Dismissed

Bandaru Venugopala Rao v. Smt. Allure Anasuya

Andhra Pradesh HC2 Jan 2024AS/114/2010

Case brief

AI extract

What is this about?

First appeal by defendant No.1 against decree declaring plaintiff's title over four land items and directing him to surrender possession. The court held his alleged agreement for sale was neither produced nor pleaded to invoke Section 53A TPA part-performance protection, and that failure to prove tenancy does not defeat a title-holder's claim for possession. Appeal dismissed; trial judgment confir

What the court decided

AI extract

Bandaru Venugopala Rao Vs Smt… — Contract and Commercial Disputes | Andhra Pradesh HC (2024)

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THE HON’BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

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APPEAL SUIT No.114 of 2010

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JUDGMENT:

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This appeal under section 96 CPC is from defendant No.1 in the suit. He assails the judgment dated 20.01.2010 of learned III Additional District Judge, Fast Track Court, Bhimavaram in O.S.No.80 of 1999.

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1^st respondent herein was the sole plaintiff in the said suit. 2^nd and 3^rd respondents were the 2 and 3^rd defendants in the suit.

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The dispute is about four items of immovable properties situate in Kalla Village. They are described in the plaint as A schedule properties. In the suit, the plaintiff claimed title over these schedule properties. Plaint contains detailed averments as to the source of title claimed by the plaintiff. Item Nos.1, 2 and 3 of plaint – A schedule are stated to be exclusively owned by the plaintiff. Item No.4 of the plaint – A schedule is also claimed to be the exclusive property of the sole plaintiff. Defendant Nos.2 and 3 in the suit were originally not parties to the suit. They are very children of the sole plaintiff. After they came on record with a claim that item No.4 of the plaint – A schedule

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belonged to their father and therefore their mother alone could not be the sole owner of it and they also hold share over that property. It is only with reference to item No.4, the defendant Nos.2 and 3 laid their claim. During the course of trial, plaintiff admitted the plea of her children/ defendant Nos.2 and 3. On rest of the contentions, they sailed with the plaintiff.

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In the plaint, it is stated that the plaint schedule lands have been used as fish and prawn tanks. Plaintiff had allegedly leased them out to defendant No.1 on an annual rent of Rs.1,69,000/-. Defendant No.1 fell in arrears. Plaintiff sent a lawyer’s notice to defendant No.1 terminating the lease and demanding eviction. In the reply given by defendant No.1, he alleged title for himself over plaint – A schedule properties. It was in such circumstances, the plaintiff sued for declaration of her title over the plaint schedule properties with a direction to the defendant No.1 to deliver vacant possession of these properties to the plaintiff and further for Rs.5,07,000/- towards arrear rents or damages for use and occupation and for future profits and for costs and such other reliefs.

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5. Defendant No.1 filed a detailed written statement. The

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contentions raised by defendant No.1 are manifold. It is stated that the general power of attorney holder of plaintiff and her husband approached defendant No.1 to sell the properties and defendant No.1 agreed to purchase plaint – A schedule properties for a total consideration of Rs. 2,45,410/- and to that affect an agreement for sale was entered into between them on 04.03.1992. On the date of agreement for sale, defendant No.1 paid Rs.45,410 and thereafter on 28.03.1992, he paid Rs.80,000/- and on 14.04.1992, he paid Rs.60,000/- and on 22.05.1992, he paid balance sale consideration of Rs.60,000/to this general power of attorney holder. On 22.05.1992, defendant No.1 obtained possession over the plaint schedule properties and since then he has been in enjoyment of these properties. Defendant No.1 denied the allegations about tenancy pleaded in the plaint. It is then stated that this defendant had come to know about plaintiff cancelling general power of attorney given to her agent and thereafter defendant No.1 enquired about nature of the properties and came to realise that the plaintiff had no title over the lands and he was deceived. That the plaint – A schedule lands are Revenue waste lands. It

