Allada Satyanarayana vs Kosaraju Sobhanamjali
2024 Latest Caselaw 8322 AP

Andhra Pradesh High Court - Amravati

Allada Satyanarayana vs Kosaraju Sobhanamjali on 12 September, 2024

         THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

                      APPEAL SUIT No.708 OF 2006
JUDGMENT:

-

This Appeal, under Section 96 of the Code of Civil Procedure [for short 'the C.P.C.'], is filed by the Appellant/third defendant challenging the Decree and Judgment, dated 04.08.2006, in O.S. No.105 of 2001 passed by the learned Additional Senior Civil Judge (Fast Track Court), Gudivada [for short 'the trial Court']. The Respondents herein is the plaintiffs and other defendants in the said Suit.

2. The respondents1 and 2/plaintiffs filed the Suit for (i) directing the defendants 1 and 2 to deposit a sum of Rs.3,84,838. 64 paise together with interest on the principal amount of Rs.2,08,970/- from the date of suit till the date of deposit into a Nationalized Bank in the name of the first plaintiff for her benefit; (ii) directing the third defendant to deposit a sum of Rs.1,78,625.50 paise together with interest on the principal amount of Rs.1,27,000/- from the date of the suit till the date of realization in the name of the first plaintiff for her benefit; (iii) ejecting the defendants 1 and 2 from the plaint C schedule land and put the same in possession of the maternal grand parent of the first plaintiff and to grant future profits on a separate application filed in that behalf and the second plaintiff claims the recovery of possession of plaint A schedule land from the third defendant together with future profits from the date of plaint and for costs.

3. Both the parties in the Appeal will be referred to as they are arrayed before the trial Court.

4. The brief averments of the plaint, in O.S. No.105 of 2001, are as under:

2 VGKRJ AS 708 of 2006

The second plaintiff is the wife of Sri Yalamanchili Gopala Krishna, who is the maternal grand father and next friend of the minor first plaintiff Sobhanamjali. Aruna Kumari is the mother of Sobhanamjali. The first defendant is the father of the said Sobhanamjali. Aruna Kumari was the daughter of the second plaintiff and wife of first defendant.

An extent of Ac.2.80 cents of wet land situated in Bommanampadu village, Mudinepalli Mandal, Krishna District together with 31 coconut trees and 6 Palmyrah trees, all fruit bearing trees, therein was given by the second plaintiff to her daughter Aruma Kumari as Pasupukumkuma and Sthreedhana at the time of her marriage with the first defendant. The said Aruna Kumari was in possession and enjoyment of the said land along with trees therein and she was also in possession and enjoyment of another extent of Ac.0.30 cents got from her paternal grand mother. It was also situated in Bommanampadu village. Out of said extent of Ac.0.30 cents, an extent of Ac.0.20 cents was on the immediate North and the remaining extent of Ac.0.10 cents was on the immediate South of the said Ac.2.80 cents. The said Ac.2.80 cents is shown in the plaint A schedule property.

The said Aruna Kumari paid cist in the name of her mother for the said Ac.2.80 cents through her husband on 24.04.1994 for faslis 1400, 1401 and 1402. The defendants 1 and 2 wanted to sell away the said Ac.2.80 cents together with the said trees therein and wanted to purchase land with the sale proceeds that may be realized in the name of said Aruna Kumari for her benefit. The said Aruna Kumari and her parents made it clear to the third defendant that the said land together with trees therein will be sold and a registered sale deed will be executed only if the entire sale proceeds are utilized for the purchase of the land for the 3 VGKRJ AS 708 of 2006

benefit of the said Aruna Kumari and the registered sale deed will be executed in respect of the plaint A schedule land only after a sale deed is obtained in the name of the said Aruna Kumari. The third defendant agreed for the said conditions and wanted to purchase the plaint A schedule land and the said trees therein. As there was no registered gift deed in favour of the said Aruna Kumari in respect of the said land, and the said trees, the third defendant wanted to obtain an agreement of sale initially and a registered sale deed afterwards from the second plaintiff, who already made over the said property to the said Aruna Kumari even before her marriage and which was announced as Pasupukumkuma gift at the time of her marriage. It was agreed upon between all the parties concerned that the consideration for the land of Ac.2.80 cents should be Rs.1,96,000/- and that the consideration for 31 coconut trees is Rs.1,24,000/- and for 6 Palmyrah trees is Rs.3,000/-.

An amount of Rs.1,30,000/- was given by the third defendant to the second defendant towards part of the sale consideration. At the time of arrangement, Boppana Baburao and Kosaraju Ramarao were not present. Only Paladugu Surya Prakasarao and Paladugu Ganga Satyanarayana and the next friend of the first plaintiff were present, apart from the defendant 1 to 3. On 23.11.1994, when a payment of Rs.68,970/-, balance of sale consideration with interest, was made by the third defendant to the second plaintiff, the defendants 1 and 2 were not present at that time and they came after completion of entire writing etc., then the said amount of Rs.68,970/- was given to the second defendant by the next friend of the first plaintiff. The third defendant did not demand the execution of the registered sale deed because he has not fulfilled the condition of getting a registered sale deed in favour of Aruna Kumari, with the sale proceeds in the hands of second defendant and in view of the 4 VGKRJ AS 708 of 2006

amount to be paid by the third defendant towards the value of the trees and interest thereon. After the demise of Aruna Kumari, the third defendant got issued a registered notice demanding the execution of the sale deed, hence the plaintiffs are constrained to file the suit.

5. The defendants 1 and 2, son and father, filed a written statement by admitting the relationship with the plaintiffs and they also contend that the second plaintiff is the owner of the plaint A schedule property and they have not received any sale consideration under plaint A schedule property and they do not know about the alleged possessory agreement of sale and they prayed the suit may be dismissed.

