Partly allowed

Madhusoodhanan v. Sudha

Kerala HC18 Nov 2016RSA/642/2013

Case brief

AI extract

What is this about?

In a second appeal regarding a contract for sale, the court held that while the claim for specific performance was time-barred, the plaintiff was entitled to a declaration of possession. The court ruled that Section 53A of the Transfer of Property Act protects a vendee's possession when sued by the vendor, allowing the plaintiff to seek an injunction and declaration of possession.

What did the court decide?

The impugned judgment and decree rejecting the declaration of possession were set aside; the appeal was allowed in part, and a decree declaring the appellant's possession was passed.

Madhusoodhanan Vs Sudha — Civil Procedure and Limitation | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE K.HARILAL

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FRIDAY, THE 18TH DAY OF NOVEMBER 2016/27TH KARTHIKA, 1938

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RSA.No. 642 of 2013 (B)

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AGAINST THE JUDGMENT AND DECREE DATED 22-01-2013 IN AS 46/2008 of SUB COURT, NEYYATTINKARA

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AGAINST THE JUDGMENT AND DECREE DATED 11-02-2008 IN OS 25/2007 of PRINCIPAL MUNSIFF'S COURT, NEYYATTINKARA

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APPELLANT(S)/APPELLANT/PLAINTIFF:

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MADHUSOODHANAN S/O.ACHUTHAN, AGED 62, SHARANYAN, MUKKOLA, VENGANOOR P.O., THIRUVANANTHAPURAM

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BY ADV. SRI.K.R.VINOD

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RESPONDENT(S)/RESPONDENT/DEFENDANT:

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SUDHA

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D/O.C.K.BHARATHI, N.G.O.QUARTERS 21(A), PALAYAM WARD, CHEMPAGASSERY, THIRUVANANTHAPURAM.

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BY ADV. SRI.DILIP J. AKKARA

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 18-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

[CR]

K. HARILAL, J.

R.S.A. No.642 of 2013

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Dated this the 18^th day of November, 2016

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J U D G M E N T

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~ ~ ~ ~ ~ ~ ~ ~ ~

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The appellant is the plaintiff in O.S. No.25/2007

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on the files of the Principal Munsiff's Court, Neyyattinkara and the appellant in A.S. No.46/2008 on the files of the Sub Court, Neyyattinkara. The aforesaid suit was filed seeking a decree for specific performance of Ext.A1 contract entered into between the plaintiff and the defendant and for declaration of title and possession over the plaint schedule property. According to the plaintiff, pursuant to Ext.A1 agreement for sale, the plaintiff has given possession of plaint schedule property and thereafter, he has been in possession and enjoyment of the property as part of the performance of the contract. The agreement was entered

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into on 09.02.1990 and as per the agreement, the defendant agreed to sell the same to the plaintiff within a stipulated time for a total sale consideration of ₹30,000/-. It is further averred that towards the sale consideration of ₹30,000/-, he had paid ₹2,000/- and ₹4,500/- on 09.02.1990 and 09.05.1990 respectively to the defendant. The second payment was received by Mr.Chellappan Viswanathan on behalf of the defendant. Thereafter, he had remitted ₹22,000/- towards the loan availed by the defendant from the Kerala State Development Corporation for Scheduled Castes and Scheduled Tribes Limited, as part performance of the agreement. As per the agreement, the plaintiff should discharge the debt incurred by the defendant with the Kerala State Development Corporation for Scheduled Castes and Scheduled Tribes Limited and in compliance with the said condition, the appellant had remitted ₹22,000/- with the said Corporation, and the original sale deed was returned to the

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plaintiff and he, in turn, handed over the same to the defendant. Thus, the plaintiff has performed his part as per the agreement and he was ready and willing to purchase the property and he had already paid the full sale consideration as per the agreement. But, the defendant was not ready and willing to perform her part of the contract by executing the sale deed in favour of the plaintiff. On breach of contract, the plaintiff has issued Ext.A4 lawyer's notice on 19.07.1997 demanding specific performance of the agreement to the defendant; but she has not responded to the said notice. Hence, the suit was filed seeking the aforesaid relief.

