H.L. Anand, J.
(1) Smt. Gobind Kaur and Smt. Ravinder Kaur Bindra, respondents No. 3 and 4, who are wives of respondents No. 1 and 2, entered into an agreement with the Engineering and Industrial Corporation Private Limited, hereinafter called the 'Colonisers' for the purchase of a plot of land measuring 'about' 500 sq. yds. at the rate of Rs. 8.00 per sq. yds., being plot No. C-16 in Inderpuri Colony situated in the village of Naraina, in the Union territory of Delhi, which was being developed by the Colonisers, on the terms and conditions printed on the back of the receipts issued by the Colonisers in favor of the said respondents from time to time on the payment of the various Installments towards the price of t aforesaid plot. Ex. D 1 to Ex. D 7 are the various receipts for the payment of the total amount. The last payment was made on August 17, 1955 vide Ex. D 7. By the time the last payment was made, the number of the plot had been changed by the Colonisers to C-48, Vide Ex. D 25. Clauses (c) and (j) of the aforesaid conditions of sale, which are material for our present purpose, are as follows :
'C.Clear and clean titles to the land with its physical possession would be passed to the purchaser at the time of its registration.'
'J.It shall be open to the Corporation to effect suitable and necessary alterations in the plan, if and when required.'
(2) The said respondents claim to have taken possession of the plot from the Colonisers either on August 12, .1955 or on August 17, 1955 and to have constructed a boundary wall and to have put up some other construction thereon soon thereafter. It appears that between August 1955, the date of the last receipt and September, 1958, there was no communication or contact between respondents No. 3 and 4 on the one hand and the Colonisers on the other. It, however, appears that by virtue of the Delhi (Control of Building Operations) Ordinance (Ordinance 5 of 1955) and the Delhi (Control of Building Operations) Act, (Act 53 of 1955), which replaced the Ordinance and the Delhi (Control of Building Operations) Regulations hereinafter called 'the Regulation', framed under it, the layout plan of the aforesaid colony had to be revised with the result that the precise area of plot No. C-48, agreed to be sold to the said respondents, had to be increased to 611-1/9 sq. yds. The aforesaid respondents become aware of the fact sometime in September, 1958, when their husbands visited the office of the Colonisers, pursuant to which the said respondents wrote to the Colonisers, vide Ex. D-23 on September 21, 1958 that since an additional area of about Iii sq. yds. had been added to the said plot, the respondents were prepared to purchase it at the rate at which they had agreed to purchase the plot originally. The said respondents in the alternative expressed their willingness to accept any other plot similarly situated as the one that they had agreed to purchase or to pay interest at 6 per cent per annum on the price of the additional area from the date of the approval of revised layout plan. This was followed by letter of January 27, 1969, Ex. D-22 which was in the nature of a reminder. By their letter of February 5, 1959, the Colonisers informed the said respondents that the position with regard to the plot had been explained to their representatives when they visited the office of the Colonisers on October 10, 1958 and reiterated that the additional area would have to be purchased by the said respondents 'at the current rates.' After some correspondence, the Colonisers by their letter of December 7, 1960, Ex. D-11, informed the said respondents that the plot as agreed to be s old did not exist in the original shape in the revised layout plan and the contract had, thereforee, become impossible of performance by reason of the subsequent events and the amount received would be refunded to the respondents on their delivering back to the Colonisers 'the official receipts of the payment' issued in their favor. In reply to this, the said respondents sent a counsel's notice. Ex. D-16, to the Colonisers pointing out that the respondents were prepared to purchase the additional area at the rate originally agreed, that there was no justification to insist on the purchase of the additional area at the current rate and denying that the contract had become impossible of performance and requesting that the sale deed in respect of the plot be registered at an early date. It may be pointed out that in none of the letters exchanged between the parties, there was any mention that the possession of the plot had been delivered to or had otherwise been taken by the said respondents or that they had set up any boundary wall or any other construction on it. The Colonisers apperently had treated the matter closed after their letter. Ex. D-ll, because it appears that plot No. C-48 measuring 611-1/9 sq. yds. was sold by the Colonisers to Smt. Savitri Devi Smt. Kishan Devi, appeants, and Smt. Anguri Devi, respondent No. 5, by sale deed of January 16, 1961, Ex. P-2, which was registered on January 20, 1961. The appellants, thereupon filed a suit being suit No. 312 of 1961 on June 1, 1961 for an injunction to restrain the said respondents and their husbands from interfering with the possession of the said plot by the appellants and respondent No. 5, who had appearently failed to join the appellants as a co-plaintiff and was, thereforee, imp leaded as a defendant, and from carrying on any unauthorised construction thereon, and for mandatory injunction directing respondents No. 1 to 4 to demolish and remove the aforesaid unauthorised structure over the said plot. The suit was based on the allegations that the appellants and respondent No. 5 had purchased the aforesaid plot as stated above, that respondents No. I to 4 had illegally and wrongfully constructed 'kacha' huts with 'tinsheds' thereon on a portion of it without the knowledge and consent of the appellants and respondent No. 5 and that the said respondents were still carrying on construction work illegally and wrongfully. Along with the suit, the appellants sought an interim injunction which was granted by the learned Subordinate Judge on June 1, 1961 restraining the respondents No. 1 to 4 from making any construction upon the land in dispute or causing any interference in the possession of the appellants.
