IMPORTANT POINT
Agreement to sell – Suit for possession filed by vendor cannot be allowed when entire sale consideration stands paid to plaintiff and also possession in pursuance of agreement of sale executed.

ORDER

Leave granted.

2. The defendant is in appeal against the judgment and decree dated 21.07.2016 passed by the High Court of Chhattisgarh whereby the judgment and decree of the First Appellate Court was not interfered with.

3. The plaintiff-respondent filed a suit for possession in respect of land comprising Khasra No.1494/1 admeasuring 0.94 acres situated at Village Nawagarh, Tehsil Nawagarh, District JanjgirChampa, Chhattisgarh.

4. It is pleaded by the plaintiff that an agreement of sale was executed on 16.07.1997 at the rate of Rs.45,000/- per acre and the possession was given to the defendant on receiving earnest money of Rs.12,000/-. The plaintiff, thus, filed suit for possession in view of an order passed by the Sub-Divisional Magistrate on 11.11.2009 in proceedings under Section 145 of the Code of Criminal Procedure, 1973. The Sub-Divisional Magistrate returned a finding that the appellant is in possession of the land for the past 9 years. Since the possession is with the appellant, liberty was given to the parties to seek an appropriate order from the competent Civil Court.

5. The trial Court dismissed the suit holding that the total sale consideration stands paid to the plaintiff and that the defendant is in possession of the land. However, since the sale deed was not executed, the trial Court directed the plaintiff to execute the sale deed in favour of the defendant. However, in appeal, such judgment and decree was set aside by the First Appellate Court on 16.12.2015, which decree has been affirmed by the High Court.

6. As per plaintiff himself, the possession was delivered to the defendant in pursuance of an agreement of sale executed on 16.07.1997. Therefore, the possession of the defendant is in part performance of the agreement and is protected in terms of Section 53-A of the Transfer of Property Act, 1882.

7. The High Court non-suited the appellant on the ground that the defendant-appellant has raised a plea of adverse possession but such plea has to be examined keeping in view the case set up by the plaintiff that the possession of the defendant was in pursuance of the agreement to the sale executed.

8. Therefore, the High Court has erred in law in decreeing the suit though the entire sale consideration stands paid to the plaintiff and also the possession in pursuance of the agreement of sale executed.

9. Consequently, the judgment and decree passed by the First Appellate Court and the High Court is set aside and that of the trial Court is restored.

10. The appeal is, accordingly, allowed.

11. Pending application(s), if any, also stand disposed of.