1. The defendant in O.S. No. 10151 of 1991 has suffered the partial decree of eviction with a direction to deliver the suit property to the plaintiff. Being aggrieved by the judgment and decree of the XIII Additional City Civil Judge, Bangalore, he has come in an appeal.
2. The germane facts for consideration of appeal are set out hereun-der:
The plaintiff who is the respondent in the appeal claimed to be an owner of the suit schedule property bearing No. 675, I Stage, Indirana-gar, Bangalore. It is further alleged that the suit property was leased in favour of the appellant herein on a monthly rental of Rs. 530/- and for seeking eviction, proceedings are instituted in HRC No. 10450 of 1981 on the file of V Additional Court of Small Causes, Bangalore. The said case of the plaintiff was dismissed holding that the relationship of landlord and tenant is not established. After the dismissal of the said petition the suit came to be filed seeking delivery of possession of the suit property and for damages. In the suit also the plaintiff made allegation of relationship of landlord and tenant between himself and the defendant.
3. The defendant made his appearance, contested the suit denying the relationship of landlord and tenant and contended that he is in possession and enjoyment of suit property by virtue of an agreement of sale entered into between himself and plaintiff on 14-4-1977 and thus submitted that the suit is not maintainable. The Trial Court on the disputed facts and contentions formulated the following issues for consideration:
"1. Whether plaintiff proves that he is the owner of the suit property?
2. Whether plaintiff proves that defendant is his tenant in respect of the suit property?
3. Whether defendant proves that plaintiff entered into an agreement with him to sell the suit property and he is in possession of suit property in pursuance of the said agreement, if so, what is its effect?
4. Whether defendant proves that suit is not maintainable for the reasons stated in paras 5 and 7 of the written statement?
5. Whether the defendant proves that the Court fee is insufficient?
6. Whether the defendant proves that he is entitled to exemption of cost?
7. Whether plaintiff is entitled for possession of the suit property?
8. To what reliefs the parties are entitled to?"
4. The Trial Court answered Issue Nos. 1, 5 and 7 in the affirmative and the rest of the issues in negative and partly decreed the suit directing the defendant to deliver the vacant possession of the suit property and relief for grant of damages was rejected for want of evidence.
5. Being aggrieved by the judgment and decree, the appeal is filed contending that the judgment and decree of the Trial Court is contrary to law and facts and evidence on record. It is further contended that the plaintiff suit is not maintainable by the very allegation that the plaintiff describes the defendant as tenant and as such the suit for possession would not He and there is no categorical averment or description to show the nature of possession of the defendant as a trespasser. It is further submitted that in view of the part performance of the contract the plaintiff is not entitled to possession and thus sought for setting aside the judgment and decree of the Trial Court.
6. After considering the materials and hearing the Counsel for the appellant, the following points arise for our consideration:
(1) Whether the appellant proves that the suit is not maintainable in view of averment in the plaint regarding relationship of landlord and tenant between himself and the respondent?
(2) Whether the appellant proves that by virtue of provisions of Section 63-A of the Transfer of Property Act the plaintiff is not entitled to relief of possession of the suit property?
(3) To what order?
7. Regarding the maintainability aspect the contention of the Counsel for the appellant that there are repeated averments made in the plaint that there exists relationship of landlord and tenant between himself and the respondent and that there is no categorical description of the defendant''s possession as being that of a trespasser does not appear to be a convincing argument to negate the maintainability of suit, since admittedly the H.R.C. Tribunal has given a finding that there is no relationship of landlord and tenant in the earlier proceedings between the same parties. Subsequent thereto the present suit came to be filed and the finding given by the H.R.C. Tribunal has become final and conclusive. Therefore, when on the question of legal journal relationship between the parties competent Court of law has already given a verdict, despite the said verdict if plaintiff were to repeat and describe the relationship as landlord and tenant it would be only a contention without legal basis and non-description of the defendant''s position as that of a trespasser also does not appear to be a fatal one since the suit is based on title and if some other person is in possession the owner of the property can always maintain a suit for possession basing on the title. Hence, under the circumstances we do not find any merit in the contention of the Counsel for the appellant that the suit is not maintainable.
8. The Counsel for the appellant strenuously contended that the Trial Court has flawed in placing reliance upon the rulings of Division Bench of the High Court of Karnataka in
9. The Counsel submitted that the Full Bench of the High Court of Karnataka overruled the said ratio and has laid down on the ratio that the transferee under agreement of sale can resist the suit for possession by the owner of the property even though there is indication on his part to bring the suit for specific performance within the period of limitation because the extinction of statutory remedy by some reason or another does not lead to extinction of right created by Legislature by incorporating Section 53-A in the Act.
10. The Counsel referred to the material document Ex. D. 1. The receipt under which the claim of possession u/s 53-A has been set up, for convenient reference of the contents of receipt, the same is extracted hereunder:
"Receipt
Received Rs. 9,900/- (Rupees Nine Thousand Nine Hundred Only) from Sri M.S. Narayana Rao on 14th July, 1977 as an advance for the pre-sale condition of House No. 675, I Stage (M/GH) Indira Nagar, Bangalore and the documents and keys pertaining to this property has been handed over for scrutiny.