(3) It is at this stage that respondent No. 4 sent a letter on June 3, 1961, Ex. D-14, to the Colonisers claiming that she was putting up in the premises on the plot for the 'past sometime' and complaining that she was experiencing difficulty in connection with the drinking water and for want of drains and by-lanes and requesting the Colonisers to send her a copy of the application form for a water connection. The Colonisers were also requested to provide puce drain and by-lanes etc. Oddly enough, this letter makes no mention of the controversy between the parties earlier with regard to the additional area and the correspondence exchanged between them in that behalf, the contention of the Colonisers that the contract had become impossible of preformance or of the suit filed in the meantime by the appellants even though the injunction granted by the Court on June 1, 1961 had apparently been served on the said respondents by them. This was replied to by the Colonisers by their letter of June 7, 1961, Ex. D-15, in which the claim of the respondent of being in occupation was challenged and the respondent was reminded that they had been asked to take the refund of the amount paid by them. The Colonisers also pleaded absence of any knowledge that the respondent was putting up in the plot.
(4) In the written statement filed in the said suit on behalf of respondents No. 1 to 4, it was claimed that on August 12, 1955, the owners of the plot had placed the said respondent in possession of the plot 'on receiving the balance of the said price of Rs. 1000.00 ' and that soon after getting the possession, the said respondents constructed boundary wall on the plot and have since constructed four rooms, a verandah with store, kitchen and a bathroom etc. by the end of 1957 to the knowledge and with the consent of the owners.
(5) On August 30, 1961, the learned trial Court appointed a Local Commissioner on the motion of the appellants to inspect the spot and report 'whether any construction is being made on the site in dispute If so the nature and extent of that construction.' 'The report of the Commissioner dated August 31, 1961 made out that on August 31, 1961 when the inspection was made, there was a boundary wall on all the sides of the plot, the entrance gate carried the name plate of R. S. Bindra, the construction work was in progress which was being supervised by two women, one of whom gave her name as Ravinder Kaur, the pillars for the construction of verandah and work in connection with the construction of the roof of the kothri No. 3, as shown in the plan attached to the plaint, was in progress. It was further pointed out that there was a kacha well in the plot which appeared to have been 'dug very recently' and all the construction shown in the plan attached 'seemed to be made very recently except tinsheds marked A & B and Kothri No. 1 & 2 and Kothri No. marked 'C' as shown in the plan.' It was further pointed out that pillars for the verandah and roof for Kothri No. 3 were under construction and construction was going on at that time.
(6) The appellants eventually amended their suit to convert it into a suit for possession. The claim of the appellants was contested by respondents No. 1 to 4 inter alia, on the ground that respondents had been put in possession of the plot by the Colonisers on August 12, 1955 on receiving the balance of the sale price of Rs. 1000.00 pursuant to and in part performance of the contract for the sale entered into between them, the said respondents had put up a construction on the said plot by the end of 1957 to the knowledge and with the consent of the Colonisers and their possession was, thereforee, protected by the provisions of Section 53-A of the Transfer of Property Act, hereinafter called 'the Act'. In the replication filed by the appellants, the allegations made in the plaint were reiterated and it was claimed that the appellants had any event purchased the plot in suit for consideration and in good faith and without notice of any prior agreement of sale in favor of respondents No. 3 and 4 and sought the protection of the proviso to Section 53-A of the Act.
