Possession under Section 53A of the Transfer of Property Act cannot be claimed when the specific performance suit is dismissed on merits, rendering possession unauthorized.

JUDGMENT :

1. Vide order dated 8th July 2014, the second appeal was admitted by this Court. The original Plaintiff is before this Court being dissatisfied by the judgment and order dated 1st February 2014 passed in Civil Appeal No. 442 of 2013 by which the appellate Court has partly allowed the appeal and set aside the judgment and decree passed by the Civil Judge, Junior Division, Khed, Pune in Regular Civil Suit No.309 of 2010 to the extent of direction to hand over possession of the suit land to the appellant herein. For sake of convenience, the parties are referred to by their status before the Trial Court.

Background Facts :

2. By registered sale deed dated 4th April 1983, the original defendant- Pandurang Khangate sold the suit property being western half portion admeasuring 81.5 Ares out of Survey No. 199 (New Survey No. 140) situated at Mauje Rajgurunagar, District Pune, in favour of the husband of defendant no.1-Mahadu Rakshe for a consideration of Rs.11,000/-. On the same day agreement of re-conveyance was executed between Mahadu and Pandurang by which Pandurang was entitled to repurchase the suit property after five years upon payment of Rs 11,000/. The Plaintiff no.1 is the widow of Mahadu Rakshe, plaintiff nos.2 and 3 are the sons and plaintiff no.4 is the brother of deceased Mahadu Rakshe. During the pendency of the proceedings, the original Defendant expired and his legal heirs were brought on record. Subsequently, Mahadu Rakshe expired and the Plaintiff No.3 agreed to execute an Agreement for sale in respect of the suit property in favour of the defendant. The defendant had borrowed a sum of Rs.24,000/- from deceased Mahadu Rakshe and the plaintiff No 3 agreed to execute sale deed for total consideration of Rs.35,000/-, i.e., Rs.11,000/- of re-conveyance + Rs.24,000/- borrowed by the defendant. A registered agreement for sale in favour of the defendant was executed on 6th April 1990 by accepting the earnest money of Rs.10,000/- and on the same day, the Defendant was put in possession of the suit property.

3. Regular Civil Suit No.310 of 2000 (old RCS No 1699/1995) was instituted by the defendant seeking specific performance of the agreement for sale dated 6th April 1990 and in the alternative for refund of earnest money. In that suit, plaintiffs filed written statement denying the execution of agreement for sale, delivery of possession and payment of earnest money. The case of plaintiff nos. 2 and 3 was that they were minors at the time of the execution of the Agreement for Sale and were not parties to the contract. The Trial Court by judgment dated 13th February 2009 dismissed the suit of defendant. While dismissing the suit, trial Court answered the issue of execution of agreement for sale on 6th April 1990 in favour of the defendant as well the issue of possession. As the trial Court held that agreement for sale was not legal and valid, the trial Court did not go into the issue as regards the readiness and willingness of defendant to perform his part of contract.

4. Against the judgment of trial Court, the defendant went into appeal being Civil Appeal No. 235 of 2009. By the judgment dated 19th October 2010, the appeal came to be dismissed. In the said appeal, the plaintiffs had filed cross objections praying for possession of the suit property which also came to be dismissed. The appellate Court reversed the finding of the trial Court as regards the readiness and willingness and held that the defendant was ready and willing to perform his part of contract. The Appellate Court negated the issue as regards the entitlement of defendant to specific performance of contract for the reason that defendant nos. 2 and 3 were not parties to the contract and were minors and no permission was sought under section 8 of the Hindu Minority and Guardianship Act, 1956. The Appellate Court dismissed the cross objection filed by the Plaintiff seeking possession of the suit property for the reason that there was no counter claim by