Balaram (deceased) through legal representatives Motilal Balaram Rajput (son) (died) (through L.Rs Rajkorbai Motiram Rajput, Shriramshingh Motiram Rajput, Shri Choturam Motiram Rajput and Sow. Radha Manasram Kayate), Sawalaram alias Dhawliram, Sunderbai and Champabai Vs Bhausing (died through his legal heirs Jalam Rajput and Others)

P.R. Borkar, J.@mdashThis second appeal is preferred by original plaintiffs whose suit for possession of 2 acres land out of survey No. 10/2 and mesne profit bearing Regular Civil Suit No. 157 of 1977 though decreed by learned Joint Civil Judge, Junior Division, Kannad, on 5.8.1988 said judgment and decree is reversed by learned II Additional District Judge, Aurangabad in Regular Civil Appeal No. 193 of 1988 decided on 17.1.1990.

2. It is necessary to refer to original pleadings of the parties and decisions of the courts before we come to the substantial questions of law which arise in this second appeal.

3. Original Plaintiff Balaram s/o Dayaram filed suit for possession of 2 acres of land out of survey No. 10/2 totally admeausring 8 acres 2 gunthas, and for mesne profit for past three years alleging that respondent defendant had no concern with the eastern side 2 acres 3 gunthas land out of said survey No. 10/2 situated at Nachanwel, Taluka Kannad, District Aurangabad and the defendant made encroachment over the said portion of 2 acres 3 gunthas land and in spite of repeated demands, he did not remove the encroachment. In these circumstances, suit is filed for possession on title with past mesne profit.

4. The defendant respondent appeared in the suit and filed his written statement at Exh.10 and stated therein that the plaintiff is owner of only 6 acres land out of survey No. 10/2. On the eastern side of the plaintiff''s land, there is a river and thus alluvial land was formed. One Gendabai had illegally taken possession of the said alluvial land which was 2 acres 3 gunthas and the plaintiff being uncle of the defendant, the defendant helped the plaintiff monetarily in fighting the litigation against the said Gendabai and ultimately plaintiff succeeded in getting possession of the said alluvial land. Thereafter, the plaintiff executed agreement of sale in respect of the said 2 acres 3 gunthas land after reserving his right in mango trees in that land. The sale was for Rs. 236.50 paisa. The agreement was executed on 9.1.1953 and on the same day entire amount was received by the plaintiff and the defendant was put in possession of 2 acres 3 gunthas land and since then he has been in possession of that land. It is further stated in paragraph 4 of the written statement that the plaintiff never demanded possession from the defendant. As per the consolidation scheme, the portion of 2 acres 3 gunthas land was entered into the name of the defendant. In paragraph 8 of the written statement, it is further stated that since the possession of the defendant respondent is on the basis of agreement of sale, he is entitled to protection u/s 53A of the Transfer of Property Act ("T.P. Act" for the sake of brevity). In the circumstances, defendant sought dismissal of the suit.

5. With above pleadings, the parties contested the suit. The learned trial judge framed issues at Exh.29. He came to the conclusion that there was no agreement of sale. The defendant had encroached upon the portion of 2 acres 3 gunthas land of the plaintiff and had refused to remove the encroachment and deliver possession to the plaintiff and, therefore, plaintiff is entitled to recovery of possession and mesne profits. While answering issue No. 6, which is regarding contention in paragraph 2 of written statement which describes as to how defendant came into possession of the said portion of 2 acres 3 gunthas, it is held that the defendant has proved the allegation made by him in paragraph 2 of his written statement. In other words, the contention regarding formation of alluvial land, encroachment thereon by Gendabai, litigation between plaintiff and said Gendabai and defendant providing finance to the plaintiff for litigation with Gendabai and thereafter Plaintiff entering into agreement for sale with defendant for Rs. 236.50 paisa and defendant being put into possession of agreement for sale executed on that day, have been held to be proved. But, the court observed in paragraph 27 of its judgment, relying upon the case of Baruna Giri and Others Vs. Rajakishore Giri and Others, that the respondent defendant failed to prove his readiness and willingness to perform his part of the contract inasmuch as he has not served draft of the sale deed on the plaintiff appellant and did not call upon the plaintiff to execute the sale deed. I may quote paragraph 14 of the said judgment in the case of Baruna Giri, which is relied upon by the Trial Court.

