A defendant may invoke the protection of Section 53A of the Transfer of Property Act to defend possession based on the doctrine of part performance even if a suit for specific performance of the underlying agreement is barred by the limitation act.

Rakesh Kainthla, Judge

The present appeal is directed against the judgment dated 04.04.2009 passed by the learned District Judge, Kinnaur, Civil Division at Rampur Bushahr, H.P. (learned Appellate Court) vide which the judgment and decree dated 31.03.2008 passed by the learned Civil Judge, Senior Division, Rampur, Bushahr, District Shimla (learned Trial Court) were set aside.

(The parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).

2. Briefly stated, the facts giving rise to the present appeal are that the plaintiff filed a civil suit for possession of the suit land described in para 1 of the plaint. It was asserted that plaintiff’s father had planted about 25 apple trees in the suit land. Only two apple trees survived, and the rest perished for want of care. The defendant approached the plaintiff’s father in the year 1980 and requested him to give the suit land to him for cultivation to earn his livelihood. He promised to hand over the vacant possession of the suit land on demand. The plaintiff's father acceded to the defendant’s request and delivered the possession to the defendant. The plaintiff's father died in the year 1990, and the plaintiff also permitted the defendant to cultivate the suit land. The defendant got himself recorded in possession as a bilasift in connivance with the revenue officials. The plaintiff requested the defendant to hand over the vacant possession of the suit land to the plaintiff, but the defendant declined. Hence, the suit was filed to seek the relief mentioned above.

3. The suit was opposed by filing a written statement taking preliminary objections regarding lack of maintainability and cause of action, the suit having not been properly valued for Court fees and jurisdiction, the plaintiff being estopped from filing the present suit by his omissions and commissions, and the plaintiff having not come to the Court with clean hands. The contents of the plaint were admitted to the extent that the plaintiff's father was recorded to be the owner of the suit land. The rest of the plaintiff's claim was denied. It was asserted that the plaintiff’s father had sold the suit land to the defendant for a consideration of ₹250/-, and the defendant was put in possession of the suit land. The plaintiff had also agreed to sell the suit land to the defendant on 08.01.1992 for a consideration of ₹3600/-. The defendant paid ₹3600/- to the plaintiff on 08.01.1992. The defendant is ready and willing to perform his part of the contract and is entitled to protect his possession under Section 53A of the Transfer of Property Act. The defendant is in continuous possession of the suit land, and he has become the owner by way of adverse possession. Hence, it was prayed that the suit be dismissed.

4. A replication denying the contents of the written statement and affirming those of the plaint was filed.

5. The following issues were framed by the learned Trial Court on 16.09.2005:

1. Whether the suit land had been handed over by the father of the plaintiff to defendant without consideration, as alleged? OPP

2. If issue No.1 is proved, whether the plaintiff is entitled to the relief of possession of the suit land, as prayed for? OPP

3. Whether the suit is not within time, as alleged? OPD

4. Whether the suit had not been properly valued for the purposes of Court fee and jurisdiction. If so, what is its correct valuation? OPD

5. Whether the plaintiff is estopped by his act and conduct by filing the suit? OPD

6. Whether the father of the plaintiff had sold the suit land to the defendant for a consideration of ₹250/- as alleged, if so its effect? OPD

7. Whether vide deed dated 08.01.1992 defendant had agreed to sell the suit land to defendant for a consideration of ₹3600/-, and if so, whether the suit is barred by the provisions of Section 53-A of Transfer of Property Act? OPD

8. Relief

6. The parties were called upon to produce the evidence, and the pl