6. The third defendant filed a written statement by denying all the averments mentioned in the plaint and further contended as under: -

The second plaintiff as absolute owner of the plaint A schedule property, entered into an agreement of sale with this defendant on 24.07.1994 and she executed an agreement of sale in favour of third defendant. She sold the land, for the benefit of her family, for Rs.1,96,000/- and on the date of agreement of sale from out of the sale consideration, the second plaintiff received an amount of Rs.1,30,000/-

from the third defendant. According to the terms of the said agreement of sale, this defendant has to pay the balance of Rs.66,000/- to the second plaintiff, on the date of agreement of sale itself, the second plaintiff delivered possession of the land to this defendant. Subsequently, on 23.11.1994 this defendant paid the second plaintiff the balance of sale consideration of Rs.66,000/- and also interest due thereon Rs.2,970/- and the second plaintiff got the payment endorsement made on the agreement and signed under it and her husband also attested the same payment endorsement along with another attestor Boppana Babu Rao.

5 VGKRJ AS 708 of 2006

Subsequently, on 25.05.1995, this defendant requested the second plaintiff to execute a registered sale deed in his favour, then the second plaintiff stated that they are in difficulties due to the death of her daughter and in next month, she will execute a sale deed. Subsequently also this defendant demanded the second plaintiff on several occasions to execute registered sale deed in his favour, but the second plaintiff has been postponing the same on some pretext or other, he has been all through ready and willing to perform his part of the contract. The defendants 1 and 2 were not present at the time of agreement of sale. The amount of Rs.1,30,000/- from out of the sale consideration was paid by this defendant to the second plaintiff at the time of agreement of sale and not to second defendant.

7. The third defendant filed additional written statement; the contents of the same, in brief, are as follows:

As can be seen from the agreement of sale executed by second plaintiff in favour of this defendant and also from the written statement filed by this defendant, an amount of Rs.1,30,000/- and also Rs.68,970/- (balance of sale consideration with interest) was paid by this defendant to the second plaintiff. The second plaintiff kept silent till this defendant got issued registered notice dated 06.08.1995 through his advocate and the second plaintiff came forward with a false case in her belated reply registered notice dated 04.09.1995. It is a fact that possessory contract of sale was written on Rs.100/- stamp paper on 24.07.1994. The second plaintiff is not entitled to relief of possession of plaint A schedule land as this defendant has performed his part of the contract and further the plaintiffs have concede the rights of this defendant under the said agreement of sale. In any event assuming for arguments sake though not 6 VGKRJ AS 708 of 2006

conceding, that the plaintiffs are having a right to cancel the agreement of sale, they have to seek such a relief in the suit, which was not done by plaintiffs in the suit. Further the relief of cancellation of agreement of sale can be asked within 3 years from the date of agreement of sale, otherwise it is barred by limitation, since the relief is not asked within 3 years from the date of agreement of sale dated 24.07.1994, it is barred by limitation.

8. Based on the above pleadings, the trial Court framed the following issues:

(i) Whether the first plaintiff is the sole heir of her deceased mother Aruna Kumari and her properties, as the first defendant is disqualified to inherit the properties as a murderer?

(ii) Whether the plaint schedule A, B and C properties and another extent of Ac.0.30 cents of lands belonged to the deceased mother of first plaintiff?

(iii) Whether the sale consideration of plaint schedule A land and another extent of land Ac.0.30 cents is received by the first and second defendants? If so, whether the said amount of consideration was deposited the first defendant in the Indian Bank, Vuyyuru Branch in the joint names of the first defendant and the deceased mother of first plaintiff? Whether first and second defendants are liable to return the said sale consideration along with interest to the first plaintiff?

(iv) Whether the plaint B and C schedule properties are in the custody of the defendants 1 and 2? And If so, whether they are liable to return the same to the first plaintiff?

(v) Whether the third defendant is liable to pay the total value of trees is Rs.1,27,000/- in the plaint A schedule land and interest thereon at 18% p.a. to the first plaintiff?

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(vi) To what relief?

ADDITIONAL ISSUES

(i) Whether the second plaintiff is entitled to recover the possession of plaint A schedule land from the 3rd defendant?

(ii) Whether the second plaintiff is entitled of future profits from the date of suit as against the 3rd defendant?

9. During the course of trial in the trial Court, on behalf of the Plaintiffs, PW1 and PW2 were examined and Ex.A1 and Ex.A6 were marked. On behalf of the Defendants DW1 to DW5 were examined, but no documentary evidence was adduced on behalf of defendants.

10. After completion of the trial and on hearing the arguments of both sides, the trial Court partly decreed the suit with costs vide its judgment, dated 04.08.2006, against which the present appeal is preferred by the appellant/third defendant in the Suit questioning the Decree and Judgment passed by the trial Court.

11. Heard Sri Srinivasa Rao Velivela, learned counsel for appellant/third defendant and Sri Sivalanka Ramachandra Prasad and Sri P.Prabhakar Rao, learned counsels for the respondents.

12. Learned counsel for appellant would contend that the judgment and decree passed by the trial Court is contrary to law, against the pleadings and the evidence on record and the Court below erred in partly decreeing the suit of the plaintiffs and directing the third defendant to deliver possession of plaint A schedule property to the second plaintiff. He would further contend that the trial Court failed to see that the second plaintiff 8 VGKRJ AS 708 of 2006

should not be allowed to amend the plaint seeking the alternative relief for her benefit without paying the required Court fees.

