Ownership claims must be substantiated by credible evidence; the doctrine of part performance under Section 53A does not apply without sufficient proof of lawful possession.

JUDGMENT :

J.M. KHAZI, J.

This second appeal is by the defendant challenging the Judgment and Decree passed by the first Appellate Court dismissing the appeal filed by him and thereby confirming the Judgment and Decree of the trial Court.

2. For the sake of convenience, parties are referred to by their ranks before the trial Court.

3. Plaintiff filed the suit seeking declaration of his title to the suit schedule property and recovery of possession from the defendant along with past and future mesne profit.

4. Suit schedule property is 1 gunta of land with a tile roofed shed in Survey No.24/9 totally measuring 2 acres.

5. It is the case of the plaintiff that he purchased 4 guntas of land in suit survey No.24/9, totally measuring 2 acres. Since then, he was in possession and enjoyment of the same. He constructed tile roofed shed in an extent measuring 1 gunta during 1982-83 as a farmhouse for better cultivation of his agricultural land adjoining it. However, defendant unlawfully occupied the suit schedule property. The defendant approached the Land Tribunal in GLRM 67/83-84 seeking confirmation of his ownership over the suit schedule property, which came to be dismissed on 15.05.1987. Defendant has not challenged it and as such it has become final. However, defendant continued in illegal occupation of the suit schedule property and hence the suit for several reliefs.

6. Defendant has appeared through counsel and filed written statement denying the plaint averments. He has admitted that he approached the Land Tribunal. Since the dispute was not a tenancy matter, it was dismissed. Inter alia defendant has claimed that plaintiff has executed an Agreement of Sale dated 25.11.1968 agreeing to sell 2 guntas in suit survey No.24 including the suit schedule property for a sum of Rs.850/- and put him in possession. Plaintiff agreed that if he fails to execute the Sale Deed within six months, the Sale Agreement be treated as Sale Deed. It is the defendant who has constructed the shed in the suit schedule property and since from the date of agreement he is in possession and enjoyment of the said property. Alternatively, he has perfected his title to the suit schedule property and sought for dismissal of the suit.

7. At the trial, plaintiff examined himself as PW-1 and relied upon Exs.P1 to 6.

8. On the other hand, the defendant examined himself as DW1 and 5 witnesses as DWs.2 to 6. He has relief upon Exs.D1 to 33.

9. The trial Court decreed the suit and directed the defendant to handover vacant possession of the suit schedule property to the plaintiff within six months and also to pay past and future mesne profits.

10. Aggrieved by the same, defendant approached the First Appellate Court in R.A.No.322/2006 (old No.112/2004). It came to be dismissed vide the impugned Judgment and Decree.

11. Aggrieved by the concurrent findings of the trial Court and first Appellate Court, defendant has approached this Court contending that the Judgment and Decree of the trial Court as well as the first Appellate Court are erroneous, arbitrary and perverse. Both Courts misdirected themselves about the actual question required to be decided. Without appreciating the defence of the defendant, regarding his lawful possession and enjoyment vide the Sale Agreement of the year 1968, the Courts below have decreed the suit of the plaintiff.

12. The trial Court committed error in not framing issues with regard to protection available to the defendant under Section 53A of the Transfer of Property Act, 1882 (for sho