Hari Dass Vs Chhergu Deceased through Lrs Sunehru and Others

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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RSA No. 224 of 2009 Reserved on: 04.05.2026 Date of Decision: 05.06.2026

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Hari Dass ...Appellant Versus Chhergu (deceased) through LRs ...Respondents

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Coram

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Hon’ble Mr Justice Rakesh Kainthla , Judge. Whether approved for reporting?¹ Yes

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For the Appellant : Mr Mohinder Verma, Advocate. For the respondents : Mr Anand Sharma, Senior No.1(a) and 1(b) Advocate, with Mr Karan Sharma, Advocate.

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None for respondents No. 1(c) and 1(d)

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Rakesh Kainthla, Judge

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The present appeal is directed against the judgment dated 04.04.2009 passed by the learned District Judge, Kinnaur, Civil Division at Rampur Bushahr, H.P. (learned Appellate Court) vide which the judgment and decree dated 31.03.2008 passed by

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the learned Civil Judge, Senior Division, Rampur, Bushahr,

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1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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District Shimla (learned Trial Court) were set aside. (The parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).

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2. Briefly stated, the facts giving rise to the present appeal are that the plaintiff filed a civil suit for possession of the suit land described in para 1 of the plaint. It was asserted that plaintiff’s father had planted about 25 apple trees in the suit land. Only two apple trees survived, and the rest perished for want of care. The defendant approached the plaintiff’s father in the year 1980 and requested him to give the suit land to him for cultivation to earn his livelihood. He promised to hand over the vacant possession of the suit land on demand. The plaintiff's father acceded to the defendant’s request and delivered the possession to the defendant. The plaintiff's father died in the year 1990, and the plaintiff also permitted the defendant to cultivate the suit land. The defendant got himself recorded in possession as a bilasift in connivance with the revenue officers. The plaintiff requested the defendant to hand over the vacant possession of the suit land to the plaintiff, but the defendant declined. Hence, the suit was filed to seek the relief mentioned above.

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The suit was opposed by filing a written statement taking preliminary objections regarding lack of maintainability and cause of action, the suit having not been properly valued for Court fees and jurisdiction, the plaintiff being estopped from filing the present suit by his omissions and commissions, and the plaintiff having not come to the Court with clean hands. The contents of the plaint were admitted to the extent that the plaintiff's father was recorded to be the owner of the suit land. The rest of the plaintiff's claim was denied. It was asserted that the plaintiff’s father had sold the suit land to the defendant for a consideration of ₹250/-, and the defendant was put in possession of the suit land. The plaintiff had also agreed to sell the suit land to the defendant on 08.01.1992 for a consideration of ₹3600/-. The defendant paid ₹3600/- to the plaintiff on 08.01.1992. The defendant is ready and willing to perform his part of the contract and is entitled to protect his possession under Section 53A of the Transfer of Property Act. The defendant is in continuous possession of the suit land, and he has become the owner by way of adverse possession. Hence, it was prayed that the suit be dismissed.

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A replication denying the contents of the written

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statement and affirming those of the plaint was filed.

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The following issues were framed by the learned Trial Court on 16.09.2005:

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Whether the suit land had been handed over by the father of the plaintiff to defendant without consideration, as alleged? OPP

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If issue No.1 is proved, whether the plaintiff is entitled to the relief of possession of the suit land, as prayed for? OPP

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Whether the suit is not within time, as alleged? OPD

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Whether the suit had not been properly valued for the purposes of Court fee and jurisdiction. If so, what is its correct valuation? OPD

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Whether the plaintiff is estopped by his act and conduct by filing the suit? OPD

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Whether the father of the plaintiff had sold the suit land to the defendant for a consideration of ₹250/- as alleged, if so its effect? OPD

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Whether vide deed dated 08.01.1992 defendant had agreed to sell the suit land to defendant for a consideration of ₹3600/-, and if so, whether the suit is barred by the provisions of Section 53-A of Transfer of Property Act? OPD

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Relief

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The parties were called upon to produce the evidence,

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and the plaintiff examined himself (PW1) and Purnu (PW2). The defendant examined himself (DW1) and Nakhru Ram (DW2). The plaintiff examined Man Dass (PW3) in rebuttal.

