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1999 Supreme(Bom) 764
IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
J.A. Patil, J.
Narayan Bapuji Dhotre deceased through
legal representatives others..... Appellants.
Versus
Rambhau Namdeo Gajre ..... Respondent.
Second Appeal No. 205 of 1984, decided on 7-10-1999.
Advocates appeared :
B.G. Deshpande, for appellants.
Naresh Patil, holding, for S.N. Loya, for respondent.
The doctrine of part performance under section 53-A of the Transfer of Property Act is available only to the transferee and persons claiming under him, and not to third parties who are not privies to the contract.
Headnote:
PART PERFORMANCE - TRANSFER OF PROPERTY ACT, 1882 - SECTION 53-A - DOCTRINE OF PART PERFORMANCE - APPLICABILITY TO THIRD PARTIES - A third party who is not a transferee within the meaning of section 53-A cannot avail of the equitable right to protect his possession as against the transferor.
Fact of the Case:
The plaintiff, the owner of an agricultural land, filed a suit for possession against the defendant, who claimed to have acquired an equitable or possessory title to the land on the basis of an agreement of sale executed in his favor by a third party, Pishorilal, who himself had come into possession of the land on the basis of a similar agreement executed by the plaintiff.
Finding of the Court:
The court held that the defendant, not being a transferee within the meaning of section 53-A of the Transfer of Property Act, could not avail of the equitable right to protect his possession as against the plaintiff, with whom he had no privity of contract.
Issues: Whether the defendant, who was in possession of the suit land on the basis of an agreement of sale executed by a third party, could claim benefit of the equitable doctrine of part performance as stated in section 53-A of the Transfer of Property Act to protect his possession.
Ratio Decidendi: The doctrine of part performance as contemplated by section 53-A can be availed of by the transferee and any person claiming under him, against the transferor or any person claiming under him. The defendant is not a transferee within the meaning of section 53-A. Therefore, he does not have the equitable right to protect his possession as against the transferor i.e. the plaintiff.
Final Decision: The appeal was allowed, the judgment and decree of the District Court was set aside, and the judgment and decree of the trial court was restored.
2.The property in dispute is an agricultural land bearing Sy. No. 94 admeasuring 18 acres and 23 gunthas situated at village Jambwadi Taluka Jalna. According to the plaintiff he is the owner of the suit-land which is his self-acquired property. The plaintiff averred that his brother had filed Special Civil Suit No. 20 of 1962 for partition and possession of the ancestral land of the family and in that suit the suit-land along with other lands were left out to the share of the plaintiff. According to the plaintiff, he was in possession of the suit land. However, the defendant having absolutely no right wrongfully dispossessed him of the suit land in April 1965. The plaintiff, therefore, filed a suit for possession in forma pauperism on 5-1-1973.
3.The defendant resisted the suit contending, inter-alia, that under an agreement of sale dated 16-6-1961 the plaintiff and his brother Manohar agreed to sell the suit land to one Pishorilal Punjabi and put him in possession on the same day. The defendant further averred that the said Pishorilal executed an agreement of sale in favour of the defendant on 1-9-1961 and agreed to sell the suit land and other lands. The defendant claims to have come in possession of the suit land on the basis of the agreement of sale dated 1-9-1961. The defendant contended that his possession of the suit land, therefore, deserves to be protected as per the doctrine of part performance.
4.The learned Civil Judge, who tried the suit, upon consideration of the evidence on record, came to the conclusion that a mere contract of sale is incapable of creating any right or title in favour of the transferee. Therefore, according to him, no right or interest was created in favour of Pishorilal by virtue of the agreement of sale dated 16-6-1961. The learned Civil Judge held that the plaintiff's title to the suit land was subsisting and that the suit was filed within the period of limitation with the result that there was no question of any extinguishment of the plaintiff's title. The learned Civil Judge further pointed out that it was highly improbable that the defendant had no knowledge about the pendency of the suit between the plaintiff and his brother and Pishorilal. He held that the defendant had failed to exercise proper care before entering into an agreement of sale with Pishorilal. The learned Judge further held that it was not open to the defendant to take defence under section 53-A of the Transfer of Property Act. In this view of the matter, the learned Judge proceeded to pass a decree of possession in favour of the plaintiff.
5.The defendant carried an appeal to the District Court and the learned District Judge differing with the learned trial Judge came to the conclusion that the defendant had acquired an equitable or possessory title to the suit land on the basis of an agreement of sale executed in his favour by Pishorilal and that, therefore, the defendant was entitled to have protection of the provisions of section 53-A of the Transfer of Property Act. In this view of the matter, the learned District Judge allowed the defendant's appeal and dismissed the plaintiff's suit with costs. It is against this order that the plaintiff has filed the present appeal.
6.The present appeal was admitted on 21-11-1984 as Grounds No. 7, 11 and 19 stated in the appeal memo were found to involve substantial questions of law. I have gone through the said grounds mentioned in the appeal memo and I find that they are not precise since they also contain statements of some facts. However, on consideration of the said 3 grounds, the only substanti
