Bombay High Court
Shri Namdev Shrawan Pawar vs Smt. Sushilabai Pandi Deore And Others on 18 March, 2025
2025:BHC-AS:12528
901-SA-376-2014.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
rrpillai CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 376 OF 2014
Shri Namdev Shrawan Pawar
Aged : 45 Occup : Agriculturist
R/o. Kharda, Taluka Kalvan
Appellant
Dist. Nasik
Vs.
1. Smt. Sushilabai Pandit Deore
Aged 56 years, Occup : Agriculturist
R/o. Kharda, Taluka Kalvan
Dist. Nasik
2. Shri Bharat Pandit Deore
Aged 37 years, Occup : Agriculturist
R/o. Kharda, Taluka Kalvan
Dist. Nasik
3. Sau.Vandana Jagannath Pawar
Aged 40 years, Occup : Agriculturist
R/o. Bhaur, Taluka Deola
Dist. Nasik
4. Sau. Jaishree Sharad Patil
Aged 28 years, Occup : Agriculturist
R/o. Pale,Taluka Kalvan
Dist. Nasik Respondents
Mr. R. M. Haridas i/b. Mr. Ajay Patil for the Appellant.
Mr. Prashant Aher a/w. Mr. Vipul Patil for the Respondents.
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CORAM: GAURI GODSE, J.
RESERVED ON: 5th DECEMBER 2024
PRONOUNCED ON: 18 th MARCH 2025
JUDGMENT :
1. This appeal is preferred by the defendant to challenge the
decree of possession against him and dismissal of his counterclaim
for specific performance. The defendant claims to be in possession
in lieu of the agreement dated 6 th April 1995 executed by the
plaintiffs' predecessor in title. The plaintiffs claim that the document
relied upon by the defendant is bogus and, therefore, had prayed
for cancellation of the document and possession of the suit
property. The suit is partly decreed directing the defendant to hand
over possession of the suit property. The defendant's counterclaim
for specific performance of the said document is refused. The trial
court's decree is confirmed in the first appeal preferred by the
defendant. Hence, this second appeal by the defendant.
Facts in brief:
2. The second appeal is admitted vide order dated 6 th June 2016
on the following substantial questions of law:
(1) When in earlier litigation i.e. Suit No.56/1997, the
learned Court had already declared that the agreement
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for sale dated 6 April 1995 is genuine document and
specifically recording a finding that the plaintiffs had
failed to prove that it was a bogus document, whether
the Courts below are justified in giving a contrary finding
and drawing an adverse inference that the possession of
the suit property by the Appellant is illegal and the
agreement dated 6 April 1995 is forged and bogus ?
(2) When admittedly the suit property is the ancestral
property of Pandit Deore, it stands admitted by the
Plaintiffs themselves that the Plaintiffs are the co-sharers
of the suit property and therefore whether the Courts
below are justified in granting decree of possession in
favour of the Plaintiffs in entirety without the exclusion of
the share of the deceased Pandit Deore in favour of the
Appellant and the deceased Pandit Deore had right, title
and interest to deal with the part of the suit property to
this legitimate share ?
(3) Whether both the courts below committed an error
in holding that the Appellant is not entitled for specific
performance of the contract in pursuant to the
agreement for sale, dated 6 April 1995 ?
3. The document which is the subject matter of the dispute is a
registered document dated 6th April 1995, executed by Pandit Deore
("Pandit"). Pandit was plaintiff no.1's husband. Plaintiffs nos. 2 to 4
are children of deceased Pandit and plaintiff no.1. The plaintiffs
claim that the suit property is an ancestral property allotted to the
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share of Pandit in 1986, and thus, even they have a right to it.
Pandit expired on 26th June 1995. The plaintiffs claim that after
Pandit's death, their names were entered in the revenue record as
owners of the suit property. The plaintiffs contended in the suit that
Pandit was working in the railway department. He was indulging in
vices of liquor and thus was under the influence of bad vices. The
defendant took advantage of the same and got the agreement
executed by Pandit. They contended that the suit property being the
ancestral property of Pandit, the plaintiffs were entitled to a share in
the suit property, and thus, the agreement executed without their
consent would not be binding upon them. The plaintiffs thus claimed
that the agreement was a bogus document and that the defendant
was in unlawful possession. The plaintiffs contended that the
defendant never took any steps to get the agreement specifically
performed and thus was not entitled to retain possession of the suit
property. The plaintiffs, therefore, filed the suit, seeking cancellation
of the agreement and possession.
