Shanti Dani Kindo Vs Chanda Sahu

11 /11.02.2025 Heard Mr. Manjul Prasad, the learned senior counsel appearing on behalf of the appellant along with Mr. Baban Prasad and Mr. Aniket Mohan, Advocates.

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2. This appeal has been filed against the judgment and decree dated 14.05.2019(decree sealed and signed on 24.05.2019) passed by the learned Additional Judicial Commissioner-X, Ranchi in Civil Appeal No. 59 of 2014 whereby the appeal has been dismissed. The Trial Court judgement and decree is dated 05.08.2014 (decree sealed and signed on 19.08.2014) passed by Additional Munsif-II, Ranchi in Title Suit No. 151 of 2007 whereby the suit has been decreed on contest.

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3. The suit was filed seeking a relief of adjudication of plaintiff’s right, title and interest over the suit property described in the schedule to the plaint and decree for recovery of possession after dispossessing the defendants therefrom.

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Arguments of the appellant.

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4. The learned counsel for the appellant has submitted that the property was belonging to Tarun Kumar Mukherjee who expired on 11.04.1998 and was issueless. His legal heirs had executed a sale deed dated 13.07.2004 in favour of the plaintiff. He submits that the case of the defendant was that prior to death, Tarun Kumar Mukherjee had executed an agreement of sale with the defendant dated 10.02.1996 and the defendant paid an amount of Rs. 75,000/to Tarun Kumar Mukherjee out of the total consideration amount of Rs. Two lacs and the defendant was put in possession of the property. The agreement of sale was exhibited as exhibit-A(dated 10.02.1996). The learned counsel submits that the defendants were the prospective purchaser of the property and they were already in possession of the property by virtue of the agreement of sale. He submits that a suit for specific performance of contract with respect to Exhibit-A is pending and it is numbered as Title Suit No. 302 of 2012.

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5. The learned counsel submits that the learned courts have failed to consider that the defendants were in possession of the property by virtue of exhibit-A dated 10.02.1996 and therefore no right could have been passed on the plaintiff by virtue of the sale deed dated 13.07.2004 executed by the legal heirs of Tarun Kumar Mukherjee who expired on 11.04.1998. The learned counsel has submitted that though there are concurrent findings recorded by both the courts but this appeal is fit to be admitted on account of improper consideration of the agreement of sale dated 10.02.1996. He submits that substantial question of law be framed and decided.

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6. The case of the plaintiff is that the land and the house covered under plot no.1789, measuring an area 9 kathas, 9 chhataks of Ward No.3 situated at Mohalla-Pee Pee Compound, Ranchi previously belonged to Jitendra Nath Das who being the sole owner of the property made a registered settlement dated 22.08.1966 to his wife Smt. Kanak Das and his son Prakash Chandra Das. Said Kanak Das and Prakash Chandra Das sold and transferred portion of plot no.1789 with the house standing thereon measuring an area

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of 2 kathas and 4 chhataks more or less, under the registered deed of sale dated 04.04.1983 to Tarun Kumar Mukherjee. Said Tarun Kumar Mukherjee was bachelor and he died on 11.04.1998 leaving behind his brother and sisters as heirs. It is further case of the plaintiff that legal heirs and successors of Tarun Kumar Mukherjee under the registered deed of sale dated 13.07.2004 sold and transferred the entire 2 kathas, 4 chhataks with all structures standing thereon to the plaintiff after receiving valuable consideration amount. The plaintiff came in possession over the property and got her name mutated in the Anchal office and rent receipts are being issued in her name, as such plaintiff alone has a valid and subsisting right, title and interest over the property purchased by her through registered sale deed.

