& Ors Vs. Mirza Abdul Gaffar & Anr  INSC 827 (12 December 1995)
K. Ramaswamy, K. Hansaria B.L. (J)
1996 AIR 910 1996 SCC (1) 639 JT 1995 (9) 436 1996 SCALE (1)5
O R D
appeal by special leave arises from the judgment and decree of the Madhya
Pradesh High Court in Second Appeal No.460/75 made on 30,1986.
not necessary to elaborate all the facts in detail. Suffice it to state that
the appellant had come into possession of the suit-lands pursuant to an
agreement of sale dated March
8, 1956. He paid part
consideration of Rs.500/- and obtained possession of the lands. Subsequently,
the respondent purchased the lands by sale deed dated March 23, 1960. In the meanwhile, the appellant's
suit for specific performance of the contract for sale was dismissed and became
final. The respondent filed the suit for possession which has given rise to
this appeal. The trial Court decreed the suit. On appeal, it was reversed and
dismissed. In second appeal, the High Court set aside the judgment and decree
of the appellate Court and restored the decree of the trial Court. Thus this
appeal by special leave.
only question is whether the appellant is entitled to retain possession of the
suit property. Two pleas have been raised by the appellant in defence. One is
that having remained in possession from March 8, 1956, he has perfected his title by
prescription. Secondly, he pleaded that he is entitled to retain his possession
by operation of Section 53-A of the Transfer of Property Act, 1882 (for short,
regards the first plea, it is inconsistent with the second plea. Having come
into possession under the agreement, he must disclaim his right thereunder and
plead and prove assertion of his independent hostile adverse possession to the
knowledge of the transferor or his successor in title or interest and that the
latter had acquiesced to his illegal possession during the entire period of 12
years, i.e., upto completing the period of his title by prescription nec vi nec
clam nec precario. Since the appellant's claim is founded on Section 53-A, it
goes without saying that he admits by implication that he came into possession
of the land lawfully under the agreement and continued to remain in possession
till date of the suit.
the plea of adverse possession is not available to the appellant.
question then is whether he is entitled to retain possession under Section
53-A. It is an admitted fact that suit for specific performance had been
dismissed and became final. Then the question is whether he is entitled to
retain possession under the agreement. Once he lost his right under the
agreement by dismissal of the suit, it would be inconsistent and incompatible
with his right to remain in possession under the agreement. Even otherwise, a
transferee can avail of Section 53-A only as a shield but not as a sword. It
contemplates that 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 performed or is willing to perform his part of
the contract, he should be entitled to retain possession and to continue in
possession which he has already received from the transferor so long as he is
willing to perform his part of contract. Agreement does not create title or
interest in the property. Since the agreement had met with dismissal of the
suit his willingness to perform his part of the contract does not arise.
otherwise, in a suit for possession filed by the respondent,
successor-in-interest of the transferor as a subsequent purchaser, the earlier
transferee must plead and prove that he is ready and willing to perform his
part of the contract so as to enable him to retain his possession of the
immovable property held under the agreement. The High Court has pointed out
that he has not expressly pleaded this in the written statement. We have gone
through the written statement. The High Court is right in its conclusion.
Except vaguely denying that he is not ready and willing to perform his part, he
did not specifically plead it. Under Section 16 (c) of Specific Relief Act,
1963, the plaintiff must plead in the plaint, his readiness and willingness
from the date of the contract till date of the decree. The plaintiff who seeks
enforcement of the agreement is enjoined to establish the same. Equally, when
transferee seeks to avail of Section 53-A to retain possession of the property
which he had under the contract, it would also be incumbent upon the transferee
to plead and prove his readiness and willingness to perform his part of the
contract. He who comes to equity must do equity. The doctrine of readiness and
willingness is an emphatic way of expression to establish that the transferee
always abides by the terms of the agreement and is willing to perform his part
of the contract. Part performance, as statutory right is conditioned upon the
transferee's continuous willingness to perform his part of the contract in
terms convenanted there under.
earlier proceedings before Taluk Board, the appellant had admitted that he paid
only Rs.500/-. He pleaded in the written statement that consideration is Rs.1,000/-.
In other words, he did not discharge his part of the contract to the owner,
i.e., did not pay Rs.1,000/- before the land was sold to the respondent nor did
he deposit the amount when the suit was filed nor did he offer payment.
are, therefore, of the view that the High Court is right in its conclusion that
appellant is not entitled to retain possession. However, since the appellant
has remained in possession under the agreement of sale, the respondent is not
entitled to claim any damages from him.
appeal is accordingly dismissed but in the facts and circumstances of the case