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In the written statement, the defendant admitted the execution of Ext.A1 agreement. But, she denied the averment that she was not ready and willing to perform her part of the contract. According to the defendant, the plaintiff failed to perform his part of the contract and the debt of the

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defendant towards the Kerala State Development Corporation for Scheduled Castes and Scheduled Tribes

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Limited was discharged by herself and not by the plaintiff. She has never handed over possession of the property to the plaintiff as part performance of the contract and the suit is barred by limitation also.

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On the aforesaid pleadings, both parties adduced evidence consisting of oral testimony of PWs 1 to 6 and Exts.A1 to A7 and B1. No oral evidence was adduced by the defendant. After considering the evidence, on record, the trial court dismissed the suit on a finding that the suit is barred by limitation and there is no proof of the alleged possession of the plaint schedule property, other than the document marked as Ext.A1. In Ext.A1, only the right of taking usufructs is given to the plaintiff. In appeal, the appellate court also re-appreciated the aforesaid evidence, on record, and concurred with the findings of the trial court,

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as such, without any interference, and dismissed the appeal. Thus, the concurrent findings, whereby the courts below dismissed the suit as well as the appeal, are challenged in this Regular Second Appeal.

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Heard the learned counsel for the appellant and learned counsel appearing for the respondent.

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The execution of Ext.A1 agreement is not disputed by the defendant. But, according to the defendant, the claim for specific performance is barred by limitation. Therefore, the first question to be considered is, whether the courts below are justified in finding that the claim for specific performance is barred by limitation? Admittedly, the date of agreement was 09.02.1990 and the period for performance was three years which ended on 09.02.1993. Both parties agree that the period of performance was extended by consensus for a further period of four months and the period ended on 09.09.1993 and the suit was filed on 22.12.2006

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only. As per Article 54 of the Limitation Act, the period of limitation for specific performance of a contract is three years from the date fixed for the performance, or, if no such date is fixed, when the plaintiff has noticed that performance is refused. In the instant case, the date for performance was fixed to 09.09.1993. But, the suit was filed on 22.12.2006 only. Suffice it to say, the claim for specific performance was filed after three years specified under Article 54 of the Limitation Act and, thereby the suit was barred by limitation. In the above view, the courts below are justified in finding that the claim for specific performance was barred by limitation.

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The next question to be considered is, whether the courts below are justified in finding that the plaintiff is not entitled to get declaration of title and possession over the property? It is discernible from the impugned judgment that the claim for declaration of title was made on a plea of

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adverse possession and before the appellate court, the plaintiff himself abandoned that claim and the relief as

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regards declaration of title under adverse possession was not pressed.

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So, what remains to be considered is, whether

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the courts below are justified in rejecting the declaration of possession over the property? In the plaint, the plaintiff has specifically pleaded that as part performance of the agreement, possession of the property was given to him and thereafter, he has been in possession and enjoyment of the property. But, in the written statement, defendant has denied the said claim of the plaintiff.

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The learned counsel for the appellant advanced arguments contending that there is sufficient evidence, on record, to show that possession was given to the plaintiff, as part performance of the contract and thereafter, the plaintiff has been in possession of the property; but, the courts

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below have miserably failed to appreciate the evidence in its correct perspective. So also, it is contended that so long as the plaintiff is in possession and enjoyment of the plaint schedule property, he is entitled to get the protection under Section 53A of the Transfer of Property Act.

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On the other hand, the learned counsel for the defendant drew my attention to the recital in Ext.A1 and contended that as per the recital in Ext.A1, the right to take usufructs alone was given to the plaintiff and it cannot be equated as transfer of possession. As regards the protection under Section 53A of the Transfer of Property Act, the learned counsel for the defendant contended that the protection under Section 53A of the Transfer of Property Act is only a shield and it cannot be used as a weapon in a suit filed by the vendee as plaintiff. According to him, the protection under Section 53A of the Transfer of Property Act can be claimed in a suit filed by the vendor for ejecting the

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vendee from the plaint schedule property. In support of the above argument, learned counsel for the defendant cited decisions in Ram Gopal Reddy v. The Additional Custodian Evacuee Property, Hyderabad [AIR 1966 SC 1488] and Jacobs (P) Ltd. v. Thomas Jacob [1994 (2) KLT 848] .

