Thakore Kashiben and Others vs Brahman Sureshkumar Manilal and Another

Bankim. N. Mehta, J.—Appellants have preferred this Second Appeal under Sections 100 of the CPC on the following substantial

questions of law formulated in the memorandum of Appeal.

(1) Whether learned Additional District Judge was right in confirming the judgment and decree dated 29.11.2008 passed by learned 4th Additional

Senior Civil Judge, Patan?

(2) Whether learned Civil Judge and learned Additional District Judge were right in holding that the amended provision of Section 53A of Transfer

of Property Act is applicable to the banakhat executed by the fatherof the Plaintiffs in favour of father of Defendant Nos. 2 to 5 on 22.5.80?

(3) Whether learned Civil Judge and learned Additional District Judge were right in holding that the Defendants have failed to prove that the father

of the Plaintiffs had executed banakhat in favour of the father of Defendant Nos. 2 to 4 after obtaining the full consideration of Rs. 15,000/-?

(4) Whether learned Civil Judge was right in admitting in evidence the document of banakhat at Exh. 60 for signature only?

(5) Whether learned Civil Judge and learned Additional District Judge can pass impugned orders without considering the evidence on record in

proper perspective?

(6) Whether both the lower Courts are right in directing the original Defendants to hand over the possession of the suit land to the Plaintiffs without

considering the admitted fact that the Defendants are in possession of the suit land since more than 15 years?

(7) Whether both the lower Courts are right in holding that Plaintiffs are entitled to the reliefs as prays for though it is admitted fact that their father

had executed banished in favour of the father of Defendant Nos. 2 to 5 and to hand over the possession of the suit land after obtaining full

consideration?

Respondents-original Plaintiffs filed Regular Civil Suit No. 135 of 2002 in the Court of 4th Additional Senior Civil Judge, Patan, for possession

of the suit land as well as mesne profits.

According to the Respondents-Plaintiffs they are the owners of the agricultural land bearing old survey No. 377 and new survey No. 317

admeasuring hectare 3 Are 87 prati Are 50 and are cultivating the same. It is further the case of the Respondents-Plaintiffs that they have made

construction of hut on the said land and they have good relation with Appellants-Defendants as they were assisting them in agricultural work. The

suit land with standing crops, huts and other agricultural apparatus were entrusted to the Appellants-Defendants as daughter of Respondent -

Plaintiff No. 1 was residing at Bombay and Respondent - Plaintiff No. 2 had to accompany her. The Respondents-Plaintiffs went to Bombay on

15.5.2002 and stayed there for about one and half months. On return, they found that the Appellants-Defendants had sold away the crop. The

Respondent-Plaintiff made a request to the Appellants-Defendants to vacate the suit land and return possession. However, the Appellants-

Defendants denied. Therefore, the suit was filed for possession and mesne profts.

The Appellants-Defendants resisted the suit by filing written statement contending that principle of part performance u/s 53A of the Transfer of

Property Act operates against the Respondents-Plaintiffs and the suit land belonged to the ownership and possession of father of the Respondents-

Plaintiffs and was sold to the husband of Appellant-Defendant No. 1 Thakore Kashiben on 22.5.1980 by executing Agreement to Sale for

consideration of Rs. 15,000/- and possession of the same was given to him. Thereby, the Appellants-Defendants are in possession of the suit land.

It is also contended that the Appellants-Defendants paid an amount of Rs. 11,000/- at the time of execution of Agreement to Sale to the father of

the Respondents-Plaintiffs and the remaining amount was paid to him subsequently and a receipt was executed on the Agreement to Sale but no

Sale Deed was executed and the Respondents-Plaintiffs are taking disadvantage of the same. Therefore, the suit is required to be dismissed.

Learned trial Judge framed issues at Exh. 14. Parties adduced evidence. At the end of trial, learned trial Judge passed judgment dated

29.11.2008 declaring that the Appellants-Defendants have no right in respect of the suit agricultural land bearing survey No. 317 admeasuring

about hectare 3 Are 87 prati Are 50 and also directed them to hand over possession of the suit land bearing survey No. 317.

Being aggrieved by the said decision, the Appellants-Defendants preferred appeal before learned Additional District Judge at Patan by filing

Regular Civil Appeal No. 44 of 2008. The first appellate Court after hearing learned advocates for the parties, dismissed the appeal. Therefore,

the Appellants have approached this Court by way of filing the Second Appeal on the substantial questions of law formulated in the memorandum

of appeal as reproduced hereinabove.

I have heard learned advocate Mr. Bharat Jani for the Appellants and learned advocate Mr. Siddharth Dave for the Respondents at length and

in great detail.

According to the Respondents-Plaintiffs possession of the suit land was given to the Appellants-Defendants as they went to Bombay for a short

period. As against this, according to the Appellants-Defendants, they were in possession of the suit land as owners as husband of Appellant-

Defendant Smt. Thakore Kashiben had purchased the suit land from the father of the Respondents-Plaintiffs. It is not in dispute that the Agreement

to Sale was allegedly executed on 22.5.1980 but till date no Sale Deed has been executed in respect of the suit land. There is nothing on record to

indicate that the purchaser made request for execution of Sale Deed. Therefore, the Appellants-Defendants claim their right under the Agreement

to Sale Exh. 60. It appears that the Appellants-Defendants failed to prove Agreement to Sale Exh. 60. Therefore, the Courts below were justified

in recording that Agreement to Sale Exh. 60 is suspicious. Therefore, the defence that the Appellants were in possession of the suit land by virtue

of the Agreement to Sale cannot be believed. Therefore, the Courts below were justified in refusing to believe the legal possession of the

Appellants-Defendants. It is also settled position of law that an Agreement to Sale does not create any right, title or interest in an immovable

property. It also appears that the trial Court recorded that the Appellants-Defendants are in illegal occupation of the suit land. In my view, in

absence of any cogent, reliable and convincing evidence with regard to legal possession of an immovable property, the Courts below were justified

in reaching the conclusion that possession of the Appellants-Defendants was not legal.

As regards the contention of part performance u/s 53A of the Transfer of Property Act, in view of the fact that the Appellants-Defendants failed

to prove Agreement to Sale Exh. 60, question of deciding the issue in that regard does not arise.

In view of above, no substantial questions of law as formulated by the Appellants-Defendants arise for determination by this Court. Therefore,

the Second Appeal requires to be dismissed.

In the result, the Second Appeal fails and stands dismissed with no order as to costs.

In view of dismissal of the main appeal, the Civil Application does not survive. It also stands dismissed accordingly.