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IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
A.S. Bagga, J.
Balasaheb Manikrao Deshmukh another..... Appellants.
Versus
Rama Lingoji Warthi..... Respondent.
Second Appeal No. 5 of 1984, decided on 29-1-2000.
Advocates appeared :
S.A. Deshmukh, for the appellant.
Anil Kasliwal, for respondents.
To sum up, there was agreement between the appellants and the respondent to sell and purchase the property. It was in pursuance of this agreement that the present appellants were put in possession of the property. There is finding that the present appellants were ready and willing to perform their part of the contract and that there remained nothing to be done by the plaintiffs. Under these circumstances, the protection under Section 53-A could not be refused only because their suit was time barred. The protection under the doctrine of part performance would be available in both the cases. Section 53-A does not confer any right upon a person in possession. What is purports to do is to prevent a plaintiff from recovering possession of the property already transferred to the defendant. It imposes upon the plaintiff a disability, the disability being of enforcing against the transferee in possession any right which a plaintiff may have in respect of the property. Even if the suit for specific performance by the defendant is barred by lapse of time, defendant is nevertheless entitled to resist the plaintiffs suit for ejectment and to defend his own possession. Further, it has been made clear that what Section 53-A seeks to do is to protect the possession of the defendant even where the defendants right to obtain specific performance of the agreement has been barred by time. No such distinction can be made between a case where the purchaser has filed suit for specific performance and has failed on the point of limitation and a case where purchaser has not filed any case but the suit has become time barred.
2.The present appellants had brought a suit (which was registered as Civil Suit No. 187/73) for specific performance of the contract and for permanent injunction in respect of the suit property i.e. Survey No. 5/C/3 admeasuring 2 acres 22 gunthas situated at village Kiki, Tahsil and District Nanded against the present respondent. The suit for specific performance was dismissed but decree of permanent injunction came to be passed in that suit in favour of the present appellants. The matter was taken upto this Court. This Court in Second Appeal confirmed the decree in favour of the present appellants as far as it related to permanent injunction against respondent. The relief of specific performance was not granted holding that the suit for specific performance was barred by law of limitation. The aforesaid Civil Suit No. 187/73 was decided by the trial Court on 31-7-1975.
3.After the dismissal of the suit of the present appellants for specific performance of the contract by trial Court, the present respondent Rama filed the suit under appeal (Regular Civil Suit No. 173/77) for recovery of possession of the suit land. This suit of the respondent came to be dismissed by trial Judge vide judgment and decree dated 19th July 1980. Against this judgment and decree, appeal came to be filed by the present respondents registered as Appeal No. 5 of 1984.
4.Regular Civil Appeal No. 124 of 1980 filed by present respondent came to be allowed by the Assistant Judge, Nanded vide Judgment and decree dated 29th September 1983. The present appellants were directed to deliver the possession of the suit land to the present respondents. Aggrieved by the judgment and decree as passed by the First Appellate Court in favour of the present respondent, the present appellants have filed the Second Appeal.
5.The property, which is subject matter of all these cases is 2 acres 22 gunthas of land in Survey No. 5/C/3 situated at village Kiki, Taluka and District Nanded. This property is admittedly in possession of the appellants. The appellants' suit (No. 187/73) for specific performance of contract has been dismissed on the ground of limitation. There is, however, order of injunction against the present respondents directing them not to interfere with the possession of the plaintiffs.
6. Judgement which is under attack in the present second appeal is that of first Appellate Court in Appeal No. 5/84 dated 29th September 1983 whereby the present appellants have been directed to deliver possession of the property to the present respondent.
7.The only point which arises for consideration is whether the present appellants who are in possession of the suit property can avail of the doctrine of part performance and protect their possession.
8. Learned first Appellate Judge observed that the present appellants were not entitled to protect their possession under the doctrine of part performance as enacted by provisions of section 53-A of the Transfer of Property Act. The learned Judge observed that the present appellants have been found to be not ready and willing to perform their part of the contract. The appellants were required to establish among other things that they were ready and willing to perform their part of the contract. Since they failed to establish that they were ready and willing to perform their part of the contract important pre-requisite for claiming protection under section 53-A was wanting. The learned Judge, therefore, declined to extend the protection to the present appellants and set aside the decree passed by the trial Judge and dismissed suit of the plaintiff.
9.I have heard Shri S.A. Deshmukh, learned Counsel for the appellants and Shri Kasliwal, le
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