Huluvadi G. Ramesh, J.
1. This second appeal is by the plaintiff being aggrieved by the judgment and decree passed by the II Addi. District Judge, Bijapur in R.A. No. 7/88 wherein the learned District Judge has dismissed the appeal filed by the plaintiff and confirmed the Judgment and decree passed by the Addl. Civil Judge, Bijapur in O.S. No. 169/83.
2. The plaintiff had filed a suit to declare that the defendant No. 5 has not acquired any right, title or interest in the alleged sale deed dated 10-5-1982 executed by defendants 1 to 4 and also to issue permanent injunction restraining the defendant No. 5 from interfering with the peaceful possession and enjoyment of the suit land by the plaintiff and to order for delivery of possession if the Court finds that the plaintiff is not in possession or lost the possession of the suit land. The plaintiff said to have purchased the suit schedule property from defendants 1 to 4 for a valuable consideration of Rs. 10,000/- under a sale deed dated 30-7-1979 which is to the extent of 3 acres 10 guntas situated at Tadalagi village, Basavana Bagewadi Taluk. It is stated that immediately after the sale deed the title of the suit property passed to the plaintiff and the possession was also given and he started cultivating the property, and that subsequently, defendants 1 to 4 without the knowledge of the plaintiff have executed the sale deed dated 10-5-1982 in favour of defendant No. 5 in respect of the same property for a sale consideration of Rs. 10,500/-. Hence, the suit. The said suit was resisted by defendant No. 5 staling that (here is a sale agreement by defendants 1 to 4 In his favour and he has also paid Rs. 6,000/- as earnest money and an agreement of sale was entered into between him and defendants 1 to 4 on 17-5-1979 and also thereafter there is a mutation entry effected subsequent to the delivery of possession in his favour in M.E. No. 1120 and he is in possession and enjoyment of the same and the alleged sale In favour of the plaintiff Is void and not binding on him and also that plaintiff is a government employee working as a police and in the proceedings before the Assistant Commissioner there is a finding that the plaintiff Is a non-agriculturist and he is prohibited from purchasing Agricultural land against which, no appeal was preferred. Whereas he has purchased the property from the original vendor, as such, he is in possession and enjoyment and the suit is filed by the plaintiff is only to harass him. Based on the pleadings as many as 7 issues were framed. Thereafter, alter the evidence was let in and after hearing the parties, the suit tiled by the plaintiff was dismissed by the Addl. Civil Judge, Bijapur in O.S. No. 169/83. Thereafter, an appeal was preferred before the II Addl. District Judge, Bijapur in R.A. No. 7/88 by the plaintiff and that also came to be dismissed while confirming (he judgment and decree passed by the Addl. Civil Judge. Bijapur. Being aggrieved by the same, this second appeal has been preferred by the plaintiff. Originally this appeal filed by the plaintiff was disposed of by this Court on 7-9-1998 by allowing the appeal against which, the defendant No. 5 preferred Civil Appeal No. 1539/99 before the Apex Court wherein, the order passed in this second appeal by Sri T.N. Vallinayagam. J. was set aside by the Apex Court on the ground that no substantial questions of law were raised for consideration and remitted the matter back to this Court to dispose of the matter after formulating the substantial questions of law that arises for consideration. Alter remand, this Court on 7-7-2005 has raised the following substantial questions of law for consideration:
1. Whether the lower appellate Court was right in holding that the plaintiff was not entitled to purchase the suit land and the title has not passed to him ?
2. Whether both the Courts below were right in rejecting the prayer of the plaintiff for declaratory relief ?
3. Whether the agreement to sell the immovable properties has got a priority over the sale deed executed in favour of the plaintiff?
3. It is the argument of the learned Counsel for the appellant/plaintiff that the suit property was purchased by the plaintiff for a valid consideration and he is a bona fide purchaser for value without notice. The agreement of sale does not create any interest over the suit property whereas, the sale deed creates interest and also transfer takes place on such execution of the sale deed and both the Courts below have erred in dismissing (he suit of (he plaintiff. It is further contended that the alleged second sale deed in favour of defendant No. 5 is not binding on the plaintiff and as such, both the Courts below ought to have decreed the suit of the plaintiff. In support of his argument, he relied upon the rulings reported in : 1SCR293 in the case of Ram Baran Prasad v. Ram Mohit Hazra and : AIR1954SC44 in the case of Satyabrata Ghose v. Mugneeram Bangur and Co.
