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1979 Supreme(AP) 254
Andhra Pradesh High Court
Judges : A.SEETHARAM REDDY
C.Nagamani Bai - Appellant
Versus
Authorised Officer, Land Reforms, Tahsildar, madanapalli - Respondent
Decided On : 07-24-79
Section 53-A of the Transfer of Property Act, 1882, will not be available to a person unless he establishes various ingredients, inter alia, (1) written agreement of sale, and (2) entering into possession by way of part performance.
Headnote:
LAND REFORMS - SURRENDER OF LAND - DISPUTE AS TO TITLE - SECTION 10 (5) (A) (II) OF THE A. P. LAND REFORMS (CEILING ON AGRICULTURAL HOLDINGS) ACT - SECTION 3 (I) (V) OF THE ACT - INTERPRETATION - ORAL CONTRACT OF SALE - SECTION 53-A OF THE TRANSFER OF PROPERTY ACT, 1882 - APPLICABILITY - REQUIREMENTS - WRITTEN AGREEMENT AND POSSESSION IN PART PERFORMANCE - ESSENTIAL - ABSENCE OF WRITTEN AGREEMENT - ORAL CONTRACT INSUFFICIENT - SURRENDER OF LAND CANNOT BE REFUSED.
Fact of the Case:
The petitioners sought to surrender certain land under the A. P. Land Reforms (Ceiling on Agricultural Holdings) Act, but the surrender was refused by the Tribunal on the ground that there was a dispute as to the title to the land, as the 2nd respondent claimed to be in possession of the land in part performance of a contract of sale. The petitioners contended that the 2nd respondent had failed to establish the ingredients required to avail himself of the benefit of Section 53-A of the Transfer of Property Act, 1882, and therefore could not avail himself of the benefit of Section 3 (i) (v) of the Act.
Finding of the Court:
The court held that the 2nd respondent had failed to establish the ingredients required to avail himself of the benefit of Section 53-A of the Transfer of Property Act, 1882, and therefore could not avail himself of the benefit of Section 3 (i) (v) of the Act. The court further held that the Tribunal was not justified in refusing to accept the surrender of the land by the petitioners.
Issues: Whether the surrender of land can be refused under Section 10 (5) (a) (ii) of the A. P. Land Reforms (Ceiling on Agricultural Holdings) Act unless the provisions as enacted in Section 3 (i) (v) of the Act are established.
Ratio Decidendi: The court held that Section 53-A of the Transfer of Property Act, 1882, will not be available to a person unless he establishes various ingredients, inter alia, (1) written agreement of sale, and (2) entering into possession by way of part performance. The court further held that in order to substantiate the claim of the 2nd respondent for availing the benefit of Section 53-A of the Transfer of Property Act, 1882, it is sine quo non to establish, inter alia, (1) that the agreement is in writing, and (2) that in pursuance of that agreement, possession of the immovable property was taken.
Final Decision: The court allowed the Civil Revision petition and held that the petitioners were entitled to surrender the lands comprised in S. Nos. 689 and 890 to the extent of Ac. 6-55 cents and Ac. 0-90 cents respectively and the Tribunal was bound to accept the same.
( 1 ) THE only question that arises in this revision is, whether surrender can be refused under section 10 (5) (a) (ii) of the A. P. Land Reforms (Ceiling on Agricultural Holdings) Acl, hereinafter referred to as the Act , unless the provisions as enacted in section 3 (i) (v) of the Act are established
( 2 ) FOR a proper understanding of the case, Section 10 (5) (a) (ii) and Section 3 (i) (v) of the Act are extracted hereunder: section 10 (5) (a) (ii) notwithstanding anything in this section it shall be open to the tribunal to refuse to accept, the surrender of any land- ( ). . . . . . (ii) the surrender of which is not acceptable on account of a dispute as to the title to the land or an encumbrance on the land or on account of the land being in the possession of any person mentioned in item (ii) or item (v) of clause (i) of section 3 or on account of the land proposed to be surrendered becoming inaccessible by reason of its severance from the remaining part of the holding and the Tribunal shall, in every such case, serve a notice on the person concerned requiring him to surrender any other land in lieu thereof; and thereupon the provisions of sub-section (3) and (4) shall, mutatis mutandis apply to such surrender : provided that where land proposed to be surrendered under this section is burdened with a mortgage, the Tribunal may, on an application made by the mortgagor with the consent of the mortgagee, by order, transfer such mortgage from the land so proposed to be surrendered to the residuary holding of the mortgagor or to any part thereof. Section 3 (i) (v) holding means the entire land held by 5 person,- (i ). . . . . . (ii ). . . . . . (iii ). . . . . . (iv ). . . . . . (v) who is in possession by virtue of a mortgage by conditionsl sale or through part performance of a contract for the sale of land or otherwise ; or in one or more of such capacities ; and the expression " to hold land "shall be construed accordingly ; explanation : Where the same land is held by one person in one capacity and by another person in any other capacity, such land shall be included in the holding of both such persons.
( 3 ) THE facts of the case are simple. The petitioners herein are the legal representatives of the deceased declarant, being his wife and daughter respectively. The final computation of the holding was made and certain excess was declared. The declarant sought to surrender certain land and a dispute was raised by the 2nd respondent heiein contending that the land in question was in his possession in part performance of a contract of sale and, therefore, the same should not be allowed to be surrendered as there is a dispute with regard to the title of the land within the meaning of section 10 (5) (a) (ii) of the Act. It was contended before the Appellate Tribunal that no written contract of sale was in existence and even according to the 2nd respondent herein it was only an oral contract of sale set up by him and, therefore Section 53-A of the Transfer of property Act was of no avail. The Appellate Tribunal however, decided that as per Item (v) of Section 3 (i) of the Act, no written contract is required and even for an oral contract, Section 53-A of the Transfer of Property act is applicable. So, on the basis of the Part performance of the contrct the 2nd respondent herein was said to be in possession of the land and hence he was entitled to raise the objection and the same shall sustain.
( 4 ) LEARNED counsel for the petitioners herein contends that it is now well settled by the decisions of this Court that Section 53-A of the transfer OF PROPERTY ACT, 1882 will not be available to a person unless he establishes various ingredients inter alia, (1) written agreement of sale, and (2) entering into possession by way of part performance. He relied on the decisions in M. Narasinga Rao vs. The Land Reforms Tribunal penukonda (1) 1977-1, A. P. L. J 21 and Authorised Officer vs. K. C. V. Narasayya (2) 1978 (