(7) On the pleading of the parties, the learned trial Court framed issues which were later amended. The amended issues are in the following terms :-
1. Whether the plaintiffs are the owner of the plot of land measuring 611-1/9 sq. yds. by means of a sale deed dated 16-1-1961 0. P.
2.(a) Whether there was an agreement between the previous owners and defendants 3 & 4 regarding sale of 500 sq. yds. as alleged in the written statement prior to the sale in favor of the plaintiffs and defendant No. 5 O.D.
2.(b) Whether defendants 3 and 4 are in lawful possession of the suit property to the extent of 500 sq. yds. in pursuance to and in part performance of the contract of sale OPD.
2(C)Whether the plaintiffs and defendant No. 5 are debarred from claiming possession from defendants 3 and 4. by virtue of the doctrine of part performance? OPD. 3. Whether Messrs. Engineering and Industrial Corporation Pvt. Ltd. are necessary parties to the suit OD. 4. What will be the effect if the defendants are not found in possession of the land more than 500 sq. yds? OD. 5. Whether the plaintiff is a bona fide purchaser for value without notice of any alleged agreement? Op 6. Whether the plaint is adequately valued for court fees and jurisdiction? Op 7. Relief.
(8) The suit of the appellants was dismissed by the trial Court on the ground that the possession of the plot had been delivered to respondents 3 and 4 in part performance of the agreement of sale entered into between them by the Colonisers though not in accordance with its terms so as to entitle the respondents to the benefit of Section 53-A of the Act and that the appellants and respondent No. 5, who had purchased the said plot with a larger area from the Colonisers, were debarred from claiming possession of the plot to the extent of 500 sq. yds. because the sale in their favor, though for consideration, was neither bona fide nor without notice of the prior agreement of sale in favor of respondents No. 3 and 4.
(9) The appellants challenge the aforesaid judgment and decree of the learned trial Court on the following grounds:
(A)On the revision of the layout plan of the area pursuant to the direction of the authorities by virtue of the Regulations the plot of land bearing No. C-48 measuring about 500 sq. yds. ceased to exist and the agreement between the Colonisers and the respondents No. 3 and 4 stood frustrated and the protection of Section 53-A of the Act was, thereforee, not available to the said respondents.
(B)The possession, if any, of respondents No. 3 and 4 of a part of the said plot could not be said to be pursuant to or in part performance of the agreement because no possession was delivered by the Colonisers to the said respondents nor 'did the said respondents take possession in terms of the said agreement thereby disentitling the said respondents to the aforesaid protection.
(C)In any event, the appellants arc protected by the proviso to Section 53-A of the Act, in that, they purchased the plot for consideration in good faith and without knowledge of the existence of the agreement in favor of the said respondents or of their possession pursuant to or in part performance of it.
(10) On ground (A) above, Shri Daya Kishan, learned counsel for the appellants contended that in exercise of power conferred on the Administration by Act 53 of 1955, the Delhi Administration framed the Regulations which made submission and approval of the authorities of any layout plan of any area within the Union Territory of Delhi mandatory as a result of which the layout plan of the colony was revised with the result that an area of Ill-1/9 sq. yds. was added to the plot which the Colonisers had originally agreed to sell to respondents No. 3 and 4 and that as a result of this revision, the original plot which the said respondent and agreed to purchase and the colonisers had agreed to sell, ceased to exist. It was further contended that the contract entered into between the parties with regard to the said plot of 500 sq. yds. stood frustrated on account of the events subsequent to it. It was, thereforee, argued that the said respondents would not be entitled to the protection of Section 53-A of the Act as the aforesaid provisions envisaged a subsisting contract.
(11) On the other hand, Bakshi Shiv Charan Singh, learned counsel for the contesting respondents, argued that by the mere increase in the area of the plot as agreed to be purchased, the contract could not be furstrated because it could not be said that it had become impossible of performance and that the respondents were nevertheless entitled to the protection of Section 53-A of the Act.
