Section 53A of the Transfer of Property Act, 1882 protects the possession of the proposed purchaser in part performance of the agreement for sale, even if the registered deed of sale mentions different terms.

1. This Second Appeal is directed against the judgment and decree dated 24.04.2006 passed by the learned Civil Judge (Senior Division), Jorhat in Title Appeal No.22/2005 reversing the judgment and decree dated 02.05.2005 passed by the learned Civil Judge (Junior Division) No.1, Jorhat in Title Suit No.18 of 2004.

2. The case of the appellant/plaintiff, in brief, is that he had entered into a registered deed of agreement for sale dated 18.11.1999 with the defendant Nos.1 and 2, namely, Smti. Labonya Dutta and Sri Uttam Dutta, for purchase of a plot of land measuring 1 Katha 10 Lechas covered by dag No.971 of P.P. No.431 of Bahotia Gaon in Sarucharai Mouza in the district of Jorhat for a saleconsideration of Rs.60,000/- per katha. Pursuant to the execution of the aforesaid registered deed of agreement for sale, the plaintiff had paid the advance amount out of the said consideration pursuant whereafter the he was put in possession of the said plot of land. It is the case of the plaintiff that as per the agreement for sale dated 18.11.1999 the defendants were required to provide with a passage of 12 ft. width for the use of the plaintiff for egress and ingress to the aforesaid plot of land. Accordingly, as per the agreement for sale, the plaintiff having been put in possession over the plot of land in question, was enjoying his right of usage over the aforesaid 12 ft. plot of land. Even in the application for sale permission it was clearly indicated that the width of the approach road is 3.66 meter i.e. approximately 12 ft. After getting the sale permission the defendants had executed the registered deed of sale dated 06.05.2000 upon receipt of the balance consideration amount. Accordingly, the plaintiff has been continuing to possess the purchased plot of land together with the pathway measuring 12 ft. in width ever since the time he has been put in possession of the land in terms of the agreement for sale.

3. Plaintiff’s further case is that soon after the execution of the registered deed of sale he had obtained a certified copy of the sale deed and thereafter, could come to know that in the schedule of the said deed the defendants had wrongly indicated the approach road to be of 8 ft. wide instead of 12 ft. Having learnt about the said discrepancy in the sale deed, the plaintiff had approached the defendants asking them to rectify the sale deed but the defendants had assured him by saying that it was a minor irregularity and would not create any problem in the enjoyment of the property purchased by the plaintiff. Acting in good faith on such assurance given by the defendant and bona fide believing the version of the defendants, the plaintiff went on using the 12 ft. wide approach road without insisting upon rectification/correction of the sale deed.

4. It is the case of the plaintiff that in the month of September, 2003 the defendants had started creating obstructions in the right of usage of the 12 ft. wide path by the plaintiff by erecting a bamboo fencing by the side of the path so as to reduce the width of the road to 8 ft. from its original measurement of 12 ft. In spite of repeated requests and demand made by the plaintiff, the defendants failed to vacate the 4 ft. encroachment of the aforesaid path as a result of which the plaintiff was compelled to institute the aforementioned Title Suit claiming easmentary right thereupon, inter alia, praying for a decree declaring the right of user of the plaintiff over the 12 ft. wide passage leading from Smashan Road to the land of the plaintiff and also for a decree of mandatory injunction and for other consequential reliefs.

5. On receipt of summons, the defendant Nos.1, 2, 3 and 5 had entered appearance and contested the suit by filing their joint written statement while the suit proceeded ex parte against the defendant No.4. The contesting defendants had taken a plea in the written statement that there was no cause of action for the suit and that the suit was not maintai