4. The defendant appeared in the suit and filed a written
statement opposing the suit claim. The defendant filed a
counterclaim seeking specific performance of the agreement. The
defendant contended that the plaintiffs had initially filed Regular
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Civil Suit No. 56 of 1997. It was contended by the defendant that in
the said suit, the agreement was declared as a genuine document,
and a specific finding was recorded that the plaintiffs had failed to
prove that it was a bogus document. Defendant thus contended that
in view of the judgment in the earlier suit, the plaintiffs were not
entitled to seek cancellation of the document on the ground that it
was bogus. The defendant contended that he was put in possession
pursuant to the execution and registration of the agreement in his
favour on payment of substantial consideration amount of Rs.
71,000/- to deceased Pandit. He contended that the sale deed was
to be executed after permission from the Collector. However, the
deceased Pandit failed to perform his part of the contract, and thus,
the sale deed could not be executed. The defendant thus
contended that there was no part of the contract remaining to be
performed by the defendant, and thus, he was entitled to specific
performance of the contract executed by deceased Pandit. The
defendant thus contended that the agreement in his favour was
binding upon the plaintiffs, and they were not entitled to seek
possession of the suit property from the defendant.
5. The trial court held that the findings on the validity of the
agreement recorded in the earlier suit would not be binding, and
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thus, the issue of the validity of the agreement would not be hit by
the principles of res judicata. It was held that the plaintiffs failed to
prove the agreement was false and fabricated. However, the
agreement was held as not binding upon the plaintiffs. The
defendant's possession was held to be unlawful. The prayer for the
specific performance of the contract was refused as time-barred and
because the defendant failed to prove his readiness and willingness
to perform the contract. The defendant was thus held to be not
entitled to retain possession of the suit property, and thus, the
decree was passed in favour of the plaintiffs, directing the
defendants to hand over possession to the plaintiffs. Hence, the
defendant preferred the first appeal.
6. The first appellate court held that the issue of the validity of
the agreement was an issue raised and decided in the earlier suit.
Hence, it was held that the prayer for a declaration that the
agreement was illegal was hit by the principles of res judicata. The
first appellate court confirmed the trial court's findings on the
defendant's readiness and willingness to perform his part of the
contract and the findings on the counterclaim held barred by
limitation. Thus, the defendant's possession was held to be
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unlawful, and the first appeal was dismissed. Hence, this second
appeal by the defendant.
Submissions on behalf of the appellant:
7. Learned counsel for the appellant submitted that in the earlier
suit filed by the plaintiffs simplicitor for injunction, an application was
filed for amending the suit for seeking possession. However, the
prayer for amendment was rejected. He, therefore, submitted that
the present suit was hit by the principles of res judicata. Learned
counsel for the appellant further submitted that the first appellate
court answered the findings on the suit being barred by the
principles of res judicata in the affirmative; however, erroneously
confirmed the trial court's findings to grant a decree for possession.
8. Learned counsel for the appellant submitted that the first
appellate court, without recording any findings on the issue of the
plaintiffs' entitlement to seek possession, confirmed the trial court's
decree for possession. He submitted that the only findings recorded
by the first appellate court were on the validity of the execution of
the agreement.
9. To support his submissions on the defendant's entitlement to
retain possession, learned counsel for the appellant relied upon
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paragraph 7 of the Apex Court's judgment in the case of Mohhamed
Khan (Dead) through LRs vs. Ibrahim Khan and Another 1 .
10. Learned counsel for the appellant thus submitted that once
the registered agreement in favour of the defendant is accepted as
a valid document, the defendant would be entitled to seek
protection of his possession in view of Section 53A of Transfer of
Property Act,1882 ("TP Act"). He submits that the defendant is in
possession of the suit property pursuant to the agreement in his
favour. Hence, the defendant is entitled to retain his possession. To
support his submissions on Section 53A of the TP Act, learned
counsel for the appellant relied upon the Full Bench decision of this
court in the case of Mahadeo Nathuji Patil vs.Surjabai
Khushalchand Lakkad and Others2 and decision of the Hon'ble
Apex Court in the case of Shrimant Shamrao Suryavanshi and
Another vs. Pralhad Bhairoba Suryavanshi (Dead) by LRs and
Others3.