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The learned Trial Court held that the plaintiff is recorded to be the owner of the suit land. The pleas taken by the defendant that he has become the owner by way of adverse possession, that he had agreed to purchase the suit land from the plaintiff, and that the plaintiff delivered possession to him pursuant to the agreement, are mutually inconsistent and contradictory. The defendant had not satisfied the requirements of adverse possession. The defendant had not filed the suit for Specific Performance, and the limitation for filing the suit for Specific Performance had expired. Hence, the benefit of Section 53A was not available to the defendant. The defendant got his possession recorded during the settlement. He had failed to show any right to retain the possession. The plaintiff, being the owner, was entitled to take possession from the defendant. Hence, the learned Trial Court answered issue Nos. 1 and 2 in affirmative, the rest of the issues in negative and decreed the plaintiff’s suit.

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Being aggrieved by the judgment and decree passed by the learned Trial Court, the defendant filed an appeal which was decided by the learned District Judge, Kinnaur, Civil Division at Rampur, Bushaher (learned Appellate Court). The

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Appellate Court held that the plaintiff’s witness, Man Dass (PW3), admitted the plaintiff’s signatures on the agreement to sell, which supported the defendant’s plea that the plaintiff had agreed to sell the suit land to the defendant. The learned Trial Court erred in denying the benefit of Section 53A of the Transfer of Property Act to the defendant on the ground that the suit for Specific Performance had become barred by limitation. Therefore, the learned Appellate Court allowed the appeal and reversed the judgment and decree passed by the learned Trial Court.

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Being aggrieved by the judgment and decree passed by the learned First Appellate Court, the plaintiff has filed the present appeal, which was admitted on the following substantial questions of law on 18.05.2009.

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Whether plea of acquiring title through writing exhibit DW3/A has neither been pleaded nor proved?

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Whether the protection of Section 53-A of Transfer of Properties Act has neither been pleaded nor proved, and even otherwise, there are no specific findings by the Ld. District Judge, therefore, findings as recorded by him are liable to be set aside and quashed?

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Whether in the absence of acquiring any title by defendant over suit land since plaintiff has a title over suit land, he being owner, therefore, he is entitled for a decree of possession?

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I have heard Mr Mohinder Verma, learned counsel for the appellant and Mr Anand Sharma, learned Senior Advocate, assisted by Mr Karan Sharma, learned counsel for respondents No.1(a) and 1(b).

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Mr Mohinder Verma, learned counsel for the appellant, submitted that the learned Appellate Court erred in reversing the well-reasoned judgment passed by the learned Trial Court. The defendant had taken the plea of adverse possession and part performance, which were mutually contradictory, and the learned Appellate Court erred in accepting the plea of part performance. The defendant asserted that the plaintiff’s father had sold the land to him, but failed to prove the oral sale. Therefore, the possession of the defendant could not have been pursuant to the part performance of the agreement entered into with the plaintiff. Man Dass (PW3) had not deposed anything about the execution of the agreement to sell between the parties. Learned Appellate Court failed to properly appreciate the material on record. Hence, he prayed that the present appeal be allowed and the judgment and decree passed by the learned Appellate Court be set aside. He relied upon the following judgments in support of his submissions: -

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(i) Raysing Hurji Bhil & ors. Vs. Vaniben Manjibhai & ors. AIR 2007 Gujarat 69;

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(ii) Jai Kishan & ors. Vs. Sardari Lal & ors. AIR 2015 HP 93;

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(iii) L.M. Aswathama & anr. Vs. P. Prakash (2009) 13 SCC 229;

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(iv) Kesar Bai Vs. Genda Lal & anr. (2022) 10 SCC 217;

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(v) Ram Nath & anr. Vs. Ram Singh & ors. Latest HLJ 2001 (HP) 1125;

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(vi) Rambhau Namdeo Gajra Vs. Narayan Bapuji Dhotra (dead) through LRs (2004) 8 SCC 614; and

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(vii) Roop Lal Vs. Durga Dass and others, AIR 2017 HP 165 and

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(viii) Sita Ram vs. Smt. Kanta Devi and others, 1981 Shim. LC 239.

