1. This appeal by the defendant is directed against the judgment and decree dated 2-9-1978 passed by the Principal Civil Judge, Bangalore City, in Regular Appeal No. 70 of 1976, on his file, dismissing the appeal, on confirming the judgment and decree dated 25-2-1976 passed by the II Additional First Munsiff, Bangalore in Original Suit No. 697 of 1970 on his file, decreeing the suit of the plaintiff partly.
2. The plaintiff instituted a suit for recovery of arrears of rent of Rs. 1170/-.
3. According to the plaintiff, House No. 2, near Bandi Reddy Circle, Lakshminarayanapuram, Sriampura, Bangalore, was leased to the defendant on a monthly rent of Rs. 130/-. The tenancy commences on the first of calendar month. The defendant was a defaulter in payment of rent of Rs. 1,170/- which became due towards rent up to 8-10-1967, the defendant failed to pay the areas of rent. On 5-2-1968, he paid Rs. 700/-. That was received without prejudice to the rights of the plaintiff. On giving credit to that amount, the plaintiff instituted the suit for the recovery of balance, along with Rs. 15/- towards notice charges.
4. The suit was resisted by the defendant by filling his written statement. He contended that he was not a tenant under the plaintiff on a monthly rent of Rs. 130/-. He was living in the suit house as owner on reconveyance agreement executed by the plaintiff in his favour on 9-7-1965 for a sum of Rs. 6,500/-. He bad spent for repairs of the building. According to him, the property originally belonged to one Kannayappa Reddy. He had agreed to purchase the house from him. Since Kannayappa Reddy, in spite of notice issued to him did not produce before him title deeds, he could not purchase it. Kannayappa Reddy sold the property to the present plaintiff with the consent of the defendant and, in turn, the plaintiff executed an agreement to reconvey the property in favour of the defendant. He had spent Rs. 5,420.20 to start a hotel in the suit property, towards furniture and renovation, besides paying Corporation tax. Lastly, he contended that the relationship between them was that of buyer and seller or creditor and debtor but not of landlord and tenant. The suit was also barred by limitation. Hence, he prayed that the suit be dismissed.
5. The trial Court raised the following issues as arising from the pleadings:-
(1) Whether the plaintiff proves that the defendant is his tenant?
(2) If the above issue is held in favour of the plaintiff whether the plaintiff proves that defendant is due the amounts claimed in the plaint?
(3) Whether the defendant proves that some deductions are not given?
(4) What decree or order?
6. Appreciating the evidence on record, the trial Court held that there was relationship of landlord and tenant between the parties. It further held that the defendant was on titled to deduction of Rs. 287.05 paid by him towards property tax and is that view, the trial Court decreed the suit for Rupees 4,097.95 with proportionate costs and current interest at 6% per annum.
7. Aggrieved by the said judgment and decree, defendant went up in appeal before the Principal Civil Judge, Bangalore City, in Regular Appeal No. 70 of 1976, on his file. The learned Civil Judge, in the course of his judgment, raised the following points for his consideration, in the appeal.
(1) Whether the finding of the Court below that he appellant-defendant is a tenant of the respondent-plaintiff in respect of the suit premises is correct?
(2) Whether the defendant has established that he a not liable to pay rent on account of tenant rights having merged into the agreement of sale at Ext. DI as contended before this Court?
(3) To what relief, the appellant is entitled
8. The learned Civil Judge, reassessing the evidence on record in the light of the arguments addressed before him, found in the affirmative under point No. 1 and in the negative under point No.2. In that view, the learned Civil Judge dismissed the appeal of the defendant, confirming the judgment and decree of the trial Court.