11. Learned counsel for the appellant thus submitted that once
the agreement for sale is accepted as a genuine document in the
earlier suit, both the courts were not justified in giving contrary
findings and drawing adverse inferences on the defendant's
1 (2018) 14 SCC 495
2 1994 Mh.L.J. 1145
3 (2002) 3 SCC 676
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possession as illegal. Learned counsel thus submits that the first
question of law be therefore answered in favour of the appellant.
12. Learned counsel for the appellant submitted that, admittedly,
the suit property is the ancestral property of the deceased Pandit.
Hence, after the death of the deceased Pandit, even if the plaintiffs
are held entitled to claim a share in the suit property, the agreement
would be binding at least to the extent of Pandit's share in the suit
property. He thus submits that both the courts erred in granting a
decree of possession in its entirety without excluding Pandit's share
in the suit property.
13. Learned counsel for the appellant submitted that deceased
Pandit signed the agreement on 6th April 1995. Pandit expired on
26th April 1995. He submits that the defendant has been in
possession since the date of execution of the agreement. The
plaintiffs had initially filed a suit simplicitor for an injunction on
17th May 1997 that was dismissed on 6 th February 2004. He
submitted that the present suit for possession and cancellation of
the agreement was filed on 5th April 2007. Hence, the defendant
filed a counterclaim to seek specific performance. He thus
submitted that filing of the suit for cancellation of the agreement and
possession would amount to refusal on the part of the plaintiffs to
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perform their part of the contract. Hence, the prayer for specific
performance was well within the limitation in view of Article 54 of
The Limitation Act, 1963.
14. Learned counsel for the appellant thus submitted that in view
of the agreement executed by deceased Pandit and the defendant
being in possession pursuant to the agreement, the plaintiffs were
at the most entitled to seek partition to the extent of their share.
Learned counsel for the appellant thus submitted that the
agreement executed by deceased Pandit would be binding upon the
plaintiffs to the extent of at least Pandit's share. Hence, the decree
for possession of the entire property is not sustainable. He thus
submits that the second question of law also be answered in favour
of the defendant.
15. Learned counsel for the appellant submitted that the
agreement in the defendant's favour is proof that the defendant paid
the entire consideration to deceased Pandit at the time of execution
of the agreement, and the defendant did not have to perform any
part of the contract. Hence, the issue of readiness and willingness
on the part of the defendant is erroneously decided against the
defendant. According to the learned counsel for the appellant, the
performance of the contract was, for the first time, refused when the
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plaintiffs filed the present suit for cancellation of the agreement.
Hence, the defendant's prayer for specific performance in the
counterclaim is well within limitation. He thus submits that even the
third question of law be answered in favour of the defendant as he
is entitled to seek specific performance of the contract pursuant to
the valid and subsisting agreement in his favour.
16. Learned counsel for the appellant thus submitted that both the
judgments and decrees deserve to be quashed and set aside by
dismissing the suit and allowing the defendant's counterclaim for
specific performance of the contract.
Submissions on behalf of the respondents:
17. Learned counsel for the respondents (plaintiffs) supported the
impugned judgments and decrees. He submitted that the issue of
possession in part performance of the contract never arose in the
first suit. In the first suit, no finding was recorded that the defendant
was put in possession of the suit property on the date of the
agreement. He submitted that perusal of the contents of the
agreement would indicate that the defendant was never put in
possession of the suit property on the date of execution of the
agreement. Hence, the defendant would not be entitled to seek
protection of his possession by relying upon the provisions of
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Section 53A of the TP Act. He further submitted that even if the
agreement is held to be a genuine document, the defendant would
not be entitled to retain possession of the suit property, as the
defendant failed to prove that he was put in possession in part of
the performance of the contract. He thus submitted that the
defendant's possession cannot be accepted as lawful. He thus
submitted that the first question of law be answered in favour of the
plaintiffs.
