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SUPREME COURT OF INDIA
J.C. Shah, V. Ramaswami, A.N. Grover, JJ.
Sunder Singh and another - Appellants
Versus
Narain Singh and others - Respondents
Civil Appeal No. 816 of 1966
Decided On : 03-04-1969
Transfer of Property Act – Section 53-A – Agreement to Purchase – Possession – Appellants accordingly instituted an action and claimed an injunction against representatives of original transferors and purchasers restraining them from "going to the" fields in dispute. – By an amendment made in plaint it was claimed that if it be found that appellants are found not to be in possession, they may be put into possession of lands. – Suit was dismissed by Tribunal Court holding that appellants were never put in possession of lands, that lands were ancestral lands in hands of Jagannath and Mangayee and that alienation of lands by Jagannath and Mangayee was not supported by legal necessity and was on that account not binding upon their descendants. – In appeal, District Court reversed decree of the Court of First Instance. – District Court held that appellants ancestor had been put in possession of property under a valid agreement of sale, that appellants had perfected their title by adverse possession and that defendants in suit could not dispossess them that defendants had led no satisfactory evidence that sale was not for legal necessity, and agreement of sale was binding on defendants and that equity under Section 53-A of Transfer of Property Act was available to appellants as against defendants. – In second appeal, High Court of Madhya Pradesh reversed decree of District Court. – High Court was of view that in dealing with question of possession District Court had "not at all touched reasons and comments stated in judgment of trial Court", and "on that account it would have been necessary to remand case of the District Court for reconsideration of evidence and for determination of appeal according to law." – But that, in view of High Court, was not necessary because "suit having been filed on a supposed, right under Section 53-A of Transfer of Property Act was not maintainable." – High Court observed that it was settled law that right conferred by Section 53-A of Transfer of Property Act was a "shield and not a weapon of attack". – High Court also observed that where a person enters into an agreement to purchase property and is put into possession thereof, his possession is permissive and continues to be so until there is assertion of a title hostile to owner. – On that account, possession of appellants could not be adverse, since, in view of High Court, possession of appellants was "permissive to begin with" and appellants had failed to plead and prove occasion when they altered nature of their possession – Held, High Court had no power to remand case to District Court for "writing a more satisfactory judgment" after considering contentions which may appeal to District Court. – It was for the High Court first to consider whether in reaching conclusion that appellants were in possession at date of suit, any error of law had been committed, and if in view of High Court any error of law was committed, High Court had to decide question. – Until question whether appellants were in possession at date of institution of suit was decided, claim of appellants to protection of equity of part performance cannot be determined. – Court may also observe that suggestion thrown out by High Court that when a person is put in possession of property pursuant to an agreement of sale, his possession is permissive, and unless he is able to establish by definite evidence point of time from which his possession became adverse against owner, his possession must continue to remain permissive, cannot be regarded as accurate. – Before Court is able to decide appeal court must have a finding of High Court on question whether appellants were in possession of lands in dispute at date of institution of suit – Case is remanded to High Court. – High Court will determine issue whether appellants were, at date of institution of suit, in possession of property, pursuant to agreement of sale executed by Jagannath and Mangayee in year 1927. – After finding of High Court is received, other questions arising for determination in this appeal will be decided. – Appeal Accepted
JUDGMENT :
Shah, J.
Mangli Prasad grand-father of the first appellant agreed to purchase, under an agreement dated August 3, 1927, Sir rights in three plots of land aggregating in area to 6.88 acres for Rs. 500/- from Jagannath and Mangayee. The appellants contend that Mangli Prasad paid Rs. 250/- and possession of the lands was delivered to him, and on April 21, 1928, his name was entered in the revenue records. The appellants claim that Mangli Prasad paid the balance of the price, but no sale deed was executed by the vendors; that Mangli Prasad, and after his death, they have been in possession of the property continuously since August, 1927, but in 1953 the descendants of the original vendors purported to transfer the rights in the lands to the Mahabir Temple, Lal Singh, s/o Prem Singh and Sitaram son of Atmaram; and that they had on that account "encroached upon the rights" of the appellants. The appellants accordingly instituted an action and claimed an injunction against the representatives of the original transferors and the purchasers restraining them from "going to the" fields in dispute. By an amendment made in the plaint it was claimed that if it be found that the appellants are found not to be in possession, they may be put into possession of the lands.
2. The suit was dismissed by the Tribunal Court holding that the appellants were never put in possession of the lands, that the lands were ancestral lands in the hands of Jagannath and Mangayee and that the alienation of the lands by Jagannath and Mangayee was not supported by legal necessity and was on that account not binding upon their descendants. In appeal, the District Court reversed the decree of the Court of First Instance. The District Court held that the appellant's ancestor had been put in possession of the property under a valid agreement of sale, that the appellants had perfected their title by adverse possession and that the defendants in the suit could not dispossess them that the defendants had led no satisfactory evidence that the sale was not for legal necessity, and the agreement of sale was binding on the defendants and that the equity under Section 53-A of the Transfer of Property Act was available to the appellants as against the defendants. In second appeal, the High Court of Madhya Pradesh reversed the decree of the District Court. The High Court was of the view that in dealing with the question of possession the District Court had "not at all touched the reasons and comments stated in the judgment of the trial Court", and "on that account it would have been necessary to remand the case of the District Court for reconsideration of the evidence and for determination of the appeal according to law." But that, in the view of the High Court, was not necessary because the "suit having been filed on a supposed, right under Section 53-A of the Transfer of Property Act was not maintainable." The High Court observed :-
"Assuming as correct the finding of the first appellate Court that Mangli Prasad was put in possession in the year 1927 and continued to be so upto 1946, and further that the plaintiffs thereafter continued to remain in possession, that finding by itself does not entitle the plaintiffs to an injunction."
After referring to a large number of decisions, the High Court observed that it was settled law that the right conferred by Section 53-A of the Transfer of Property Act was a "shield and not a weapon of attack". The High Court also observed that where a person enters into an agreement to purchase property and is put into possession thereof, his possession is permissive and continues to be so until there is assertion of a title hostile to the owner. On that account, the possession of the appellants could not be adverse, since, in the view of the High Court, possession of the appellants was "permissive to begin with" and the appellants had failed to plead and prove the occasion when they altered the nature of their possession.
3. Counsel for th
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