(12) This contention of the appellants appears to me to be unsustainable. The doctrine of frustration comes into play only when a contract becomes impossible of performance after it is made on account of circumstances beyond the control of the parties or because the change in the circumstances make the performance of the contract impossible. In India, the law dealing with frustration must prima facie be looked at as contained in Section 32 and 56 of the Contract Act. Section 32 deals with contingent contracts with which we are not concerned in the present case. Section 56, which embodies the doctrine of frustration of contracts, provides that a contract to do an act impossible in itself is void. It further provides that a contract to do an act which, after the conract is made, becomes impossible, or by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful. In the case of Satyabrata Chose v. Mugneeram Bangur & Co., : AIR1954SC44 , the Supreme Court enunciated the doctrine as contained in Section 56 thus :
'THEfirst paragraph of the section lays down the law in the same way as in England. It speaks of something which is impossible inherently or by its very nature, and no one can obviously be directed to perform such an act. The second paragraph enunciates the law relating to discharge of contract by reason of supervening impossibility or illegality of the act agreed to be done. The wording of this paragraph is quite general, and though the illustrations attached to it are not at all happy, they cannot derogate from the general words used in the enactment. This much is clear that the word 'impossible' has not been used here in the sense of physical or literal impossibility. The performance of an act may not be literally impossible but it may be impracticable and useless from the point of view of the object and purpose which the parties had in view; and if an untoward event or change of circumstances totally upsets the very foundation upon which the parties rested their bargain, it can very well be said that the promisor found it impossible to do the act which he promised to do.'
(13) On an application of the aforesaid principles it is not possible. to conclude that the agreement in the present case became impossible of performance merely because an additional area had to be added to the plot as originally agreed to be sold. Respondents No. 3 and 4 had agreed to purchase an area of 'about' 500 sq. yds. in the colony in question at an agreed rate subject to the terms and conditions printed on the reverse of the various receipts. Although the plots had been roughly demarcated and approximate measurements had been made in the layout plan, clause (j) of the conditions of sale reserved liberty to the Colonisers 'to effect suitable and necessary alterations in the plan, if and when required.' Even the measurement was not precise because the plot was being throughout described as measuring 'about' 500 sq. yds. The agreement, thereforee, clearly envisaged that the total area of the plot may be revised. Mere addition of the area consequent on the revision of the layout plan would not amount to destroying the very foundation of the agreement nor did the mere increase in the area by itself lead to any difficulty between the parties. The difficulty only arose when the question as to the price at which the additional area would be taken by the respondent came up since the other alternatives offered by the respondents were not acceptable to the Colonisers. It is immaterial whether the layout plan was revised by the Colonisers on their own or because of any compulsion of law. There was no question of the contract, thereforee, getting frustrated for this reason and this claim of the Colonisers was clearly untenable. If the Colonisers were justified in claiming a higher rate for the additional area having regard to the terms and conditions of the contract, it was open to the Colonisers to cancel the contract on the failure of the respondents to agree to the said payment but the Colonisers did not take recourse to that. The dispute between the parties, if the additional area had to be sold to the respondents at the rate at which the main plot had been agreed to be sold, does not arise in the present proceedings. This dispute had to be resolved between the parties in the context of the terms and conditions of the contract but their failure to agree on that or to resolve it did not frustrate the contract. This ground must thereforee, be rejected.
(14) As for ground (B), learned counsel for the appellants contended that the material on the record would not justify the conclusion that the respondents No. 3 and 4 had taken possession pursuant to and in part performance of the contract for the sale of the plot and particularly relied on the correspondance exchanged between the said respondents and the Colonisers between September 1958 and the institution of the suit in which there are no references by either party to the possession of the plot having been taken by or delivered to the respondents or to any construction having been put up on it by the said respondents. Learned counsel further pointed out that the first ever occasion on which the said respondents made such a claim was on June 3, 1961 after the said respondents had been served with the injunction in the suit filed by the appellants on June 1, 1961 and that this was clearly the result of an after thought. Learned ) counsel further argued that the possession which could entitle the respondents to resist the claim of the appellants must be possession in part performance of the contract, in accordance with its terms and that such possession must have been given by the Colonisers. It was further pointed out that in terms of the agreement, the possession of the plot had to be delivered only on the registration of the sale deed) and a reference was made to clause (C) of the conditions of sale which provides that physical possession would be passed to the purchaser at the time of the registration. It was thus argued that the protection of Section 53-A of the Act would not be available to the respondents.