18. Learned counsel for the respondents submitted that there was
never any attempt made by the defendant to obtain permission in
terms of the agreement. He submitted that the agreement was hit by
the provisions of the Maharashtra Tenancy and Agricultural Lands
Act, 1948 ("Tenancy Act"). Thus, in the absence of any attempt to
obtain permission from the competent authority, there was no
question of executing the sale deed.
19. Learned counsel for the respondents further submitted that
the agreement produced on record indicates an amount of
Rs.1,50,000/- and not Rs.71,000/- as a consideration amount.
According to the defendant, he only paid Rs.71,000/-. He submitted
that in the absence of any pleadings and evidence regarding either
payment of the entire consideration amount, as reflected in the
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agreement or any attempt made on the part of the defendant to
make payment of the balance consideration amount, the defendant
cannot be said to be ready and willing to perform his part of the
contract. He submitted that in the absence of proof that the
defendant was put in possession pursuant to the agreement and in
the absence of any act done by the defendant in furtherance of the
contract, the defendant would not be entitled to seek protection
under section 53A of the TP Act.
20. Learned counsel for the respondents submitted that the
defendant was only permitted to cultivate the land, and he was
never in possession by virtue of the agreement. He submitted that
much before the execution of the agreement, the defendant was
permitted to cultivate the land. He further submitted that the
agreement records that possession would be handed over to the
defendant at the time of execution of the sale deed. He thus
submitted that the cultivation by the defendant would, therefore, not
amount to the defendant being in possession in pursuance of the
agreement. He thus submitted that both courts rightly held that the
defendant was in unlawful possession of the suit property. The
learned counsel for the respondents relied upon the pleadings in
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paragraphs 11 and 12 of the plaint and the revenue records, which
indicates that the defendant was only cultivating the suit property.
21. Learned counsel for the respondents relied upon the decision
in the case of Nakubai Valu Dhokane since deceased through heirs
and LRs. Shakuntalabai Pandurang Jagtap and Others vs.
Bhagwansingh Prakash Chandra4 to support his submissions that in
the absence of any specific pleadings in terms of Section 16(c) of
the Specific Relief Act, 1963, the defendant would not be entitled to
seek specific performance.
22. Learned counsel for the respondents relied upon the decision
of the Hon'ble Apex Court in the case of Nagabhushanammal
Nagabhushanammal (dead) by LRs vs. C. Chandikeswaraligam 5 to
support his submissions that the dismissal of the earlier suit for
simpliciter injunction would not amount to a suit on the same cause
of action and thus the substantive suit for declaration and
possession would not be barred by the principles of res judicata.
23. Learned counsel for the respondents also relied upon the
decision of this Court in the case of Janardan s/o. Kisanaji Parbat
Parbat Vs Rekha w/o. Marotrao Parbat 6 to support his submissions
4 2008 (6) Mh.L.J. 105
5 2016 (4) SCC 434
6 2020 (6) Mh.L. J. 321
901-SA-376-2014.docx
that interference by the high court under Section 100 of CPC is not
warranted unless the concurrent findings of facts are perverse.
24. Learned counsel for the respondents, therefore, submitted
that the defendant was not entitled to any specific performance of
the contract. He thus submits that in the absence of any title in
favour of the defendant and in the absence of any right in favour of
the defendant to seek specific performance of the contract, the
defendant would not be entitled to retain possession of the suit
property. He thus submitted that all three questions of law be
answered in favour of the plaintiffs and the second appeal be
dismissed.
Consideration of Submissions and Analysis:
25. I have perused the record and proceedings of the second
appeal. The facts pleaded by the plaintiffs indicate that they dispute
the valid execution of the agreement in favour of the defendant. The
plaintiffs' contention that the suit property was ancestral is not
disputed. The defendant claims to be in lawful possession based on
the agreement dated 6th April 1995 executed by Pandit. The
plaintiffs claim title to the suit property being heirs of Pandit, who
expired on 26th April 1995. The plaintiffs had filed Regular Civil Suit
No. 56 of 1997 for an injunction to protect their possession.
901-SA-376-2014.docx
However, the suit was dismissed by holding that deceased Pandit
executed the agreement in favour of the defendant, and he was in
possession of the suit property.