14. No doubt the entire consideration had been paid, but the next step in the performance of the contract was the execution of the sale deed. It was the duty of the defendants to propose a proper draft of the sale deed and submit it to the plaintiff as contemplated u/s 55(1)(d) of the T.P. Act. Under the provisions of Section 29 of the Stamp Act the expenses for the sale deed were to be borne by the purchaser. Until the defendant paid the money for the stamp duty, the saledeed could not be executed. By virtue of the combined effect of Section 55(1)(d), T.P. Act and Section 29(c), Stamp Act it was the duty of the defendants to propose a draft of the sale deed and to express their readiness and willingness to pay the money and to call upon the plaintiffs to execute the saledeed See ILR (1975) Cut 993 at page 998, Bhimasen Mohapatra v. Bhabani Mahapatrani. In paragraph 14 of the written statement it was stated as follows:

...But as the executants of the agreement for sale were residing in the District of Singhbhum and as well all of them were not available at a time the registered sale deed could not be executed by them and as the land remained in possession of Chandramohan and the members of his family no required steps were taken for a registered sale deed....

This shows that instead of complying with the requirements of Section 55(1)(d) of the T.P. Act and Section 29(c) of the Stamp Act, the defendants remained contented with possession of the land. Had it really been a fact that the defendants were ready and willing to perform their part of the contract, instead of sitting quiet for such a long time they would have sent a written notice calling upon the plaintiffs to execute the sale deed. Their failure to send such a notice shows that they were not ready and willing to perform their part of the contract. We accordingly hold that the defendants are not entitled to the benefit of Section 53A, T.P. Act.

The learned trial judge in paragraph 30 of the impugned judgment came to the conclusion that in the circumstances the defendant respondent is not entitled to protection of Section 53A of the T.P. Act.

6. The First Appellate Court also framed points for determination. After referring to the judgment of Orisa High Court and pleadings of the parties, the first appellate court relied upon the cases of Chaman Lal Vs. Surinder Kumari, and Charmain v. Merchandise and Ors. AIR 1983 Fir 144 and ultimately in paragraph 18 held that the plaintiff was unable to claim possession as there is bar of Section 53A of the T.P. Act. The first appellate court also held in paragraph 15 of its judgment that the consolidation scheme was implemented at village Nachanwel and the two acres 3 gunthas land of which possession is claimed was given separate block number. The land which is admittedly in possession of the plaintiff ad measuring 6 acres was given another block number. Thus there is bar of Section 36 of the The Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 (hereinafter referred to as "the Consolidation Act").

7. This second appeal is admitted on substantial questions of law which are raised in ground Nos. 3 to 15 as per the order dated 1.3.1990 and as observed in the order dated 21.8.2009, the substantial questions of law, in fact, which arise in this matter are as follows and the parties have extensively argued on the said substantial questions of law.

(1) Whether the defendant respondent is entitled to protection of possession under the doctrine of "part performance" u/s 53A of the Transfer of Property Act."

(2) Whether the implementation of the consolidation scheme will disentitle the plaintiff from claiming possession? Substantial question of law No. 1 .

8. Section 53A of the T.P. Act reads as follows;"53A.

Part performance. Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty;

and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract;

and the transferee has performed or is willing to perform his part of the contract,

then, notwithstanding that [***] where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefore by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract.

Provided that nothing in this section shall affect the right of a transferee for consideration who has has no notice of the contract or of the part performance thereof.

9. Here, the main argument advanced on behalf of the parties revolves around paragraph 3 of Section 53A which is "and the transferee has performed or is willing to perform his part of the contract" and it is these words which are sought to be interpreted in different ways by learned Counsel for the parties.