4. Per contra, the learned Counsel appearing for the respondents has vehemently contended that both the Courts below are justified in dismissing the suit of the plaintiff. Defendant No. 5 has entered into prior agreement with the vendor on 17-5-1979 and also paid the substantial consideration of Rs. 6,000/- out of Rs. 10,500/- and he was also put in possession. Further, there is also mutation entry being made in his name in the revenue records on 20-6-1979 and the alleged sale deed in favour of the plaintiff is dated 30-7-1979 and submitted that by virtue of part performance, since he has been put in possession and also there is a mutation entry being made in the revenue records, the plaintiff is not the bona fide purchaser for value without notice. The plaintiff although alleged to have purchased the property, having no title passed on to him, by virtue of (he provisions of Section 53-A of the Transfer of Property Act, the plaintiff is not the bona fide purchaser for value without notice. In support of his argument he relied upon the ruling reported In : (2005)IILLJ258SC In the case of Manager, Reserve Bank of india, Bangalore v. S. Mani to contend that pleadings arc not substitute for proof and that there is no proof o the contention of the plaintiff and further, he relied upon the' ruling reported in : AIR2005SC439 in the case of Janaki Vashdeo Bhojwani v. Indusind Bank Ltd., of the Apex Court to contend that the power of attorney holder cannot depose in the place of principal for the acts done by the principal and not by him and submitted that in the instant case, the plaintiff did not enter the witness box and it is the plaintiff alone who had the personal knowledge and the power of attorney holder who entered into the witness box had no knowledge of the transaction between the plaintiff and defendants 1 to 5.
5. The undisputed facts are, there was said to be agreement of sale subsisting, said to have been executed by defendants 1 to 4 in favour of defendant No. 5 which is dated 17-5-1979 and also a sale consideration of Rs. 6.000/- was paid as a earnest advance. to defendants 1 to 4 by defendant No. 5. Further, as per the mutation entry, the revenue records goes to show that on 20-6-1979 the defendant No. 5 was in possession of the suit property and subsequently, (here was said to be sale deed executed by defendants 1 to 4 in favour of the plaintiff on 30-7-1999. According to the plaintiff, the agreement of sale entered into between defendants 1 to 4 and defendant No. 5 does not create any interest and only the sale deed executed in his favour creates interest. Of course, this fact need not be disputed in view of the legal position. But, in the instant case, the fact remains that by virtue of the agreement of sale, the defendant No. 5 was put in possession of the suit property and in proof of it there is a mutation entry No. 1120 which is dated 20-6-1979 and the sale agreement is dated 17-5-1979.
In the ruling relied upon by (he learned Counsel for the appellant/plaintiff reported in : 1SCR293 in the case of Ram Baran Prasad v. Ram Mohit Hazra it is held thus :
'In the case of an agreement for sale entered into prior to the passing of the Transfer of Property Act, it was the accepted doe-trine in India that the agreement created an interest in the land itself in favour of the purchaser, and following this doctrine the view was that a covenant for pre-emption contained in a deed of partition, which was unlimited in point of time, was not enforce able in law. But, there has been a change in the legal position in India since the passing of the Transfer of Property Act and Section 54 of that Act stales that contract for sale of immovable property 'does not of itself, create any interest in or charge on such property'. The second paragraph of Section 40 of that Act taken with the illustration under that section establishes two propositions : (i) that a contract for sale docs not create any interest in the land, but is annexed to the ownership of the land and (2) that the obligation can be enforced against a subsequent gratuitous transferee from the vendor or a transferee for value but with notice.
In another ruling relied upon by the learned Counsel for the appellant reported in : AIR1954SC44 in the case of Satyabrata Ghose v. Mugneeram Bangur and Co. it is held thus :
'(c) Contract Act (1872), Section 56 -- Contras for sale of land -- (Transfer of Property Act (1882) Section 54).
According to the Indian Law, which is embodied in Section 54 of the Transfer of Property Act, a contract for sale of land docs not of itself create any interest in the property which is the subject-matter of the contract.'
He has also relied upon one more ruling reported in : 3SCR855 in the case of Sunil Kumar Jain v. Kishan wherein in a case which was disposed of in connection with the Land Acquisition Act it is held thus :
'It is settled law that the agreement of sale does not confer title and, therefore, the agreement holder, even assuming that the agreement is valid, does not acquire any title to the property.'