13. Per contra, the learned counsel for respondents would contend that on appreciation of the entire evidence on record, the learned trial Judge rightly decreed the suit in part by ordering recovery of possession of plaint A schedule property from the third defendant and there is no need to interfere with the finding given by the learned trial Judge.

14. In the suit proceedings, the plaintiffs sought relief of recovery of an amount of Rs.3,84,838.64 paise and directing the third defendant to deposit a sum of Rs.1,78,625.50 paise together with interest on principle amount of Rs.1,27,000/- from the date of suit and evict the defendants 1 and 2 from the plaint C schedule property and to the possession of the maternal grand parents of first plaintiff and the plaintiffs also sought alternative relief of recovery of possession of A schedule property from the third defendant. After completion of the trial and hearing arguments of both sides, the learned trial Judge partly decreed the suit as under:

"The suit is partly decreed with costs and the third defendant is directed to deliver the possession of plaint A schedule property to the second plaintiff within 3 months from the date of this judgment failing which the second plaintiff is entitled to execute this decree. The recovery of sale consideration from defendants 1 and 2 is dismissed. The recovery of plaint B schedule property in respect of items other than gold and some of the domestic articles is dismissed. As the first plaintiff is in the custody of the first defendant, the first defendant is directed to return the half of the amount of the value of 4 gold bangles and some of the domestic articles of Sthridhanam property of late Aruna Kumari, which were 9 VGKRJ AS 708 of 2006

in his possession to the first plaintiff after her attaining majority. As no relief is sought against D4, the suit against D4 is dismissed. The plaintiffs are directed to pay the Court fee due to the government. The suit is disposed of accordingly".

The plaintiffs or the defendants 1 and 2, have not filed any appeal or cross objections against the said decree and judgment passed by the trial Court. The present appeal is filed by the third defendant with a prayer to set aside the relief of recovery of possession of plaint A schedule property awarded by the trial Court from the appellant/third defendant.

15. Having regard to the pleadings in the suit, the findings recorded by the trial Court and in the light of rival contentions and submissions made on either side before this Court, the following points would arise for determination:

1. Whether the appellant/third defendant is entitled protection under Section 53-A of Transfer of Property Act?

2. Whether the trial Court is justified in ordering the recovery of possession of plaint A schedule property from the appellant/third defendant to the second plaintiff?

16. Point No.1:

                  Whether      the    appellant/third        defendant     is
                  entitled     protection under Section 53-A of
                  Transfer of Property Act?
                                   10                                VGKRJ
                                                             AS 708 of 2006

The case of the appellant is that an extent of Ac.2.80 cents of wet land situated in Bomminampadu village, Mudinepalli Mandal, Krishna District, together with 31 coconut trees and 6 Palmyrah trees, all fruit bearing trees, therein was given by the second plaintiff to her daughter Aruna Kumari as Pasupukumkuma and Sthridhana at the time of her marriage with the first defendant. The plaintiffs further pleaded that the said Aruna Kumari paid cist in the name of her mother Yelamanchili Padmavathi for the said Ac.2.80 cents to the government through her husband on 24.04.1994 for faslies 1400, 1401 and 1402. The defendants 1 and 2 wanted to sell away the said Ac.2.80 cents together with the said trees therein and wanted to purchase land with the sale proceeds that may be realized in the name of the said Aruna Kumari for her benefit at a place convenient for them. The said Aruna Kumari and her parents made it clear to the third defendant that the said land together with the trees therein will be sold and a registered sale deed will be executed only if the entire sale proceeds are utilized for the purchase of the land for the benefit of the said Aruna Kumari and the registered sale deed will be executed in respect of the plaint A schedule land only after a sale deed is obtained in the name of the said Aruna Kumari. The third defendant agreed for the said conditions and wanted to purchase the plaint A schedule land and the said trees therein. As there was no registered gift deed in favour of the said Aruna Kumari in respect of the said land and the said trees, the third defendant wanted to obtain an agreement of sale initially and a registered sale deed afterwards from the second plaintiff, who already made over the said property to the said Aruna Kumari even before her marriage and which was announced as Pasupukumkuma gift at the time of her marriage. That is why the said Aruna Kumari paid cist to the government for faslies 1396, 1397 on 25.12.1988. It was agreed upon 11 VGKRJ AS 708 of 2006

between all the parties concerned that the consideration for the land of Ac.2.80 cents should be Rs.1,96,000/- and that the consideration for 31 coconut trees Rs.1,24,000/- and 6 Palmyrah trees Rs.3,000/-

17. The plaintiffs further pleaded that interest should be paid by appellant on the value of the trees at 18% p.a. from the date of delivery of possession of the said land. The attestors Boppana Baburao and Kosaraju Ramarao came after the completion of the writing of the agreement and just before the second plaintiff signed the said agreement, the defendants 1 and 2 were also present. An amount of Rs.1,30,000/- was given by the third defendant to the second defendant towards part of the sale consideration. One Paladugu Surya Prakasarao and Paladugu Ganga Satyanarayana and the next friend of the first plaintiff were present apart from the defendants 1 to 3. The third defendant is enjoying the usufruct of the high income yielding coconut trees and the other Palmyrah trees from the date of agreement. On 23.11.1994, when a payment of Rs.68,970/-, balance of sale consideration with interest, was made by the third defendant to the second plaintiff, the defendants 1 and 2 were not present at that time and they came some time after the said payment and the completion of the entire writing etc., of the payment endorsement by G.Koteswara Rao. Then the said amount of Rs.68,970/- was given to the second defendant by the said next friend of the first plaintiff in the presence of Paladugu Surya Prakasa Rao and Paladugu Ganga Satyanarayana. Even though the entire sale consideration of the land alone together with interest was paid, the third defendant cannot insist upon the execution of the regular registered sale deed in respect of the said plaint A schedule land, because it is incumbent on the part of the second defendant to see that the land is purchased with the amount paid and to be paid in respect of the value of the trees together with interest 12 VGKRJ AS 708 of 2006

thereon by him and a regular registered sale deed is to be obtained in favour of the said Aruna Kumari and that the plaintiffs are constrained to file the suit against the defendants.

