit No. 41/1995 by Sheshrao Shende for specific performance and abatement of the suit on 31/03/2000. It was submitted by the defendants that the order of abatement of the suit is challenged before the Hon''ble High Court. It was submitted by the defendants that initially Sheshrao Shende was in possession of the suit property and now the defendants were in possession of the suit property being the legal heirs of Sheshrao. It was submitted that Sheshrao was residing in the house since 04/09/1991 and after the demise of Sheshrao, the defendants were continuing their residence in the house property. It was the further submission of the defendants that the plaintiff had executed an agreement to sale of the suit house property with Sheshrao Shende for the consideration of Rs. 17,000/­. Sheshrao parted away with an amount of Rs. 13,000/­ as an earnest money and the amount was received by the plaintiff. On receiving the amount as a part payment, the possession of the suit house property was delivered to Sheshrao Shende. It was the further submission of the defendants that, as the plaintiff failed to execute the sale­deed, though Sheshrao was willing to perform the agreement by paying the remaining consideration, Sheshrao was constrained to file Regular Civil Suit No. 41/1995 against the plaintiff. It was submitted that the possession of the defendants over the suit house property is a lawful possession. The defendant Nos. 3 and 4 failed to appear before the learned Civil Judge Junior Division, Katol, as such the suit proceeded ex parte against the defendant Nos. 3 and 4. The learned Civil Judge Junior Division, Katol framed the issues and by recording the findings, dismissed the suit by judgment and order dated 27/02/2007.

Being aggrieved by the said judgment and order, Regular Civil Appeal No. 604/2008 was preferred before the learned District Judge, Nagpur. The learned District Judge, on the grounds raised in the appeal and in view of the submissions of the learned Counsel, framed the points for determination viz. (1) Whether the defendants are entitled to protection u/s. 53-A of the Transfer of Property Act? and (2) Whether the judgment and decree passed by the learned trial Court needs interference? The learned District Judge on his appreciation recorded affirmative finding on point No. 1 and negative finding on point No. 2, resultantly the appeal was dismissed.

Learned Counsel Mr. Waghmare for the appellant vehemently submitted that since Sheshrao, who had filed R.C.S. No. 41/1995, died during the pendency of the suit on 08/09/1995, an application filed by the respondents in the present appeal on 22/03/1999 for prosecuting the suit as legal heirs was rejected on 31/03/2000. The suit was abated on rejection of the application. The respondents have not challenged the order dated 31/03/2000 before any forum and as such the order of abatement of the suit attained finality. The appellant issued notices to the respondents on 25/11/2003 and 02/12/2003 calling upon them to vacate the premises. As the premises was not vacated by the respondents, the appellant filed R.C.S. No. 80/2004 for recovery of possession and damages. Learned Counsel Mr. Waghmare for the appellant submitted that both the Courts below i.e. the learned Civil Judge Junior Division, Katol and the learned District Judge, Nagpur erred in holding that the contract between the parties is still alive and the respondents are entitled for the protection under Section 53-A of the Transfer of Property Act, 1882 (hereinafter referred to as ''the Act'' for the sake of brevity). Learned Counsel Mr. Waghmare submitted that on the backdrop of the fact that the application filed by the respondents on death of Sheshrao seeking prosecution of the suit being rejected and the suit thus being abated, the respondents were not entitled for protecting their possession over the suit property i.e. the house. The learned Counsel further submitted that the respondents have failed to show their willingness of the performance of the contract. He submitted that in the R.C.S. No. 80/2004 filed by the appellant/plaintiff, though the written statement was filed on behalf of the respondents/defendants and though it was stated that the defendants have filed proceedings before the High Court challenging the order of rejection of their application, no such material was placed on record. He further submitted that even the willingness of the defendants was not reflected in the written statement. The learned Counsel for the appellant on this submission prays for allowing the appeal.

Per contra, learned Counsel Mr. Lohiya for the respondents supported the judgments of both the Courts below. Learned Counsel Mr. Lohiya then submits that section 53-A of the Act provides an independent right to the defendants apart from the right provided to Sheshrao i.e. the husband of respondent No. 1, who had filed a suit for specific performance. It is the submission of learned Counsel Mr. Lohiya that the defendants are complying with the necessary requirement of section 53-A of the Act. It was an alternative submission of Mr. Lohiya that the claim of the plaintiff seeking possession of the suit property and damages itself was a time barred claim. The learned Counsel then submitted that the suit filed by Sheshrao was abated in the year 2000 and the suit by the appellant seeking possession and damages was filed in the year 2004. Thus, it was beyond the period of limitation of three years and the right of the appellant/plaintiff itself was extinguished on the aspect of limitation.