10. Shir P.B. Patil, learned Counsel for the respondent, produced a printed copy of judgment/order of the Supreme Court in the case of Raj Kishore Giri and Ors. v. Purendra Giri and Ors. decided on 26.9.1996. He also submitted that we get reference to this judgment in 1997 (1) Orisa L.R.1 (SC) to which reference is also made in AIR Publication of Supreme Court Millennium 19502050 (Vo.16) page 166. The Supreme Court has reversed the finding of the Orisa High Court and held in para 3 as follows;

3. ...From the records, it appears that admittedly the appellants have performed their part of the contract in connection with the transfer which was to be made by the respondents so far the suit property is concerned. They have paid full consideration money and the respondents had put them in possession thereof which they continued to be since 1936 for about 60 years. In this background, according to us, the High Court was not justified in decreeing the suit of the respondents. Appellants can take a good defence u/s 53A of the Act that they have performed their part of the agreement. In the result, the appeal is allowed and the impugned order of the High Court is set aside.

Thus, the view taken by the Orisa High Court that it is not enough to pay entire consideration agreed upon under the contract, but in view of Section 55(1)(d) of the T.P. Act and in view of provisions of Section 29 of the Stamp Act, the defendant should have served a copy of the draft sale deed on the respondent plaintiff and they should have sent a notice showing their readiness and willingness to perform their part of the contract, was not endorsed by the Supreme Court.

11. Shri S.S. Deo, learned Advocate for the appellants also cited the case of A. Lewis and Another etc. Vs. M.T. Ramamurthy and Others, . In that case, it is observed that the benefit of provisions u/s 53A of the T.P. Act is not available to transferee who remains passive. The defendants claiming to have been in possession in part performance of earlier agreement of sale but not intimating their intention to perform their part of the contract. In the facts of the said case, the owner of the property had sold it to another person by a registered sale deed and thereafter the plaintiff came to the court, saying that the previous owner had executed an agreement of sale in her favour prior to the sale deed. The court held that he should have approached the court earlier. In the facts of that case, it is held that the plaintiff was not entitled to claim protection. It was specifically observed in paragraph 6 that the transferee had just kept quiet and remained passive without taking any effective steps. As para 3 of the said judgment discloses, out of total agreed consideration of Rs. 14,000/=, Rs. 10,000/= were paid.

12. Learned Counsel for the appellants also relied upon the judgment of our High Court in Attaur Raheman Fateh Mohmmad Vs. Hari Peeraji Burud died through LRs. Neelabai '' Chandrakala Haribhau and Others, , and more particularly on para 13 of the judgment which says that no person can pass title which he himself does not possess or own. In that case, it was held that Piraji was not owner of the property and, therefore, there was no cause for him to execute agreement of sale in relation to the suit property in favour of the defendant. So, in the facts of that case, the defence of Section 53A of the T.P. Act was not accepted.

13. If we consider agreement of sale in the present matter, it is clear that the same was executed on 9.1.1953. The Plaintiff had executed it in favour of the defendant. There is a reference to 2 acres of alluvial land regarding which there was dispute between Gendabai and plaintiff. Gendabai had taken over possession of said alluvial land of 2 acres and after litigating with Gendabai, plaintiff got possession of that portion of 2 acres 3 gunthas and thereafter by the agreement executed on 9.1.1953, the plaintiff agreed to sell the said 2 acres 3 gunthas land to respondent defendant for Rs. 236.50 ps. and has stated that he had received money in cash and handed over possession of the land to the defendant. It was further stated that even though the land was agreed to sold, mango trees therein would continue to be enjoyed by the plaintiff. It does not appear from this agreement that the defendant was expected to do any further part of the contract. If we consider paragraph 3 of Section 53A of the T.P. Act it speaks of two eventualities, namely,(i) "and the transferee has performed his part of the contract", and (ii) "or is willing to perform his part of the contract".

