1. This second appeal has been filed by the plaintiff against the judgment and decree of the 2nd Additional District Judge, Ludhiana, dated 4th June, 1974.
2. Briefly, the facts are that the plaintiff purchased a plot from the Gurdev Nagar House Building Society, Ludhiana, for a consideration of Rs. 1,500/- , vide sale deed dated 24th April, 1958. It is pleaded that thereafter a house was constructed on it by him. He went to Delhi for some time and it is averred that the defendant took forcible possession of the house Consequently he filed a suit for possession.
3. The suit was contested by the defendant who controverted the allegations of the plaintiff and inter alia pleaded that possession of the plot was given to her in part performance of an agreement of sale dated 7th May, 1961(Ext. D.1), whereby he agreed to sell it for an amount of Rs. 2,500/- out of which Rs. 1, 400/- was paid by her to him at that time. She further stated that the house was constructed on the plot by her.
4. The learned trial Court decreed the suit. It held that there was no agreement of sale between the parties and the defendant had taken forcible possession of the property. It further held that the house was constructed on the plot by the plaintiff. The defendant went up in appeal before the Additional District Judge who reversed the findings of the trial Court and held that the defendant was in possession of the property in part performance and that she had constructed the house on the plot. In view of these findings, he accepted the appeal and dismissed the suit of the plaintiff. The plaintiff has come up in second appeal to this court.
5. The first question arises for determination is as to whether the defendant was in possession of the property in part performance of the agreement of sale.
6. I have give due consideration to the argument but regret my inability to accept it. In the document, it is clearly stated that the plaintiff had agreed to sell the plot for a consideration of Rs. 2,500/- out of which Rs. 1,400/- had been received by him. It was further agreed that the remaining amount would be paid within one and a half years. It is evident from the document that it was an agreement of sale between the parties. There are some cuttings in the document but these relate to the amount received by the plaintiff. However, the plaintiff does not deny the receipt of that amount. Consequently, the authenticity of the document is not vitiated by the said cuttings. The story of the plaintiff that this document was obtained by the defendant to secure the payment of the amount paid by her cannot be accepted. Therefore, I reject the submission of the learned counsel.
7. The second question that requires consideration is as to who constructed the house on the plot. The first appellate Court after considering the evidence, came to the conclusion that the house was constructed by the defendant. The learned counsel for the plaintiff sought to challenge the finding on the ground that the plaintiff had in categorical terms stated that he constructed the house and he was not cross-examined on that point. The argument prima facie appeared to be good but when the statement of the plaintiff was read it was found to be without any merit. The defendant had cross-examined the plaintiff in that regard. In addition, the plaintiff did not bring anything on the record to show the source of money from which he constructed the house. The defendant, besides appearing herself as a witness, led evidence that the house was constructed by her. That evidence has been believed by the first appellate Court. After taking into consideration all the aforesaid circumstances, I am of the opinion that the finding of fact arrived at by the first appellate Court in this regard cannot be upset.
8. The last question that arises for consideration is as to whether the defendant is entitled to retain possession of the property u/s. 53A of the T. P. Act in spite of the fact that she cannot file a suit for specific performance on account of expiry of the period of limitation. Section 53A provides that 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, and is willing to perform his part of the contract, then, notwithstanding that the transfer had not been completed in the manner prescribed therefor by the law, the transferor shall be debarred from enforcing against the transferee any right in respect of the property of which the transferee has taken possession. From a reading of the section, it is evident that a transferee, who has come in possession of the property in part performance of a written agreement, can continue in its possession if he is ready and willing to perform his part of the agreement. A finding has been recorded by the first appellate Court that the defendant was in possession in terms of such an agreement and was ready and willing to perform her part of the agreement. Thus, she is entitled to remain in possession of the property in part performance of the agreement in accordance with the provisions of S. 53A of the I. P. Act. In this view, I find support from the observation of the Supreme Court in Maneklal Mansukhbhai v. Hormusji Jamshedji Ginwalla & Sons, AIR 1950 SC 1, wherein it was held that S. 53A furnishes a statutory defence to a person who has no registered title deed in his favour to maintain his possession if he can prove a written and signed contract in his favour and some action on his part in part performance of the contract.
9. Now, it is to be seen as to what is the effect if a suit for specific performance is not brought by the transferee in possession within the period of limitation prescribed for such a suit. Section 53A has already been noticed above. It does not say that the transferee can only retain the possession of the property till the date when he files a suit for specific performance. It also cannot be inferred from the section that the transferor is entitled to take possession of the property from the transferee after the period of limitation for suit for specific performance has expired, if the latter did not file the suit. On the other hand, S. 53a furnishes a complete defence to a transferee. I am fortified in this view by a decision of a Division Bench of the Bombay High Court in Nanasaheb Gujaba Bankar v. Appa Ganu Bankar, AIR 1957 Bom 138. It was held by the Bench that even if the suit for specific performance by the defendant was barred by lapse of time, the defendant was nevertheless entitled to resist the plaintiff's suit for ejectment and to defend his own possession. What Section 53A seeks to do is to protect the possession to the defendant even where the defendant's right to obtain specific performance of the agreement has been barred by time. I am in respectful agreement with the above observations. Therefore, I am of the opinion that even if a suit for specific performance is not brought by a transferee, who is in possession of the property in part performance of an agreement of sale, still he can retain the possession u/s. 53A ibid.
10. Mr. Bindra, learned counsel for the respondent, has fairly given an undertaking that the balance amount of Rs. 1,100/- shall be deposited by the respondent in the trial Court within a period of three months and it can be withdrawn by the plaintiff.
11. For the aforesaid reasons, I do not find any merit in the appeal and dismiss the same with no order as to costs.
12. Appeal dismissed.