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is further pleaded by defendant No.1 that he himself is in possession and enjoyment of the plaint schedule lands and his name is mutated in the Revenue records. It is specifically pleaded that the plaintiff has no right in the schedule properties and this defendant alone had got right title and possession over the plaint schedule properties. He finally sought dismissal of the suit. Defendant No.2 and 3 filed their written statements concerning item No.4 of the plaint – A schedule as referred already. The learned trial court settled the following issues and additional issues for trial:

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Issues: -

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Whether the plaintiff is entitled for declaration that the plaint schedule property belonged to her and is entitled for recovery of possession after evicting there from?

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Whether the defendant is liable to pay Rs.5,07,000/towards past rentals and damages for use and occupation?

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Whether the defendant is liable to pay future profits as prayed for?

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Dr. VRKS, J A.S.No.114 of 2010

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Whether the defendant alone got right over the plaint

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schedule land as contended by the defendant?

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Whether there is no cause of action to file the suit?

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To what relief?

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Additional Issues: -

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Whether the plaintiff is the absolute owner of item Nos.1 to 3 of plaint – A schedule?

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Whether the plaintiff purchased the item No.4 of the plaint – A schedule with her stridhana properties and obtained sale deed dated 14.05.1991 in favour of her husband, Sri Rajeeva Raju?

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Whether plaintiff is having absolute rights in item No.4 of plaint – A schedule?

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Whether defendant Nos.2 and 3 are having any rights in item No.4 of plaint – A schedule is so, to what extent?

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At the trial, plaintiff testified as PW.1 and got examined PWs.2 to 8 and got marked Exs.A1 to A15. Defendant No.1 testified as DW.1 and got examined two other witnesses as

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6 Dr. VRKS, J A.S.No.114 of 2010

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DWs.2 and 3. Defendant No.1 did not adduce any documentary evidence. Defendant Nos.2 and 3 also did not adduce any evidence on their behalf.

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On considering the entire evidence on record and the contentions raised on both sides, the learned trial court stated that the evidence on record established title of the plaintiff over item Nos.1, 2 and 3 of plaint – A schedule properties. It recorded a finding that item No.4 of plaint – A schedule is jointly owned by plaintiff and her two daughters who are defendant Nos.2 and 3. It observed that Ex.A1 certified copy of registered sale deed dated 30.05.1991 is the one under which plaintiff purchased item Nos.1 and 2 of the plaint – A schedule. Ex.A2 certified copy of registered sale deed dated 01.06.1991 is one under which plaintiff purchased item No.3 of plaint – A schedule property. It observed that Ex.A3 certified copy of registered sale deed dated 14.05.1991 is one under which the husband of the plaintiff purchased item No.4 of the plaint – A schedule property. That on his death, it devolved upon plaintiff and her two daughters/ defendant Nos.2 and 3. It further said that in a suit for declaration of title, the plaintiff had to prove the title of her vendor and in that regard, plaintiff not only produced

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documentary evidence showing the link documents but also examined relevant witnesses in proof of those documents. It stated that Ex.A4 certified copy of registered sale deed dated 11.09.1960 is the link document for Ex.A1 covering item Nos.1 and 2. Ex.A5 registration extract of sale deed dated 03.04.1990 is the link document to Ex.A2 concerning item No.3. Ex.A6 registration extract of sale deed dated 29.03.1990 is the link document to Ex.A3 concerning item No.4 of plaint – A schedule property. It further observed that Ex.A7 registration extract of sale deed dated 26.08.1982 is the link document for Exs.A2 and A5. Ex.A8 registration extract of sale deed dated 07.11.1983 is the link document for Exs.A3 and A6. It considered the evidence of PW.2 who was the wife of the executant of Ex.A1. The evidence of PW.3 who attested Exs.A1 and A3 and the evidence of PW.4 who attested Ex.A4. Based on such evidence, it recorded that defendant No.1 does not hold title over any of these items of plaint – A schedule. It disbelieved the contention of plaintiff about the tenancy and therefore according to it, defendant No.1 though in possession of the plaint schedule properties, he is not a tenant of the plaintiff. It considered the contentions of defendant No.1 about agreement for sale and