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Per contra , learned counsel for the appellant cited the decision in Chetak Constructions Ltd., Indore v. Om Prakash and Others [2003 KHC 3793] and contended that the vendee cannot be deprived of his right to file a suit claiming protection under Section 53A of the Transfer of Property Act. It is trite law that Section 53A of the Transfer of Property Act protects the possession of vendee/transferee, who may have acted on a contract of sale; but in whose favour no legally valid sale deed had been executed or registered.

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The question is, whether the transferee is

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protected, when he is in court, as defendant, or he can also knock at the door of the court, as plaintiff, and seek intervention of the court for protection of his possession?

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In Ram Gopal Reddy (Supra) , the suit has been filed to establish the right of the appellant, as owner of property, and the Apex Court, after analysing the legal effect and impact of Section 53A of the Transfer of Property Act, held that the protection under Section 53A of the Transfer of Property Act could not be used to establish the right of the appellant, as owner of the property, and in such suit, the appellant cannot take the benefit of Section 53A of the Transfer of Property Act. In the instant case, the appellant has sought for a declaration of possession only and the claim for title under adverse possession stands abandoned by the plaintiff himself.

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No doubt, the protection under Section 53A of the Transfer of Property Act cannot be used to establish title

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over the property conveyed to the transferee in part performance of the contract. As per Section 53A of the Transfer of Property Act, the transferor is debarred from enforcing against transferee and the person 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. This Court is of the view that where a right or protection is granted to a person by a statute, the person who is entitled to get that right or protection can seek indulgence of the court of law, as plaintiff, to get it enforced, unless it is barred by the statute. No such express or implied bar contemplated under Section 53A of the Transfer of Property Act against the right to sue, as plaintiff, to protect the right of the possession. Thus, the right to continue in possession in part performance of the contract is a right that can be protected by the court of law and it is a civil right over the subject

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matter falling under Section 9 of the C.P.C.

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The above view is fortified by the decision of the

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Madhya Pradesh High Court in Hamzabi v. Syed Karimuddin [2001 (1) SCC 414], wherein it is held that:

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“The Court cannot tell him if he comes as plaintiff, “go back, use your physical strength and muscle power to resist and repel the attack of the transferor and drive him to come to the Court as a plaintiff and then if you are arrayed as defendant the Court will protect you.”

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Thus, absolutely there is no wrong in making a declaration and consequential injunction as regards possession only if there is sufficient evidence to show that the transferee is in possession of the property in part performance of the contract.

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Coming to the instant case, in the light of the above discussions, the question is, whether the plaintiff is entitled to get a declaration of possession? In the plaint itself, the plaintiff has specifically pleaded that pursuant to

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Ext.A1 agreement, possession of the plaint schedule property was given to him. Similarly, in the written statement, the defendant has specifically contended that the possession was not given to the plaintiff towards performance of the part of the contract, but admitted that the right to take usufructs from the property was given to the plaintiff.

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Going by Ext.A1 agreement, it is seen that, as contended by the learned counsel for the respondent, the recital is that the transferee has right to take usufructs from the property. As contended by the learned counsel for the respondent, such a recital alone is not sufficient to arrive at a conclusion that possession was given to the transferee, pursuant to the contract.

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But, the learned counsel for the appellant contended that there is sufficient evidence, on record, to show that what was intended by the recital was to give

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possession of the property to the plaintiff. There is some force in the argument advanced by the learned counsel for the appellant. If there are sufficient evidence to show that possession was given to the plaintiff pursuant to the agreement, it can be held that what was intended by the recital is to give possession of the property and not the right to take usufructs alone. The litigation starts from Ext.A4 notice issued by the plaintiff to the defendant, calling upon her to perform her part of the contract. In Ext.A4 notice also, it is specifically stated that he has taken possession of the property, pursuant to Ext.A1 agreement for sale. But, admittedly, no reply has been sent to the plaintiff, denying the said claim of the plaintiff in Ext.A4 notice.

