P.N. Mookerjee, J.
1. This is the plaintitf's appeal, arising out of suit for declaration of title and recovery of possession and damages. The suit was decreed by the trial court, but that decision was reversed by the learned lower appellate court and the plaintiffs suit was dismissed. Aggrieved by that decision, the present appeal was filed by the plaintiff.
2. The relevant facts lie within a short compass and they may be stated as follows:
The property in suit originally belonged to one Arun Chandra Dutta. By a Kobala, dated 4-10-1950, the plaintiff claims to have purchased the property and, thereafter, on 4-5-1954, she brought the present suit for recovery of possession of the disputed property from the defendant, on the allegations, inter alia, that the defendant was in occupation of the same without any title whatsoever and that the plaintiff was entitled to a declaration of title and also to recovery of possession as against her. In the meantime, there were some proceedings between the parties, to which reference will be made in due course in course of this judgment.
3. The principal defence was one under Section 53A of the Transfer of Property Act and the defendant contended that, long before the plaintiff's aforesaid purchase on 16-12-1947, the plaintiff's vendor Arun entered into an agreement with the defendant, who was his aunt, for sale of the disputed property to her for a consideration of Rs. 18,000/- and, on that agreement, on different dates, a total sum to the extent of roughly Rs. 4,000/- was paid by the defendant to Arun in part payment of the said stipulated consideration money. It was also alleged by the defence that, at some later stage, Arun agreed to receive a reduced consideration for the property, viz., Rs. 12,000/-. The defendant contended that she was, at the time of her aforesaid agreement, already in possession of the disputed property as a licensee from Arun and that she continued her possession of the suit property in part performance of the aforesaid agreement between herself and Arun and also did further acts in performance of the same by further payments to Arun under the said agreement. The defendant also stated in her written statement that she was willing to perform her outstanding part of the agreement with Arun. The defence further contended that the plaintiff in the present case was not a bona fide transferee for value without notice of her (defendant's) aforesaid agreement, but was a transferee with notice of the same and so she (plaintiff) would not get the protection or benefit of the proviso to Section 53A of the Transfer of Property Act. A further defence was taken in the written statement that, by reason of the dismissal of a previous suit for ejectment of the defendant from the suit premises, which was brought by the plaintiff on the allegation that the defendant was a tenant, which allegation was subsequently sought to be amended into one of a licensee, the present suit was barred by res judicata - at least constructive. All these defences were overruled by the learned Subordinate Judge and the plaintiff's suit was decreed.
4. On appeal, as we have stated above, the decree of the learned Subordinate Judge was set aside and the plaintiff's suit was dismissed, upon findings, inter alia, that Section 53A would be attracted to this case and would give the defendant the necessary protection, the plaintiff not being a bona fide purchaser for value without notice of the defendant's agreement, so as to avail herself of the proviso thereto.
5. In arguing this appeal before us on behalf of the plaintiff-appellant, Mr. Dasgupta has particularly drawn our attention to the judgment of the learned Addl. Dist. Judge, which judgment, according to him, is erroneous both in point of law and on facts, and, in any event, is not a proper judgment of reversal. It appears from the judgment of the learned Additional District Judge that his mind was, to some extent, obsessed with the idea that, when the agreement for sale is proved and the defendant claims protection under Section 53A of the Transfer of Property Act, the plaintiff, in order to meet that defence, must establish that she was a bona fide purchaser for value without notice and was entitled to the benefit of the proviso to that section and it is only when this is established that the defence under Section 53A on the agreement of the defendant would fail; otherwise, that defence would at once succeed. We may at once state that this approach of the learned Additional District Judge is entirely wrong and wholly unwarranted by the terms of the section. Under Section 53A of the Transfer of Property Act, whenever a claim is raised for protection under that section, the claimant has first to establish not only an agreement in writing, on which that claim is founded, but also the other elements, required on his part for attracting the section, that is, its main part as distinguished from its proviso, viz., that either he has taken possession of the disputed property, in whole or in part, in performance of the agreement, or, if he was already in such possession, he has continued in possession in part performance of the said agreement and has done some act in furtherance of the contract and, further, that he has either performed his part of the said contract, or is willing to perform the same, and it is only when these are established and the claimant thus, prima facie, establishes his claim