18. The defendants 1 and 2 pleaded that they do not know about the alleged possessory agreement of sale and they have not received any consideration either from the third defendant or from the plaintiffs in respect of plaint A schedule property. The case of the appellant/ third defendant is that the unregistered possessory sale agreement is admitted by the plaintiffs, therefore, the appellant is entitled protection under Section 53(A) of Transfer of Property Act. It is an admitted fact that the alleged possessory agreement of sale is not filed by the appellant, though he is in possession of the same. It is the specific case of the appellant that the alleged unregistered possessory agreement of sale is with him. It is admitted by both the parties that the second plaintiff is the owner of the plaint A schedule property. The case of the plaintiffs is that the third defendant was in possession under possessory agreement of sale dated 24.07.1994. There was exchange of notices in between the appellant and the plaintiffs prior to institution of the suit. The suit is instituted by the plaintiffs in the year 1996 by way of pauper suit vide O.P.No.93 of 1996. As per the case of the third defendant he is in a possession of the plaint A schedule property under unregistered alleged possessory agreement of sale dated 24.07.1994. It is not in dispute that the third defendant has not filed any suit for specific performance of agreement of sale dated 24.07.1994. As stated supra, as per the case of the appellant, the alleged unregistered possessory agreement of sale is drafted on hundred-rupee stamp paper; therefore, it is not sufficiently stamped. No doubt, the case of the plaintiffs is also the same that the third defendant came into possession of the plaint A schedule property under the alleged 13 VGKRJ AS 708 of 2006

unregistered possessory agreement of sale dated 24.07.1994, but the contention of the plaintiffs is that the second plaintiff has not received any sale consideration. The same is stated by PW1 and PW2 in their evidence.

19. As stated supra, there was an exchange of notices in between the alleged transferee and transferor. Ex.A1 is the legal notice said to have been issued by the third defendant dated 06.08.1995 to the second plaintiff. In Ex.A1 legal notice, the third defendant demanded the second plaintiff to execute a regular registered sale deed in favour of the appellant herein. Ex.A2 is the reply registered notice dated 04.09.1995 said to have been issued by the second plaintiff to the third defendant. In the said legal notice, the second plaintiff pleaded that the defendants 1 and 2, who are the husband and father-in-law of her daughter wanted to sell away the said Ac.2.80 cents which was given by her towards Pasupukumkuma at the time of her marriage. She also further pleaded that the said Aruna Kumari and her parents made it clear to the intending purchasers that the said land together with the trees therein will be sold and a registered sale deed will be executed only if the entire sale proceeds are utilized for the purchase of the land for the benefit of the said Aruna Kumari and the registered sale deed will be executed only after the sale deed is obtained in the name of said Aruna Kumari. In Ex.A2 legal notice, the second plaintiff also specifically pleaded that at the time of agreement the alleged attestors were not present and the consideration under the alleged possessory agreement of sale is not at all received by the second plaintiff. In Ex.A2 reply notice, the plaintiffs specifically pleaded that the third defendant did not demand the execution of sale deed because he has not fulfilled the conditions of getting registered sale deed in favour of Aruna Kumari with the sale proceeds in 14 VGKRJ AS 708 of 2006

the hands of the said Narasaiah. Ex.A3 is the registered re-joinder notice said to have been issued by the appellant dated 04.11.1995. Ex.A4 is the reply registered notice dated 11.11.1995 to Ex.A3 notice said to have been issued by the second plaintiff by informing the third defendant that he is not at all entitled to claim any relief against the second plaintiff unless and until he fulfilled his contractual obligations as detailed in the first registered notice. It is not in dispute that the appellant received the said reply notice. Therefore, it is clear that there was exchange of notices in between the appellant and the second plaintiff. It is also made it clear that after receipt of legal notice within 3 years from the date of denial, the appellant has not filed any suit for specific performance of agreement of sale. If the appellant is having any strong defense, he has to file a suit for specific performance of agreement of sale within 3 years from the date of alleged denial made by the second plaintiff. Admittedly, the original alleged possessory agreement of sale dated 24.07.1994 is with the third defendant and the third defendant purposefully withhold the same and the same is not filed either before the trial Court or before the appellant Court herein. It is also to be noted that the alleged unregistered possessory agreement of sale is dated 24.07.1994, as stated supra, there is exchange of notices in between both the parties prior to institution of the suit by the transferor for recovery of possession in the year 1996, but the appellant did not choose to file any suit for specific performance of agreement of sale within 3 years from the date of receipt of notice from the second plaintiff. For the reasons best known to the appellant, the appellant did not choose to file the suit for specific performance of agreement of sale till so far, even though 30 years has been elapsed. As stated supra, the alleged agreement of sale which was drafted on hundred-rupee stamp paper and which was insufficiently stamped is not 15 VGKRJ AS 708 of 2006

at all filed by the appellant and the appellant purposefully withhold the same.

20. Section 53A of Transfer of Property Act reads as under:

53A. Part performance.-- Where any person contracts to transfer for consideration any immoveable 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 therefor 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 rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.