(15) On the other hand, learned counsel for the contesting respondents urged that the evidence produced by the respondents fully established that the Colonisers had delivered possession of the plot to the respondents on the date of the last payment and that soon thereafter the respondents had put up a boundary wall and set up construction in the next few years. It was further argued that in any event possession need not emanate from the owner and the transferee would be protected by the doctrine of part performance even if he came by possession otherwise than through the transferor. It was, thereforee, urged that the respondents had satisfied the conditions of Section 53-A of the Act and were entitled to the protection of the provision. Learned counsel was conscious of a complete absence of any reference to possession or construction in any of the letters of the respondents except the last letter of June 3, 1961, which was apparently sent after the injunction was issued but sought to explain it away on the ground that there was no occasion for any such reference in any of those letters having regard to the context in which those letters had been sent.
(16) On the question of respondents' possession of the plot, the appellants produced Public Witness 3, Kidar Nath Sharma, Public Witness 5, Jit Ram Sehgal, both employees of the Colonisers, Public Witness 4, Sugan Chand, a draftsman and Public Witness 6, Prithi Singh, husband of appellant No. 2. Pw 3 and Public Witness 5 stated that at the time possession was delivered to the appellants, there was no construction on the plot and it was lying vacant. Public Witness . 5 and oversear of the colonisers added that at that time, the possession was with the Colonisers. Public Witness 4, a draftsman who prepared the plan. Ex. Public Witness 4/1, at the instance of the appellants, claimed to have gone to the spot for the purpose in April or May, 1961 and found some construction on it which appeared to him 'to be new'. He further stated that there was no boundary wall at that time nor any gate and that the construction appeared to be 'two or three months old'. Public Witness 6, Prithi Singh, the husband of appellant No. 2 also supported the appellant's case. In addition to this, the appellants also relied at the trial on the absence in the entire correspondence between 1958 and 1961 to any possession or construction by the respondents- and the reference to it for the first time only in the respondent's letter on June 3, 1961, Ex. D-14, after the appellants had filed the suit on June 1, 1961 and obtained the injunction on the same day. On the other hand, the contesting respondents produced Dw 1, Ravinder Puri, Dw 2, Mehtab Singh; DW8, Kripal Singh, all of whom own plots in the colony; DW5, Bhanwar Singh; resident of village Narina in which the colony is situated; DW-9, Satnam Singh, a building material supplier and DW-12, R.S. Bindra, husband of one of the respondents. DW-I stated that he had purchased a plot in the colony and constructed it in 1957, that the respondents built the boundary wall in 1957 when he came to the colony and set up two rooms, Along with a tinshed which were later raised to four rooms with tinsheds and have been residing there. DW-3 stated that he had purchased plot in the colony and that the respondents got possession in August, 1955 and put up construction on it. He further stated that Colonisers used to deliver possession on the payment of the last Installment. He claimed that a representative of the Colonisers had demarcated the plot in August, 1955 and the respondents as well as the witness got pillars placed on their respective plots and after that, the respondents got the boundary wall constructed and had borrowed labour for the purpose from the witness. He claimed that the respondents made a temporary construction in 1957 followed by a shed in 1960 since which time they were living there. In cross-examination, he stated that although there was a condition that the possession would be delivered at the time of registration, the Coloniser 'was not rigid' in following that condition. He further stated that one R.C. Malik came to deliver possession. He, however, admitted that he had known the husband of one of the respondents since 1951.
(17) The learned trial Court discussed this aspect of the matter under issue No. 2 (b) and came to the conclusion that in the face of 'overwhelming' evidence produced by the respondents, the version of the appellants could not be believed. The learned trial Court explained away the omission of any reference in the correspondence between the parties to the possession or construction, said to have been carried out by the respondents on the plot, on the ground that this omission was not of any importance 'because there was hardly any occasion for that mention.' On the other hand, the learned trial Court referred to Exhibit D-14 of June 3, 1961, a copy of the letter written by the respondents to the Colonisers which made mention of the possession and rejected the contention of the appellants that the letter was the result of an after thought since the suit of the appellants had already been filed on June 1, 1961 and the respondents had become aware of the suit and the injunction granted in June 1, 1961 as the process-server had gone to effect service of process on the respondents on June 3, 1961 vide Ex. D-26. The learned trial Court, however, observed that Exhibit D-14 and Exhibit D-26 were of the same date and it was not known which was earlier in point of time. The learned trial Court did not attach any importance to Exhibit D-14 either way. The learned trial Court further returned the finding that even though clause 'C' of the terms and conditions of the agreement envisaged that possession would be delivered at the time of registration of the sale deed, the respondents had been able to establish by oral evidence that the possession had been delivered ; to them by the Colonisers when the last Installment towards the total payment was made and that the Colonisers would be deemed to have waived the requirement of clause 'C' of the terms and conditions and the delivery of the possession by the Colonisers to the respondents was, thereforee, pursuant to the contract 'even though not strictly in accordance with the terms' of it and that the requirement of Section 53-A of the Act had been satisfied.
