1. The plaintiff is the appellant. The suit is for declaration of plaintiff's title to the suit house and for recovery of possession. The plaintiff's case is that the suit property fell to his share, that the defendant took it on lease orally from the plaintiff agreeing to pay rent of Re. 1 per mensem, that the defendant is residing in the suit house from 15th Chitrai 1959 corresponding to 29-4-1959 under that agreement, that the defendant has paid rent till 29-4-1961 and failed to pay the balance. The plaintiff issued a notice to the defendant calling upon him to vacate to which the defendant calling upon him to vacate to which the defendant sent a reply stating that he purchased the suit house from the plaintiff's father on 3-4-1956 and that there is no tenancy agreement between him and the plaintiff. The plaintiff therefore filed the present suit for declaration of title as also for possession.
The defence to the suit is that he did not take the property on lease from the plaintiff on 29-4-1959, that he purchased the suit house from the plaintiff's father for Rs. 25 on 3-4-1956, that he has been residing in the said house since April 1956 enjoying the same paying taxes therefor and the plaintiff is not entitled to any right in the suit property. The defendant further contended that in view of the fact that he was in enjoyment of the property under an unregistered agreement dated 3-4-1956 he was entitled to rely on Section 53-A of the Transfer of Property Act and that the plaintiff is not entitled to the declaration prayed for or for possession.
The trial court decreed the suit holding that the defendant is only a trespasser. On appeal by the defendant, the appellate court held that the defendant, is not a trespasser, that the defendant purchased the suit property on 3-4-1956, that the defendant was given possession by the plaintiff's father in pursuance of that sale deed, that the defendant can successfully resist eviction by virtue of the benefit conferred upon him by Section 53-A of the Transfer of Property Act. The learned Judge also recorded a finding that Ex. B-2 is not a fraudulent or fabricated document. In the result the Subordinate Judge allowed the appeal and set aside the decree of the trail court.
2. The plaintiff filed this Second appeal and his main contention is that the defendant has not established that he was put in possession of the suit property in pursuance of Ex. B2 and that the plea under Section 53-A of the Transfer of Property Act is not available to him. It is contended that there is documentary evidence to establish defendant's possession only from 1959 and not before and that is cannot therefore be said that the defendant was put in possession of the suit property in pursuance of Ex. B.2 in April 1956. In other words, in the gap between 1956 and 1959 the defendant has not established that he was in possession of the suit property. In order to make Section 53-A applicable, the defendant must establish some overt act in part performance of the contract of sale. Mere payment of sale consideration is not enough. Change in the possession of land from the vendor to the vendee is an act of part performance, both of the person who gives and of the person who takes possession. It is therefore contended that unless it is established that the defendant was put in possession of the property in pursuance of the contract of sale, Section 53-A is inapplicable. In Morphett v. Jones, (1818) 36 ER 344, Sir Thomas Plumar M. R. said that-
'The acknowledged possession of a stranger in the land of another is not explicable except on the supposition of an agreement and has therefore constantly been received as evidence of an antecedent contract, and as sufficient to authorise an enquiry into the terms; the court regarding what has been done as a consequence of contract or tenure.'
In Broughton v. Snook, 1938 1 All ER 411, it was held by Farwell, J., that the expenditure on alterations and decorations was an act which was in the circumstances of the case referable only to the contract. In the present case, the appellate court has held that the defendant has been in possession of the property in pursuance of the contract of sale and that finding is supported by materials on record. The evidence of D.W. 3 which has been accepted by the appellate court clearly shows that the defendant was put in possession in pursuance of the contract and 10 or 15 days thereafter the suit house was constructed. I accept the finding of the learned Subordinate Judge. In the result the appeal fails and is dismissed. There will be no order as to costs. No leave.
3. Appeal dismissed.