Section 53A of the Transfer of Property Act can be invoked as a shield to protect possession, even by a plaintiff in a suit for specific performance.

JUDGMENT - Waikar M.R. J.:- This revision is filed by the Original plaintiff whose application for ad-interim temporary injunction granted by the trial Court was rejected in the miscellaneous appeal by the learned District Judge, Yavatmal.

2. The plaintiff filed the suit for specific performance of the contract dated 19-4-1976 in respect of field survey no. 12/2 of village Gaul Khurd, Tq. Pusad, Distt. Yavatmal. This field belonged to deceased Honaji, the father of defendant no. 1 and father-in-law of defendant no. 2.

3. It was alleged by the plaintiff that deceased Honaji agreed to sell this land to him for a consideration of Rs. 21,000/-, that he paid earnest of Rs. 1,700/-to him on 19-4-1976 and deceased Honaji had executed an agreement and also delivered possession of this field to him. Having filed the present suit for specific performance of the contract, an application for grant of temporary injunction was filed restraining the defendants from interfering with his peaceful possession over the field, which he had obtained on 19-4-1976 from deceased Honaji in pursuance of his contract of purchase.

4. According to the defendants the document executed by deceased Honaji was really not an agreement of sale, but was executed as a security for loan that he had taken. They denied that the plaintiff was put in possession of this field by deceased Honaji.

5. The trial Court found that the crop statements of the field for the years 1976-77 and 1977-78 showed the cultivation of the plaintiff. Receipt dated 15-3-1978 further showed that the plaintiffs mother paid the land revenue of this field for the years 1976-77 and 1977-78. Relying upon the evidence of the plaintiff and the documentary evidence on record, the trial Court found that a prima facia case is made out by the plaintiff showing that he was in possession of the field in question during the year 1976- 77 and 1977-78. The defendants did not file their own affidavits and two affidavits of the witnesses Tukaram and Prabhu of the defendants were discarded. Having found that the plaintiff was in possession of the field in question, it further found that the balance of hardship also tips in his favour and an irreparable injury would be caused to him if the temporary injunction is not granted.

6. The defendants being aggrieved by this order of the trial Court, preferred miscellaneous appeal and the learned District Judge, Yavatmal, who heard it, allowed the same and set aside the order of the trial Court granting temporary injunction mainly on the ground that the plaintiff could not invoke the provisions of section 53 A of the Transfer of Property Act, placing reliance upon (Smt. Parul Bala Ghosh Vs. Saroj Kumar Goswani1, and Maruti v. Krishna)2.

7. Having heard Shri G.D. Patil, the learned counsel for the petitioner, I find that the approach of the learned District Judge in dealing with this matter was highly mis directed and the above rulings relied upon by him, in fact, have no application.

8. In the aforesaid case of the Calcutta High Court, the suit was filed for specific performance of the contract or in the alternative, for refund of the consideration. The. trial Court as well as the first appellate Court, both refused the prayer for specific performance. In the High Court, an attempt was made to show that in pursuance of the agreement, possession of the property was in fact delivered to the plaintiff and a decree for specific performance be passed upon the principle of section 53A of the Transfer of Property Act. Rejecting the submission, the High Court held that it could not be said that the plaintiff in a suit for specific performance was asserting only an equity. His claim was really on the active title set up by him and he could not avail of the said provisions of the Transfer of Property Act.

8. In the Bombay case (AIR 1967 Bom. 34.), the transferee, who claimed to be in possession of the property only under an agreement of sale in part performance of the contract, had file

Click Here to Read the rest of this document