IMPORTANT POINT
Part-performance – Protection of a prospective purchaser/transferee of his possession of property involved, is conditionally available.

ORDER :

1. Delay condoned.

2. This petition arises from the order passed by the High Court of Karnataka at Bengaluru dated 23-8-2024 in Regular Second Appeal No.1740/2008, by which the appeal filed by the petitioners – herein (original defendants) came to be dismissed, thereby affirming the judgment and order passed by the First Appellate Court and also the judgment and decree passed by the Trial Court.

3. We have heard Mr. Anand Sanjay M. Nuli, the learned Senior counsel appearing for the petitioners.

4. It appears from the materials on record that the respondents – herein (original plaintiffs) instituted Original Suit No.364/1988 for declaration of title and recovery of possession.

5. The suit came to be decreed in favour of the respondents (original plaintiffs). The Regular First Appeal filed by the petitioners – herein came to be dismissed and so also the Second Appeal by the High Court.

6. In the Second Appeal, the High Court formulated the following substantial questions of law:-

"(1) Whether the Courts below were justified in decreeing the suit of the plaintiff, despite the defendant seeking the protection under Section 53A of the Transfer of Property Act and also erred in not construing the law on this point as has been laid down by the Apex Court in the case reported in 2002 (3) SCC 676?"

7. It is the case of the petitioners – herein that the respondents (original plaintiffs) may be the lawful owners of the suit scheduled property but they executed a sale agreement dated 25-11-1968 in their favour agreeing to sale 2 guntas of land out of survey No.24/9 for total consideration of Rs.850/- and since then the petitioners – herein came to be in possession and enjoyment of the same.

8. The High Court while dismissing the Second Appeal observed in Paras 18 and 19 as under:-

“18. Perusal of the Judgment of the trial Court in as much as the first Appellate Court indicate that on detailed examination of the oral and documentary evidence placed on record, they have come to a conclusion that the defendant has failed to prove that plaintiff has executed the Sale Agreement dated 25.11.1968 and put the defendant in possession and enjoyment of the same. On the other hand, the plaintiff has proved that the shed in the suit scheduled property which is measuring one gunta was constructed by him during 1982-83 and during 1983-84, defendant illegally occupied the same. Before that he has also approached the Land Tribunal, Tumakuru in G LRM-67/83-84 claiming occupancy rights and it came to be dismissed on 15.05.1987 and it has attained finality. The findings returned by the trial Court as well as the first Appellate Court are consistent with the oral and documentary evidence placed on record and as such, this Court finds no perversity in the same.

19. When the defendant has failed to prove that plaintiff has executed the Sale Agreement dated 25.11.1968 agreeing to sell 2 gunta out of survey No.24/9 and he came in possession and occupation of suit schedule property by virtue of the same, question of providing protection under Section 53A of the T.P. Act does not arise. Consequently, the ratio in the decision of the Hon'ble Supreme Court in the case of Shrimant Shamrao Suryavanshi and Another vs. Pralhad Bhairoba Suryavanshi (dead) by Lrs and Others is not applicable to the case on hand and accordingly, the substantial question of law is answered in the negative.”

9. We are of the view that no error not to speak of any error of law could be said to have been committed by the High Court in passing the impugned judgment and order.

10. Section 53-A of the TP Act and Section 16 of the Specific Relief Act, 1964 (for short, hereinafter to be referred to as “the 1963 Act”), being of significant relevance are extracted hereunder:

“53-A. Part-performance.—Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reaso