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held that the said agreement for sale was not filed and none

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testified about such agreement for sale. However, it drew an inference that plaintiff did not specifically deny her GPA holder executing any such agreement for sale and it was in that view of the matter, it stated that defendant No.1 was holding possession accordingly. It stated that defendant No.1 did not sue for specific performance of his agreement for sale and defendant No.1 failed to prove that the land was Government land. It then stated that even if there is an agreement for sale that is in existence in favour of defendant No.1 that did not confer any title on him. It is for these reasons, it held that defendant No.1 ought to deliver possession of these properties to plaintiff. The operative portion of its judgment reads as mentioned below:

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“ In the result, the suit is decreed for declaration of the plaintiffs right over the plaint schedule property that the plaintiff has got title to the schedule properties for item Nos.1 to 4 of ‘A’ schedule property along with 2^nd and 3^rd defendants for item No.4 of schedule property and plaintiff is entitled for possession of the same from the 1^st defendant. Therefore 1^st defendant is directed to deliver the possession of the plaint schedule property of item No.1 to 3 to the plaintiff and item No.4 of the schedule property to the

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plaintiff and 2^nd and 3^rd defendants and directed to deliver the same within two months from the date of this judgment. It is further decreed that the plaintiff to make a separate application for ascertaining past and future profits, since it is held that 1^st defendant is in possession of the schedule property not as lessee and not as owner thereof to the schedule property. Accordingly, the suit is decreed with costs against the 1^st defendant. The plaintiff is directed to pay the court fee.”

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Aggrieved by it, defendant No.1 preferred this first appeal. Sri C. Ramachandra Raju, the learned counsel for appellant and Sri N. Ashwani Kumar, the learned counsel for respondent No.1 submitted arguments. Legal authorities are cited at the bar.

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Learned counsel for appellant argued that the learned trial court having found defendant No.1 not a tenant of the plaintiff and having found the plea of tenancy raised in the plaint as false and not proved, it ought to have dismissed the suit but it erroneously decreed the suit. Learned counsel further argued that agreement for sale pleaded by defendant No.1 is admitted by plaintiff also and in such an event in terms of Section 53A Transfer of Property Act, 1882 (herein after referred as Act, 1882), the possession of defendant No.1 could not be disturbed and the learned trial court committed grave error in

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10 Dr. VRKS, J A.S.No.114 of 2010

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decreeing the suit in favour of the plaintiff. As against it, learned counsel for respondents contended that agreement for sale pleaded by defendant No.1 was never proved and at any rate such agreement for sale has never seen the light of the day and it is an un-registered agreement for sale even according to averments in the written statement and in such an event, protection under Section 53A Act, 1882 is not available and therefore there was no error on part of the trial court in decreeing the suit. It is further argued that the title of the plaintiff having been fully established by virtue of Ex.A series documents and defendant No.1 having no title has to yield to the demand of the plaintiff and deliver the property. That the failure of the plaintiff in proving the tenancy pleaded is by no means an obstacle to grant delivery of possession as a consequence of declaration of title of plaintiff. Learned counsel submits that judgment of the trial court is right on facts and law and does not require any interference.

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In the light of the rival contentions, the following points emerge for consideration in the appeal:

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1. Whether pleadings and evidence on record attract Section 53A of Transfer of Property Act, 1882 and if so whether judgment of the trial court is incorrect?

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2. In a suit for declaration of title and recovery of possession alleging defendant as a tenant, in the event of plaintiff’s failure to prove the pleaded case of tenancy, whether the suit automatically fails and the learned trial court in not dismissing the suit committed an error?