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It is further case of the plaintiff that defendant during the life time of Tarun Kumar Mukherjee was residing in the portion of the aforesaid property measuring about 300 sq.ft. as care taker of the house. As such, the defendants were in permissive possession over 300 sq.ft land out of 2 kathas, 4 chhataks. After purchase of the property, the plaintiff was duly put in possession over the same but defendants started creating trouble, as a result of which proceeding under section 133 Cr.P.C was initiated being Case no. M-693/2005. In the said case, the defendants took false plea that they are in possession over the property of Tarun Kumar Mukherjee as prospective purchaser on the basis of alleged agreement dated 10.02.1996. In the said proceeding vide order dated 30.12.2005, learned S.D.O allowed the claim of plaintiff and rejected the plea of defendants. However, in revision, the case has been remanded back for passing a fresh order. From the above facts, it is established that the defendants have got no title to the suit property and plaintiff alone has valid right, title and interest over the suit property. According to the plaintiff, the cause of action for the suit arose firstly on May, 2007, when efforts were made to settle the dispute amicably and lastly in the month of June, 2007, when all efforts of settlement failed. Hence, the suit.

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7. The case of the defendants as appeared from the written statement is that Tarun Kumar Mukherjee was admittedly owner of the land was issueless, hence, he was residing with the defendant's family. The owner of the property entered into an agreement for sale on 10.02.1996 by taking advance money of Rs.75,000/- out of total consideration amount of Rs.2 lakhs with original defendant Eric John Kindo and handed over peaceful possession of entire property including subject property. It is the case of the defendants that they are in peaceful uninterrupted possession over the property with the knowledge of true owner of the property since the date of agreement, therefore, their title has been perfected by the law of adverse possession and defendants are still in possession over entire property. That prior to 2004 the sole owner Tarun Kumar Mukherjee went out of Ranchi due to his personal work but, thereafter, never returned back. The defendants denied any right, title and interest over the property on the basis of alleged bogus sale deed which has been executed by third person who were not entitled to execute the same nor related with the owner Tarun Kumar Mukherjee. It was asserted that the plaintiff is not a bonafide and valid purchaser of the property, therefore, suit of the plaintiff is liable to be rejected.

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8. The learned Trial Court framed the following issues for consideration: -

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i. Whether the suit is maintainable in the present form?

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ii. Whether the suit is barred by the principle of res-judicata?

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iii. Whether the plaintiff has valid cause of action for the suit?

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iv. Whether plaintiff has acquired valid right, title and interest coupled with possession over the suit land by virtue of the registered sale deed dated 13.07.2004?

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v. Whether the plaintiff is entitled for the relief or reliefs as claimed for?

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9. The core issue was in connection with issue no. (iv) and the learned Trial Court considered the materials on record and recorded a finding in paragraph 8 of the judgment which reads as under:-

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8. “After hearing both sides and perusal of the record, I find that it is undisputed fact that the owner of the disputed property is Tarun Kumar Mukherjee and the plaintiff purchased the said property from the successors of Tarun Kumar Mukherjee and has presented the Registered Sale Deed dated 13.07.04 in her support, which is marked as Exhibit-2 and from the perusal of the said exhibit, it is clear that the disputed property has been purchased by the plaintiff from the successors of deceased Tarun Kumar Mukherjee whose name has been given as successor in the plaint and thereafter the plaintiff has got the said property mutated in her name from the Circle Office and Municipal Corporation, Ranchi in her favour and she has also got the land mutated in her name from Ranchi Circle, which is confirmed from Exhibit-3 and she is paying the rent to the government for the said property, which is confirmed from Exhibit-1 She is paying municipal tax for the said property, which is confirmed from Exhibit-5 and 5/A. From analysis of the above facts, it is clear that the plaintiff has purchased the disputed property from the legal successors of Tarun Kumar Mukherjee. No such evidence has been brought by the defendants which makes it clear that the sellers were not the legal successors of Tarun Kumar Mukherjee. The main question before the court is whether the defendants became the owners of the disputed property on the basis of the agreement for sale or not or whether they acquired any right on the basis of adverse possession or not. It is a well-known principle that no title, interest and right is accrued on the basis of the agreement, unless the sale deed is executed. It is also clear from the perusal of the agreement that no possession was given to the defendant on the basis of the agreement and the defendant was in possession of the said property on the basis of the permission of the former owner Tarun Kumar Mukherjee. Therefore, he cannot take the plea of adverse possession. Therefore, I find that the plaintiff has right, title and interest on the disputed property and the plaintiff is entitled to get possession on the disputed property. Therefore, issues number 4 and 5 are decided in favour of the plaintiff.”

