Shiv Kumar & Ors. vs Ahodhia Nath & others

Ali, C.J.

(1) The question that arises for determination in this case is as to whether or not the possession of a proposed vendee under an agreement to sell

becomes adverse from the date of the execution of the agreement in the event of a sale deed not being executed and the remedy of specific

performance becoming timebarred. The question posed above is undoubtedly a substantial question of law t and is indeed a vexed one and there

does not appear to be any authority directly in point which has discussed all the aspects at issue. The facts giving rise to this revision may be

summarised as follows.

(2) The plaintiff's father, Ganga Bishno, is said to have executed a contract for sale in fovour of Mst. Narain Devi wife of the defendant on 26th

Har 2009 (Bikrami) 17752. The agreement was in respect of 7 marlas of land comprised in khasra No 1716 min situate in Nagar, district

Bhadrawah, whose possession was delivered to the prospective vendee under the agreement. It was stipulated in the agreement that Ganga Bishno

would execute a proper sale deed in favour nf Msr. Narain Devi within three years of the execution of the agreement failing which it will be open to

the proposed vendees to file a suit for specific performance. It was also.the admitted case of the parties that the entire consideration money of Rs.

250/ was received by the proposed vendor in two installments, Rs. 150/ at the time of the execution of the agreement and the balance of Rs. 100/

on 20th Bhadon 2009, 14952. Thereafter no sale deed was executed by the plaintiff's father nor did the defendant file any suit for specific

performance and allowed the suit to become timebarred. The defendants started constructing some sort of a structure on the land in dispute which

was resisted by the plaintiffs who filed the present suit for possession on the ground that the land was the ancestral property and had been sold by

the plaintiff's father during their minority without any legal necessity and by perpetrating fraud.

(3) The suit was resisted by the defendants mainly on the ground that the defendants having been in possession of the property for more than 12

years since the execution of the agreement to sell, they acquired title by adverse possession and right which the plaintiffs had was extinguished. In

view of the pleadings of the parties the trial court of the Subjudge Bhadtawah framed a preliminary issue which was as follows :

Whether the suit was within time."" OPP

(4) The learned judge, after taking evidence of the parties, came to the conclusion that as the possession of the defendants was purely permissive,

the question of adverse possession did not arise and the suit was therefore within time. He directed the other issues to be struck in this case. This

order was passed on 24668 It is against this order that the defendantspetitioners came up to this court in revision on the ground that the preliminary

issue was wrongly decided by the Subjudge. The learned Subjudge based his decision mainly on an unreported Division Bench decision of this

court in civil second appeal No, 49 of 2005 Sohnun and another V. Raman and other, decided on 23349 by Wazir C J. and Masud Hasan J. The

matter was heard by Jaswant Singh J. sitting singly who was of the view that as there was a serious conflict of authority on the question of law

involved, the case be referred to a Full Bench.

(5) Mr. Kotwal appearing for the petitioner submitted that the view of the learned Subjudge was legally erroneous and was contrary to the weight

of authorities and should therefore be set aside. He relied on a Division Bench decision of the Calcutta High Court in Birajmohini Dass Vs. Sarla

Devi, AIR 1937 Calcutta 88. We have gone through this case and we find that though presumably it supports the contention of the petitioners, yet

it is clearly distinguishable on two grounds. In the first place their Lordships found as a fact that no agreement to sell was proved to have been

executed in that case, therefore the question of adverse possession did not fall for decision. In this connection their Lordships, after discussing the

evidence, clearly observed as follows 1.

For these reasons, we are of opinion that the plaintiff has by production of books established the case that the defence set up by Benode is not a

true defence.

Referring to the point of law their Lordships observed as follows :

In other words it is said that if in pursuance of the sale the defendant is actually put in possession and a case of continued passions for more than

12 years ii made since then, the defendant's plea of adverse possession must succeed. Mr. Bose who appears for the respondent has not

contested this position in law.

(6) Later on their Lordships observed as follows :

It is conceded that if this case of sale was not made out the case of adverse possession must fail.

(7) A close analysis of these observations would clearly reveal that to begin with their Lordships did not discuss this question of law because the

agreement to sell was not proved. Secondly Mr Bose who appeared for the respondents conceded the proposition and therefore the case was

decided on the basis of concession. It is true that their Lordships referred to Venkatch Damodar V. Mallapa Bhimappa, ILR 46 Bombay 722

which was itself based on an earlier decision of the court in Bapu Apaji V. Kashinath Sadaba, 41, Bombay 438 but these cases do not lay down

the proposition that was being adumbrated before us. These cases merely held that the plaintiffs would be estopped from recovering possession by

taking advantage of his own fraud or by violating the fiduciary relationship created under the agreement. The crucial point to be seen is as to what

is the nature of a proposed vendee under an agreement to sell. A contract of sale has been specifically defined thus :

'A contract for the sale of immoveable property is a contract that a sale of such property shall take place on terms settled between the parties.

