Agreement to Sell – Proposed purchaser though in possession but failed to prove their readiness and willingness to perform their part of agreement – Not entitled to protect their possession u/s 53-A of T.P Act

Mr. Anil Kshetarpal, J. - Defendants-appellants are in the Regular Second Appeal against the judgments passed by the Courts below decreeing the suit filed by the plaintiffs-respondents for declaration that they are owners of land measuring 11 kanals and 18 marlas, detailed whereof were given in the plaint, with consequential relief of possession.

2. In the considered opinion of this Court, following substantial questions of law arise in the present case:-

1) Whether in the facts of the case, defendants-appellants are entitled to protect their possession under Section 53-A of the Transfer of Property Act i.e. in part performance of agreement to sell?

2) Whether a partner after having brought in his individual immovable property in the fold of partnership firm, can claim individual right in the immovable property?

3. The plaintiffs-respondents filed a suit for declaration claiming that they are owners of land measuring 11 kanals and 18 marlas and entry in the jamabandi recording that Sohan Singh as a vendee, is wrong and the agreement dated 20.03.1979 is forged. The plaintiffs consequently also prayed for a decree for possession.

4. The defendants contested the suit and pleaded that the predecessor of plaintiff Nos.2 to 5 was not owner of the property as their predecessor Rameshwar was adopted by Kundan Lal. Late Rameshwar had also inherited the property from Kundan (his adoptive father). Sohan Singh, their predecessor was never inducted as a servant, rather he was tenant under plaintiff No.1. Plaintiff No.1 thereafter, entered into a partnership with predecessor of the defendants-Sohan Singh by a written contract dated 20.03.1979, according to which a partnership came into being in which predecessor of the defendants-Sohan Singh had 99 shares out of 100 and Sham Sunder had 1 share. Sham Sunder had also received Rs.5,000/- in cash from Sohan Singh.

5. Learned trial Court decreed the suit by passing a non-speaking judgment. The trial Court held that only issue which requires determination is “whether adoption has any effect upon the inheritance”. Since the property previously belonged to Gram Panchayat, therefore, adoption of Rameshwar (predecessor of plaintiff Nos.2 to 5) has no effect. Execution of the agreement dated 20.03.1979 is proved and Sohan Singh was not inducted as a servant. Thereafter, the Court held that Sohan Singh had surrendered his tenancy as per agreement dated 20.03.1979 and since no sale deed has been registered in favour of Sohan Singh, therefore, Sohan Singh cannot claim any right. The suit filed by the plaintiffs was thus decreed.

6. First appeal was preferred by the defendants. Before the First Appellate Court, an additional issue was framed with respect to entitlement of the defendants to protect their possession in terms of Section 53-A of the Transfer of Property Act. However, the learned First Appellate Court has recorded the following reasons to dismiss the appeal:-

i) Sham Sunder alone (plaintiff No.1) was not competent to enter into the agreement with respect to the entire property.

ii) The agreement was required to be compulsorily registered as value of the immovable property was more than Rs.100/-.

iii) Defendants have failed to prove that there was any valid contract.

iv) Sohan Singh had surrendered his tenancy.

v) Defendants are not entitled to protect their possession under Section 53-A of the Transfer of Property Act.

7. In the present case, evidence is required to be discussed. Sant Ram @ Shana Ram was having two sons, Sham Sunder (plaintiff No.1) and Rameshwar (predecessor of plaintiff Nos.2 to 5). It is the case of the defendants that Rameshwar (predecessor of plaintiff Nos.2 to 5) was adopted by Kundan Lal and, therefore, severed his connection in the family of Sant Ram @ Shana Ram. Death Certificate of Rameshwar has been filed in evidence by the defendants in which name of father of Rameshwar has been recorded as Sh. Kundan Lal. Further, Ex.DC is copy of mutation sanctioned on 30