14. In the circumstances, in my opinion, it cannot be said that the present defendant has not performed his part of the contract as nothing has remained to be done by him. Para 2 of the written statement clearly shows that all necessary pleadings were made in the written statement. Protection u/s 53A of the T.P. Act is specifically claimed in para. 8 of the written statement. Thus, there were pleadings and entire part of the contract was performed by respondent defendant. Substantial question of law No. 1 will, therefore, have to be and is accordingly answered in the affirmative.

Substantial question of law No. 2.

15. It is submitted before me by learned Advocate Shri P.B. Patil for the respondent that in the consolidation scheme that was finalised in 1976, two separate numbers were given to the two lands, namely, portion of 6 acres admittedly possessed and owned by the plaintiff was given block No. 46; and the 2 acres portion which was in possession of the defendant was given block No. 47 and the consolidation scheme had attained finality and, therefore, the plaintiff is not entitled to claim possession. Advocate Shri Patil relied upon the case of Yeshwant Ramchandra Dhumal deceased by L.Rs. Vs. Shri Shankar Maruti Dhumal and Another, . In that case, after referring to Section 36(A) and Section 21(3) of the Consolidation Act, it is observed that the allotment of land was made to two persons and, therefore, the question arose who was entitled to possession of the same. Since the allotment was made under the consolidation scheme, the question as to which of the two allottees should be in possession of the land was to be decided by the Consolidation Officer u/s 21(3) of the Consolidation Act and under these circumstances it is held that the civil court had no jurisdiction and that there is a bar u/s 36(A) to the jurisdiction of the Civil Court. If we consider the provisions of Section 36(A) and 36(B) of the Consolidation Act, those read:

36A. (1) No Civil Court or Mamlatdar''s Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by the State Government or any officer or authority.

(2). No order of the State Government or any such officer or authority made under this Act shall be questioned in any Civil, Criminal or Mamlatdar''s Court.

36B. (1) If any suit instituted in any Civil Court or Mamlatdar''s Court involved any issues which are required to be settled, decided or dealt with by any authority competent to settle, decide or deal with such issues under this Act (hereinafter referred to as the "competent authority") the Civil Court or Mamlatdar''s Court shall stay the suit and refer such issues to such competent authority for determination.

(2) On receipt of such reference from the Civil Court or Mamlatdar''s Court, the competent authority shall deal with and decide such issues in accordance with the provisions of this Act and shall communicate its decision to the Civil Court or Mamlatdar''s Court and such Court shall thereupon dispose of the suit in accordance with the procedure applicable thereto.

16. So, what Civil Court was prevented from are deciding are questions which have to be settled, decided or dealt with by the officers or authorities constituted under the Consolidation Act or by the State Government. If we consider the scheme of the Consolidation Act as a whole, it allows the consolidation officer to consolidate the fragments either by way of exchange or for consideration. The scheme, however, nowhere authorises the consolidation officer to declare title of a particular land. He cannot without following due procedure say that land of A shall be land belonging to B. In this matter, it is not the case of either party that the portion of 2 acres 3 gunthas land in dispute was a fragment and, therefore, it was merged in any the property belonging to the defendant. That portion of 2 acres 3 gunthas was given separate Gat number and such act alone will not divest the plaintiff of his ownership. Under the scheme of the Act it does not appear that officers or authorities under the Act have power to vest title of disputed land in respondent defendant though he was holding it under agreement of sale and his title has not perfected by execution of sale deed in his favour. It is not the case that any other land of defendant was given to the plaintiff in exchange of the said portion of two acres. The consolidation officers do not have right to allow specific performance of agreement of sale and declare intending purchaser to be the owner. In this view of the matter, in my opinion, second substantial question of law will have to be and is accordingly answered in the negative.

17. In the result, this Court has come to the conclusion that the defendant respondent is entitled to protection of his possession in view of doctrine of "part performance" and, therefore, this second appeal by plaintiff needs to be dismissed. Accordingly, the appeal stands dismissed. Parties to bear their own costs.