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Durga Prasad and ors. Vs. Kanhiyalal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberSecond Appeal No. 411 of 1967
Judge
Reported inAIR1979Raj200; 1979()WLN577
ActsTransfer of Property Act, 1882 - Sections 51A and 53A; Specific Relief Act, 1963 - Sections 10 and 12
AppellantDurga Prasad and ors.
RespondentKanhiyalal and ors.
Appellant Advocate M.M. Tiwari, Adv.
Respondent Advocate M.R. Bhansali, Adv.
DispositionAppeal dismissed
Cases Referred and Jahangir Begum v. Gulam Ali Ahmed
Excerpt:
.....from taking any advantage on account of the non-registration of the document, provided, the transferee has performed his part of the contract and in pursuance thereof, has taken possession of, some to protect his possession. thus, a defendant in an action of ejectment may, in certain circumstances, effectively plead possession under an unregistered contract of sale in defence to the action. thus, there is no force in the arguments of the learned counsel for appellant that when no suit for specific performance could be filed by the defendants, they were we not entitled to any defence under section 53a of the transfer of property act.;appeal dismissed - - thus, a defendant in an action of ejrctment may, in certain circumstances, effectively plead possession under an unregistered..........the judgment of the trial court. hence, this second appeal by the plaintiffs in his court. 4. learned counsel for the plaintiff-appellants has argued that there was a condition in the agreement to sell dated 19-4-1959 that the sale-deed shall be executed within a period of four months and in case, there would be default on the part of the vendor, the vendees shall be entitled to receive rs. 1,500 by wayof damages including the amount of rs. 1,000/- received as earnest money by the vendor, and in case of default on the part of the vendees, the vendor shall be entitled to forfeit rs. 500/- out of the amount of rs. 1,000/- received as earnest money by the vendor. it is, thus, submitted that in view of this condition in the agreement for sale, the defendants at the most were entitled.....
Judgment:

N.M. Kasliwal, J.

1. This is a plaintiffs' second appeal against the judgment anddecree of the learned District Judge, Ajmer dated 10-4-1967 affirming the judgment and decree of learned Civil Judge, Kishangarh dated 13-10-1966.

2. The plaintiff appellant filed a suit for arrears of rent and eviction against the defendants in respect of a house situated in village Harmara. The plaintiffs' case was that the defendants took a house on rent excepting a 'Kothari' on a monthly tenancy commencing from Sudi 1st of every month. The rent agreed was Rs. 50/- per year. The plaintiff claimed Rs. 133.30 as arrears of rent and Rs. 13.50 as mesne profits and claimed eviction. The defendants in their joint written statement took the plea inter alia that though they were tenants of the plaintiff, but on 19-4-1959, the plaintiff sold the house for Rs. 2200/- and handed over possession of the same and the relationship of landlord and tenant came to an end thereafter. They further submitted that the plaintiff obtained a sum of Rs. 1,000/- by way of earnest money, but thereafter, did not get the sale-deed registered that the defendants were ready and willing to perform their part of the contract. The defendants thus claimed protection under Section 53A of the T. P. Act. The trial court framed the following issues:

1- vk;k eqn~nk;yge eqn~nbZ dsfdjk;snkj gS A

2- vk;k eqn~nk;yge eS en~nbZ fd133&30 ua- ia- o mesne profitsds 13-50 N. P.ckdh gS A

3- vk;k eqn~nk;yge dks eqn~nbZ dsedku eqrnkfo;k dk cspku dj fn;k rFkk /kujkf'k dCtk nsdj 1000 :- izkIr dj yh rFkkbl dkj.k 53&AT.; P.Act,izLrqr okn esa vkdf'kZr gksrh gS vkSj bldk nkos ij D;k vlj gS A

4- nknjlh D;k gS A

3. The trial court decided all the issues in favour of the defendants and dismissed the suit. Learned District Judge also upheld the judgment of the trial court. Hence, this second appeal by the plaintiffs in his court.