(8) It does nor, of itself, create any interest in or charge on such property.

Thus the Act does not recognize the doctrine of a contract for sale creating an equitable estate in favour of a vendee and specifically provides that

the contract would not itself create any interest in or charge on the property proposed to be sold.

(9) It is therefore, clear that even after the agreement to sell, title clearly resides in the vendor and even though he may have parted with possession

the possession of the proposed vendee is under the agreement and not being a transfer of interest, it is at the utmost, that of a lincensee and is

therefore clearly permissive. Where therefore the origin of possession of the proposed vendee is proved to be permissive, it will be presumed to be

so until and unless something occurred to make it adverse (Vide AIR 1954 SC 758, AIR 1928 Cal. 582 and AIR 1954 Nagpur 319). In other

weekunless treeproposed vendee asserts any hostile or overact toshow that he is disclaiming the title of the vendor or unless has possession

becomes so under invalid document, his possession would not be adverse. There must be an open and explicit disavowal and disclaimer brought to

the knowledge of the owner which alone will give rise to adverse possession. The mere fact of long user by the permissive occupant is hardly

sufficient to alter the character of permissive possession into an adverse one. Furthermore it seem s to us that when the agreement itself recited that

the sale deed was to be executed within three years there could be no question of possession of the defendant becoming adverse unless his right to

sue for specific performance become completely barred under Art. 84 of the Limitation Act. The time to sue for specific performance in a contract

to sell has to be calculated either from the date fixed for the performance or if no such date is fixed when the plaintiff has notice that performance is

refused. In the instant case under the terms and recitals of the document the date fixed for the performance of the contract was three years from the

date of its execution, that is to say upto 17th July 1955. Thus the defendant's right to sue for specific performance will become barred three years

after 12758. The present suit was filed on 191067, i.e. within 12 years of this date. In our opinion, therefore, the suit was clearly within time. At

the most the possession of the defendant would become adverse from 17758 because her right of specific performance having been lost his

possession would be one under transaction which was unenforceable at law because after 17758 the agreement to sell could not be specifically

enforced. Even if this position is conceded, in this case the suit was filed a little after 9 years from the date when the possession of the proposal

vendee became adverse and therefore was not barred by limitation. For these reasons we feel that the Division Bench decision of this court is

absolutely correct and the law Lald down therein is the correct law subject to whatever is said here. Their Lordships in the Division Bench case

observed as follows:

The plaintiffs did not get the sale deed executed in their favour after the decree for specific performance was passed in their favour. Their

possession over the land was under the agreement to sell which was executed by the defendants in favour of the plaintiffs on 12nd Katik 1977.

The nature of possession, therefore, was permissive and not adverse to the defendants.

(10) We find ourselves in complete agreement with this proposition of law subject however to the fact that where the time for specific performance

of the agreement to sell runs out, the possession of the defendant becomes adverse and if the vendor allows 12 years to pass from this date then

the possession of the defendant would ripen into title by prescription.

(11) It was, however, submitted by Mr. Kotwal as a pure question of law that in the instant case there does not appear to be any equity in favour

of the plaintiff vendor .because he by his own free will executed the agreement to sell, delivered possession of the demised property to the

proposed vendee and received the entire consideration money, agreed to be paid to him. In these circumstances the plaintiff cannot be allowed to

take advantage of his own fraud by being allowed to recover possession from the defendant.

(12) It is true that S. 53A of the Transfer of property Act has not so far been incorporated in the State TP Act and therefore neither this doctrine

will apply nor can the principles underlying this section be made applicable. The fact, however remains that the plaintiff cannot be allowed to take

advantage of his own fraud, but as the trial court has not framed any issue on the question of estoppel we refrain from making any further

observation on this point. We however direct that the trial court should frame the following issue:

Whether in the facts and circumstances of the present case the plaintiff is estopped from recovering possession from the defendants.

(13) We would, therefore, while agreeing with the view taken by the SubJudge on the preliminary issue decided by him remit this case to him for

framing an additional issue as proposed above and for deciding it after taking evidence of the parties and hearing them. This issue need not be

decided as a preliminary issue but will be taken alongwith the other issues arising in this case.

(14) With these observations the revision petition is disposed of. Parties are directed to appear before the SubJudge on 8372.