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The learned trial court held that the defendant failed to make out any case and held that a mere agreement of sale dated 10.02.1996 did not create any right in favour of the defendant and it is not the case of the defendant that they have taken possession over

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the suit land on the basis of alleged agreement of sale and the defendant was in possession of the said property on the basis of the permission of the former owner Tarun Kumar Mukherjee . Since the possession of the defendant was permissive by the true owner of the property , the plea of adverse possession was also decided against the defendant.

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The learned 1^st Appellate Court also considered the materials on record and found that the suit was contested by the defendants primarily on two grounds, protection of part performance of the agreement of sale in terms of section 53A of transfer of Property Act and adverse possession. The plea of adverse possession of the defendant was declined by the learned 1^st appellate court by observing that if a party acknowledges the title of vendor on the basis of agreement of sale it excludes the theory of adverse possession. When the possession is permissive possession as in the instant case there is no question of claiming adverse possession as Animus possidendi under hostile colour of title is also required for claiming adverse possession. With respect to the basic ingredients of adverse possession the law has been crystalized by the Hon’ble Supreme Court in the case of Ravinder Kaur Grewal v. Manjit Kaur, (2019) 8 SCC 729 in paragraph 60 as under: -

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“60. The adverse possession requires all the three classic requirements to co-exist at the same time, namely, nec vi i.e. adequate in continuity, nec clam i.e. adequate in publicity and nec precario i.e. adverse to a competitor, in denial of title and his knowledge. Visible, notorious and peaceful so that if the owner does not take care to know notorious facts, knowledge is attributed to him on the basis that but for due diligence he would have known it. Adverse possession cannot be decreed on a title which is not pleaded. Animus possidendi under hostile colour of title is required. Trespasser’s long possession is not synonymous with adverse possession. Trespasser’s possession is construed to be on behalf of the owner, the casual user does not constitute adverse possession. The owner can take possession from a trespasser at any point in time. Possessor looks after the property, protects it and in case of agricultural property by and large the concept is that actual tiller should own

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the land who works by dint of his hard labour and makes the land cultivable. The legislature in various States confers rights based on possession.”

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The judgement of the learned courts is in consonance with the aforesaid judgement of the Hon’ble Supreme court on the point of adverse possession. However, no arguments have been advanced by the learned counsel for the appellant on the point of adverse possession and the arguments have been advanced with respect to section 53A of Transfer of Property Act.

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The defendant claimed that owner of the property late Tarun Kumar Mukherjee entered into an agreement for sale dated 10.02.1996 with original defendant Eric John Kindo who paid Rs. 75,000/- out of consideration amount of Rs. Two lacs and put him in possession in part performance of agreement of sale and that he was entitled to protection in terms of Section 53A of the Transfer of Property Act. The learned 1^st Appellate Court recorded that there can be no doubt that mere contract of sale is incapable of creating any right, title in favour of the transferee and that no right or interest was created in the suit land in favour of the original defendant by virtue of the agreement of sale dated 10.02.1996. The learned 1^st appellate court recorded that it was the case of the defendant that they were living in the suit premises prior to the year 1996 with the owner of the property T.K.Mukherjee . The learned 1^st appellate court held that in order to protect possession under section 53A of the transfer of property act, the defendant has to establish on record that in part performance of the contract, he took possession of the property but this was not the case of the defendant. Paragraph 11 of the Appellate Court’s judgment is quoted as under: -

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11. In order to examine how she came into possession, I have critically examined pleadings of the parties. It is case of the defendant that T.K. Mukherjee was sole owner of the suit property, he was issueless, as such, the defendant and his family members was residing with him prior to the execution of alleged agreement for sale of the year 1996. It is not the case of the defendants that