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Coming to the evidence, the plaintiff has examined PWs 4 to 6 to prove his possession over the plaint schedule property. PW4 is an agricultural labourer, who claims that he was doing agricultural activities in the

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plaint schedule property at the instruction of the plaintiff for the last so many years and he has planted tapioca in the plaint schedule property. He has not been cross-examined on this aspect. Thus, the evidence given by this witness stands uncontroverted.

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PW5 is also another agricultural labourer and he has given evidence to the effect that he has been plucking coconuts from the trees at the instruction of the plaintiff and the plaintiff has mortgaged the said property to one 'Madhu' and during that mortgaged period also, he has plucked coconuts from the trees. He was also not cross-examined on the above said version. Thus, his evidence also stands uncontroverted.

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PW6 is the person to whom the property was mortgaged by the plaintiff. He is none other than 'Madhu', who was referred to by PW5. He has deposed that the said plaint schedule property was mortgaged to him several

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times and on repayment of mortgaged amount, the mortgage was redeemed and the plaintiff is in possession of the plaint schedule property. Though he was crossexamined, his statement, as regards the mortgage, in chiefexamination, was not challenged in cross-examination. In short, he was not effectively cross-examined on the point, which he has deposed in chief-examination. More importantly, when PW1 was cross-examined by the learned counsel for the respondent, he asked a specific question to the plaintiff, suggesting that on the expiry of agreement period in September, 1990, the respondent/defendant has taken back possession of the property from the plaintiff and thereafter, the respondent/defendant has been in possession and enjoyment of the property. What is inferable from the above suggestive question is that the possession was transferred to the plaintiff, pursuant to the agreement in part performance of the contract. It follows

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that if possession was transferred and taken back, it is incumbent upon the defendant to show that subsequently, it was taken back on the expiry of the agreement period. But, absolutely there is no evidence to show the present possession of the property in the hands of the defendant. In this context, it is pertinent to note that he has stayed away from entering into the witness box, so as to offer himself for cross-examination with respect to the disputed possession, claimed by the plaintiff. Here arises the legal presumption under Section 114(g) of the Indian Evidence Act, 1872. According to the said provision, where a party to the suit does not appear in the witness box, an adverse inference would arise against him i.e., the evidence which could be and is not produced, if produced by in favour of the person who withhold it.

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To sum up, the plaintiff has produced sufficient evidence to prove that he is in possession of the property

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and that possession was given to him, pursuant to the contract as performance in part of the contract and the said evidence stand uncontroverted. In other words, the plaintiff has succeeded in proving that possession was given to him, pursuant to Ext.A1 agreement and continues to be in possession.

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The learned counsel for the respondent/ defendant argued that mere possession alone is not sufficient to claim protection under Section 53A of the Transfer of Property Act,1882 (hereinafter referred to as 'the Act') and it is incumbent upon the transferee to prove that he has performed his part towards contract also. In support of the above argument, the learned counsel cited the decision in Sultan v. Zohra Beevi [1989 (1) KLT 945], wherein this Court held that ' for invoking the benefit under Section 53Ait must be satisfied that the transferee has, in part performance of the contract, taken possession of the

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property or any part thereof or the transferee being already in possession, continues to be in possession in part performance of the contract and has done some act in furtherance of the contract'.

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In view the above decision, the next question to be considered is, whether the plaintiff has done some act in furtherance of the contract. In the plaint itself, in paragraph Nos.12, 21 and 22, the plaintiff has pleaded that towards the total consideration of 30,000/- he has paid 2,000/- as advance on the date of agreement i.e., 09.02.1990 itself and thereafter, he had paid 4,500/- on 09.05.1990 and 3,500/was paid to one 'Viswanathan'. Further, it is contended that as per the terms and conditions of Ext.A1 agreement, on 07.03.1990, he has paid 1,000/- to the Kerala State Development Corporation for Scheduled Castes and Scheduled Tribes Limited vide receipt No.529 and thereafter remitted 21,000/- on 13.05.1997 towards loan amount in

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the very same Corporation and the Corporation has returned the original sale deed, which was deposited by the defendant, as security. Even though, he has claimed that he had paid the entire balance amount, before the expiry of the agreement, going by the written statement, it could be seen that the said averments are not specifically denied. The denials in the written statements are vague denials only.