26. In the present suit, the trial court held that the earlier suit was
only for an injunction and the agreement was not challenged;
hence, the present suit for declaration and possession was not
barred by the principles of res judicata. The trial court referred to the
issue in the earlier suit on the execution of the agreement and
possession and observed that the issue was answered in the
affirmative only to the extent of execution of the agreement. The trial
court held that the agreement was not challenged in the earlier suit,
and thus, the issue of validity of the document was not directly and
substantially an issue raised in the earlier suit. However, the trial
court held that the plaintiffs failed to prove that the agreement was a
bogus document. Thus, the trial court accepted the valid execution
of the agreement by the deceased Pandit in favour of the
defendant. However, the trial court disbelieved the defendant's
theory that he was put in possession in part performance of the
contract.
27. The defendant's counterclaim for specific performance of the
agreement was rejected as barred by limitation and failure on the
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part of the defendant to prove readiness and willingness. The
plaintiffs being owners of the suit property, the agreement was held
not binding on the plaintiffs. Since the defendant was not held
entitled to seek protection under Section 53A of the TP Act, the suit
for possession was decreed, directing the defendant to hand over
possession to the plaintiffs.
28. In the earlier suit, the prayer was only for an injunction on the
ground that the agreement in favour of the defendant was a bogus
document. The issue framed in the earlier suit and the findings
recorded therein are elaborately discussed by the first appellate
court in the present case. In the earlier suit, the issue as to whether
the defendant proved that deceased Pandit executed an agreement
in favour of the defendant and put him in possession was partly
answered in favour of the defendant. The execution of the
agreement in favour of the defendant was held in his favour;
however, his claim of being in possession pursuant to the
agreement was disbelieved. Another issue in the earlier suit, as to
whether the plaintiffs proved that the agreement between deceased
Pandit and the defendant was bogus, was answered in the
negative. Hence, by discussing the issue raised and decided in the
earlier suit, the first appellate court in the present case held that the
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issue involving the genuineness of the suit agreement was
substantially raised and decided in the earlier suit, and its findings
would be binding. Hence, the first appellate court held that the issue
of genuineness of the agreement would be hit by the principles of
res judicata.
29. The point of the defendant's lawful possession is discussed by
both courts by examining the contents of the agreement and the
other evidence on record. Both courts held that the terms and
conditions of the agreement provided for handing over possession
to the defendant at the time of the execution of the sale deed. Thus,
in the absence of any evidence to prove that the defendant was put
in possession of the suit property in part performance of the
agreement, both courts held that the defendant's possession was
not lawful.
30. I have perused the pleadings and both the judgments in the
earlier suit. Though the earlier suit filed by the plaintiffs was only for
an injunction to protect their possession, the issue of valid execution
of the agreement by the deceased Pandit and whether the
deceased Pandit handed over possession to the defendant
substantially arose in the earlier suit. In the earlier suit, it is held that
the agreement was executed by deceased Pandit; however, the
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defendant failed to prove that deceased Pandit handed over
possession. The first appellate court in the present suit is, thus, right
in holding that the issue of the validity of the agreement was
substantially in issue and thus, its findings would be binding. Hence,
the first appellate has rightly held that the issue of the validity of the
agreement in the present suit would be hit by the principles of res
judicata. The plaintiffs' prayer for the cancellation of the agreement
on the grounds that it was a bogus document is, therefore, rightly
not granted in the present suit. However, even if the document is
accepted as a validly executed document by the deceased Pandit,
nothing is placed on record to indicate that the agreement would be
binding upon the plaintiffs or that the defendant was put in
possession of the suit property in part performance of the contract.
The first appellate court discussed the evidence led by the plaintiffs
that the defendant and his father were cultivating the suit property,
but they were never put in possession of the same. Both the courts,
after examining the oral and documentary evidence, held that the
defendant failed to prove that he was put in possession of the suit
property. Nothing is shown on behalf of the appellant about any
valid source of possession of the suit property or that he was in
possession in part performance of the contract. I therefore, find no
illegality or perversity in the concurrent findings recorded
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disbelieving the defendant's case of being in lawful possession of
the suit property.
31. Even according to the defendant, the deceased Pandit
executed the agreement in respect of the entire property and not
towards any undivided share of the deceased Pandit. Therefore, I
do not find any substance in the argument raised on behalf of the
appellant that the plaintiffs were required to file a suit for partition.
