Venkitammal and Another vs Amirtham Achi

K.P. Sivasubramniam, J.—This second appeal is directed against the judgment of the learned Subordinate Judge, Periakulam, in A.S.No.

90 of 1983 dated 25.10.1984, confirming the judgment of the learned District Munsif, Periakulam, in O.S.No. 838 of 1980 dated 25.2.1983.

The defendants in the suit are the appellants in the above second appeal. The suit was filed by the plaintiff for possession and for damages

arising out of the use and occupation of the property belonging to the plaintiff by the defendants.

According to the plaintiff the suit property originally belonged to one Krishnan and that she had purchased the suit property on 15.11.1974 and

since there she was in enjoyment and possession of the property. The first defendant is the wife of the second defendant and on 25.12.1974 it was

agreed between the parties that the first defendant has to pay a sum of Rs. 26,850 to purchase the property. On the same day an advance of Rs.

850 was paid to the plaintiff and it was also agreed between the parties that the defendants have to pay the balance amount of Rs. 26,000 on or

before 27.2.1975 and at that time, a sale deed would be executed and registered at the expenses of the defendants themselves. The original of

agreement was with the plaintiff and a copy of the same was left with the custody of the second defendant. Even though there was no agreement to

hand over possession of the property in favour of the defendants, out of mutual trust the property was handed over to the possession of the

defendants and since then the defendants are in enjoyment of the suit property. According to the plaintiff in spite of repeated demands to pay the

balance amount the defendants did not comply with the terms of the agreement. Both the defendants were repeatedly asking for extension of time

and ultimately it was realised that the defendants did not intent to pay the sale consideration and were not also in a position to pay the balance sale

consideration, and therefore, the plaintiff caused a notice to be served on the defendants. But, however the defendants did not receive the notice.

The defendants contested the suit claim and while denying the claims as contained in the plaint, the defendants would plead that a sum of Rs.

15,500 was paid to the plaintiff on 1.4.1975 and the said amount has not been given credit to by the plaintiff. According to the defendants the

entire sale consideration has been paid and therefore, the suit claims were false. In spite of repeated demands as made to the plaintiff to complete

the sale the plaintiff did not comply with her obligations. It is also further pleaded that the defendants had spent a total amount of Rs. 8,175 in

improving the land. The defendants also claimed the right to adjust the said amount and to claim the said amount from the plaintiff.

On the basis of the said pleadings the trial court considered the oral and documentary evidence and come to the conclusion that the alleged

payment of Rs. 15,500 by the first defendant through the second defendant was not established by the defendants. While it was admitted by the

plaintiff that a sum of Rs. 6,000 was received on 22.12.1975 and a further sum of Rs. 5,000 has been received on 14.10.1976, the alleged

payment of Rs. 15,500 said to have been paid on 1.4.1995 was denied by the plaintiff. The trial court on every detailed analysis of the evidence,

has positively held that the claim of the defendants as regards the alleged payment of Rs. 15,500 was not established. In the result the suit for

possession was decreed and as regards the claim for damages after due calculation of the amounts due as between both the parties, the trial court

held that the plaintiff has to pay the sum of Rs. 8,550 to the defendants. As regards future mesne profits the proceedings were relegated to the

enquiry under O.20, Rule 12, C.P.C.

On appeal by the defendants, the learned appellate Judge confirmed the findings of the trial Judge and hence the above second appeal.

The finding as regards the non-payment of Rs. 15,500 by the defendants and the consequent finding as rendered by both the courts below that

the defendants had not complied with the terms of the agreement, has to be sustained, being a pure question of fact.

However, learned counsel for the appellants contends that inasmuch as possession had been handed over to the defendants the defendants were

entitled to the protection u/s 53-A of the Transfer of Property Act and that the right of the plaintiff was only to issue for balance of the sale

consideration and that the decree for possession as decreed by the courts below cannot be sustained. In this context, it is not disputed that the said

issue is raised for the first time in this second appeal. It is true that possession was handed over to the defendants. The plaintiff does not state that

the understanding between the parties was that in the event of default by the defendants, the plaintiff will not be entitled to claim possession of the

land. In the written statement also no such claim is made. Apart from the fact that possession was taken by the defendants, there is no plea to

effect that either there was an understanding between the parties that the handing over of the possession of the properties was only pursuant to the

sale agreement executed between the parties or that in the event of default by the defendants in paying the balance sale consideration, the plaintiff

would be entitled to claim only the balance sale consideration. In effect, the legal right as would accrue with the defendants u/s 53-A of the

Transfer of Property Act, was not specifically pleaded by the defendants.