The learned Counsel appearing for the respective parties placed reliance on certain judgments in support of their submissions.

The bone of contention of the learned Counsel Mr. Waghmare for the appellant was on the backdrop of a fact that the suit filed by Sheshrao was abated, as such the respondents/defendants were not entitled for any protection. This submission was considered by both the Courts. The learned Civil Judge Junior Division, Katol, on appreciation of the material, viz. the documentary evidence and the oral evidence of the parties, observed that the plaintiff is the owner of the suit house property and the possession of the property was delivered to Sheshrao as per agreement to sale dated 04/09/1991. The learned Civil Judge Junior Division on the backdrop of submission advanced on behalf of the plaintiff held that merely due to the abatement of the suit bearing R.C.S. No. 41/1995, it could not be said that the defendants are not ready and willing to perform their part of contract dated 04/09/1991. The learned Civil Judge further observed that the plaintiff in his cross-examination admitted that he had not given any notice to the defendants after abatement of the suit. It was further observed that Sheshrao, the husband of defendant No. 1, had paid the substantial consideration of the property to the tune of Rs. 13,000/-, out of total consideration amount of Rs. 17,000/-. The filing of R.C.S. No. 41/1995 at the instance of Sheshrao for specific performance of agreement itself was suggestive of the fact that Sheshrao, the plaintiff in R.C.S. No. 41/1995, was ready and willing to perform his part of the agreement to sale dated 04/09/1991. The respondents/defendants moved an application for bringing legal heirs on record and prosecuting the suit. Thus, the defendants were also ready and willing to perform the part of the contract, otherwise they would not have moved application for prosecuting the suit. Merely because the application was rejected and the suit was abated cannot be a ground to hold that the defendants were not ready and willing to perform their part.

Learned Counsel Mr. Lohiya for the respondents placed reliance on the judgments of the Hon''ble the Apex Court and the same were referred to in the judgment and order of the learned Civil Judge Junior Division, Katol. It will be useful to refer to the judgment in the matter of Balmik Vs. Ramnaresh Singh and Others, (2001) 10 JT 65 , wherein the Apex Court held that the defendants can defend their possession under section 53-A of the Act only if it is found that there was a valid agreement between the parties. In the present appeal, it is not the case of the appellant/plaintiff that the agreement between the parties were not valid. It will be useful for our purpose to refer the other judgment of the Apex Court in the matter of Shrimant Shamrao Suryavanshi and Another Vs. Pralhad Bhairoba Suryavanshi by Lrs. and Others, AIR 2002 SC 960 : (2002) 2 JT 24 : (2002) 2 SCALE 118 : (2002) 3 SCC 676 : (2002) 1 SCR 393 : (2002) 1 SCT 844 : (2002) 1 UJ 515 : (2002) AIRSCW 659 : (2002) 1 Supreme 583 . The Apex Court observed that there are certain conditions which are required to be fulfilled if a transferee wants to defend or protect his possession under section 53-A of the Act. The necessary conditions are-

there must be a contract to transfer for consideration any immovable property;

the contract must be in writing, signed by the transferor, or by someone on his behalf;

the writing must be in such words from which the terms necessary to construe the transfer can be ascertained;

the transferee must in part performance of the contract take possession of the property, or of any part thereof;

the transferee must have done some act in furtherance of the contract; and

the transferee must have performed or be willing to perform his part of the contract.

In the present appeal, there is no dispute that the above referred 5 conditions are complied with. The appellant/plaintiff submits that there is no material to show that the transferee was willing to perform his part of the contract. The submission on behalf of the appellant/plaintiff cannot be accepted for the reason that Sheshrao Shende with whom the appellant/plaintiff entered into an agreement to sale and even accepted the part consideration and Sheshrao, who was ready and willing to perform his part, but as the appellant/plaintiff was not willing to perform the contract, Sheshrao filed the suit seeking specific performance of contract. Thus, on the backdrop of this fact, in my opinion, the condition No. 6 is also complied with.

It will be useful to refer the observation of the Apex Court in the matter of Sardar Govindrao Mahadik and Another Vs. Devi Sahai and Others, AIR 1982 SC 989 : (1982) 1 SCALE 191 : (1982) 1 SCC 237 : (1982) 2 SCR 186 , dealing with the term "willingness", which reads thus:

"Section 53-A requires that the person claiming the benefit of part performance must always be shown to be ready and willing to perform his part of the contract. And if it is shown that he was not ready and willing to perform his part of the contract he will not qualify for the protection of the doctrine of part performance.

