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Judgment
The first defendant who succeeded before the lower court and suffered decree before the first appellate court has filed the above second
appeal.
The plaintiff/first respondent entered into an agreement with the first defendant/appellant under Ex.A-5, dated 31.5.1975 to sell an extent of
17.24 acres in S.F.Nos. 189, 56/4 and 57/8 in Vembukudi village to the persons who are occupying the said lands through the plaintiff. It is the
admitted fact that seven sale deeds were executed by the first respondent in favour of those persons who have been cultivating the respective land.
With respect to the remaining extent of land, the plaintiff filed the above suit for permanent injunction on the ground that he is protected u/s 53-A of
the Transfer of Property Act (hereinafter referred to as ''the Act''). The appellant/first respondent resisted the suit saying that possession was not
given to the plaintiff and the tenants are in possession, that too, only under him. The first defendant further contended that the plaintiff has no right in
the suit properties on the date of filing of the suit.
The trial court found that the properties are in possession of the persons who are cultivating the lands and the plaintiff was not in possession of
the same. Relying on Ex.A-6, in which it is stated that the first defendant delivered possession of the property to the purchaser, the trial court held
that the remaining extent of lands were in possession of the tenants, on behalf of the first defendant. The trial court found that the plaintiff is not
entitled to rely on Section 53-A of the Act as he is not having any right in the properties. The lower appellate court, though found that the plaintiff
was not in physical possession and there was no physical delivery of possession, held that in view of execution of ExA-4, the first defendant got
symbolical possession. The lower appellate court further found that the plaintiff can protect his possession by virtue of the equitable right available
to him based on Section 53-A of the Act.
The learned counsel appearing for the appellant/first defendant has submitted that admittedly the possession was with the tenants. No actual
physical physical possession was given to the plaintiff. Relying on Ex.A-6, the learned counsel has submitted that Ex.A-6 was executed on
27.7.1975 at the instance of the plaintiff in which it is stated that possession was given to the purchasers by the first defendant. On that basis, the
learned counsel has rightly submitted that no possession including symbolical possession was given to the plaintiff pursuant to Ex.A-4. This aspect
of the matter has not at all been properly appreciated by the lower appellate court. The lower appellate court simply rejected Ex.A-6 holding that it
is simply a recital and not a real one. The said finding is not based on any evidence but it is only on surmise. The fact remains as stated earlier, the
actual possession is only with the tenants and the plaintiff is not in possession.
Now the plaintiff is trying to get protection on the basis of Section 53-A of the Act. When the plaintiff seeks to avail protection under
Section.53-A of the Act, it is absolutely necessary to plead and prove his readiness and willingness to perform his part of the contract. Once the
plaintiff is not entitled to file the suit for specific performance as on date, he cannot be allowed to use Section 53-A of the Act as a shield as the
plaintiff is not having any enforceable right in law under Ex.A-4.
In this case, admittedly, the plaintiff has not filed any suit to enforce the agreement. It is not specifically stated and established that the plaintiff
was ready and willing to get the sale deed executed pursuant to the agreement Ex.A-4. In these circumstances, we have to appreciate whether the
plaintiff is entitled to protection under Section.53-A of the Act.
The Apex Court while dealing with the matter in Sardar Govindrao Mahadik and Another Vs. Devi Sahai and Others, , held as follows:
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.
In Mohan Lal (Deceased) through his Lrs. Kachru and Others Vs. Mirza Abdul Gaffar and Another, , the Apex Court held as follows:
Even otherwise, in a suit for possession filed by the respondent, successor-in-interest of the transferor as a subsequent purchaser, the earlier
transferee must plead and prove that he is ready and willing to perform his part of the contract so as to enable him to retain his possession of the
immovable property held under the agreement. The High Court has pointed out that he has not expressly pleaded this in the written statement. We
have gone through the written statement. The High Court is right in its conclusion. Except vaguely denying that he is not ready and willing to
perform his part, he did not specifically plead it. u/s 16(c) of Specific Relief Act, 1963, the plaintiff must plead in the plaint, his readiness and
willingness from the date of the contract till date of the decree. The plaintiff who seeks enforcement of the agreement is enjoined to establish the
same. Equally, when the transferee seeks to avail of section 53-A to retain possession of the property which he had under the contract it would
also be incumbent upon the transferee to plead and prove his readiness and willingness to perform his part of the contract. He who comes to equity
must do equity. The doctrine of readiness and willingness is an emphatic way of expression to establish that the transferee always abides by the
terms of the agreement and is willing to perform his part of the contract. Part performance, as statutory right, is conditioned upon the transferee''s
continuous willingness to perform his part of the contract in terms covenanted thereunder.
In Patel Natwarlal Rupji v. Shri Kondh Group Kheti Vishayat and another, 1996 (1) L.W. 368, the Apex Court held as follows:
Thought the doctrine of part performance embodied in section 53-A of the Act is part of equitable doctrine in English Law, Section 53-A gives
statutory right which is available to the transferee for consideration in possession of the property had under the contract. In terms of the Section, so
long as the transferee has done and is willing to perform his part of the contract or in other words is always ready to abide by the terms of the
contract and has performed or is always ready and willing to perform his part of the contract, the transferee is entitled to avail of this statutory right
to protect his possession as a shield, but not as a sword. The right to retain possession of the property rests on the express provisions of the Act
and on his compliance thereof. A person who pleads equity must come to the Court with clean hands and he alone is entitled to the benefit of this
section.
It is well-settled that the provisions of Section 53-A of the Transfer of Property Act are to prevent the owner of the land from interfering with
the possession of the purchaser who had performed his act and is in possession of the same. It is also settled that the said provision can be used
only as a shield and not sword so as to prevent the owner from recovering the property when he is not ready to perform his part. Even if he is in
possession, it does not confer title on the plaintiff.
Admittedly, in this case on the date of the filing of the suit, the plaintiff has no right to enforce the agreement. In view of the above, he is not
entitled to the protection provided u/s 53-A of the Transfer of Property Act. If the plaintiff is not entitled to any protection u/s 53-A of the Act, he
is not entitled to a decree for permanent injunction against the real owner. Admittedly, in this case, the plaintiff is not in possession of the suit
properties. Only the tenants inducted by the first defendant are in possession. So, the question of protecting the alleged possession of the plaintiff
will not arise. In any point of view, the plaintiff is not entitled to the decree as sought for. The lower appellate court has not properly appreciated all
these aspects and its approach is nothing but perverse. Hence the judgment and decree of the lower appellate court are set aside and the judgment
and decree of the trial court are restored and the suit is dismissed. Consequently, this Second Appeal is allowed. No costs.