& Ors Vs. Tanabai  Insc 301 (20 April 2004)
Lahoti & Ashok Bhan. R.C. Lahoti, J.
the respondent herein, is the daughter of late Nivriti Vithoba Laad Laad. Nivriti
Vithoba Laad owned and possessed land survey no.48/1 measuring 14 acres 15 guntas
in the village Ravatagaon. It appears that Nivriti Vithoba Laad executed an
agreement to sell the said agricultural land in favour of the defendants and
also delivered possession thereof to the prospective vendees.
Vithoba Laad died. The plaintiff, Tanabai is the sole legal heir of Nivriti Vithoba
Laad. On 22.11.1978 Tanabai filed a suit for declaring the agreement dated
4.4.1967 as null and void and seeking recovery of possession over the land from
the defendants. The suit was contested by the defendants submitting that the
agreement was valid and binding on the plaintiff; that the defendants were in
possession of the property under the agreement and entitled to protect their
possession under Section 53-A of the Transfer of Property Act; and that they
had also perfected the title by adverse possession over the land.
plea of the defendants claiming acquisition of title by adverse possession has
been negatived by all the three courts upto the High Court. However, the plea
under Section 53-A of TP Act found favour with the Trial Court and the First
Appellate Court resulting into dismissal of the suit. The agreement was held to
be valid and binding on the plaintiff.
plaintiff preferred Second Appeal which was admitted for hearing on following
two questions of law framed by the High Court :-
Whether the courts below are justified in dismissing the suit of the plaintiff-
appellant inspite of clear evidence of the defendant-respondent that he is not
ready to pay the remaining consideration amount ?
Whether it is open to the respondents to plead in his defence under Section
53-A of the T.P. Act despite finding by the courts below that the plaintiff's
title is established."
at the time of hearing the High Court formed an opinion that only one question
really arose for consideration in the Second Appeal and that was as under :-
"Whether the defendant can continue to be in possession not withstanding
the facts that they have not chosen to enforce the agreement of sale till now
?" By a brief reasoning that the defendants who were claiming title by
adverse possession also, could not succeed by claiming protection under Section
53-A of the T.P. Act and inasmuch as the plea of acquisition of title by
adverse possession was negatived, their possession must be held to be illegal,
the High Court has allowed the Second Appeal and directed the suit filed by the
plaintiff to be decreed.
by the judgment of the High Court, the defendants have filed this appeal by
the course of hearing, at one stage, taking notice of the fact that the
defendant-appellants, agriculturists by vocation, have remained in possession
of land ever since 1967, i.e., for about 37 years by this time this Court
suggested the learned counsel for the parties explore the possibility of mutual
settlement. The learned counsel for the defendant-appellants made an offer
under instructions that the appellants were prepared to pay an amount of Rs.50,000/-
over and above what was already paid to the late father of the
plaintiff-respondent under the agreement and the plaintiff-respondent should
not insist on claiming possession but rather should execute a deed of sale at
the cost and expenses of the defendant-appellants and thus bring the whole
dispute to an end. The learned counsel for the plaintiff-respondent took time
for having instructions and after adjournments told us that the
plaintiff-respondent was not responding to the communications made by the
learned counsel to her. In fact, a demand draft drawn in the name of the
plaintiff-respondent for a sum of Rs.50,000/- on Vijaya Bank, Miraj, bearing
no. 337791 dated 21.3.2004 was produced by the learned counsel for the
defendant- appellants with readiness to tender the same to the plaintiff-
respondent which tender the learned counsel for the plaintiff- respondent
rightly regretted to accept as he was not having any instructions in that
regard from the plaintiff-respondent. In such circumstances, the DD has been
returned to the learned counsel for the defendant-appellants after being
perused by the Court.
have heard the learned counsel for the parties on the merits of the appeal. We
are of the opinion that the Second Appeal has not been satisfactorily disposed
of by the High Court.
judgment of the High Court is based on a question framed during the course of
writing of the judgment which is in departure from the two questions of law on
which the appeal was admitted for hearing. The whole emphasis shifted from the
core issues. Then, the High Court has not discussed any law and has also not
assigned reason, much less a satisfactory one, for taking a view different from
the one concurrently taken by the two courts below. The singular reason
assigned by the High Court for denying the benefit of Section 53-A of the TP
Act is not a sound reason by itself in view of the decision of this Court in Shrimant
Shamrao Suryavanshi and Anr. (2002) 3 SCC 676. This Court has held that merely
because the suit for specific performance at the instance of the vendee has
become barred by limitation that by itself is not enough to deny the benefit of
the plea of part performance of agreement of sale to the person in possession.
judgment of the High Court is one of reversal and that too bereft of any
reason, the same cannot be sustained. The appeal is allowed. The judgment of
the High Court is set aside. Instead, the Second Appeal is remanded to the High
Court for hearing and decision afresh in accordance with law. Before deciding
the appeal on merits, the High Court would do well to explore the possibility
of settlement between the parties in view of the proceedings which took place
in this Court. No order as to the costs.
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