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POINT No.1

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Section 53A Transfer of Property Act reads as below: -

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Part Performance: -

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“ Where any person contracts to transfer for consideration any immovable 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,

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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,

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and the transferee has performed or is willing to perform his part of the contract,

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then, notwithstanding that 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:

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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.”

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The specific case pleaded in the written statement and deposed in the evidence of defendant as DW.1 is that he obtained a written agreement for sale dated 04.03.1992. It is for him to produce the document for verification at the trial before the court. He did not produce it. As per his oral evidence and the averments in the written statement, the said agreement for sale is not a registered instrument. According to him, the agreed total consideration was Rs. 2,45,410/- and he paid it in multiple installments and by 22.05.1992, he paid the total sale

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consideration and obtained possession of the plaint schedule property. He did not file any receipt showing his payments. He did not examine any witness who saw execution of such agreement for sale or who witnessed any such payments. Thus, with reference to agreement for sale except his oral evidence, there is nothing to believe the contention. The contention, that the agreement for sale was admitted by plaintiff is factually incorrect. Plaintiff as PW.1 in her examination – in – chief categorically stated that the alleged agreement for sale dated 04.03.1992 is a concocted document and was created in collusion with her erstwhile GPA holder – P.V.Siva Rama Krishna. That the alleged agreement for sale was brought into existence after issuance of notice by the plaintiff. That the alleged payments are all created ones’. All that makes it clear that according to plaintiff there was no such agreement for sale and if it was there, it was a fabricated document and not a document validly executed by her attorney holder. Be that as it may. If the agreement for sale pleaded by defendant No.1 is not brought to evidence, the protection claimed under section 53A Act, 1882 is not available to defendant No.1.

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A keen reading of all the averments in the written statement of defendant No.1 does not clearly show that he has been claiming his possession of property in part performance of the contract. To claim the benefit under section 53A Act, 1882 there shall be necessary pleadings. In the absence of necessary pleadings, the benefit under this provision cannot be claimed. Law in this regard can be seen in Shyam Narayan Prasad V. Krishna Prasad¹ . At para No.23, their Lordships stated the ratio “It is well settled that the defendant who intends to avail the benefit of Section 53A Act, 1882 must plead that he has taken possession of the property in part performance of the contract………. No relief can be granted to a party without the pleadings.” In the case at hand, defendant No.1/ appellant herein claimed title in himself and also contended that the properties belonged to the Government and not to the plaintiff. The thrust of his contentions in the written statement in protecting his possession of the properties is not based on his alleged agreement for sale but it is otherwise. Therefore, there is clear absence of requisite pleadings. Perhaps, it is for that

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1 (2018) 7 SCC 646

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reason before the learned trial court no such contention was raised by defendant No.1 in terms of Section 53A Act, 1882 as the judgment of the learned Additional District Judge is totally silent about any such argument.

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The agreement for sale pleaded by this appellant is not a registered instrument. In such an event, the benefit of Section 53A Act, 1882 cannot be extended to him. In Ammer Minhaj V. Dierdre Elizabeth (Wright) Issar² , their Lordships stated that an unregistered agreement for sale shall not have any affect for purpose of Section 53A Act, 1882. If it is not a registered document, the only consequence provided in this provision is to declare that such document shall have no affect for the purpose of Section 53A Act, 1882.

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In V.R.Sudhakara Rao V. T.V.Kameswari³ , the Hon’ble Supreme Court of India held that for oral agreement for sale, the benefit of Section 53A Act,1882 is not available.

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Thus, viewed from any angle, the contention of appellant in claiming the benefit of Section 53A Act, 1882 is totally mis -

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2 (2018) 7 SCC 639

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3 (2007) 6 SCC 650

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conceived. Thus, the trial court did not commit any error in this

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regard. Therefore, the point is answered against the appellant.