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Mr Anand Sharma, learned Senior Counsel for respondent No.1(a) and 1(b), submitted that the plaintiff had not come to the Court with clean hands. He had suppressed the existence of the agreement with the defendant. The execution of the agreement by the plaintiff with the defendant was duly proved on record. The defendant was put in possession by the plaintiff’s father, and the defendant had entered into a fresh agreement with the plaintiff to avoid any dispute. Learned

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Appellate Court had rightly held that the benefit of Section 53-A of the Transfer of Property Act cannot be denied to a person merely because the time for Specific Performance of the agreement had expired. The present appeal does not involve any substantial question of law. Hence, he prayed that the present appeal be dismissed.

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I have given considerable thought to the submissions made at the bar and have gone through the records carefully Substantial Questions of Law No.1 & 2 :

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Both the substantial questions of law are related to the benefit of Section 53A of the Transfer of Property Act, and therefore, they are being taken up together for consideration.

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The defendant asserted in para 2 of the written statement that a deed was executed on 08.01.1992 whereby the plaintiff agreed to sell the suit land for a consideration of ₹3600/- and promised to get the sale deed registered within a period of three months. An amount of ₹3600/- was paid to the plaintiff on 08.01.1992. The possession of the suit land was already with the defendant. The suit otherwise is hit by the provisions of Section 53A of the Transfer of Property Act and is

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not maintainable. The defendant has fulfilled his part of the contract, and he is ready and willing to fulfil his part of the contract. The sale deed could not be executed because the mutation of inheritance was not attested in the plaintiff's name, which was attested in the year 1990.

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Learned Appellate Court held after appreciation of the fact that the plea of the defendant that he had entered into an agreement to sell with the plaintiff was duly proved. This finding is based on the evidence.

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The defendant stated that he had entered into an agreement (Ext.DW3/A) to purchase the suit land from the plaintiff. Mr D.D. Bhaik (DW3) stated that he had written the agreement (Ext.DW3/A) as per the wishes of the plaintiff. The plaintiff had put his signature after acknowledging its correctness. Ram Singh and Man Dass (PW3) were also present as witnesses who had put their signatures on the agreement. The defendant paid ₹3600/- in his presence. He stated in his cross-examination that he had known the plaintiff since 1978 because he had scribed the plaintiff's partition application. The owner was recorded to be in possession of the Jamabandi. He

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denied that he had not written any document and was making a false statement.

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Ram Singh (DW4) stated that he had signed the agreement (Ext.DW3/A) on 08.01.1992. The plaintiff had sold the land to the defendant, and the defendant had paid ₹3600/- to the plaintiff in his presence. This agreement was written by Mr D.D. Bhaik, the Document Writer. He stated in his crossexamination that he was called at about 9:30 am. He was posted in the Copying Agency of the Record Room. The defendant had called him to be a witness because he is a resident of the same village. He did not remember who had put the signatures first and whether the money was paid by the defendant in his presence.

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The statements of both these witnesses corroborate each other. Nothing was suggested to them in their crossexamination to show that they had any enmity with the plaintiff or motive to depose falsely against the plaintiff. Therefore, the learned Appellate Court had rightly relied upon their testimonies.

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The plaintiff Hari Dass (PW1) denied that he had entered into any agreement with the defendant. He denied his signature on the agreement or the fact that he had got it written from D.D. Bheik. He also denied that the defendant had paid ₹3600/- to him on the date of execution of the agreement.

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His witness, Man Dass (PW3), on the other hand, stated that the agreement was written regarding the contract of gallabatai of the land. He put his signature at the instance of the plaintiff on a document. He had not read the contents of the document signed by him.

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The statement of this witness corroborates the statement of the defendant and his witnesses that some document was written on 08.01.1992, which was signed by the parties. His testimony that the statement was regarding the contract or the gallabatai is without any basis. The plaintiff never claimed that he had entered into any agreement with the defendant regarding the gallabatai . Hence, the explanation furnished by Man Dass cannot be accepted, and the explanation of the defendant that the agreement was regarding the sale of the suit land to the defendant has to be accepted as correct.

