1983 Supreme(MP) 528

K. K. Aedhikari J.
Shambhunath v. Badrilal
S.A. No. of 1973 (G); Decided on 29-11-1983.

Headnote:Transfer of property Act, 1882 -- S. 53-A -- possession under -- when protected -- possession not obtained under agreement to sale -- agreement not signed by another owner -- possession is not protected.

        This appeal by the defendant against whom suit instituted by the original defendants for possession and mesne profit in the year 1970 was decreed by the trial Court and confirmed in appeal by the defendant.

        Held : The provision of Section 53-A of the Transfer of Property Act is based on equitable doctrine of part performance and under the said provision, the transferee does not get any title to property where the document is not registered as required under the provisions of the Registration Act. The only right available to the defendant, under the circumstances, is to protect his possession by taking a defence set up on the basis of the unregistered agreement if possession is taken in pursuance thereto. It thus follows that unregistered document can be made use of as a shield and not as sword with the aid of Section 53-A of the Transfer of Property Act. In Delhi Motor Co. and others Vs. H. A. Basrukar (A.I.R. 1969 S.C. 794) while interpreting the provisions of Section 53-A of the Transfer of Property Act laid down that the provision of the selection brings about a bar against enforcement of rights by the lessor in respect of property of which the lessee had already taken possession but does not give any right to the lessee to claim possession or to claim any other rights on the basis of an unregistered lease. Applying this to the facts and circumstances of the present case, it is seen that the defendant was already admittedly in possession of the suit premises prior to the execution of the agreement, Ex. P.1 dated 23-12-1969. It is not the case of the defendant that he was put in possession of the suit premises in pursuance to the agreement Ex. P. 1. dated 23-12-1969. On the contrary, perusal of the averments made in the plaint and the said, agreement dated 23-12-1969 show that it was specifically agreed between the parties that the defendant would pay the balance of consideration by 8-5-1970 and failure to pay the said balance would entitle the plaintiff to take possession of the premises. In fact the defendant has denied the execution and existence of any agreement dated 23-12-1979. According to the pleadings, by agreement dated 20-7-1970, the suit premises was agreed to be said to him for a consideration of Rs. 1,00,000 out of which the defendant had already paid Rs. 300.00 to the plaintiff who are now avoiding· to execute the sale-deed though the defendant had tendered the balance of 700.00. It is also stated that the defendant is ready and willing to perform his part of the contract. The defendant has not said that the possession of the suit premises was taken by him in pursuance to the agreement, Ex. D. 1 dated 20-7-1970. Perusal of Ex. D. 1 shows that it is not signed by both the plaintiffs and this document appears to be suspicious, though the learned lower appellate Court has relied on it so as to give adjustment of the part of the consideration paid by the defendant to the plaintiffs. Ex. D. 1 which is an agreement between the defendant and the plaintiff No. 1, in the absence of any evidence, would not bind the plaintiff No. 2.

        Perusal of the impugned judgment passed by the lower appellate Court does show that relying upon the subsequent agreement, Ex. D. 1, the defendant has been given adjustment to the amount paid by him towards consideration. The only question remains to be examined is whether in pursuance to Ex. D.1, the earlier agreement Ex. D. 1, gets superceded and that whether the defendant can retain possession over the suit premises. In my opinion, as stated earlier, the agreement, Ex. D. 1 would not bind the plaintiff No. 2, who admittedly, alongwith the plaintiff No. 1 owns the suit property. It has also been noticed that the defendant was not put in possession of the suit property in pursuance to either of these two agreements. The defendant was already in possession of the premises. It. has also been noticed that the terms of the agreement Ex. P. 1, provided for recovery of the possession on failure to pay the balance of the consideration by 8-5-1970. Under these circumstances, the defendant cannot claim retention of the possession of the suit premises. It has been also noticed that the provisions of section 53-A of the Transfer of Property Act is based on equitable consideration. The suit premises which was agreed to be sold for Rs. 1,400.00 vide Ex. P. 1 in 1969 could not have been agreed to be sold for Rs. 1,000.00 in the year 1970 without there being any evidence on record for such reduction particularly when prices have an upward trend. In my opinion, the learned lower appellate Court having given the adjustment to the defendant for the payment made by him towards consideration has acted in all fairness The defendant, though in his defence, has pleaded that he is ready and willing to perform his part of contract, has not chosen to enforce the agreement by suit for specific performance. In view of aforesaid discussion, the defendant cannot be allowed to continue in possession and it cannot be said that the defence was not taken into consideration. 1969 JLJ 53 and 1972 JLJ 25 referred to; AIR 1969 S.C. 794 relied on. Appeal dismissed.