To protect possession under Section 53A of the Transfer of Property Act, the transferee must prove that they have performed or are willing to perform their part of the contract.

ORDER :

This second appeal under Section 100 of CPC is filed against the judgment and decree dated 04.10.2023 passed by Second District Judge, Bagli, District-Dewas in RCA No.9/2023 arising out of the judgment dated 29.05.2022 passed by I-Civil Judge, Junior Division, Bagli, District-Dewas in Civil Suit No.2-A/2017.

2. Brief facts of the case are that civil suit was filed by the original plaintiff-Late Gopal Puri who died during the pendency of the suit and his legal heirs have been brought on record. The suit was filed seeking relief of declaration of title, permanent injunction and possession of the agricultural land bearing survey No.1136/2 admeasuring 0.280 hectares situated in village-Rojdi, Tehsil-Hatpipliya, District Dewas.

3. The original plaintiff pleaded before the trial court that this disputed land was received by him in partition which was effected between the original plaintiff and original defendant and he was in the possession of said land. He further pleaded that he obtained K.C.C. loan on the said land on 16.09.2014 but, the original defendant illegally and in collusion with revenue authorities got partition of said land and further got a part of it mutated in his name in the year 2010. He further averred that when original plaintiff obtained certified copies of revenue records for renewal of loan, he came to know about the partition and mutation of the land in revenue records and when he confronted the original defendant, original defendant abused him. He further pleaded that on 16.12.2016, original defendant came to his land and forcibly took possession of the land, against this act a complaint with police was filed and a civil suit was also filed by the original plaintiff. The original defendant filed written statement and refuted the plaint allegations and pleaded that on 10.03.2009, original plaintiff entered into an agreement to sale of suit property (along with another land to the original defendant for which no suit has been filed) with the original defendant for a sale consideration of Rs.85,000/-per bigha in front of two witnesses and also handed over the possession and with the consent of original plaintiffs, partition was recorded in revenue records by the order of Tahsildar.

4. The trial court framed necessary issues and parties adduced evidence in favour of their respective case. Trial court decreed the suit by recording findings and original plaintiff was a recorded Bhuswami and hence, he is the owner of the suit property and suit property was illegally mutated in the name of original defendant without any conveyance deed.

5. Being aggrieved by the judgment and decree passed by the trial court, defendant/appellant filed first appeal before the first appellate court which the first appellate court cursorily dismissed the appeal without appreciating the real controversy between the parties.

6. Being aggrieved by the judgment and decree passed by the Courts below, present second appeal has been filed by the appellants submitting that the judgments passed by the courts below are patently illegal and against the settled position of law, based on conjectures and surmises and therefore, deserves to be set aside. He further submits that courts below committed a grave error of law in not framing issue with respect to the allegation that possession was forcefully taken by the original defendant and further in not appreciating the evidence adduced by the parties in this regard. He further submits that original plaintiff entered into an agreement of sale on 10.03.2009 and original defendant gave some consideration to the original plaintiff so according to Section 53 A of Transfer of Property Act, possession must be protected so on the above grounds, learned counsel for the appellant submits that in this second appeal substantial question of law must be framed.

7. Heard the learned counsel for the parties and perused the record of the case.

8. Arguments of learned counsel for the appellants are solely based on the