21. There is no averment in the written statement that he has been claiming possession of the property in part performance of the contract. To claim the benefit under Section 53-A of Transfer of Property Act, there shall be necessary pleadings. In the absence of necessary pleadings, the benefit under the provision cannot be claimed. The law in this regard is 16 VGKRJ AS 708 of 2006

well settled in Shyam Narayan Prasad vs. Krishna Prasad1, that "the defendant who intends to avail the benefit of Section 53-A of Transfer of Property Act must plead that he has taken possession of the property in part performance of the contract..... No relief can be granted to a party without the pleadings".

It is the case of the appellant that the alleged possessory agreement of sale is dated 24.07.1994 and it is also the contention of the appellant that he purchased the property for an amount of Rs.1,96,000/- under the alleged unregistered possessory agreement of sale dated 24.07.1994 and it was drafted on hundred-rupee stamped paper, therefore, it is clear that the alleged agreement of sale is not sufficiently stamped and it is also invalid document for claiming the rights of the party. As stated supra, though the appellant is having original agreement in his possession, for the reasons best known to him, he did not choose to file the same either before the trial Court or before the appellate Court. As noticed supra, the alleged possessory agreement of sale as pleaded by the appellant is not a registered one. Therefore, the benefit of Section 53- A of Transfer of Property Act 1882 cannot be extended to him and the unregistered possessory agreement of sale shall not have any effect for the purpose of Section 53-A of Transfer of Property Act 1882, if it is not a registered document, the only consequence provided in the provision is to declare that such document shall have no effect for the purpose of Section 53-A of Transfer of Property Act 1882.

2018 (4) ALT(sc) 40 17 VGKRJ AS 708 of 2006

22. In a case of Shrimant Shamrao Suryavanshi vs. Pralhad Bhairoba Suryavanshi 2 , the Apex Court held that the necessary conditions are invoking Section 53-A of Transfer of Property Act are given as under:-

1) there must be a contract to transfer for consideration any immovable property;

2) the contract must be in writing, signed by the transferor, or by someone on his behalf;

3) the writing must be in such words from which the terms necessary to construe the transfer can be ascertained;

4) the transferee must in part performance of the contract take possession of the property, or of any part thereof;

5) the transferee must have done some act in furtherance of the contract; and

6) the transferee must have performed or be willing to perform his part of the contract.

That was a case where there was a written agreement for sale and its existence was proved. That is one marked difference that has to be kept in mind for the purpose of the present case. As in the present case, the alleged unregistered possessory agreement of sale which was not sufficiently stamped was never exhibited. Mere surmise that it could have been inexistence is of no consequence as long as the person claiming benefit under such agreement for sale failed to produce the same before the Court. The content of the document are to be proved by the production of the document itself and not otherwise. Moreover, the averments in the written statement are inadequate and insufficient to attract the provision under Section 53-A of Transfer of Property Act, 1882,

2002 3 SCC 676 18 VGKRJ AS 708 of 2006

since it does not contain the time within which the sale deed has to be executed, as to who has to expend money towards stamp and registration and about the readiness and willingness on the part of the appellant to obtain a sale deed and other such necessary particulars. In the case on hand, for the reasons best known to the appellant though the appellant is having the possession of alleged unregistered possessory agreement of sale for Rs.1,96,000/- which is not sufficiently stamped is purposefully withhold by the appellant, in such an event, he is not entitled protection under Section 53-A of Transfer of Property Act 1882.

23. The learned counsel for appellant placed a reliance in Sarva Shramik Sangh vs. Indian Oil Corporation Ltd. ,3 in that decision, the Apex Court held as follows:

The assumption that there is an absolute bar on inconsistent pleas being taken by a party, is also not sound. What is impermissible is taking of an inconsistent plea by way of amendment thereby denying the other side, the benefit of an admission contained in the earlier pleading. Mutually repugnant and contradictory pleas, destructive of each other may also not be permitted to be urged simultaneously by a plaintiff/petitioner. But when there is no inconsistency in the facts alleged, a party is not prohibited from taking alternative pleas available in law. Similarly, on the same facts, different or alternative reliefs can also be claimed.

24. The learned counsel for appellant placed another reliance in Steel Authority of India Ltd., vs. Union of India and others4, in that case, the Apex Court held as follows:

(2009) 11 SCC 609

(2006) 12 SCC 233 19 VGKRJ AS 708 of 2006

It is true that some general principles are certainly common to both, but the rules that the plaintiff cannot be allowed to amend his pleadings so as to alter materially or substitute his cause of action or the nature of his claim has necessarily no counterpart in the law relating to amendment of the written statement. Adding a new ground of defense or substituting or altering a defense does not raise the same problem as adding, altering or substituting a new cause of action.

25. In the case of Sampath Kumar vs. Ayyakannu and another5, the Apex Court held as follows:

An amendment once incorporated relates back to the date of the suit. However, the doctrine of relation back in the context of amendment of pleadings is not one of universal application and in appropriate cases the Court is competent while permitting an amendment to direct that the amendment permitted by it shall not relate back to the date of the suit and to the extent permitted by it shall be deemed to have been brought before the Court on the date on which the application seeking the amendment was filed.

In the case on hand, the plaintiffs filed a petition to amend the plaint before the Court below and on hearing both sides, the learned trial Judge allowed an application filed by the plaintiffs to amend the plaint. Therefore, it is for the defendants to challenge the same before the competent Court if they aggrieved, without challenging the same, the appellant is not supposed to take the said defense before the appellate Court that the plaintiffs are not entitled to take the destructive plea to their convenience before the trial Court by amending the plaint and the

2002 6 ALD(SC) 63 20 VGKRJ AS 708 of 2006

appellant cannot contend that the alleged amendment which was done before the trial Court is not a legal.