9. Aggrieved by the said judgment and decree, defendant has instituted the above second appeal before this Court.
10. The learned Advocate appearing for the appellant strenuously urged before me that the Courts below were not justified in giving a finding that there was no plea of part performance of the contract of sale, as contemplated under Section 53-A, T. P. Act. He further submitted that it is the duty of the Court to raise necessary issues and the trial Court ought to have raised an issue on the point of alleged pan performance of the contract, to focus the attention of the parties on that aspect. He further submitted that the Courts should not be hyper-technical in the matter of interpreting the Pleadings and the Court below should have held that the plea of put performance was contained in the written statement of the defendant and, as such, the First Appellate Court ought to have raised an issue and, if necessary, remanded the case to the trial Court for fresh hearing, giving opportunity to the Parties to adduce additional evidence, if they so desired. Lastly, he submitted that the defendant was ready and willing to perform his Part of the contract ever since the date of agreement till to-day. Hence. he submitted that this Court should if at all, raise an issue on the question of part performance and, if it is found necessary, this Court should remit the case back to the trial Court for fresh hearing, giving opportunity to the parties to adduce additional evidence, if they so desired.
11. As against that, the learned counsel appearing for the respondent-plaintiff argued supporting the judgment and decree of the trial Court, confirmed by the First Appellate Court.
12. The points, therefore, that arise for my consideration in this appeal are: -
(1) Whether there is substance in the submission made by the learned counsel for the appellant before this Court that the Written statement of the defendant, contains the plea of part performance, as contemplated under S. 53-A, T. P. Act ?
(2) Whether the trial Court was justified in not raising an issue on the aspect of Part performance ?
(3) Whether the judgments and decrees of the Courts below require interference in the interest of justice ?
(4) What order
13. In order to appreciate the contention raised before me, by the learned counsel appearing for the appellant, on the aspect of part performance, it is necessary to set out the relevant section, viz., S. 53-A. T. P. Act, which reads:
'where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the Property or any Part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract and, the transferee has performed or is willing to perform his part of the contract then, notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed there for by the law for the time being in force, the transferor or any person claiming under him shall be barred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract;
Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract of the part performance thereof.'
14. Thus, by reading S. 53-A, T. P. Act, it becomes clear that in order to attract the provisions under S. 53-A of the Act, it is necessary that there must be a contract, in writing, agreeing to transfer immovable property for consideration. Further, the transferee, in part performance of the contrast should take possession of the immovable property or any part thereof or, if be is already in possession, he should be allowed to continue in possession in Part Performance of the contract and he should have done some act in furtherance of the contract. It is, further, necessary that the transferee should have performed or is willing to perform his part of the contract. It is only when these conditions are satisfied that the defendant, can protect his possession, on the doctrine of part performance, using it as a shield and not otherwise..
15. The Supreme Court of India has elaborately discussed these aspects and has explained the same in the case, Sardar Govindrao Mahadik v. Devi Sahai, reported in : 2SCR186 . Speaking through his Lordship D. A. Desai, J.: the Supreme Court has observed thus on the aspect of putting the transferee in possession, in paragraph 39 of the judgment:
'Induction into possession of an immovable property for the first time subsequent to the contract touching the property, may be decisive of the plea of part performance. Mere possession ceases to be of assistance when as in this case the person claiming benefit of part performance is already in possession, prior to the contract and continues to retain possession. However, a reference to a statement of law in Halsbury's Laws of England, 3rd Edition, Vol. 36, para 48 would be instructive. It reads as under:
'Where possession is given to a 'tenant' before a tenancy agreement has been concluded and the possession is retained after the conclusion of the agreement, the possession, if unequivocally referable to the agreement, is a sufficient part performance but subject to this, acts done prior to or preparatory to, the contract will not suffice.
If a person claiming benefit of part performance is inducted into possession for the first time pursuant to the contract it would be strong evidence of the contract and possession changing hands pursuant to the contract........................................................................'