(18) It appears to me that the conclusion of the learned trial Court that the respondents had taken possession of the plot agreed to be sold by the Colonisers to the respondents No. 3 and 4, soon after the payment of the last Installment in 1955 and to have put up some temporary construction on the said plot is borne out by the oral evidence produced on behalf of the respondents and referred to above. This conclusion is further supported by the report of the Local Commissioner to the extent that he has stated in his report that all the construction shown in the plan attached 'seems to be made very recently excepting Tin sheds marked A & B and Kothri No. 1 & 2 and Kothri No. marked 'C' as shown in the plan.' There was some controversy before us as to whether the report of the Commissioner had been duly proved even through the Commissioner was never examined and not subjected to cross examination by the respondents but the claim of the appellants that the report be read in evidence was conceded by Bakshi Shiv Charan Singh on behalf of the respondents.
(19) It is, however, not possible to support the further conclusion of the learned trial Court that the possession of the plot had been delivered to the respondents by the Colonisers. The evidence produced on behalf of the respondents in support of the contention that the possession had been delivered to them by a representative of the Colonisers in neither sufficient norsatisfactory and is clearly belied by the circumstantial evidence. If the possession had been delivered to the respondents by the Colonisers there would normally have been some documentation with regard to the delivery of the possession and some record would have been maintained of it by the Colonisers, if not by both the parties. The absence of any such record militates against the claim that the possession was delivered by the Colonisers to the respondents. Possession of any property including immovable property has various legal implications. It is in conceivable that the Coloniser would deliver possession without getting a necessary receipt or making other authenticated record of the factum of delivery of possession. If the respondents had claimed that when possession was taken record of it was maintained by the Colonisers adverse inference could have been drawn if the Colonisers had not produced the said record particularly having regard to the allegation that there has been a collusion between the appellants and the Colonisers in the manner in which the sale was effected in favor of the appellants but no such claim was made by the respondents. The complete absence in the various communications sent by the respondents from time to time to the Colonisers after August 1955 prior to the letter of June 3, 1961 of the allegation that possession of the plot had been delivered by the Colonisers to the respondents is destructive of the claim of the respondents. In fact there is no mention in any of these letters except the letter of June 3, 1961, Ex. D-14, of the fact that the respondents took possession and set up any construction. If the possession of the plot had been given by the Colonisers to the respondents, the respondent would in the ordinary course of event set it up as a ground of defense in their various letters to meet the threat that they should take refund of the amount paid. The conclusion of the learned trial Court that there was no occasion to mention that in these letters is difficult to understand. In the course of the correspondence the Colonisers, were suggesting that if the respondents were unable to pay for the additional area at the rate claimed by them, the respondents could take back the amount paid by them. A contention that the respondents had been given possession of the plot by the Colonisers and that the respondents had invested large sum of money in setting up construction there would have been an effective answer to such a claim.
(20) Faced with this difficulty, learned counsel for the respondents sought to urge that for the application of Section 53-A of the Act, it was not necessary that the possession must have been given by the vendor and sought support for this preposition from Elizabeth Maddison v. John Alderson 8 App Cas 467(2), Chaproniere v. Lambert 1917 (2) Chan 356 and Nathulal v. Phoolchand, : 2SCR854 .
(21) Section 53-A reads thus :
'WHEREany person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainly 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, not-withstanding 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 thereforee 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 or a transferee for consideration who has no notice of the contract or of the part performance thereof.'