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Thus, the learned Appellate Court had rightly held that the execution of the agreement to sell was duly proved on record.

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The requirement of part performance was explained by the Hon’ble Supreme Court in Vasanthi v. Venugopal , (2017) 4 SCC 723 , wherein it was observed:

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18. As would be patent from the above quotes, the protection of a prospective purchaser/transferee of his possession of the property involved is available subject to the following prerequisites:

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( a ) There is a contract in writing by the transferor for transfer for consideration of any immovable property 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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( b ) 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 partperformance of the contract;

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( c ) The transferee has done some act in furtherance of the contract and has performed or is willing to perform his part of the contract .

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19. In terms of this provision, if the above preconditions stand complied with, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and person(s) claiming under him, any right in respect of the property of which the transferee has taken or continue in possession, other than a right expressly provided by the terms of the contract, notwithstanding the fact, that the transfer, as

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contemplated, had not been completed in the manner prescribed therefor by the law for the time being in force. Noticeably, an exception to this restraint is carved out qua a transferee for consideration, who has no notice of the contract or of the part-performance thereof.”

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A similar view was taken in Rambhau Namdeo Gajra

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(supra).

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In the present case, it was duly proved that the parties had executed an agreement (Ext.DW3/A) in writing, which mentions that the possession of the land was already with the defendant, the defendant had paid ₹3600/- to the plaintiff, who would execute the sale deed within three months, and the expenses of registration would be borne by the defendant. The defendant had thus paid ₹3600/- pursuant to the agreement to sell. It was laid down by this Court in Chander Kanta vs Durga Dutt, Latest HLJ 2006 (HP) 721, that where the defendant had paid the consideration, he was not required to do anything, and his plea of readiness and willingness was acceptable. It was observed:

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“8. Learned counsel for the appellants, by placing reliance on a judgment of this Court in Sham Lal v. Smt. Mathi, AIR 2002 Himachal Pradesh 66 , and another of the Hon'ble Supreme Court in Mool Chand Bakhru and another v. Rohan and others, AIR 2002 Supreme Court 812 , urged that the pleadings and the evidence on record did not

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establish the material particulars of the plea that is available to a transferee, under Section 53-A of the Transfer of Property Act, inasmuch as there was no allegation that the respondent-defendant was prepared to perform his part of the contract. The contention has been noticed only to be rejected. As already noticed, a vendee, in a contract for the sale of property, has only to pay the sale consideration that is part of his contract. In the present case, respondent-defendant specifically pleaded and also led the evidence that he had paid the entire sale consideration of Rs.4, 500/- Thus, he had already performed, his part of the contract in its entirely when the suit was filed and so there was hardly any occasion for him to have stated that he had ready and written to perform his part of the contract.”

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The defendant asserted in his proof affidavit that he

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had asked the plaintiff to execute the sale deed after the mutation of inheritance was attested in his favour. The plaintiff prevaricated and filed a false suit. He stated in his crossexamination that he had paid ₹3600/- to the plaintiff in cash. He had told the plaintiff to execute the sale deed 2-3 times orally. He was to pay ₹2000/- to the plaintiff on the date of the mutation, but he had not paid this money to the plaintiff because the plaintiff had not executed the sale deed in his favour.

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The statement of the defendant clearly shows that he

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is ready and willing to perform his part of the agreement. He had

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asked the plaintiff to execute the sale deed repeatedly, but the plaintiff did not accede to his request. The defendant showed his willingness to pay ₹2000/- at the time of the attestation of the mutation, even though the agreement (Ext.DW-3/A) does not mention that ₹2000/- would be paid at the time of the mutation; rather, it mentions that the plaintiff would not take any money from the defendant. Therefore, the requirement that the defendant is ready and willing to perform his part of the agreement is duly fulfilled. Hence, all the requirements of part performance were satisfied

