DEEPAK GUPTA, J. (Oral)
1. This Appeal by the defendant is directed against the judgment and decree dated 25th August, 1999 passed by the learned District Judge, Bilaspur whereby he dismissed the appeal of the defendant and upheld the judgment and decree dated 12.12.1989 decreeing the suit of the plaintiff.
2. The undisputed facts are that the suit land was originally owned by Pala Ram . It is also not disputed that Pala Ram entered into an agreement to sell the suit property to Sh.Tulsi Ram, original defendant No.1 for a sum of Rs.400/-. From the facts proved on record it is apparent that out of this amount of Rs.400/-, Rs.290/- was paid at the time when the agreement was entered into between the parties. The proposed vendee was also put in possession of the suit land, though some dispute has been raised as to whether it was Tulsi or Sunder who was in possession. Be that as it may, there is no manner of doubt that the plaintiff has not been found to be in possession of the suit land.
3. The main defence set up by the defendant was that they are in possession of the suit property pursuant to an agreement and therefore in terms of Section 53-A of the Transfer of Property Act they are entitled to protect their possession even though the period for filing a suit for specific performance of the sale deed may have expired and their remedy to file suit for specific performance may have been lost.
4. There can be no dispute with the contention raised by Sh.G.D. Verma, learned senior counsel appearing for the defendant/appellant that a defendant can resist a suit for possession filed by the true owner in case he shows that he has been put in possession by an agreement contemplated under the provisions of Section 53-A of the Transfer of property Act. As held in number of cases, this is a right of defence and not of offence. It is oft said that it can be used as a shield but not as a sword.
5. Section 53-A of the Transfer of Property Act reads thus:
“53A. Part performance.
Where any 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 certainty, 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, notwithstanding 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 therefor 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 of a transferee for consideration who has no notice of the contract or of the part performance thereof.”
6. A bare perusal of this Section shows that when the transferee has, in part performance of the contract, taken possession of the property or continues to be in possession of the property then notwithstanding that the contract was required to be registered but has not been registered, the vendee can continue and protect his possession.
7. The Apex Court in Shrimant Shamrao Suryavanshi and another vs. Pralhad Bhairoba Suryavanshi (dead) by LRs and others, AIR 2002 SC 960, held as follows:
“6. A perusal of Section 53A shows that it does not forbid a defendant transferee from taking a plea in his defence to protect his possession over the suit property obtained in part performance of a contract even though the period of limitation for bringing a suit for specific performance has expired. It also does not expressly provide that a defendant transferee is not entitled to protect his possession over the suit property taken in part performance of the contract if the period of limitation to bring a suit for specific performance has expired. In absence of such a provision, we have to interpret the provisions of Section 53A in a scientific manner. It means to look into the legislative history and structure of the provisions of Section 53A of the Act.”
8. Again in Mahadeva and others vs. Tanabai, (2004) 5 SCC 88, the Apex Court clearly held that merely because a suit for specific performance at the instance of the vendee had become barred by limitation would not be a ground by itself to negative his plea raised under Section 53-A of the Act.
9. Sh.G.D. Verma, has drawn my attention to the judgment of the Full Bench of the Bombay High Court in Sadashiv Chander Bhamgare vs. Eknath Pandharinath Nangude, AIR 2004 Bombay 378. The question which was referred for the opinion of the Full Bench reads as follows:
“Whether a suit simplicitor for injunction which is filed seeking protection under S.53-A of the Transfer of Property Act is maintainable.”
10. The question was answered by holding that such a suit was maintainable. The relevant observations of the Bombay High Court are as follows:
“11………It is clear from the observations of the Supreme Court quoted above that Section 53-A of the Act imposes a statutory bar on the transferor to seek possession of the immovable property from the transferee in possession. In other words, therefore, it disentitles the transferor from seeking possession from the proposed transferee in possession. Therefore, if the transferor, though he has been denied that right by S.53-A, tries to take possession forcibly, the proposed transferee in possession would be entitled to institute a suit to enforce the bar of S.53-A against the transferor. In such a situation, when the proposed transferee in possession comes to the Court seeking a decree of perpetual injunction restraining the transferor from disturbing his possession, he does not come to the Court for enforcement of any rights conferred on him, but he comes to the Court for enforcement of the bar created by S.53-A against the transferor. If the proposed transferee in possession is denied the right to institute a suit for enforcing the bar against the transferor enacted by S.53-A so as to protect his possession, then the proposed transferee in possession would be rendered remediless. In our opinion, from the observations of the Supreme Court quoted above it is clear that when it is said that the proposed transferee in possession can use S.53-A as a shield, but not as a sword, it means that he can use S.53-A either as a plaintiff or as a defendant to protect his possession, but he cannot use S.53-A either for getting title or for getting possession if he is not actually in possession. To put it in other words, when the transferee in possession comes to the Court as a plaintiff seeking a decree of perpetual injunction against the transferor he is using S.53-A as a shield to protect his possession. It is thus clear that the proposed transferee in possession cannot use S.53-A to sue the transferor for a declaration of title, but he can avail of benefits of S.53-A as a shield to retain his possession.