Therefore, the question is whether the defendants would be permitted to raise the issue for the first time in the second appeal.

Learned counsel for the appellants/defendants relies on a judgment of a Full Bench of the Calcutta High Court reported in Piru Charan Pal and

Another Vs. Sunilmoy Nemo and Another, . In the said case, no doubt, the Calcutta High Court has held that the defendant can raise defence u/s

53-A of the Transfer of Property Act even it was not specifically pleaded in the written statement if all the ingredients of the facts have been stated.

That is not a case arising u/s 100, C.P.C. at the stage of second appeal. All that the judgment states is that there need not be a mention of

provision of Section 53-A of the Transfer of Property Act and that it was sufficient if the ingredients of section had been stated in detail. On the

other hand, a Division Bench of the same High Court in its judgment reported in Hiralal Agarwala Vs. Bhagirathi Gore and Others, has held that

the issue pleading u/s 53-A of the.Transfer of Property Act being a mixed question of law and fact cannot be allowed to be raised for the first time

in the second appeal, if the said pleadings were raised at the earlier stage. To the same effect is the judgment of a Division Bench of the Patna High

Court reported in Rampratap Bhagat and Others Vs. B. Madan Gopal Prasad Singh and Others, . The Division Bench of Patna High Court has

held that where in a suit for declaration of title and recovery of possession of the land, there was no averment to the effect that the defendants had

taken possession of the property in part performance of the lease agreement the said issue cannot be raised in the second appeal. The facts of the

said case are slightly different to the extent that the findings of the court in the said case was to the effect that the defendants were not in possession

of the land.

A learned single Judge of this Court in judgment reported in St. Francis Xaviers'' Church Vs. Varalakshmi Ammal and Another, has also held

that a defence u/s 53-A of the Transfer of Property Act involves questions of fact and consequently, the party wishing to set up such a defence

ought to lay the requisite foundation for it in his pleadings as well as in his evidence, and that a defence u/s 53-A of the Transfer of Property Act

could not be allowed to be raised for the first time in the second appeal because it raised questions of fact which should have been put in issue at

the time of trial.

Apart from the fact that the rights as would be available to the defendants u/s 53-A of the Transfer of Property Act, has not been pleaded, it

should also be noted that the said right cannot be claimed by a person who is guilty of rights in complying with the terms of the agreement. In the

present case, not only the defendants had come up with a false case that a sum of Rs. 15,500 had been paid to the plaintiff and it was also found

that as a matter of fact that even after four or five years after the time limit given for completion of the contract, the defendants had not discharged

their obligation under the contract. As such the transferee being the guilty of laches cannot seek relief u/s 53-A of the Transfer of Property Act vide

judgment of reported in Venkarasubbayya v. Rosayya AIR 1957 A.P. 58.

Further in the present case, it is also noticed that as per the written terms of the agreement, the balance of sale consideration should have been

paid on or before 27.2.1975. This condition had been subsequently varied by both the parties and the defendants also did not pay the sale

consideration till the filing of the suit in O.S.No.90 of 1983. According to the judgment of this Court reported in Yasodammal and Another Vs.

Janaki Ammal, , a Division Bench has held that once it is found that a material portion, particularly the time for payment of the price, in an

agreement of sale reduced to writing had been orally modified, it was clear that there was no written agreement of sale containing all the terms of

the agreement which would satisfy the requirements of Section 53-A of the Act, and that to such a case Section 53-A of the Act cannot apply.

Therefore, applying the above said principles formulated by the various rulings as cited above and as against the concurrent findings of the

courts below to the effect that the defendants had committed breach of the agreement, the claim of the defendants for entitlement u/s 53-A of the

Transfer of Property Act cannot be accepted, that too at the stage of the second appeal.

For all the said reasons, there are no merits in the above second appeal and the same is dismissed. No costs.