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Coming to the evidence on record, Exts.A1 to A7 are the documents produced by the plaintiff to show the performance of his part. Ext.A2 receipt shows that as claimed by the plaintiff, he had paid `3,500/- to one 'Viswanathan' on 25.08.1990 and he has accepted the said amount for and on behalf of the defendant and the said payment was towards the sale consideration of the property of the defendant in Sy.No.272/3 of Kottukal Village.

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To substantiate the genuineness of Ext.A2 receipt, the said 'Viswanathan' was examined as PW2 and

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he has given evidence to the effect that he has received 3,500/- towards the consideration of Ext.A1 sale agreement from the plaintiff on 25.08.1990, as stated by the plaintiff. Ext.A3 is the original receipt dated 07.03.1990 issued by the Kerala State Development Corporation for Scheduled Castes and Scheduled Tribes Limited, Thrissur and it shows the payment of 1,000/- in the name of the defendant by the plaintiff. The possession of the original in the hands of the plaintiff gives rise to an inference that the said payment was made by the plaintiff in the name of the defendant. Ext.A5 is a letter issued by the Village Officer, rejecting the plaintiff's application, seeking mutation of the plaint schedule property in his name. What is inferable from Ext.A4 is that after taking possession of the property, pursuant to Ext.A1 agreement, the plaintiff has made an attempt to get the property mutated in his name and the Village Officer rejected the said application, on the reason

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that he is not the title holder of the property.

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Coming to the payment of `21,000/- towards the

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Kerala State Development Corporation for Scheduled Castes and Scheduled Tribes Limited, as has been held above, though, the plaintiff has specifically averred the said payment in the plaint, the same was not specifically denied in the written statement. When the plaintiff has examined,

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he has deposed that on payment of `21,000/-, the said Corporation had returned the original sale deed to him and he has handed over the said original sale to the defendant. But, the said version was not challenged in further cross-examination of the plaintiff. In the absence of specific denial, it could be presumed that the plaintiff has paid off the said amount also towards performance his part in the agreement and the original sale deed was returned to him. Thus, in view of the evidence produced by the plaintiff, it stands proved that the plaintiff has performed his part of

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contract, subsequent to the execution of the contract and thereby he is entitled to get protection under Section 53A of the Act. Hence, it is declared that the plaintiff is in possession of the property, as performance in part of Ext.A1 agreement. But, at the same time, it is made clear that it does not confer title over the property to him and the courts below are justified in rejecting the declaration of title. But, the courts below went wrong by rejecting the declaration of possession. The trial court has not considered any of the documents referred above and the lower appellate court has made an attempt to consider some documents and jumped into a conclusion that the evidence adduced by the plaintiff is not sufficient. Needless to say, the lower appellate court has not made an earnest attempt to examine the entire evidence on record. The findings of the courts below, whereby the declaration of possession stands rejected are illegal and vitiated by perversity, warranting interference of

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this Court under Section 100 of the CPC.

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In the above analysis, the impugned judgment

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and decree with respect to the rejection of the declaration of possession alone will stand set aside and the Appeal is allowed in part. The plaintiff is entitled to get a decree, declaring his possession alone and the decree is passed accordingly.

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This Regular Second Appeal is allowed in part accordingly. All pending Interlocutory Applications in this appeal will stand closed.

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Sd/- (K. HARILAL, JUDGE)

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aks/DST

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// True Copy //

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PA to Judge

Madhusoodhanan v. Sudha

Case brief

What is this about?

What did the court decide?

Madhusoodhanan v. Sudha

Case brief

What is this about?

What did the court decide?

What the court decided

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