It is conspicuous on basis of above observations that the term "willingness" as used in section 53-A would mean "readiness and willingness" likewise the expression used in section 16 of the Specific Relief Act. In this view of the legal position, the appellant is not entitled to invoke the doctrine of part performance."

Learned Counsel Mr. Lohiya for the respondents was justified in placing reliance in support of his submission on the judgment in the matter of Balasaheb Manikrao Deshmukh and Another Vs. Rama Lingoji Warthi, AIR 2000 Bom 337 : (2000) 2 ALLMR 532 : (2000) 4 BomCR 438 : (2001) 1 MhLj 79 . This Court observed thus:

"Shri Kasliwal has one more contention to be advanced. He tried to distinguish a case where the suit of the transferee in possession has time-barred but no proceedings have been filed by him and where transferee in possession has filed a suit and it has been dismissed on the ground of limitation. I am afraid, there cannot be any distinction drawn between the two cases. The protection under the doctrine of part performance would be available in both the cases. Section 53-A does not confer any right upon a person in possession. What it purports to do is to prevent a plaintiff from recovering possession of the property already transferred to the defendant. It imposes upon the plaintiff a disability, the disability being of enforcing against the transferee in possession any right with a plaintiff may have in respect of the property. Even if the suit for specific performance by the defendant is barred by lapse of time, defendant is nevertheless entitled to resist the plaintiff''s suit for ejectment and to defend his own possession. Further it has been made clear that what S. 53-A seeks to do is to protect the possession of the defendant even where the defendant''s right to obtain specific performance of the agreement has been barred by time. No such distinction can be made between a case where the purchaser has filed suit for specific performance and has failed ton the point of limitation and a case where purchaser has not filed any case but the suit has become time-barred."

On perusal of the record, it reveals that in the notice issued by the appellant/plaintiff to the respondents/defendants on 25/11/2003 [Exh. 43], the plaintiff admits that the agreement between the parties is valid and alive. Thus, the appellant/plaintiff cannot take a self­contradictory stand. There is merit in the submission of learned Counsel Mr. Lohiya for the respondents that rejection of the application at the instance of the respondents/defendants resulting in abatement of the suit cannot be termed as adjudication of the rights of the parties, as per the definition of decree in the Code of Civil Procedure. Learned Counsel Mr. Waghmare for the appellant, though made an attempt to place reliance on the following judgments viz. Ram Kumar Agrawal and Another Vs. Thawar Das (Dead) Through Lrs., AIR 1999 SC 3248 : (1999) 6 JT 179 : (1999) 5 SCALE 130 : (1999) 7 SCC 303 : (1999) 1 SCR 641 Supp : (1999) 2 UJ 1428 : (1999) AIRSCW 3221 : (1999) 7 Supreme 472 and Mohan Lal (Deceased) through his Lrs. Kachru and Others Vs. Mirza Abdul Gaffar and Another, AIR 1996 SC 910 : (1996) 1 SCALE 5 : (1996) 1 SCC 639 : (1995) 6 SCR 638 Supp , and Ranchhoddas Chhaganlal Vs. Devaji Supdu Dorik and Others, AIR 1977 SC 1517 : (1977) 3 SCC 584 : (1977) 2 SCR 621 , in support of his submissions, in my opinion, in view of the consideration referred to above, the judgments relying on by learned Counsel Mr. Waghmare are not applicable to the present facts of the case and as such not of any help to the appellant/plaintiff.

It will not be out of place to refer to the judgment of this Court delivered by the Full Bench in the matter of Mahadeo Nathuji Patil Vs. Surjabai Khushalchand Lakkad and Others, (1994) 96 BOMLR 846 , dealing with the question referred to the Full Bench viz. Whether once the remedy of acquiring title by a suit for specific performance is lost to the vendee by lapse of time, right to protect his possession upon satisfying the conditions contained in section 53-A of the Transfer of Property Act comes to an end, the Full Bench of this Court by a majority view, on detailed consideration, held that the statutory protection granted under section 53-A 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 53-A 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.

In the present appeal, the respondents were successful in showing that Sheshrao, the transferee, who was in possession of a document i.e. the agreement to sale, was willing to perform the contract and was satisfied the essential requirements under Section 53-A of the Act as well the respondent/defendants and as such, in my opinion, the present appeal filed by the appellant/original plaintiff fails and the substantial questions of law framed by this Court on 18/12/2012 and 22/11/2013 are answered in affirmative i.e. in favour of the respondents.

The appeal is accordingly dismissed and disposed of.