26. The learned counsel for appellant placed another reliance in Rani Sambhi and others vs. Lt.Col. (Retd). R.L.Vashisht6. In the aforesaid case, the Apex Court held as follows:

Protection under Section 53-A of the Transfer of Property Act is an independent right and a person in part performance of the agreement, if shown that he was always ready and willing to perform his part of agreement and had been delivered the possession in performance of the agreement was entitled to the said protection. It was not required that he should have filed a suit for specific performance within limitation.

It has to be seen rights of an agreement holder is having limited rights only, but not absolute rights. It is also well settled that unregistered possessory agreement holder cannot be continued in possession through out his life under the guise of unregistered possessory agreement of sale, undoubtedly, he has to obtain a sale deed as provided under Section 54- A of Transfer of Property Act.

27. The learned counsel for appellant placed another reliance in Union of India and another vs. K.C.Sharma and Company and others 7, the Apex Court held as follows:

As it is clear from the evidence that the respondents were put in possession and they continued in possession by cultivating the land the said judgments would not render any assistance in support of

2003 SCC online P & H 701

(2020) 15 SCC 209 21 VGKRJ AS 708 of 2006

the case of the appellants. On the other hand in the case of Maneklal Mansukhbhai (supra) relied on by learned senior counsel for the respondents it is clearly held by this Court that defence under Section 53A of the Transfer of Property Act, 1882 is available to a person who has agreement of lease in his favour though no lease has been executed and registered. Similar proposition is also approved in the judgment of this Court in the case of Hamzabi (supra) wherein this Court has held that Section 53A of the Transfer of Property Act, 1882 protects the possession of persons who have acted on a contract of sale but in whose favour no valid sale deed is executed or registered.

The aforesaid case law relates to lease, but not unregistered possessory agreement of sale.

28. The learned counsel for appellant placed another reliance in Ghanshyam vs. Yogendra Rathi8, in that case, the Apex Court held as follows:

Legally an agreement to sell may not be regarded as a transaction of sale or a document transferring the proprietary rights in an immovable property but the prospective purchaser having performed his part of the contract and lawfully in possession acquires possessory title which is liable to be protected in view of Section 53A of the Transfer of Property Act, 1882. The said possessory rights of the prospective purchaser cannot be invaded by the transferor or any person claiming under him.

Notwithstanding the above as the plaintiff-respondent admittedly was settled with possessory title in part performance of the

(2023) 7 SCC 361 22 VGKRJ AS 708 of 2006

agreement to sell dated 10.04.2002 and that the defendant-

appellant has lost his possession over it and had acquired the right of possession under a licence simpliciter, exhausted his right to continue in possession after the licence has been determined. Thus, the defendant-appellant parted with the possession of the suit property by putting the plaintiff-respondent in possession of it under an agreement to sell. The plaintiff-respondent in this way came to acquire possessory title over the same. The defendant-appellant, as such, ceased to be in possession of it as an owner rather occupied it as a licencee for a fixed period which stood determined by valid notice, leaving the defendant-appellant with no subsisting right to remain in possession of the suit premises.

29. In a case of Sardar Govindrao Mahadik and another vs. Devi Sahai and others9, the Apex Court held as follows:

To qualify for the protection of the doctrine of part-performance it must be shown that there is a contract to transfer for consideration immovable property and the contract is evidenced by a writing signed by the person sought to be bound by it and from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty. These are pre-requisites to invoke the equitable doctrine of part-performance. After establishing the aforementioned circumstances it must be further shown that transferee had in part performance of the contract either taken possession of the properly 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. There must be a real nexus between the contract

AIR 1982 SC 989 23 VGKRJ AS 708 of 2006

and the acts done in pursuance of the contract or in furtherance of the contract and must be unequivocally referable to the contract.

In the case on hand, as per the case of the appellant, he came into the possession of the A schedule property under unregistered possessory agreement of sale, but for the reasons best known to the appellant, he did not choose to file the said agreement either before the Court below or before this appellant Court. To fulfil the conditions under Section 53-A of Transfer of Property Act, the transferee failed to file the agreement and purposefully withhold the same, therefore, he is not at all entitled protection under Section 53-A of Transfer of Property Act.

30. The learned counsel for the appellant also relied on Shrimant Shamrao Suryavanshi vs. Pralhad Bhairoba Suryavanshi (Dead) by L.Rs. and others10, in that case, the Apex Court held as follows:

The defendants in the suit brought by the plaintiff-respondents for recovery of the suit property and for mesne profit. On 9th July, 1964, respondent No. 3 executed an agreement for sale of an agricultural land in favour of appellant No. 1 for a total consideration of Rs.9,000/-. Appellant No. 1 paid a sum of Rs.5,700/- towards earnest money. The appellants in pursuance of the said agreement for sale was put in possession over the said property. After the execution of the said agreement, it came to the notice of the appellant that the transferor is negotiating for sale of the said land in favour of respondent No. 1. Under such circumstances, the appellant brought a suit on 2nd August, 1965 for injunction restraining the transferor from selling the said land in favour of respondent No. 1. On 30th April, 1966 the trial court granted

(2002) 3 SCC 676 24 VGKRJ AS 708 of 2006

injunction as prayed for. It is the case of the appellants that despite the said injunction order, the transferor sold the said property through a registered sale deed dated 24th May, 1966 in favour of respondent No. 1.