6. The trial Court having raised as many as 7 issues has held that the plaintiff does not. prove that the title passed to him in respect of the suit properly and he also failed to prove that he purchased the suit properly. In a detailed discussion in paragraphs 8 and 9 of the judgment, the trial Court has found' that the evidence of P.W.1 is contrary to the recitals in the sale deed and stating that the plaintiff has not produced any documents in proof of his possession of the suit land, has rejected the claim of the plaintiff. It is seen that the plaintiff did not come forward to give evidence before the Court in support of his case rather, the power of attorney holder has entered the withes box and deposed something, in the instant case even as noted and argued by the learned Counsel for the appellant/plaintiff before purchase of the suit property by the plaintiff he said to have made an enquiry and that the property was free from all encumbrances and then only he entered into the said sale transaction with defendants 1 to 4. It is seen that if really such an enquiry being made as contended by him he would have been very much aware through the revenue authorities that the property was put in possession of defendant No. 5 much prior to the sale deed even as per the mutation entry which is dated 20-6-1979 which is one month 10 days prior to the alleged sale deed in favour of the plaintiff. It is the case of the appellant/plaintiff that his possession was parted and given to defendant No. 5 by the vendors namely defendants 1 to 4 and also an amount of Rs. 6.000/- was received as earnest money towards the total consideration of Rs. 10,500/-. But, when once the mutation entry is being made in the revenue records and in the place of the name of vendor, the name of defendant No. 5 is inducted necessarily, the possession of the property has been transferred in favour of defendant No. 5 from defendants 1 to 4 by virtue of the sale agreement. This situation attracts the provisions of Section 53-A of the Transfer of Property Act. Section 53-A of the Transfer of Property, 1882 Act reads thus :
'53-A. Pan. performance -- 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 (* * *), where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred 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 or of the part performance thereof.'
7. The ruling relied upon by the learned Counsel for the appellant reported in : 1SCR293 although provides that the sale agreement does not create any interest in favour of the agreement holder, in the said judgment it is made clear that such an agreement holder can enforce the contract against the subsequent gratuitous transferee or a transferee for a value with notice. In view of the ratio laid down therein and also having regard to the fact that there is also an admission on the part of the plaintiff himself as to the enquiry being made and it is quite evident that there is a revenue entry being made in the revenue records for having transferred the possession of the property in favour of defendant No. 5 from defendants 1 to 4 and if really, as admitted by the plaintiff, if enquiry has been made he must have known about the earlier agreement in favour of defendant No. 5, then necessarily it is to be held that this plaintiff had a notice of prior sale agreement, as well as the party with the possession of the property. In that view of the matter when the subsequent sale deed is made in favour of defendant No. 5 by the vendors on 10-5-1982, then the possession of the property that has been parted by defendants 1 to 4 in favour of defendant No. 5 and also subsequent sale in favour of defendant No. 5 is to be held as valid transaction and the purchase of the property by the plaintiff if any, by virtue of the sale deed dated 30-7-1979 is held to be a sale in his favour with a notice i.e., to say, the plaintiff is not a bona fide purchaser for value without notice. In that view of the matter, both the Courts below have rightly rejected the suit filed by the plaintiff. As such, he is not entitled for declaratory relief moreover, when there is a finding of the Assistant Commissioner that plaintiff is a non-agriculturist and according to the plaintiff his father was an agriculturist, that issue does not arise for consideration. In view of the above discussions, it is to be held that both the Courts below were right in holding that plaintiff is not entitled to purchase the suit land and that title has not passed to him and have I rightly rejected the prayer of the plaintiff for I declaratory relief.
8. It is the case of the plaintiff that it was defendant No. 5 who should have filed a suit for declaration and for to declare that sale in favour of the plaintiff is not binding. However, as per Jurisprudence possession is the nine point of law. Such being the case when there is already subsequent sale in favour of defendants No. 5 coupled with sale agreement and possession, it appears, the defendant No. 5 is on the safer side and it is the plaintiff who was either put himself in trouble for having purchased the property having come to know that already in part performance of the agreement defendant No. 5 has taken possession of the property, and the plaintiff would have been more careful before entering into sale transaction with defendants 1 to 4 on the concept of coeval emptor.
9. While answering the substantial question of law raised, having regard to the fact that defendant No. 5 by virtue of the prior agreement in his favour was put in possession and when it is held that the plaintiff is not a bona fide purchaser for value without notice, the sale agreement coupled with possession and also subsequent sale in his favour dated 10-5-1982 the defendant No. 5 becomes the absolute owner of the suit property and he has got a priority over the alleged sale deed executed in favour of the plaintiff. Accordingly, all the three substantial questions of law raised are answered in favour of the respondents. The LA. filed for correction of the name of the parties is allowed and permitted to carry out the amendment.
Appeal is dismissed. Parties to bear their own costs.