4. Learned counsel for the plaintiff-appellants has argued that there was a condition in the agreement to sell dated 19-4-1959 that the sale-deed shall be executed within a period of four months and in case, there would be default on the part of the vendor, the vendees shall be entitled to receive Rs. 1,500 by wayof damages including the amount of Rs. 1,000/- received as earnest money by the vendor, and in case of default on the part of the vendees, the vendor shall be entitled to forfeit Rs. 500/- out of the amount of Rs. 1,000/- received as earnest money by the vendor. It is, thus, submitted that in view of this condition in the agreement for sale, the defendants at the most were entitled for damages and were not entitled to claim any right under Section 53A of the T. P. Act. It is also submitted that the suit for specific performance itself, having become barred by time no defence under Section 53A of the T. P. Act shall be available to the defendants. It is also argued that there was no agreement for the sale of the entire house and even if, it may be admitted that the defendants were in possession of part of the house as tenants, they were not entitled to the defence under Section 53A of the T. P. Act. Learned counsel has further argued that the defendants did not pay the balance money within the time agreed in the contract for sale, and as such, when the defendants were not entitled to claim any specific performance of the contract, they could not be held entitled to claim protection under Section 53A of the T. P. Act. It is further submitted that under Sections 10 and 12 of the Specific Relief Act, the defendants were not entitled to claim a decree for specific performance and as such, they could not get any relief under Section 53A of the T. P. Act

5. I see no force in the contentions raised by the learned counsel for the appellants. In granting relief under Section 53A of the T. P. Act, the question whether a contract is specifically enforceable or not, has no bearing at all. The provisions of Sections 10 and 12 of the Specific Relief Act are quite distinct from Section 53A of the T. P, Act. It has been laid down in Bharat Chandra Das v. Md. Ramjan Choudhury (1941) 45 Cal WN 489 and Jahangir Begum v. Gulam Ali Ahmed, AIR 1955 Hyd 101 that Section 53A applies even when the specific performance of a contract is barred or the contract is otherwise unenforceable. The doctrine of part performance embodied in Sec. 53A of the T. P. Act is an equitable doctrine. The object of this Section is to prevent a transferor or his successor any interest from taking any advantage on account of the non-registration of the document, provided, the transferee hasperformed his part of the contract and in pursuance thereof has taken possession of some immoveable property. This right is available to the transferee as defence in order to protect his possession. Thus, a defendant in an action of ejrctment may, in certain circumstances, effectively plead possession under an unregistered contract of sale in defence to the action. Thus, there is no force in the arguments of the learned counsel for the appellant that when no suit for specific performance could be filed by the defendants, they were not entitled to any defence under Section 53A of the T. P. Act.

6. As regards the contention of the learned counsel for the appellant that the defendants being not in possession of the entire property agreed to be sold in their favour, they were not entitled to the protection under Section 53A of the T. P. Act, suffice it to say that this objection was not raised or argued in the courts below. That apart I see no force in the contention of the learned counsel for the appellant that in Section 53A of the T. P. Act, the words 'of the property or any part thereof do not occur after the words 'or the transferee, being already in possession, continues in possession. In part 2 of Section 53A as such where a transferee already in possession, continues in possession, he should be in possession of the whole property and not a part thereof. What the learned counsel wants to argue is that in part 2 of Section 53A the words 'property or any part thereof,' should only be read for a transferee who has taken possession of property and as these words are missing for a transferee being already in possession, such transferee can only take the advantage, in case, he was already in possession of the whole of the property. In my view, this interpretation put by the learned counsel for the appellants is not correct in relation to a transferee being already in possession. There is no mention of any property for a transferee being already in possession, and as such, the words 'property or any part thereof shall have to be taken into consideration for such transferee also for giving full effect to part 2 of Section 53A of the T. P. Act. The contention of the learned counsel for the appellant might have some force in case the words 'of the property' would have been used after the words 'transferee, being already in possession' inPart 2 of Section 53A. The absence of such words clearly indicates that the property or any part thereof applies in relation to a transferee being already in possession and who continues to remain in possession after the transfer.

Thus, I find no force in this appeal and the same is dismissed. However, in the circumstance of the case, I direct the parties to bear their own costs.


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