Court : Supreme court of india
Brief : appellant was not entitled to protect his possession claiming benefit of equitable doctrine of part performance enshrined in Section 53-A of the Act. Title in the suit property had not been conveyed in favour of Pishorrilal by executing a registered sale deed. In the absence of title in the property Pishorrilal could neither enter into an agreement of sale nor transfer possession of the property to the appellant in part performance of the agreement under Section 53-A of the Act. That the appellant failed to take due care and pre-caution to ascertain the title of Pishorrilal to the suit land before entering into transaction with him.
Citation : CITATION: indlii2004SUP00231
CASE NO.: Appeal (civil) 4610 of 2000
PETITIONER: Rambhau Namdeo Gajre
RESPONDENT: Narayan Bapuji Dhotra (dead) through Lrs.
DATE OF JUDGMENT: 8/25/2004
BENCH: Ashok Bhan & S.H. Kapadia
JUDGMENT BY:
JUDGMENT: J U D G M E N T BHAN, J.
Defendant/appellant (hereinafter referred to as "the appellant") has filed this appeal against the judgment of the High Court in Second Appeal No. 205 of 1984 whereby the High Court reversing the judgment and decree passed by the first Appellate Court has restored the order passed by the Civil Court, Jalna in Suit No. 184 of 1974. The Trial Court had decreed the suit filed by the Narayan Bapuji Dhotra, (deceased) now represented through his Legal representatives (hereinafter referred to as "the respondent").
The property in dispute is agricultural land bearing Survey No. 94 admeasuring 18 acres and 23 gunthas situated at Village Jambwadi, Taluka Jalna in the State of Maharashtra. Respondent who was the owner of the suit land filed the Suit for possession of the land with the averment that the appellant had wrongfully dispossessed him of the suit land in April, 1965. According to him, he was the owner of the suit land which was his self-acquired property. It was averred that in the Special Civil Suit No. 20 of 1962 filed by his brother for partition and possession of the ancestral property, the suit land along with other lands was left to his share.
Appellant resisted the suit contending, inter alia, that under an agreement of sale dated 16.6.1961 Narayan Bapuji Dhotra, original plaintiff, and his brother Manohar agreed to sell the suit land to Pishorrilal Punjabi who paid the entire amount of consideration and was put in possession of the land in part performance of the agreement of sale. That Pishorrilal executed an agreement of sale of the suit land in favour of the appellant on 1.9.1961. That he paid the entire amount of the consideration to Pishorrilal and was put in possession of the suit land by Pishorrilal in part performance of the agreement dated 1.9.1961. It was contended that since he was in possession of the suit land in part performance of the agreement, he was entitled to protect his possession in terms of Section 53-A of the Transfer of Property Act (hereinafter referred to as "the Act").
Trial Court upon consideration of the evidence on record came to the conclusion that a mere contract of sale is incapable of creating any right or title in favour of the transferee. That no right or interest was created in the suit land in favour of Pishorrilal by virtue of the agreement of sale dated 16.6.1961. That the original agreement of sale between Narayan Bapuji Dhotra and Pishorrilal was not placed on the record and the certified copy produced as Exhibit 16/1D had not been proved. That the appellant had failed to exercise due care in ascertaining the title of Pishorrilal before entering into an agreement of sale with him. It was highly improbable that the appellant had no knowledge about the pendency of the suit between the plaintiff and his brother and Pishorrilal. It was also held that the appellant could not defend his possession under Section 53-A of the Act as against the plaintiff/respondent. In view of the findings recorded the trial Court proceeded to pass the decree for possession in favour of the respondent.
Aggrieved against the judgment and decree passed by the Trial Court, the appellant filed an appeal. The first appellate Court taking a different view set aside the judgement of the trial Court and dismissed the suit filed by the plaintiff/respondent. The first Appellate Court came to the conclusion that the appellant had acquired an equitable/ possessory title to the suit land on the basis of the agreement of sale executed in his favour by Pishorrilal and was. therefore, entitled to protect his possession under Section 53-A of the Act.
Original plaintiff/respondent died. His Legal representatives (now the respondent) filed a second appeal in the High Court. Although, a number of questions of law were framed at the time of admission of the second appeal but at the time of final disposal the only substantial question of law worth consideration was found to be: "Whether the defendant, who is in possession of the suit land on the basis of an agreement of sale dated 1.9.1961 executed by Pishorrilal Punjabi, who himself, in turn, had come in possession of the suit land on the basis of a similar agreement dated 16.6.1961 executed by the plaintiff, can claim benefit of the equitable doctrine of part performance as stated in Section 53-A of the Transfer of Property Act to protect his possession."
The above noted question was answered by the High Court in the negative. It was held that the appellant was not entitled to protect his possession claiming benefit of equitable doctrine of part performance enshrined in Section 53-A of the Act. Title in the suit property had not been conveyed in favour of Pishorrilal by executing a registered sale deed. In the absence of title in the property Pishorrilal could neither enter into an agreement of sale nor transfer possession of the property to the appellant in part performance of the agreement under Section 53-A of the Act. That the appellant failed to take due care and pre-caution to ascertain the title of Pishorrilal to the suit land before entering into transaction with him.
