IMPORTANT POINT
Mere because suit for specific performance at the instance of vendee had become time barred that by itself was not enough to deny benefit of plea of part performance to the person in possession.

Headnote:Transfer of Property Act, 1882-Section 53A-Part performance-Possession of agricultural suit land given to defendant-appellant in 1967 under agreement for sale-Respondent-plaintiff filed suit in 1978 for declaring agreement as null and void and for possession-Trial Court and 1st appellate Court dismissed suit though rejecting claim of defendant to have perfected title by adverse possession but held defendant entitled to protect possession under part performance-High Court decreed suit in second appeal holding that when plea of acquisition of title by adverse possession was negatived, possession of defendant was illegal-Appeal-High Court did not discuss any law and assigned no reasons for taking a view different from one concurrently taken by two Courts-Impugned judgment could not be sustained and appeal remanded. (Paras 8 and 9)

JUDGMENT

R.C. Lahoti, J.-Tanabai, the respondent herein, is the daughter of late Nivriti Vithoba Laad Laad. Nivriti Vithoba Laad owned and possessed land survey No. 48/1 measuring 14 acres 15 guntas in the village Ravatagaon. It appears that Nivriti Vithoba Laad executed an agreement to sell the said agricultural land in favour of the defendants and also delivered possession thereof to the prospective vendees. Nivriti Vithoba Laad died. The plaintiff, Tanabai is the sole legal heir of Nivriti Vithoba Laad. On 22.11.1978 Tanabai filed a suit for declaring the agreement dated 4.4.1967 as null and void and seeking recovery of possession over the land from the defendants. The suit was contested by the defendants submitting that the agreement was valid and binding on the plaintiff; that the defendants were in possession of the property under the agreement and entitled to protect their possession under Section 53-A of the Transfer of Property Act; and that they had also perfected the title by adverse possession over the land.

2. The plea of the defendants claiming acquisition of title by adverse possession has been negatived by all the three courts upto the High Court. However, the plea under Section 53-A of TP Act found favour with the Trial Court and the First Appellate Court resulting into dismissal of the suit. The agreement was held to be valid and binding on the plaintiff.

3. The plaintiff preferred Second Appeal which was admitted for hearing on following two questions of law framed by the High Court:-

"1. Whether the courts below are justified in dismissing the suit of the plaintiff-appellant inspite of clear evidence of the defendant-respondent that he is not ready to pay the remaining consideration amount ?

2. Whether it is open to the respondents to plead in his defence under Section 53-A of the T.P. Act despite finding by the courts below that the plaintiff s title is established."

4. However, at the time of hearing the High Court formed an opinion that only one question really arose for consideration in the Second Appeal and that was as under :-

"Whether the defendant can continue to be in possession not withstanding the facts that they have not chosen to enforce the agreement of sale till now ?"

5. By a brief reasoning that the defendants who were claiming title by adverse possession also, could not succeed by claiming protection under Section 53-A of the T.P. Act and inasmuch as the plea of acquisition of title by adverse possession was negatived, their possession must be held to be illegal, the High Court has allowed the Second Appeal and directed the suit filed by the plaintiff to be decreed. Aggrieved by the judgment of the High Court, the defendants have filed this appeal by special leave.

6. During the course of hearing, at one stage, taking notice of the fact that the defendant-appellants, agriculturists by vocation, have remained in possession of land ever since 1967, i.e., for about 37 years by this time this Court suggested the learned counsel for the parties explore the possibility of mutual settlement. The learned counsel for the defendant-appellants made an offer under instructions that the appellants were prepared to pay an amount of Rs. 50,000/- over and above what was already paid to the late father of the plaintiff-respondent under the agreement and the plaintiff-respondent should not insist on claiming possession but rather should execute a deed of sale at the cost and expenses of the defendant-appellants and thus bring the whole dispute to an end. The learned counsel for the plaintiff-respondent took time for having instructions and after adjournments told us that the plaintiff-respondent was not responding to the communications made by the learned counsel to her. In fact, a demand draft drawn in the name of the plaintiff-respondent for a sum of Rs. 50,000/- on Vijaya Bank, Miraj, bearing No. 337791 dated 21.3.2004 was produced by the learned counsel for the defendant-appe

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2004 Supreme(SC) 521

IMPORTANT POINTMere because suit for specific performance at the instance of vendee had become time barred that by itself was not enough to deny benefit of plea of part performance to the person in possession.

Cases Referred (1)

IMPORTANT POINT
Mere because suit for specific performance at the instance of vendee had become time barred that by itself was not enough to deny benefit of plea of part performance to the person in possession.