The amendment to a counter claim for specific performance was not barred by limitation, and possession under Section 53A was upheld.

JUDGMENT :

Plaintiffs 1 and 2 in O.S.No.1472 of 1995 on the files of the 1^st Additional Sub Court, Thiruvananthapuram, have filed R.F.A.No.52/2004, challenging the decree and judgment in the above suit dated 23.07.2003, arraying defendants in the suit as the respondents. In the meanwhile, the 1^st defendant died and defendants 2 to 4 were recorded as his legal heirs vide order dated 15.12.2023 in I.A.No.1/2023.

2. R.F.A.No.433/2004 is at the instance of defendants 1 to 4, challenging dismissal of a counter claim on disallowing the prayer for specific performance of agreement for sale. The respondents are the plaintiffs in the above suit. During pendency of this appeal, 1^st defendant died. Accordingly defendants 2 to 4/appellants 2 to 4 were recorded as the LR of the 1^st defendant. Apart from that additional 5th appellant also impleaded as LRs of the 1^st defendant.

3. Heard the learned counsel on both sides. Perused the verdict under challenge and the decisions placed by both sides.

4. In order to have an effective discussion of the case, the parties in these appeals will be referred as to their status before the trial court.

5. Plaintiffs filed suit for declaration of title in respect of plaint `A’ schedule property and possession over A and B schedule buildings therein and for recovery of possession of plaint `C’ schedule building, as that of the 1^st plaintiff, which is in possession of the 1^st defendant. Ext.A2 settlement deed No.108/1994 dated 12.12.1994 and Ext.A3 settlement deed No.720/1995 dated 08.08.1995 executed by the 2^nd plaintiff, are the title documents relied on by the 1^st plaintiff to assert title over the same.

6. Resisting title and possession over plaint `C’ schedule building and the property occupies the same, the defendants filed written statement initially. Later incorporated counter claim seeking the relief of specific performance of Ext.B2 agreement by way of amendment, inter alia, contending that 10 cents of property along with B schedule building and 9 cents of property along with plaint `C’ schedule building were separated and according to the defendants, in respect of the 9 cents of property and building situated therein as `C’ schedule, the 2^nd plaintiff executed Ext.B2 agreement dated 16.04.1995 for sale of the same in favour of the 1^st defendant with undertaking to execute the sale deed for a total consideration of Rs.2,50,000/-, out of which, Rs.1,50,000/- was paid as advance. The plea to execute Ext.B2 agreement was incorporated by amending the written statement by filing I.A.No.1749 of 2002.

7. The trial court raised necessary issues. PW1 and PW2 were examined and Exts.A1 to A9 were marked on the side of the plaintiffs. DW1 to DW5 were examined and Ext.B1 was marked on the side of the defendants. Apart from that, Exts.C1 and C1(a) were marked as court exhibits.

8. On hearing both sides, the trial court dismissed the suit as well as the counter claim and accordingly both parties are in appeal. The respective counsel on both sides advanced arguments to justify their claims. Now the points arise for consideration are :

(i) Whether the finding of the trial court holding that the counter claim relief for specific performance is barred by limitation, is justifiable?

(ii)Whether the trial court went wrong in not granting specific performance of Ext.B2 agreement?

(iii) Whether the trial court is right in finding that the 1^st defendant’s possession over `C’ schedule building is protected under Section 53A of the Transfer of Property Act, 1882 (`T.P Act’ for short hereafter) while denying right of recovery of possession in respect of `C’ schedule building sought for by the plaintiffs?

(iv) Whether the trial court erred in not granting the declaration of title over plaint A and B schedule properties sought for by the 1^st plaintiff?

(v)Whether the trial court is justified in not granting the recovery of possession of the plaint C schedule building sought for by the 1^st plaintiff?

(vi) What are the essentials required t