Point of Law: Section 53A of TP Act, transferee/vendee is entitled to resist any attempt on part of transferor/vendor to disturb transferee’s lawful possession under contract of sale subject to conditions.

JUDGMENT :

This Regular Second Appeal has been filed under Order XLII, Rule 1 r/w Section 100 of the Civil Procedure Code, 1908 (hereinafter referred to as ‘CPC’ for short). The 2nd defendant in O.S. No. 16/2004 on the files of the Principal Munsiff’s Court, Thrissur is the appellant in this appeal. Respondents herein are the 1st defendant as well as the plaintiff in this suit. The appellant impugns decree and judgment in A.S. No.71/2010 dated 22.05.2020 on the files of the Principal Sub Judge, Thrissur and the decree and judgment in O.S. No. 16/2004 dated 05.01.2008 on the files of the Principal Munsiff’s Court, Thrissur. On notice, the 1st respondent/plaintiff appeared. The 2nd respondent, who is the 1st defendant in this suit, did not appear.

2. Heard the learned counsel appearing for the appellant as well as the 1st respondent on admission. Perused the verdicts under challenge.

3. I shall refer the parties in this Regular Second Appeal as ‘plaintiff’, ‘1st defendant’ and ‘2nd defendant’ for convenience, referring their status before the trial court.

4. Plaintiff filed this suit seeking arrears of licence fee and eviction. According to the plaintiff, there was an agreement in between the plaintiff and the 2nd defendant executed on 12.04.2006 to sell the plaint schedule property for a total consideration of Rs.3,05,000/-(Rupees three lakh five thousand only). Accordingly, Rs.10,000/-(Rupees ten thousand only) initially paid as advance. Thereafter, Rs.2,00,000/-(Rupees two lakh only) more was given as advance in order to clear the liability of the plaintiff with Viyoor Service Co-operative Bank and it was agreed in between them to clear the same and execute the sale deed on or before 11.10.2006. The further case of the plaintiff was that, thereafter, as per a licence deed executed in between the plaintiff and the 1st defendant, who is the son-in-law of the 2nd defendant, the occupation of the building in the plaint schedule property was given to the 1st defendant as a licensee, for a monthly licence fee of Rs. 500/-(Rupees five hundred). Since the 1st defendant, as a licensee, had been continuing possession, the 2nd defendant, who is the mother-in-law of the 1st defendant also had been residing along with the 1st defendant. On these facts, the present suit was filed for getting eviction of the licensee as well as for realization of the licence fee in arrears.

5. The 1st defendant filed written statement contending that the property was given in possession of the 2nd defendant, in view of an agreement in between the plaintiff and the 2nd defendant, therefore, the 1st defendant was not bound to pay licence fee, as contended. The 1st defendant had been residing in the property as the son-in-law of the 2nd defendant, where 2nd defendant got possession in view of a sale agreement, in part performance of the same.

6. The 2nd defendant filed written statement mainly contending that he is an unnecessary party in this suit and also reiterating the contentions raised by the 1st defendant. It was contented that there was an agreement between the plaintiff and the 2nd defendant to sell the plaint schedule property for a total consideration of Rs.3,05,000/-and accordingly, the 1st defendant was put in possession of the plaint schedule property in part performance of the sale agreement.

7. The trial court tried the matter. During trial, PW1 was examined and Exts. A1 to A9 documents were marked on the side of the plaintiff. DWs. 1 and 2 were examined and Ext.B1 was marked on the side of the defendants.

8. The learned counsel for the 2nd defendant, who pressed for admission of this matter, mainly argued that the plaint schedule property is in possession of the 2nd defendant pursuant to execution of Ext.B1 agreement, in between the plaintiff and the 2nd defendant. It is argued that, at the time of execution of Ext.B1, the possession of the plaint schedule property was parted with the 2nd defendant and the 2nd defendant has been continuing the said po