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MADHYA PRADESH HIGH COURT
Rajeev Gupta, J
RAMLAL NIRBHAY SINGH – Appellant
Versus
MANGAL SINGH MURLIDHAR AND OTHERS – Respondent
S.A. No. 14 of 1993
Decided on : 16-04-1999
TRANSFER OF PROPERTY ACT - SECTION 53A - PART PERFORMANCE OF CONTRACT - POSSESSION - BONA FIDE PURCHASER - NOTICE - BURDEN OF PROOF - EVIDENCE - ADMISSIBILITY - UNREGISTERED SALE DEED - STAMP DUTY AND PENALTY - PAYMENT - IMPOUNDING OF DEED - RELEASE - REVENUE RECORD - MUTATION ORDER - JURISDICTION - BHUMISWAMI RIGHTS - ACQUISITION - PROCEDURE - M.P. LAND REVENUE CODE, 1959 - SECTIONS 189, 190, 168, 169, 158 - APPLICABILITY - INTERPRETATION.
Fact of the Case:
The plaintiff filed a suit for declaration of title and possession of the suit land and also claimed mesne profits. The defendants Nos. 2 to 4 supported the claim of the plaintiff. Defendant No. 1 denied that the plaintiff purchased the suit land from defendants Nos. 2 to 4. He claimed to have purchased the suit land from defendant No. 3 with the consent of defendants Nos. 2 and 4 for Rs. 3,000/- by an unregistered sale deed, whereunder the possession was also given to him. He has performed his part of agreement of sale and so he was protected by the doctrine of part performance of the contract. Therefore, he claims to have become owner of the suit land. It is urged that if knowing of these facts, the plaintiff purchased the suit land from the defendants Nos. 2 to 4, he could not acquire any title to it.
Finding of the Court:
The court found that the document Ex. D/1 indicated that Baboolal (defendant No. 3) sold 1/3rd of his share to Ramlal (Defendant No. 1) and Rs. 1,400/- (fourteen hundred) was paid to him on the date, and rest of the consideration was agreed to be paid later on; it was observed that Baboolal was owner of the 1/3rd share and he sold it to Ramlal. It was further found that 2/3rd share of the land was sold by defendants No. 2, 3 and 4 to the plaintiff and although Baboolal also purported to sell his 1/3rd share to the plaintiff but he could not do so, as he had already sold it to Ramlal. It was also observed that Ramlal had obtained the possession of 1/3rd share under the agreement and so there was part performance of the contract as also he had paid the consideration too.
Issues: 1. Whether Ramlal/appellant was having right u/s 53A of the Transfer of Property Act with respect to the entire property? 2. Whether the document Ex. D/1 had not been given proper evidentiary weight.
Ratio Decidendi: 1. The court held that Ramlal was not entitled to defend his possession of the suit land u/s 53A of the Transfer of Property Act nor even 1/3rd share thereof. The plaintiff/respondent No. 1 being the owner by purchase from the owners (Bhumiswamis) for consideration without notice is entitled to seek possession from defendant No. 1 in respect of the entire suit land. 2. The court held that the document Ex. D/1 was an unregistered sale deed and did not pass title. It may or may not provide a defence u/s 53A of the Transfer of Property Act. If it is agreement to sell, still it does not pass title.
Final Decision: The cross-objection of respondent No. 1 plaintiff is, therefore, partly accepted and appeal of defendant is dismissed. The judgment and decree of the trial Court and first Appellate Court are modified to this extent that the plaintiff respondent No. 1 shall be entitled to the possession of the entire suit land from the defendant. The cross-objections are accordingly accepted, but, this cross-objection regarding mesne profits is dismissed. Appeal of Ramlal is dismissed. The parties are however left to bear their own costs. Modified decree shall be drawn.
R.P. Gupta, J.
This is second appeal preferred by the defendant/appellant and cross-objections filed by the plaintiff/respondent No. 1 against the judgment and decree dated 4th December, 1992 passed by the IInd Additional District Judge, Vidisha in Civil Appeal No. 8-A/1983 which arose from the judgment of Civil Judge-Class-II, Sironj in Civil Suit No. 67-A/1968.
The plaintiff/respondent No. 1 had sued the defendants with the allegations that the defendants Nos. 2, 3 and 4 sold the suit land to him for Rs. 3,000/- (three thousand) by a registered sale-deed dated 9th of June, 1967 and they gave its possession to him. He had sown crop in the month of Ashadh, Samwat 2024. But after that the defendant No. 1 started quarrelling with him over this land, claiming that it belonged to him. Then in the proceedings u/s 145, Code of Criminal Procedure the defendant No. 1 was declared to be in possession of the suit land. Then the plaintiff filed the present suit for declaration of the title and possession of the land and also claimed mesne profits at the rate of Rs. 400/- (four hundred) per year as from 1-4-1968.
The defendants Nos. 2 to 4 supported the claim of the plaintiff.
Defendant No. 1/appellant however denied that the plaintiff purchased this property from defendants Nos. 2 to 4. He also urged that in any case if there was any sale deed, it was ineffective against his right on the land. He claimed that he always remained in possession of the suit land and the proceedings u/s 145, Criminal Procedure Code, arose because the plaintiff tried to interfere with the property. He claimed to have purchased the suit land from defendant No. 3 with the consent of defendants Nos. 2 and 4 for Rs. 3,000/- (three thousand) by an unregistered sale deed, whereunder the possession was also given to him. He has performed his part of agreement of sale and so he was protected by the doctrine of part performance of the contract. Therefore, he claims to have become owner of the suit land. It is urged that if knowing of these facts, the plaintiff purchased the suit land from the defendants Nos. 2 to 4, he could not acquire any title to it.
Defendants Nos. 2 to 4 denied that they ever sold or agreed to sell the suit land to defendant No. 1 on receiving this consideration or gave its possession to the defendant No. 1. They urged that defendant No. 1 interfered with the possession of the plaintiff after about six months of sale to and delivery of the possession by them to the plaintiff.
The trial Court decreed the suit of the plaintiff to the extent of 2/3rd share of the suit land declaring him bhumiswami to that extent and also directing delivery of possession to him to that extent. A further decree was passed on 6-2-1970 that Baboolal defendant No. 2 will pay Rs. 1,000/- (one thousand) to the plaintiff in respect to the 1/3rd share which he had agreed to sell to defendant No. 1.
Against the judgment and decree the defendant No. 1 filed an appeal and plaintiff filed cross-objections which were heard by the Additional District Judge. The appeal was dismissed and cross-objections were allowed. The plaintiffs suit was decreed in toto but claim for mesne profits was disallowed.
The defendant No. 1 approached the High Court by filing Second Appeal No. 327/72 and the High Court vide judgment dated 29th November, 1982 accepted the plea and remanded the case to the first Appellate Court for fresh decision according to law after taking into consideration the material evidence on record. The High Court had in fact observed that the finding of the first Appellate Court, that certain documents produced by defendant No. 1 as agreement of sale in his favour by Baboolal and the receipts of the payment of money were not related to the property in suit, could not be sustained. The High Court reversed these findings, holding that the document which purported to be the document of sale related to this property and so remanded the case back for decision afresh by the first App
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