The agreed sale amount is Rs. 70,000/- (Rupees Seventy Thousand only).
.....................
..................."
11. It may be pertinent to refer to the necessary facts relating to Ex. D. 1. During the proceedings in HRC case Ex. D. 1 was produced, marked as Ex. D. 7, the same was misplaced in retraceable. The learned Judge of Small Causes Court who pronounced the judgment in HRC case also makes reference about missing Ex. D. 7 which is the original of Ex. D. 1 in the present proceedings. The Counsel for the appellant submitted that Ex. D. 1 to be considered as secondary evidence as the original is lost and that sufficient proof has been given to show that Ex. D. 1 is the receipt under which the agreement of sale between the parties is clearly pronounced. Therefore, on the basis of recitals in Ex. D. 1 it is strenuously contended that the principle of part performance u/s 53-A of the Transfer of Property Act gets attracted to the facts of the case and that the plaintiff shall not be entitled to seek possession of the property notwithstanding the fact that the defendant has lost right to enforce the agreement of sale by the bar of limitation.
12. After carefully going through the arguments and the ratio laid down by the Full Bench of the Karnataka High Court the para 41 of the decision of the Full Bench, which is extracted for convenient reference hereunder, refers to the ratio laid down by Supreme Court in a decision in
"It is also of importance to notice here that the conditions necessary for making out a defence for possession contemplated u/s 53-A of the Act in a suit for ejectment by the owner have been clearly spelt out by the Supreme Court in the case of Nathulal, supra, which are the following:
(1) that the transferor has contracted 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;
(2) that 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;
(3) that the transferee has done some act in furtherance of the contract; and
(4) that the transferee has performed or is willing to perform his part of contract".
13. After carefully going through the postulated requisites of Section 53-Awith reference to facts of the case it becomes clearly evident that even assuming for a moment that Ex. D. 1 is the original of missing Ex. D. 7 of HRC proceedings the same does not appear to fulfil the requisites of Section 53-A. The recital in the said document does not indicate that the possession of the property was handed over under the terms of the document. Recitals in the document only discloses that the documents and keys pertaining to the property has been handed over for scrutiny. The totality of the reading of the receipt also does not spell out any other terms and conditions of the agreement of sale excepting the statement of fact about the amount of sale consideration and payment of Rs. 9,900/-as part payment towards the sale consideration. At the cost of repetition it is to be said that the receipt does not disclose that possession of the property was delivered by virtue of terms of the document. The documents also does not show as to when the possession came to be delivered, whether prior to Ex. D. 1 or subsequent thereto.
14. In the case of Thota Chinna Subba Rao v Matapalli Raju, the Federal Court in the context of Section 53-A of the Transfer of Property Act has held that:
"The section clearly requires that the transferee has either to be put into possession or had to continue in possession in part performance of the agreement, which was sought to be enforced under the section".
(emphasis supplied)
15. Another requirement for invoking equity u/s 53-A of the Act the transferee has to show that he has done some act in furtherance of contract and that he has performed and willing to perform his part of contract. In this regard the conduct of the defendant has been hopeless except showing Ex. D. 1 nothing is done as to show what are the acts done in furtherance of the contract. He remained on the property for over 14 years since the date of Ex. D. 1. The date of contract of agreement of sale is also not convincingly placed on contract. Although the bar of limitation may not be a decisive factor for rejection of claim, but for appreciating the conduct of transferee in the context of any acts done by him in furtherance of a contract to gain the sympathy of equity, the same becomes necessary for consideration as one of the factors. Viewed from said angle it becomes explicitly clear that the appellant has remained totally indifferent and there are laches on his part in not making any efforts and has not shown that he has done any substantial acts which may give advantage to claim any equity in law like improving the property in any manner. Nothing is shown by the plaintiff that what exactly prevented him from enforcing his rights under the contract.
16. During the course of arguments it was submitted that in the year 1999 suit is filed seeking specific performance of the agreement. Without dwelling upon the merits pertaining to the said suit it is suffice to mention that as on date of the suit in question the appellant has not shown that he was ready and willing to perform his part of contract in paying balance of consideration seeking enforcement by availing legal remedies. It is pertinent to note that the Trial Court has also made some observations with regard to genuineness and authenticity of Ex. D. 1 doubting the authenticity as not the copy of original Ex. D. 7 filed in HRC proceedings which appears to be in retraceable lost. In view of the discussions made on the other vital aspects of the case, it may not be very necessary to go into genuineness and authenticity of Ex. D. 1 as being the acceptable secondary evidence, However, considering the reasons, discussions made above it becomes explicit that by virtue of contents in Ex. D. 1 the appellant is not entitled to invoke provisions of Section 53-A of the Transfer of Property Act to claim any equities in law.
17. Therefore, under the circumstances we are of the view that the appeal lacks merit and the points formulated are answered in negative and pass the following order:
Appeal is dismissed with costs.