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he was put in possession over land in question in part performance of the agreement of sale of the year 1996 rather it is admitted case that he and his family members were residing in some portion of the suit land and look after the day today business of deceased T.K. Mukherjee. It is also not the case that prior to 2004, the sole owner T.K. Mukherjee handed over the possession of suit property to the defendants rather in para-16 of written statement, it is admitted that prior to 2004, the sole owner T.K. Mukherjee went out of Ranchi due to some personal urgent work, thereafter never returned back Ranchi. In order to protect possession, at best under Section 53-A of T.P. Act, the defendant, has to establish on record that in part performance of contract, he took possession of the property but this is not the case of defendant.”

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Thus, the learned 1^st Appellate Court clearly held that it was not the case of the defendant that they were put in possession over the land in question in part performance of the agreement of sale of the year 1996, rather it was their admitted case that he and their family members were residing in some portion of the suit land and were looking after the day-to-day business of the deceased T.K. Mukherjee. It was also not the case that prior to 2004, the sole owner T.K. Mukherjee handed over the possession of the suit property to the defendants, rather in paragraph 16 of the written statement, it was admitted that prior to 2004, the sole owner T.K. Mukherjee went up to Ranchi due to some personal urgent work and thereafter he never returned back to Ranchi. The learned 1^st Appellate Court recorded that in order to protect possession under Section 53-A of Transfer of Property Act, the defendant has to establish on record that pursuant to part performance of the contract the defendant took possession over the property but this was not the case of the defendant. The learned counsel for the appellant has not challenged any of the findings of fact which have been recorded in paragraph 11 of the 1^st Appellate Court’s judgment and as such no perversity has been pointed out with respect to the appreciation of materials on record.

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The Hon’ble Supreme Court in Vasanthi v. Venugopal, (2017) 4 SCC 723 after considering the provisions of Section 53-A of the Transfer of Property Act and Section 16 of the Specific Relief Act, 1964 have enumerated the basic ingredients for claiming relief of protection under section 53A of the Transfer of Property Act in paragraph 18 of the report as follows:-

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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: ( 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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This court finds that the learned 1^st Appellate Court has rightly rejected the claim of the defendant under section 53 A of the Transfer of Property Act as the basic ingredients of claiming protection under part performance in terms of section 53 A were not satisfied. The learned 1^st Appellate Court has rightly held that in order to protect possession, at best under Section 53-A of Transfer of Property Act, the defendant, has to establish on record that in part performance of contract, he took possession of the property but this is not the case of defendant. One of the basic ingredients as per the aforesaid judgement of the Hon’ble Supreme Court is that 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. In the present case, continuation in possession is not in part performance of the contract. Further, there is no material to show that the defendant has done any act in furtherance of the contract and has performed or was willing to perform her part of the contract which is also essential ingredient for claiming benefit

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under section 53A of Transfer of Property Act. The present case is a continuation of permissive possession after the agreement of sale dated 10.02.1996 and not as a part performance of contract dated 10.02.1996 and the learned courts after appreciating the materials on record have rightly rejected the plea of the defendant that she was put in possession of the property as a part performance of contract and have refused to give the benefit of section 53A of the Transfer of Property Act. The decision of the learned courts is in consonance with the aforesaid judgement of the Hon’ble Supreme Court.

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Considering the aforesaid findings of fact based on materials on record by the learned courts which are in consonance with the law laid down by the Hon’ble Supreme court, this court finds that no substantial question of law arises for consideration in this second appeal.

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It is observed that pendency of suit for specific performance of contract said to have been filed in the year 2012 in connection with agreement of sale dated 10.02.1996 has no bearing on this case and the said case has to be decided on its own merits.

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Accordingly, this second appeal is dismissed.

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Let this order be communicated to the court concerned through FAX.

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(Anubha Rawat Choudhary, J.)

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Binit

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Shanti Dani Kindo v. Chanda Sahu

Case brief

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Shanti Dani Kindo v. Chanda Sahu

Case brief

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