Thus, the Supreme Court has explained that if a person is already in possession at the time of agreement his continuance in possession should be unequivocally referable to the contract or the terms of agreement of sale, in order to attract the doctrine of part performance. Bearing in mind the salutary principles, I have to examine whether the defendant in this case has taken, in his written Statement, the plea of part performance on the facts of the present case. The specific defence of the defendant in this case in his written statement is very clear. According to the defendant, the house earlier belonged to one Kannayappa Reddy and the defendant had agreed to purchase the same from Karmayappa Reddy and Kannayappa Reddy did not produce before him the title deeds in spite of notice issued to him on 15-5-1965. In these circumstances, he did not purchase the property and the plaintiff, in the meanwhile, negotiated with the said Kannayappa Reddy to purchase the suit Property and defendant consented to it and it is in that context that the present plaintiff gave him Ext. D-1, the agreement to reconvey, (vide: Para 2 of the written statement). The defendant denied the relationship of landlord and tenant between him and the plaintiff and contended that he was living as owner in the suit house on the basis of reconveyance agreement executed by the plaintiff in his favour on 9-7-1965 for Rupees 6,500/-. (Vide para-1 of the written statement). He further elaborated that it was practically at his instance that the plaintiff purchased the suit house and, by necessary implication, he asserts that the suit house was practically purchased by the plaintiff for and on behalf of the defendant and in para 2 of the written statement towards the end he asserts that the relationship between him and the plaintiff is that of creditor and debtor and that he owes to the plaintiff Rs. 6,500/- and, it is in that sense, he has become the owner of the suit house though he has purchased the property in the name of the plaintiff. This stand taken by the defendant in the written statement is very clear and unambiguous as has been further affirmed in his evidence before the trial Court. This is what he stated in the chief examination.
'Since from 9-7-1965 I am in occupation of suit premises. I purchased it under an agreement of sale from P. Kannayappa Reddy for Rs. 10,250/-. But I paid Rupees 3,500/- to him as advance and obtained an agreement of sale from him. As I did not have the remaining money, I have asked the plaintiff to give a loan of Rs. 6,5001-. Plaintiff took me to his lawyer Sri B. Neelakanta who advised me to obtain the registered sale deed in the name of plaintiff and to get the same reconveyed in my favour on repayment of Rs. 6,500/- to plaintiff. Exhibit D-1, is the agreement executed by the plaintiff in my favour agreeing to reconvey the suit property in my favour. It is against that I pay Rs. 130/- per month by way of interest to plaintiff on Rs. 6,500/-
Thus, there can be no doubt about the specific stand taken by the defendant. According to him, since he had no money to pay by way of consideration to Kannayappa Reddy, he requested the plaintiff to advance Rs. 6,500/- and get the sale deed in his name and it is in that context the reconveyance deed came into existence, as per Ext. D-1. This stand taken by the defendant in his written statement can never spell out an agreement as contemplated under Section 53-A. T. P. Act. In order to attract the provisions of S. 53-A, T. P. Act, the Property must be owned by the plaintiff. There should be an agreement to sell by the plaintiff in favour of defendant for consideration and, in pursuance of that agreement, the defendant should have been in possession of the immovable property or part thereof and the defendant must have done something more in furtherance of the contract and he himself should be ready and willing to perform his part of the contract from the date of the agreement.
16. The facts of the present case show at the defendant asserts title in himself. He practically denies the title of the plaintiff. There is no question of any agreement to sell. What is asserted is the relationship of creditor and debtor, he being the debtor of the plaintiff. That being so, there is no question of defendant being ready and willing to perform his part of the contract and there is no averment to that effect for obvious reasons. I find, on reading the written statement of the defendant and his evidence, that there is no plea of part performance in the written statement of the defendant and the stand taken by him in the written statement is in effect incompatible with a plea of part performance.
17. The trial Court for obvious reasons, therefore, has not raised any issue on the aspect of part performance, neither was the point argued before the trial Court. The trial Court has discussed the stand taken by the defendant in his written statement that he entered into an agreement with the earlier owner Kannayappa Reddy and has disbelieved that version. It has, further, disbelieved the version of the defendant that be has become the owner of the suit property and that the plaintiff is merely a name lender and a creditor for Rs. 6,500/-. Therefore, the question of duty of the Court to raise an issue on part performance does not arise on the facts of the case.