13……In our opinion, even it assumed that the cause of action for instituting a suit for a decree of specific performance had accrued and the plaintiff in that case omitted to institute the suit for specific performance, then also by virtue of the provisions of O.2, R.2 of CPC the suit of the plaintiff for a decree of specific performance would be barred, but his suit for a decree of perpetual injunction for protecting his possession would not be barred. In so far as the reference to the provisions of S.41 of the Specific Relief Act is concerned, it does not operate on the jurisdiction of the Court to entertain a suit, but it relates to the exercise of that jurisdiction. Grant of relief of injunction is in the discretion of the Court and S.41 lays down as to how that discretion is to be exercised.
………………….In our opinion, occasion for a prospective purchaser in possession to institute a suit for perpetual injunction for protecting his possession may arise even when the cause of action for instituting the suit for specific performance has not arisen or where it is barred by the law of limitation.
………………….It is thus clear that in such a situation where a suit for a decree for specific performance is barred by the law of limitation, the prospective purchaser in possession would not be in a position to institute a suit for decree of specific performance, but S.53- A creates an equity in his favour, as a result of which he is entitled to continue in possession.”
11. Relying upon the aforesaid observations Sh.G.D. Verma, submits that merely because the remedy to file a suit for specific performance has been lost does not mean that the defendant cannot raise this plea in defence to protect his possession when a suit is filed by the original owner on the basis of title.
12. As already indicated hereinabove, there can be no quarrel with this proposition of law. However, an important aspect of the matter is that Section 53-A itself provides that not only should the transferee have been put in possession of the property in pursuance to the contract but the transferee must also show that he has performed or is willing to perform his part of the contract. True it may be, that the transferee despite having lost his remedy to file a suit for specific performance can raise such a defence but while contesting the suit by the real title holder he must plead and prove that he has either performed his part of the contract or has always been ready and willing and is still ready and willing to perform his part of the contract. In case he does not prove or plead these facts then he cannot be given protection under Section 53-A. A person who approaches the Court seeking a relief in equity claiming that he was put in possession on payment of amount must also, in fairness, prove that whatever remaining amount had to be paid in terms of the contract had either been paid by him or he is still ready and willing to pay the same.
13. The argument raised on behalf of the appellant that the owner could have filed a suit for specific performance or for recovery of balance amount, in my view, cannot be accepted because when the right of a true owner is challenged by the proposed vendee, the said proposed vendee must establish that he has done all that was required to be done on his part under the contract. While taking this view I am supported by the observations of the Apex Court in Mohan Lal (deceased) through his LRs Kachru and others vs. Mira Abdul Gaffar and another, AIR 1996 SC 910, wherein the Apex Court held as follows:
“6……Equally, when transferee seeks to avail of Section 53-A to retain possession of the property which he had under the contract, it would also be incumbent upon the transferee to plead and prove his readiness and willingness to perform his part of the contract. He who comes to equity must do equity. The doctrine of readiness and willingness is an emphatic way of expression to establish that the transferee always abides by the terms of the agreement and is willing to perform his part of the contract. Part performance, as statutory right is conditioned upon the transferee's continuous willingness to perform his part of the contract in terms covenanted there under.”
14. In the present case, neither in the pleadings nor in the evidence the defendant averred or proved that he had either performed his part of the contract or was ready and willing to perform his part of the contract.
15. Sh.Verma has also raised a plea that the plaintiff in the plaint had not made a mention about the agreement to sell. It would be pertinent to mention that the plaint was not filed by Sh.Pala Ram the original owner who entered into the agreement to sell but by his legal heirs who may or may not have been aware about the agreement entered into by their father. Even otherwise, non mentioning of this fact would not disentitle the plaintiff to claim possession. The burden was on the defendant who sought protection of Section 53-A of the Act to plead and prove the essential ingredients of the said section.
16. In view of the above discussion, I find no merit in the appeal which is dismissed. No costs.