(22) The requirement of the provisions is satisfied only if the possession had been delivered to the vendee pursuant to the agreement of sale and in part performance of it. Possession which may be unilaterally taken by the vendee could not be said to be possession pursuant to the agreement or in part performance of the agreement because possession involves a two-fold act i.e., the delivery of the possession by the vendor and acceptance of the possession by the vendee. A unilateral act by the vendee could not be said to be in part of performance of the agreement even though it may be pursuant to it. Delivery of possession under an agreement of sale of immovable property is the obligation of the vendor and the corresponding right of the vendee. When Section 53-A talks of part performance of the agreement, it obviously envisages the performance by the vendor of his obligation to deliver possession and of the right of the vendee to take possession. thereforee, there can be no valid possession by the vendee unilaterally in exercise of his right of possession unless there is a corresponding discharge by the vendor of his obligation to deliver the possession. To hold to the contrary would be to sanctify the unilateral act of a vendee and to give legal validity to an act which could not be strictly, according to a law. Such a conclusion would also frustrate the policy underlying Section 53-A. Section 53-A incorporates in modified form the English doctrine of part performance and protects the legitimate rights of a vendee where the vendee has taken possession pursuant to and in part performance of the agreement. The doctrine of part performance is based on equity and to sublimate the unilateral act of a vendee in taking possession, unless it is with the consent of the vendor, would be destructive of equity on which the doctrine is based.
(23) The cases relied upon on behalf of the respondents do not appeal to have any bearing on the contention that a unilateral possession by the vendee without the consent of the vendor could attract the doctrine of part performance. In Elizabeth Maddison v. John Alderson (supra), A had agreed to remain in B's service in consideration of his leaving her an estate by Will. A's continuance in service was held not to be an act of part performance because it might be referable to some other bounty. In Chaproniere v. Lambert (supra) it was held that the payment of rent in advance in respect of a parol agreement for a lease of premises of which the lessee hand nol taken possession was not such part performance as will take the case out of the operation of Section 4 of the Statute of Frauds. In the case of Nathu Lal v. Phool Chand (supra), the appellant had agreed to sell land and a factory standing in the name of his brother and received part payment and put the vendee in possession of the property. The vendee agreed to pay the balance by a certain date. On the vendee making default in making the payment of balance the appellant rescinded the contract and sought to eject the vendee. The vandee defended the action on the ground that the appellant had failed to get the name of his brother 'deleted' from the revenue record and that the vendee was ready to pay the balance. It was held by the Supreme Court that the vendee could be called upon to pay the balance only after the appellant had performed his part of the contract.
(24) I have, thereforee, no option but to hold that the possession of the plot by the repondents though pursuant to the agreement of sale could not be said to be in part performance of the agreement of sale because it has not been established that the possession had been delivered by the Colonisers or that they had consented to the taking of possession by the respondents. The protection of the provisions of Section 53-A of the Act would not, thereforee, be available to the respondents.
(25) In view of the aforesaid conclusion, ground (C) really does not survive. This is so because the proviso to Section 53-A of the Act comes into play only if the requirement of the main Section is satisfied. If, however, it could be legitimately held that the respondents had taken possession of the plot pursuant to and in part performance of the agreement, a contention that I have repelled above, it is difficult to hold, on the existing material, that the appellants would be entitled to the protection of the proviso. The Colonisers were a party to the agreement with the respondents. There has been considerable controversy between them with regard to the rate at which the additional area should be taken by the respondents and as to the various alternatives to it. The dispute had not been resolved and the amount paid by the respondents to the Colonisers had not been refunded. Even if the Colonisers had concealed these facts from the appellants, the appellants would still have notice of the agreement and the claim of the respondents to the plot. It is the case of the appellants that the appellants had taken vacant possession of the plot at the site. This is clearly belied by the material on the record and I have held above that the respondents took possession soon after the payment of the last Installment and put up some sort of a temporary construction. This is also supported to an extent by the report of the Commissioner appointed at the instance of the appellants. If that be so, the appellants could not have failed to notice the possession of the respondents and the construction standing on the plot, which would have put them to sufficient notice of the claim of the respondents. The conclusion of the learned trial Court that the transaction in favor of the appellants though for consideration could not be said to be either in good faith or without the knowledge of the existence of the agreement in favor of the respondents or of their possession, whether in part performance of the agreement or otherwise appears to be fully justified.
(26) In view of my conclusion on the question of possession the judgment and decree of the trial Court must be set aside and the suit of the appellants decreed, and I would direct accordingly. The appellants would also have their costs from the contesting respondents throughout.