Possession under Section 53A of the Transfer of Property Act does not override the limitation period prescribed by Article 54 of the Limitation Act for filing a suit for specific performance.

JUDGMENT :

The appeal is preferred by the plaintiff in O.S. No. 256 of 1996, on the files of the Munsiff Court, Punalur.

2. The brief facts necessary for disposal of the appeal are as follows:

The plaintiff instituted O.S. No. 256 of 1996 seeking for specific performance of Ext. A1 agreement. As per Ext.A1 agreement, the plaintiff agreed to purchase the plaint schedule property for a sum of Rs.62,500/- on 28.03.1985. An advance amount of Rs.20,500/- was given as a part of initial sale consideration and thereafter, on 22.11.1985, the plaintiff paid another Rs.25,000/-. Consequent to the 2^nd tranche of sale consideration being paid, the plaintiff was put in possession of the plaint schedule property by the defendant. It is further alleged that on 10.02.1987, the plaintiff further paid a sum of Rs.14,900/- to the agent of defendant (PW3). Thereafter, the plaintiff started residing in the property and spent more than Rs.2,00,000/- for renovation. After receiving the consideration towards the property, the defendant refused to execute the sale deed. Later, the plaintiff inducted a tenant into the plaint schedule property and shifted her residence to Thiruvananthapuram. After repeated request, the defendant having refused to honour the terms and conditions of the agreement, the plaintiff caused to issue a lawyers notice on 19.06.1996 requiring the defendant to perform the contract. On 03.07.1996, a reply notice was issued by the defendant refusing to perform the contract and questioning the validity of Ext. A1 agreement. Accordingly, the plaintiff instituted the suit seeking specific performance. On behalf of the plaintiff, Exts. A1 to A9 documents were produced. Exts. X1 to X7(a) were the documents produced through a 3^rd party (Panchayath) to show that the plaintiff was in possession of the property. The defendants examined DW1 and DW2.

3. The Trial Court framed the following issues for consideration:

“On the above pleadings, the following issues were settled for trial:-

1. Whether the suit is barred by limitation?

2. Whether the defendant is liable to execute sale deed with respect to the plaint item in favour of the plaintiff?

3. Whether the plaintiff violated the terms of agreement?

4. Reliefs and costs?”

4. On appreciation of evidence the Trial Court found that the plaintiff is entitled for a decree of specific performance. While arriving at the aforesaid conclusion, the Trial Court negated the contention of the defendant that the suit was instituted beyond the period of limitation provided under Article 54 of the Limitation Act , 1963. The Trial Court found that since the plaintiff is already in possession of the property, her rights are protected under Section 53 (A) of the Transfer of Property Act and further going by the terms and conditions of the contract, the parties never intended the time to be the essence of the contract and thus, decreed the suit. The defendants preferred A.S. No. 96 of 1998 before the Sub Court, Kottarakkara. The First Appellate Court on appreciating the evidence and contentions raised on behalf of the parties concluded that the Trial Court misconstrued the agreement of sale between the parties. The First Appellate Court held that going by the terms of Ext.A1, the parties had fixed the time for performance of the contract as 25.03.1986 and therefore, the Suit preferred in the year 1996 was clearly beyond the period of limitation and accordingly, reversed the finding and dismissed the Suit. Aggrieved by the judgment of the First Appellate Court, the plaintiff is before this Court to the Second Appeal by arising following substantial questions of law:-

“ (i) Whether in a case where the vendee who claims to be in possession of the property pursuant to the agreement, can he file a suit ignoring the period of limitation prescribed under Article 54 of the Limitation Act especially when the date is fixed for the performance of contract ?

(ii) If no such date is fixed for performance, whether it would alter the positio