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2020 Supreme(Mad) 1453
IN THE HIGH COURT OF JUDICATURE AT MADRAS
G. JAYACHANDRAN, J.
S. Muralikumar – Appellant
Versus
Maheswari & Another - Respondent
Second Appeal No. 567 of 2020 & C.M.P. No. 11991 of 2020
Decided On : 18-12-2020
For the Appellant :K.A. Ravindran, M. Murthy, Advocates.
For the Respondents: R2, M. Jayachandran, Caveator.
The failure to establish possession under Section 53A of the Transfer of Property Act and the delay in filing the suit led to the dismissal of the Second Appeal.
Headnote:
Specific Performance - Agreement for Sale - Transfer of Property Act - Limitation Act - [Section 53A, Section 54 of the Transfer of Property Act, Limitation Act] - The court discussed the validity of the agreement for sale, possession of the suit property, limitation, entitlement of the 2nd defendant to the suit property, and the relief of specific performance. The court found that the appellant failed to prove his possession under Section 53A of the T.P. Act and exemption from the Limitation Act. The suit for specific performance filed after 14 years was held to be barred by limitation. The court also emphasized that to grant the equitable relief of specific performance, the parties should come with clean hands and within a reasonable time. The appellant's failure to establish possession under Section 53A and the delay in filing the suit led to the dismissal of the Second Appeal.
Fact of the Case:
The plaintiff entered into an agreement for the sale of a property with the 1st respondent. After paying the entire sale consideration and being put into possession of the property, the plaintiff sought specific performance. However, the 2nd defendant, who had obtained a decree for specific performance against the 1st respondent, claimed entitlement to the property. The trial court held that the suit for specific performance was barred by limitation, and the appellate court confirmed the decision.
Finding of the Court:
The appellant failed to prove possession under Section 53A of the T.P. Act and exemption from the Limitation Act. The suit for specific performance filed after 14 years was held to be barred by limitation.
Issues: Validity of the agreement for sale, possession of the suit property, limitation, entitlement of the 2nd defendant to the suit property, relief of specific performance
Ratio Decidendi: The appellant's failure to establish possession under Section 53A and the delay in filing the suit led to the dismissal of the Second Appeal.
Final Decision: The Second Appeal was dismissed, and the connected miscellaneous petition was closed. No costs were awarded.
JUDGMENT :
(Prayer: Second Appeal has been filed under Section 100 of the Civil Procedure Code against the judgment and decree made in A.S.No.13 of 2012 on the file of the learned Principal District Judge, Dharmapuri, dated 06.03.2020, confirming the judgment and decree made in O.S.No.35 of 2010 on the file Subordinate Judge, Dharmapuri, dated 24.02.2012.)
(The case has been heard through Video Conferencing)
1. This Second Appeal is filed by the plaintiff who lost his suit for specific performance before the Courts below.
2. The brief facts of the case as pleaded in the plaint is that the appellant entered into an agreement with the 1st respondent regarding the suit property on 23.10.1996. As per the agreement of sale he paid an advance of Rs.1,00,000/- and for the payment of balance of Rs.5,000/-, 15 months time was granted. The agreement for sale was duly registered. The plaintiff paid the balance of Rs.5,000/- on 27.10.1996. The 1st respondent handed over the original documents on receipt of the entire sale consideration and also handed over the possession of the property. When he approached the 1st respondent for execution of sale deed she delayed the process stating her family problem and misunderstanding with her husband kept postponing the registration of the sale deed. While so, in the year of 2009, the 2nd defendant along with his men came to the suit property and tried to take possession of the suit property. When he approached the 1st respondent to execute the sale deed as per the sale agreement dated 27.10.1996, she evaded to execute the sale deed. However his possession of the suit property given towards the part performance is protected under Section 53A Transfer of Property Act. Later he came to know that the 2nd defendant has filed a suit in O.S.No.4 of 1999 against the 1st defendant for specific performance based on the fake agreement for sale and got a decree in his favour on 04.07.2006. Through the said sale deed and Court decree, the 2nd defendant cannot have any right over the suit property. Hence sought for specific performance and injunction.
3. The 1st defendant, the vendor of the appellant filed written statement sailing with the appellant. The 2nd defendant in his written statement questioned the maintainability of the suit for specific performance on the ground of limitation and also contested that the possession of the suit property was never with the appellant to take umbrage under Section 53A of the Transfer of Property Act.
4. According to the written statement of the 2nd defendant, the 1st defendant had purchased part of the suit property measuring 405 sq.ft on 29.07.1988 from one Prakasam. 270 sq.ft of land and shop was purchased by the 1st defendant on 03.03.1994. Subsequently from the 1st defendant the entire extent 405 sq.ft., and 270 sq.ft., with two shops was purchased by the 2nd respondent on 09.12.1997 for sale consideration of Rs.2,30,000/-. Rs.2,20,000/- was paid in advance and 12 months time was granted to pay the balance and get the sale registered. Out of 2 shops, the possession of one shop was handed over to the 2nd respondent on 09.12.1997 itself. In the said shop, the 2nd respondent is running a photo studio by name “Sakthi photo studio”. The other shop, the 1st respondent vendor Maheswari running a tea shop. When the 2nd respondent requested the 1st respondent to execute the sale deed as per the agreement, she refused. Therefore, he filed O.S.No.4 of 1999 for specific performance against the 1st respondent and decree was passed on 17.06.2004 in the his suit for specific performance. Accordingly he filed REP.No.319 of 2006 and took possession of the shop, in which, the 1st respondent Maheswari was running the tea shop. In so far as 2nd item of the suit property, the 2nd respondent is already in possession and running a photo studio. Therefore, the contention of the plaintiff that the possession of the suit property is with him and he is protected under Section 53A of the T.P.Act is bas