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Learned Trial Court held that the Specific Performance of the agreement was barred by the limitation, and the defendant was not entitled to the benefit of part performance. Learned Appellate Court had rightly held that the bar of limitation could not have been used to defeat the claim based on the part performance. It was laid down by the Hon’ble Supreme Court in Shrimant Shamrao Suryavanshi v. Pralhad Bhairoba Suryavanshi , (2002) 3 SCC 676 , that limitation does not come in the way of the plea of part performance. It was observed:

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“17. We are, therefore, of the opinion that if the conditions enumerated above are complied with, the law of limitation does not come in the way of a defendant taking a plea under Section 53-A of the Act to protect his possession of the suit property even though a suit for specific performance of a contract is barred by limitation.

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18. The matter may be examined from another angle. The established rule of limitation is that the law of limitation is not applicable to a plea taken in defence unless expressly a provision is made in the statute. The law of limitation applies to the suits and applications. The various articles of the Limitation Act show that they do not apply to a defence taken by a defendant in a suit. Thus, the law of limitation bars only an action in a court of law. In fact, what the Limitation Act does is to take away the remedy of a plaintiff to enforce his rights by bringing an action in a court of law, but it does not place any restriction on a defendant to put forward any defence, though such a defence as a claim made by him may be barred by limitation and cannot be enforced in a court of law. On the said principle, a defendant in a suit can put forward any defence, though such a defence may not be enforceable in a court of law, being barred by limitation.

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19. In M.K. Venkatachari v. L.A.R. Arunachalam Pillai [AIR 1967 Mad 410: (1967) 2 MLJ 265] it was held, thus: (AIR p. 414, para 10)

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“[T]hat the defence to limitation is a creature of positive law and therefore cannot be extended to cases which do not strictly fall within the enactment. It is an established canon of construction of the law of limitation not to enlarge the scope of statutory provisions of limitation by analogy or logic.”

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20. It is, therefore, manifest that the Limitation Act does not extinguish a defence, but only bars the remedy. Since

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the period of limitation bars a suit for specific performance of a contract, if brought after the period of limitation, it is open to a defendant in a suit for recovery of possession brought by a transferor to take a plea in defence of part-performance of the contract to protect his possession, though he may not be able to enforce that right through a suit or action.

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21. In the present case, it is not disputed that the transferee has taken possession of the property in partperformance of the contract. It is also not disputed that the transferee has not brought any suit for specific performance of the agreement to sell within the period of limitation. It is also not disputed that the transferee was always and is still ready and willing to perform his part of the contract. Further, the view taken by the High Court in judgment under appeal was overruled by the Full Bench of the Bombay High Court in the case of Mahadeo Nathuji Patil v. Surjabai Khushalchand Lakkad [1994 Mah LJ 1145 (FB)] , which, according to our view, lays down the correct view of law. In that view of the matter, these appeals deserve to be allowed.

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Therefore, the learned Trial Court erred in denying

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the benefit of the part performance on the ground that the suit for specific performance was barred by limitation.

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The judgments in Ram Nath (supra), Kesar Bai (supra), L.N. Aswathama (supra), Jai Kishan (supra), Raysing Hurji Bhil (supra) deal with adverse possession. Since the learned Appellate Court has dismissed the suit on the basis of part performance, and not the adverse possession; hence, the cited judgments do not apply to the present case.

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The judgment in Sita Ram (supra) holds that the plea of part performance cannot be raised for the first time in a second appeal. In the present case, the plea of part performance was raised before the learned Trial Court. Therefore, the cited judgment does not apply to the present case.

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The defendant had specifically pleaded and proved the ingredients of the part performance, and the Learned Appellate Court had also recorded the findings regarding the plea of part performance. Hence, these substantial questions of law are answered accordingly.

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Substantial Question of Law No.3 :

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The plaintiff had entered into an agreement with the defendant to sell the land. He acknowledged the possession of the defendant. The defendant paid ₹3600/- to the plaintiff under the agreement and continued to be in possession. The plaintiff is precluded from seeking possession by the principle of part performance noticed above. Therefore, the plaintiff cannot seek possession because he is the owner of the suit land, and this substantial question of law is answered accordingly.

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Final Order :