In the case on hand, the alleged possessory agreement of sale was never exhibited. It is the case of the appellant when the second plaintiff herself admitted the agreement, there is no need for him to produce the alleged agreement. Here, in the case on hand, the second plaintiff is contending that she never received any consideration and there was an agreement in between both the parties that the defendants 1 and 2 have to purchase the land with the name of her daughter and later only the second plaintiff will execute the sale deed in favour of the appellant and the appellant agreed the said terms, but he failed to fulfil the same and for the reasons best known to the appellant, the appellant kept quite and suddenly after the death of her daughter, the appellant issued a notice in the year 1995. Admittedly, the first notice is issued by the appellant to the second plaintiff with a demand to execute a regular registered sale deed and the second plaintiff pleaded in the reply notice specifically that she has not received any consideration and the appellant has to fulfil other terms and conditions of the agreement. As noticed supra, the possession of the appellant is only under the alleged unregistered possessory agreement of sale, but he failed to produce the same for the reasons best known to him and purposely detained with him and moreover, the said alleged possessory unregistered agreement was never exhibited and never placed either before the trial Court or before the appellate Court. As stated supra, mere surmise that it could have been inexistence is of no consequence as long as the person claiming 25 VGKRJ AS 708 of 2006

benefit under such agreement for sale failed to produce the same before the Court.

31. The learned counsel for appellant and respondents placed a reliance in Mohan Lal (Deceased) Through His L.Rs. Kachru and others vs. Mirza Abdul Gaffar and another11, in that decision, it was held as follows:

When the transferee seeks to avail of Section 53-A to retain possession of the property which he had under the contract, it would be incumbent upon the transferee to plead and prove his readiness and willingness to perform his part of the contract. Under Section 16(c) of the Specific Relief Act also the plaintiff must plead in the plaint, his readiness and willingness from the date of the contract till the date of the decree. The plaintiff who seeks enforcement of the agreement is enjoined to establish the same. 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. In this case except vaguely denying that he was not ready and willing to perform his part, he did not specifically plead it.

In the case on hand, as stated supra, except exchange of notices in between the transferee and transferor, no suit is filed by the appellant for specific performance of agreement of sale. The plaintiffs pleaded that the defendant No.3 is not abiding the terms and conditions agreed between both the parties. But the alleged agreement of sale is withhold

(1996) 1 SCC 639 26 VGKRJ AS 708 of 2006

by the appellant, he failed to produce either before the trial Court or before this appellate Court and the appellant purposefully withhold the same, therefore, he is not entitled an equities.

32. In a case of A.Lewis and another vs. M.T.Ramamurthy and others12, the Apex Court held as follows:

As rightly pointed out by the High Court, the existence of right to claim protection under Section 53-A of the Transfer of Property Act would not be available if the transferee just kept quiet and remained passive without taking effective steps. Further, he must also perform his part of the contract and convey his willingness. On the other hand, the factual finding is that there was no intimation by defendant Nos. 3 and 4 to perform their part of contract to claim protection of Section 53-A of the Transfer of Property Act. Likewise, as rightly concluded by the courts below, there is no material to show that the plaintiff had notice of agreement of sale Ex.D-1 in favour of defendant Nos. 3 and 4. The conclusion of the High Court that defendant Nos. 3 and 4 or even defendant No.1 who claims through them are not entitled to protection of Section 53-A of the Transfer of Property Act is acceptable and the argument contrary to the said conclusion is liable to be rejected.

In the case on hand, the plaintiff No.2 pleaded that the appellant is not abiding the terms and conditions in between both the parties and to fulfil the conditions under Section 53-A of Transfer of Property Act 1882, the transferee shall file an original agreement of sale. As noticed supra, the said alleged possessory agreement of sale is unregistered one and it was drafted on a hundred-rupee stamped paper and it is insufficiently

(2007) 14 SCC 87 27 VGKRJ AS 708 of 2006

stamped and the appellant purposefully withhold the same, therefore, the appellant is not entitled protection under Section 53-A of Transfer of Property Act 1882. Furthermore, the appellant has not filed any suit for specific performance of agreement of sale within three years of the date of denial by the transferor i.e., second plaintiff. The case of the appellant is that he came under the possession of plaint A schedule property by virtue of unregistered possessory agreement of sale dated 24.07.1994 and it was prepared on hundred rupee stamped paper and the property was purchased for Rs.1,96,000/-. The said document is relates to immovable property worth of Rs.1,96,000/- and it is also not sufficiently stamped and it is invalid document. Therefore, the appellant is not at all enjoyed the benefit under Section 53-A of Transfer of Property Act 1882, the said alleged unregistered agreement of sale, which is insufficiently stamped shall have no effect for the purpose of Section 53-A of Transfer of Property Act 1882 and the appellant cannot seek a protection in a suit for recovery of possession of the immovable property filed by the respondents/plaintiffs, accordingly, point No.1 is answered against the appellant.

33. Point No.2:

Whether the trial Court is justified in ordering the recovery of possession of plaint A schedule property from the appellant/third defendant to the second plaintiff?

The case of the plaintiffs is that plaint A schedule property is the self acquired property of the second plaintiff, the same is not at all disputed by any of the defendants. It is also a specific case of the 28 VGKRJ AS 708 of 2006

defendants 1 to 3 that the second plaintiff is the original owner of the plaint A schedule property. The appellant/ third defendant pleaded that he came into possession of plaint A schedule property by virtue of unregistered possessory agreement of sale dated 24.07.1994 which was prepared on hundred-rupee stamp paper. It is not in dispute that as per the case of the plaintiffs, the worth of the plaint schedule property is Rs.1,96,000/- and the same is mentioned on the possessory agreement.

Therefore, certainly it is not sufficiently stamped. The title of the second plaintiff in respect of plaint A schedule property is not at all disputed by any of the defendants. The third defendant has not acquired any title by obtaining a registered sale deed from second plaintiff. Though, the alleged unregistered possessory agreement of sale is with the third defendant, he did not choose to file the same either before the trial Court or before this appellant Court.