Even otherwise, execution of the agreement would itself not create
any right in favour of the defendant so far as the title is concerned.
Even though the agreement is registered, the same would not
create any right in favour of the defendant unless the defendant
proved that he was put in possession in part performance of the
agreement. The defendant failed to prove that he was put in
possession as part of the performance of the contract. Hence, the
defendant would not be entitled to seek protection of his possession
by relying upon the principles of Section 53A of the TP Act. Hence,
I find substance in the arguments raised by the learned counsel for
the respondents that the appellant is not entitled to retain the
possession by relying upon Section 53A of the TP Act.
32. The earlier suit was admittedly filed only for simplicitor
injunction. Though it is not disputed that the plaintiffs had prayed for
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an amendment to seek possession, which was rejected, it would not
amount to any bar in the present suit seeking possession. The issue
regarding the plaintiffs' entitlement to seek possession was not
raised and decided in the earlier suit. However, in the earlier suit, it
is held that the defendant failed to prove that he was put in
possession by the deceased Pandit. Hence, the present substantive
suit for possession by praying for cancellation of the agreement was
based on the plaintiffs title and on a different cause of action.
Hence, the plaintiffs' prayer must be examined based on their right
to seek possession being owners of the suit property. The cause of
action, as pleaded in the suit in paragraph 7 and the trial court's
findings based on the cause of action, supports the plaintiffs'
entitlement for seeking possession based on title.
33. The defendant's contention that he was always ready and
willing to perform his part of the contract must be examined with
reference to the terms and conditions of the agreement. The
defendant contended that the entire consideration amount of
Rs.71,000/- was already paid at the time of execution of the
agreement. However, a perusal of the agreement indicates that the
total consideration agreed was Rs.1,50,000/-. The terms and
conditions in the agreement provide that the defendant was to bear
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the expenditure for obtaining permission from the competent
authority. There is no pleading and proof by the defendant that he
was ready and willing to perform his part of the contract by paying
the expenses and the balance consideration amount.
34. In the first suit, the plaintiffs, i.e. heirs of deceased Pandit, had
objected to the agreement relied upon by the defendant. Therefore,
filing the first suit itself would amount to a refusal on the part of the
plaintiffs to perform the terms of the agreement executed by the
deceased Pandit. Hence, even if the agreement executed by
deceased Pandit is held to be a valid document, the objection
raised by the plaintiffs in the first suit filed on 17 th May 1997 and
decided on 6th February 2004 would amount to refusal as
contemplated under Article 54 of the Limitation Act, 1963. Hence,
prayer in the counterclaim made on 16 th October 2007 for specific
performance of the contract of 6 th April 1995 is hopelessly barred by
limitation. The trial court's findings confirmed by the first appellate
court on the prayer for specific performance to be barred by
limitation is thus based on correct appreciation of the pleadings and
evidence on record.
35. I do not find any illegality or perversity in the concurrent
findings recorded by the courts that the defendant failed to prove his
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readiness and willingness to perform his part of the contract. Both
the courts correctly appreciated the pleadings and evidence on
record to hold that the defendant failed to prove that he was put in
possession in part performance of the contract. Therefore, the
defendant is rightly held to be in unlawful possession.
Legal Principles:
36. Learned counsel for the appellant relied upon the legal
principles settled by the Hon'ble Apex Court in the decision of
Shrimant Suryawanshi and this court in the decision of Mahadeo
Nathuji Patil.
37. Before the Hon'ble Full Bench of this court, in the case of
Mahadeo Nathuji Patil, the question posed was whether the
transferee in possession, who does not avail the remedy of
acquiring title by specific performance, can be regarded as having
fulfilled the conditions envisaged by Section 53A to sustain
possession. Thus, the Hon'ble Full Bench was dealing with the
question relating to the extent of protection available under Section
53A of the TP Act to maintain one's possession derived through
part performance. The Hon'ble Full Bench held that the statutory
protection granted under Section 53A to a transferee in possession
to continue his possession under an unregistered contract or
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instrument of transfer is not lost by lapse of time to file suit for
specific performance of a contract for acquiring title if he satisfies
the essential requirements of Section 53A of the TP Act.