under the said Section 53A that the said claim may be defeated by his adversary by showing that he was a transferee for value without notice of the claimant's claim or agreement or the part performance thereof and is, as such, entitled to the benefit of the proviso to the section. The purpose of the proviso merely is to defeat a claim which would, otherwise, have succeeded under the main part of the section. The question of the proviso does not arise until and unless the claimant has substantiated his claim under the main part of the section. It has, therefore, to be considered first whether the defendant, in the present case, has complied with the requirements of Section 53A, viz., the main part of the section as distinct from its proviso. If the defendant fails there, the proviso would not come into the picture at all and, whether the plaintiff has or has not notice of the defendant's agreement or the part performance thereof, he will be entitled to succeed. Therefore, the approach of the learned Additional District Judge on this part of the case was not strictly proper. We have not overlooked that the learned Additional District Judge, although he was primarily predominantly of the view, as indicated above has also recorded his findings on the requirements under the main part of Section 53A and has arrived at contrary conclusions on these points from the trail court. The point, however, is whether these findings are proper findings of reversal on the particular points, - or proper findings in law, even though relating to facts, - so as to be immune from challenge in this second appeal. On this point, we are in agreement with the argument of Mr. Dasgupta notwithstanding Mr. Mookerjee's strenuous attempt to support the view of the learned Additional District Judge, that these aspects in all their relevant details have not been fully or properly considered by the learned Additional District Judge and they do not appear to have received that consideration from the said learned Judge which will give his ultimate findings on them immunity from challenge in this court.
6. The finding that there was an agreement for sale from Arun to the defendant in writing, as put forward by the defendant, has been made concurrently by both the courts below and that finding will certainly stand. On the other points, however, viz., whether the defendant, who was admittedly in possession of the disputed property as a licensee before her aforesaid agreement for sale, continued in possession of the same in part performance of her aforesaid agreement, would have to be re-examined, as the finding of the learned Additional District Judge on this point, does not seem to be a proper finding of reversal on a consideration of all the relevant aspects and materials. The same also is the position with regard to the findings of the learned lower appellate court on the other two questions, essential under the main part of Section 53A, viz., whether the defendant has done some act in furtherance of the contract and whether she is willing to perform her part of the same that still remains unperformed and outstanding. On these aspects the discussion of the learned Additional District Judge seems to be somewhat scrappy and perfunctory and that cannot certainly be accepted as a proper foundation for findings of reversal on these points. It is clear, then that the case will have to go back to the learned lower appellate court for fresh and further consideration in the light of the observations, made in this judgment, and in accordance with law and, as the case is thus to be remanded, we would not also express any final opinion on the other question, raised by the defence, viz., that the present suit was barred by res judicata - at least constructive, - and although that plea was rejected by both the courts below, when the matter is going back, that point will also be open to argument by the parties before the learned lower appellate court. The question of the proviso and of the plaintiff's being a bona fide purchaser for value without notice of the defendant's agreement, will also if it arises for consideration in the light of our observations, made above be reconsidered by the court below, on the evidence on record, in accordance with law. We would also ask the learned lower appellate court to consider one further submission which has been made before us on behalf of the defendant respondent by Mr. Mookerjee, viz., that, even if the plaintiff be ultimately found entitled to a decree in this suit and the defence under Section 53A on the part of his client (defendant) fail, even then such a decree should not be given without directing the plaintiff to pay back to her the sum of roughly Rs. 4000/- which has been found by the courts below to have been paid by her to Arun under her aforesaid agreement. We are, however, expressing no opinion on the merits of this contention and it will be for the court of appeal below to consider the same on the merits in accordance with law and pass appropriate orders in regard thereto.
7. In the premises, this appeal will be allowed, the judgment and decree of the learned Additional District Judge will be set aside and the case will be sent back on remand to that court for a proper decision in accordance with law in the light of the observations, made in this judgment.
8. Costs of this appeal will abide the final result of the suit.
9. I agree. Appeal allowed and case remanded.