34. The learned counsel for appellant would contend that without seeking relief of cancellation of unregistered possessory agreement of sale, the suit filed by the plaintiffs for recovery of possession of A schedule property is not at all maintainable. Admittedly, as per the own case of the appellant, the alleged document under which he came into possession of the A schedule property is unregistered possessory agreement of sale and it was prepared on stamp paper of Rs.100/-, the property is worth about Rs.1,96,000/-, therefore, it is not sufficiently stamped. It is also well settled that the appellant cannot get any title by virtue of unregistered possessory agreement of sale in respect of immovable property which is worth of Rs.1,96,000/-, unless he get the registered document for the same property, moreover, the alleged document was prepared on hundred rupee stamp paper, since the subject matter of the value of the property is Rs.1,96,000/-, it is invalid 29 VGKRJ AS 708 of 2006

document and it is not sufficiently stamped, therefore, it cannot be looked into since it is an invalid document and it cannot be received as evidence in a suit for recovery of possession. Since the alleged document is invalid document, the second plaintiff can maintain the suit for recovery of possession without seeking the relief of cancellation of alleged unregistered possessory agreement of sale. Moreover, the plaintiffs filed the suit for recovery of possession within 2 years of alleged possessory agreement of sale.

35. The appellant cannot be continued in a possession of the immovable property under invalid document throughout his life without obtaining a valid sale deed. During the pendency of suit, sole appellant died, his legal representatives are brought on record and the second plaintiff i.e., owner of plaint A schedule property is also died, her legal representatives are also brought on record. Admittedly, no sale deed is obtained by the appellant till so far, though 30 years have been elapsed. It is also relevant to say within 3 years from the date of denial by the second plaintiff he has not filed any suit for specific performance of agreement of sale, till so far, though 30 years have been elapsed from the date of alleged unregistered possessory agreement of sale dated 24.07.1994. Furthermore, within 2 years, from the date of alleged agreement, the plaintiffs filed the pauper suit vide O.P.No.93 of 1996 subsequently, it was numbered as a suit.

36. As per the case of the plaintiffs, the second plaintiff is the absolute owner of the plaint A schedule property. It is not at all disputed by defendants 1 to 3 in the suit. It is also the specific case of the appellant that he was in possession of plaint A schedule property under unregistered possessory agreement of sale for Rs.1,96,000/-, dated 30 VGKRJ AS 708 of 2006

24.07.1994, but it is drafted on hundred rupee stamp paper, therefore, it is invalid document, no sale deed is obtained, though 30 years have been elapsed. As stated supra, the sale agreement did not create any interest in immovable property indispensability of registering sale deed during transfer, registering a conveyance deed offers a notice to the entire world regarding the execution of such a document. It is also protect the interest of the parties particularly the buyer, by providing legal proof of ownership.

37. It is also settled that sale of immovable property can be made only by way of registered instrument and an agreement of sale does not create any interest or charge on its subject matter of the property. It is also well settled that the agreement to sell does not create any interest of the proposed vendee in the suit schedule property. As per Section 54 of Transfer of Property Act, the title in immovable property valued at more than hundred rupee can be conveyed only by executing a registered sale deed. Section 54 specifically provides that a contract for sale of immovable property was a contract evidencing the fact that the sale of such property shall take place on the terms settled between the parties, but does not, of it self create any interest in or charge on such property. It is also not in dispute that the suit land sought to be conveyed is of the value of more than hundred rupees. Therefore, unless there was a registered document of sale in favour of the third defendant, the title of the suit land continued to vest in second plaintiff only and remain in her ownership. It is obvious that an agreement of sale create no interest in the land. Therefore, unless there was a registered document of sale in favour of proposed transferee, the title of the land would not get divested from the vendor. In the case on hand, admittedly, no title was conveyed to the appellant/third defendant from the plaintiff No.2 under a registered sale deed. As per the case of the appellant the worth of the plaint 31 VGKRJ AS 708 of 2006

schedule property in the year 1994 is Rs.1,96,000/-, therefore, the appellant would not get any title in the plaint A schedule property. As stated supra, it is the case of the appellant that originally the plaint A schedule property belongs to second plaintiff and the second plaintiff is the owner of the schedule property and he came into the schedule property by virtue of unregistered possessory agreement of sale dated 24.07.1994. As stated supra, the appellant is not entitled protection under Section 53 of Transfer of Property Act. It is not in dispute that no title is conveyed to the wife of first defendant, the same is not at all disputed by the first defendant. Therefore, second plaintiff being the absolute owner of the A schedule property is entitled possession of the plaint A schedule property. Therefore, I do not find any illegality in ordering the recovery of possession of plaint A schedule property from the appellant to the second plaintiff, as ordered, by the learned trial Judge. The point No.2 is answered accordingly.

38. In the result, the Appeal Suit is dismissed, confirming the decree and Judgment dated 04.08.2006, in O.S.No.105 of 2001 passed by the learned Additional Senior Civil Judge (Fast Track Court), Gudivada that the second plaintiff is entitled the possession of plaint A schedule property from the appellant/third defendant. Three (3) months time is granted to the L.Rs. of sole appellant i.e., appellants 2 to 9 to deliver the vacant possession of the plaint A schedule property to the L.Rs. of second plaintiff i.e., respondents 6 to 8. Considering the facts and circumstances of the case, each party do bear their own costs in the appeal.

32 VGKRJ AS 708 of 2006

As a sequel, miscellaneous petitions, if any, pending in the Appeal shall stand closed.

_________________________ V.GOPALA KRISHNA RAO, J Date: 12.09.2024 sj 33 VGKRJ AS 708 of 2006

THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

APPEAL SUIT No.708 OF 2006

Date: 12.09.2024

sj