38. The Hon'ble Apex Court, in the decision of Shrimant
Suryawanshi, upheld the view taken by the Hon'ble Full Bench of
this Court in the decision of Mahadeo Nathuji Patil. The Hon'ble
Apex Court held that the law of limitation would not come in the way
of a transferee to defend or protect his possession under section
53A of the TP Act if the following conditions are satisfied.
"(1) there must be a contract to transfer for consideration of 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. "
emphasis applied
901-SA-376-2014.docx
39. Thus, according to the well-established legal principles, one of
the important aspects of claiming protection of possession under
Section 53A of the TP Act is that the transferee must, in part-
performance of the contract, take possession of the property or of
any part thereof.
40. Learned counsel for the appellant also relied upon the Hon'ble
Apex Court's decision in the case of Mohhamed Khan. In the said
decision, the Apex Court was examining the appellant's contention
that the earlier suit was between the same parties in respect of the
same property and for the relief of possession based on title; hence,
the trial court was right in holding that the judgment in the earlier
suit operated as res judicata and reversal thereof by the appeal
court could not have been sustained. In the facts of that case, the
same plaintiff in two suits alleged two different dates of
dispossession. However, the matter directly and substantially in
issue in both suits was the claim of the plaintiff to title to the suit
property and right to possession. It was thus held that the mere fact
that in the second suit, a different date of dispossession was given
was not enough to hold that the principle of res judicata was not
applicable, particularly when the second date of dispossession was
during the pendency of the proceedings in the earlier suit. It was
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thus held that res judicata applies when the issue in an earlier suit is
directly and substantially the same as in the subsequent suit,
irrespective of the plea taken with reference to such an issue in the
two suits. Hence, it was held that the finding on the issue of title and
right of possession, having been heard and finally decided in the
earlier suit, operated as a bar to the trial of the subsequent suit.
41. Learned counsel for the respondents relied upon the decision
of this court in the case of Nakubai Dhokane. This court was
deciding the second appeal preferred by the defendant to challenge
the specific performance decree passed by the first appellate court.
The trial court had dismissed the suit as barred by limitation.
However, the appeal court reversed the trial court's finding and held
the suit within limitation. The first appellate court had concluded
that the plaintiff had paid the entire consideration amount, and
nothing remained to be performed. It was also observed that as the
plaintiff was put in possession of the suit land in pursuance of the
agreement to sell and the vendor did not repudiate the contract, as
per ordinary rule, the specific performance should have been
granted to the plaintiff. On the point of delay, the first appellate court
observed that even though there was a delay of 14 years in filing
the suit, the specific performance cannot be refused on the ground
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of delay as the prior permission under the Bombay Prevention of
Fragmentation and Consolidation of Holdings Act required to be
taken was not necessary with effect from May 1980.
42. This court in the case of Nakubai Dhokane held that once the
restriction under the Act to alienate, sell, or transfer was lifted, the
plaintiff should have taken steps to execute the sale deed within
one month from the amendment Act. This court referred to the
provisions of section 46 of the Contract Act and held that when no
time is specified for the performance of the promise, the contract
must be performed within a reasonable time. This court thus held
that though the agreement of sale mentioned one month time
subject to permission from the Collector for executing the sale deed,
there was no evidence to show that the plaintiff had made any
efforts by applying to the authority for permission for executing the
sale deed or taking immediate steps after the restrictions on sale or
transfer were removed by the Amending Act. Therefore, it was held
that the plaintiff was not ready and willing to perform his part of the
contract and after 15 years from the date of the agreement of sale,
he filed the suit, which was hopelessly time barred. This court,
therefore, held that the decree for specific performance was not
justified.
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43. Learned counsel for the respondents relied upon the legal
principles of applicability of res judicata referred to in the decision of
the Hon'ble Apex Court in the case of Nagabhushanammal. In the
said decision, the Hon'ble Apex Court, in paragraphs 15 and 16
referred to the well-established legal principles as under:
"15. "Res judicata" literally means a "thing adjudicated" or "an
issue that has been definitively settled by judicial decision"
[Black's Law Dictionary, 8th Edn., 1336-37.] . The principle
operates as a bar to try the same issue once over. It aims to
prevent multiplicity of proceedings and accords finality to an
issue, which directly and substantially had arisen in the former
suit between the same parties or their privies and was
decided and has become final, so that the parties are not
vexed twice over; vexatious litigation is put an end to and
valuable time of the court is saved . (SeeSulochana Amma
v.Narayanan Nair [Sulochana Amma vNarayanan Nair, (1994)
2 SCC 14] .)
16. In Jaswant Singh v. Custodian of Evacuee Property
[Jaswant Singh v.Custodian of Evacuee Property, (1985) 3
SCC 648] this Court has laid down a test for determining
whether a subsequent suit is barred by res judicata: (SCC p.