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POINT No.2: -

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Before the trial court as well as here, the title claimed by the plaintiff over the plaint – A schedule properties remained undisputed. Appellant/ defendant No.1 on his part though pleaded that the property belonged to the Government did not produce any documents and did not examine any Revenue authorities and did not show any Revenue entries to substantiate his contention. On his own showing this appellant did not purchase these properties from anyone else under any registered conveyances. He did not show how he could be called as title holder over these properties. Both sides admit this appellant/ defendant No.1 has been in possession of the disputed properties. Thus, appellant is one who has been in possession of the properties of plaintiff and when the title holder demands possession back, he is obliged to give it. As pointed out by the trial court he is not a lessee. According to plaintiff, he is not a trespasser. Then in whichever way he is in possession of these properties, he is bound to give back the possession to the

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title holder as long as he is unable to show a better title. The main concern in the plaint is to declare the title of the plaintiff with a direction to defendant No.1 to deliver possession of the property. Even if plaintiff alleged that the possession of defendant No.1 is only as lessee and even if plaintiff failed to prove it that by itself does not disentitle a title holder from claiming possession. In Biswanath Agarwalla V. Sabitri Bera⁴ , the Hon’ble Supreme Court of India laid the law that in a case where the plaintiff sues for declaration of title and for recovery of possession alleging that the person in possession is a tenant, even if the plaintiff fails to prove such jural relationship of landlord and tenant he still is entitled for a decree for recovery of possession on proof of his general title. Therefore, the contention of the appellant that on failure to prove the lease alleged by plaintiff, the suit ought to have been dismissed is a contention which lacks any legal basis. Therefore, point is answered against the appellant.

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Learned counsel for appellant places strong reliance on Shrimant Shamrao Suryavanshi V. Pralhad Bhairoba

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4 (2009) 15 SCC 693

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Suryavanshi⁵ . In this case their Lordships held that person obtaining possession of the property in part performance of an agreement for sale can defend his possession of the property in a suit for recovery of possession filed by the transferor even if a suit for specific performance of the agreement for sale has become barred by limitation. The necessary conditions for invoking Section 53A Act, 1882 are given by their Lordships as mentioned below : -

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there must be a contract to transfer for consideration of any immovable property;

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the contract must be in writing, signed by the transferor, or by someone on his behalf;

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the writing must be in such words from which the terms necessary to construe the transfer can be ascertained;

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the transferee must in part-performance of the contract take possession of the property, or of any part thereof;

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the transferee must have done some act in furtherance of the contract; and

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5 (2002) 3 SCC 676

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the transferee must have performed or be willing to perform his part of the contract.

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That was a case where there was a written agreement for

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sale and its existence was proved. That is one marked difference that has to be kept in mind for the purpose of present case. As in the present case, the alleged agreement for sale was never exhibited. Mere surmise that it could have been in existence is of no consequence as long as the person claiming benefit under such agreement for sale failed to produce the same before the court. The contents of a document are to be proved by production of the document itself and not otherwise. Moreover, the averments in the written statement are inadequate and insufficient to attract Section 53A Transfer of Property Act, 1882 since it does not contain the time within which the sale deed has to be executed, as to who has to expend money towards stamp and registration and about the readiness and willingness on part of the appellant/ defendant No.1 to obtain a sale deed and other such necessary particulars. Therefore, appellant failed to achieve the standards laid down by their Lordships in the ruling cited for the appellant. Hence, point is answered against the appellant.

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In the result, this appeal is dismissed with costs. Consequently, judgment dated 20.01.2010 of learned III Additional District judge, Fast Tract Court, Bhimavaram in O.S.No.80 of 1999 is confirmed. Appellant shall deliver the possession of the properties on or before 03.04.2024.

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As a sequel, miscellaneous applications pending, if any, shall stand closed.

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_____________________________ Dr. V.R.K.KRUPA SAGAR, J

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Date: 03.01.2024 Dvs

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THE HON’BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

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APPEAL SUIT No.114 of 2010