An agreement holder whose suit for specific performance has been dismissed cannot invoke the protection of part performance, as the failure to obtain a decree indicates a lack of the requisite readiness and willingness to perform the contract, rendering their possession permissive rather than legally protected.

PRAYER :- Second Appeal filed 100 of under Section Civil Procedure Code, to set aside the judgment and decree passed in O.S.No.104 of 2004 dated 18.11.2024 on the file of the 2nd Additional District Munsif, Tirunelveli as confirmed on appeal by the Principal Sub Court, Tirunelveli in A.S.No.33 of 2025 dated 18.12.2025.

For Appellant : Mr.V.Vijayashankar,

For Respondent : Mr.P.Rajesh,

1. The defendant, in a suit for recovery of possession and for damages for use and occupation, is the appellant herein, aggrieved by the concurrent findings rendered by the trial Court as well as the first Appellate Court.

2. I have heard Mr.V.Vijayashankar, learned counsel for the appellant / defendant and Mr.P.Rajesh, learned counsel for the respondent / plaintiff.

3. I have admitted the above second appeal on 02.06.2026 on the following three substantial questions of law:

“ a) Whether the findings of the Courts below that to claim the statutory protection under Section 53-A of the Transfer of Property Act, the agreement for sale should be registered is correct?

b) Whether the Courts below failed to take note that the plaintiff (respondent herein) is barred from filing the present suit for recovery of possession, as all the ingredients of Section 53 -A of the Transfer of Property Act are satisfied by the appellant (defendant) in the present case?

c) Whether the courts below were correct in dismissing the counter claim filed by the appellant (2nd defendant), as time barred without taking note that the 2nd defendant was impleaded in the suit only in the year 2023 and could thereafter only file the counter claim?”

4. I have heard the submissions of the learned counsel for the parties, revolving around the above three substantial questions of law.

5. For the sake of convenience, the parties are referred to as per their rank before the trial Court.

6. Brief facts, that may be necessary for adjudicating the above substantial questions of law are as follows:

6.1. The respondent / plaintiff filed a suit for recovery of possession and also for damages for use and occupation. Admittedly, the defendants are only agreement holders under the vendor of the respondent / plaintiff. On 11.05.1971, the father of the appellant (the second defendant in the suit) had entered into a sale agreement with one Pitchaiya Chettiyar for purchase of the suit property for a total sale consideration of Rs.15,000/-. The plaintiff had paid an advance of Rs.9,000/- and in part performance, admittedly possession of the suit property was handed over to the second defendant's father, further advance of Rs.1,000/- was paid, subsequently leaving a balance of Rs.5,000/-. The father of the appellant (second defendant in the suit) filed a suit for specific performance in O.S.No.696 of 1985. However, after trial, the suit came to be dismissed on the ground that the suit was barred by limitation. The judgment and decree of the trial Court was unsuccessfully challenged in A.S.No. 152 of 1997 before the first appellate Court as well as in second appeal proceedings in S.A.(MD)No. 1915 of 2001 before this Court. Soon after the dismissal of the suit for specific performance in O.S.No.696 of 1985, the respondent / plaintiff filed O.S.No.104 of 2004 for recovery of possession and also claimed damages for use and occupation.

6.2. The case of the appellant was that the appellant was entitled to protection under Section 53-A of the Transfer of Property Act and further, soon after the sale agreement was entered into with the second defendant's father on 11.05.1974, Pitchaiya Chettiyar had clandestinely sold the property to the respondent / plaintiff and the sale was therefore not valid or binding on the defendants. In fact, the second defendant's father was originally arr