657, para 14)
"14. ... In order that a defence of res judicata may
succeed it is necessary to show that not only the cause of
action was the same but also that the plaintiff had an
opportunity of getting the relief which he is now seeking in the
former proceedings. The test is whether the claim in the
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subsequent suit or proceedings is in fact founded upon the
same cause of action which was the foundation of the former
suit or proceedings."
emphasis applied
44. Learned counsel for the respondents relied upon the decision
of this court in the case of Janardan Parbat to support his
submissions that no interference under Section 100 of CPC is
warranted in the facts of the present case. There cannot be any
debate on the legal principles on the scope of interference by the
high court under section 100 of CPC, as referred to by this court in
the decision of Janardan Parbat, by referring to the well-established
legal principles.
Conclusions:
45. In the present case, there is no dispute that the suit property
was an ancestral property of deceased Pandit. Hence, the plaintiffs'
rights qua their share cannot be taken away by the agreement
executed by deceased Pandit. At the most, the agreement would be
binding towards the share of the deceased Pandit. The theory of the
defendant being in possession of the suit property in part
performance of the contract is not proved by the defendant. Hence,
the defendant would not be entitled to retain possession of the suit
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property. Both courts held that the defendant failed to prove his
readiness and willingness to perform the contract. Thus, in view of
the well-established legal principles discussed above, the defendant
would not be entitled to seek any protection under Section 53A of
the TP Act.
46. I have already recorded reasons to uphold the first appellate
court's findings that only the issue of the validity of the execution of
the agreement by deceased Pandit would be hit by the principles of
res judicata. Thus, in view of the well-established legal principles on
res judicata, the issue of the validity of the agreement cannot be
reopened in the present suit. However, even in the earlier suit, the
defendant failed to prove that he was put in possession by
deceased Pandit in part performance of the contract. Earlier, the
suit for injunction was dismissed as the defendant was found in
possession of the suit property. However, even in the present suit,
the defendant failed to prove that he was put in possession in part
performance of the contract. The defendant has not pleaded and
proved any other valid source of possession. Thus, even if the
agreement is held to be a valid document, it will not validate the
defendant's possession. Hence, the defendant's possession is
correctly held as unlawful. Thus, in the facts of the present case,
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none of the conditions for applicability of the protection under
Section 53A of the TP Act are satisfied. Thus, in view of the well-
established legal principles discussed above on the applicability of
the protection of Section 53A of the TP Act, the defendant would not
be entitled to retain possession. Therefore, the first question of law
is answered accordingly in favour of the plaintiffs.
47. The plaintiffs' ownership of the suit property is not disputed.
Once the defendant is not held entitled to seek specific performance
of the contract, the agreement would not be enforceable even to the
extent of Pandit's share. The defendant would, therefore, not be
entitled to retain possession through the deceased Pandit. Both
courts are, therefore, justified in granting a decree of possession in
favour of the plaintiffs.
48. I have already recorded the reasons for accepting the findings
of both courts in holding that the prayer for specific performance
was barred by limitation. The legal principles relied upon by the
learned counsel for the respondents are thus applicable in the
present case. I do not find any substance in the arguments raised
on behalf of the appellant. None of the legal principles relied upon
by the learned counsel for the appellant is of any assistance to the
arguments raised on behalf of the appellant. Hence, the suit for
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possession is correctly decreed in favour of the plaintiffs, and both
courts rightly dismissed the defendant's counterclaim. Thus, all
three questions are answered accordingly in favour of the plaintiffs.
49. Hence, for the reasons recorded above, the second appeal is
dismissed, and both the impugned judgments and decrees are
confirmed.
[GAURI GODSE, J.]
RAJESHWARI by RAJESHWARI
RAMESH RAMESH PILLAI
PILLAI Date: 2025.03.18
04:43:42 +0200