18. Even otherwise, it is pointed out, that if in a Particular case, the Court does not raise the necessary issue, it is the duty of the learned counsel appearing for the parties to ask the Court for amendment of issues, by raising the necessary issue.
19. This, Court in the case Thimmappa v. B. Subba Rao, reported in AIR 1960 Mys 249, has, observed on this aspect in para 11 of the judgment that though it is the duty of the Court to raise the necessary issues, it is equally the duty of the counsel to ask for amendment of the issues if a necessary issue is not raised.
20. This is what the Court has observed:
'The next contention raised by the learned counsel for the appellant is that his client being a boas fide purchaser for value without notice is entitled to be protected under law. This contention was not urged in the Court below. But, the learned counsel contends that this Court should exercise its power under
O. 41, R. 25, Civil P. C. and call for a finding after raising the necessary issue. I do not think I should call for a finding after raising the necessary issue as contended by the learned counsel.
Since this point was not urged in either of the Courts below, it must be held that he gave up this part of his case. But the learned counsel contends that he raised the defence in his written statement and it was the duty of the Court below to raise the necessary issue and if the Courts fail to raise the necessary issue, then his client should not be debarred from pressing this point in this Court.
Though it is true that under O.XIV, Civf1 P. C., it is the duty of the Courts to raise The necessary issues which arise out of the pleadings of the parties, yet it is also the duty of the advocates appearing for the parties to assist the Court in raising the necessary issues and if the defendant raised the contention that he being a bona fide purchaser for value without notice should be protected under law, then it was up to him to suggest that such an issue should be raised. In my view, since this point was not urged in either of the Court below, the only inference that can possibly be drawn is that he gave up his defence on the part of the case. There was no plea of part performance at all taken by the defendant on the facts of the case.'
21. It may also be noted that Ext D-1, is contended to be an agreement to reconvey the property; it is no doubt, in writing; but it gives the option to get the property conveyed within two years from the date of agreement. The agreement is dated 9-7-65 Two years thereafter would be over on 9-7-67. There is no plea by the defendant anywhere either in the written statement or in his evidence that as per Ext. D-1, he offered Rs.6,500/- to the plaintiff and demanded specific performance of the contract, at any time within the stipulated time. That clearly shows that he was not ready and willing to perform his part of the contract.
22. In fact, The Supreme Court of India in the case, Ranchhoddas Chhaganlal v. Devaji Supdu Dorik, reported, in AIR l977 SC 1517, speaking through Chief Justice A. N. Ray, has observed thus :
'Where A (Vendor) filed suit against B for specific performance of contract of sale on ground that B (in possession of suit house) failed to pay A within time the balance of Rs. 5,000/- of the purchase price along with interest thereon and that there was no extension of time for Performance of the contract, having failed to perform his part of contract within time, B could not rely on the doctrine of part performance.'
His Lordship explained further the implication of the doctrine of part performance, and the implication of 'being ready and willing' to perform his part of the contract.
23. In the circumstances, therefore, reading the written statement and the evidence, I find that there is no plea of part performance raised by the defendant. Hence, the trial Court was justified in not raising an issue on the point of part performance and I am further satisfied that there was no ground taken in the Memo of Appeal before First Appellate Court that such an issue was not raised by the trial Court. In these circumstances, there is no substance in the submission made by the learned counsel for the appellant before me in Second Appeal that in the written statement of the defendant there was a plea of part performance and, therefore, the trial Court ought, to have raised an issue in that behalf.
24. They are my findings on points I and II. On the basis of my findings on points I and II, I find no ground for interference with the judgment and decree of the trial Court, confirmed by the First Appellate Court.
25. In the result, the appeal fails and is dismissed.
26. On the peculiar facts of the case, I make no order as to costs of this appeal.
27. Appeal dismissed.