Chattisgarh High Court
Shantilal Kumat vs Bhujan Singh on 9 March, 2022
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FA No. 8 of 2015
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
FA No. 8 of 2015
(Arising out of the judgment and decree dated 13.11.2014 passed by the
Second Additional District Judge, Durg (CG) in Civil Suit No.22-A/2013)
1. Shantilal Kumat S/o Late Hiralal Ji Kumat, Aged About 62 Years
Caste Jain, Profession- Business, R/o Navkar Parisar, Pulgaon
Nala Ke Pass Durg, Chhattisgarh
2. Smt Aashadevi Bewa Late Tarachand Hiralal Kumat, Aged About
50 Years Caste Jain, Profession Housewife
3. Ajay Jain S/o Late Tarachand Kumat Age 36 Years Caste Jain,
Profession Business,
4. Abhay Jain S/o Late Tarachand Kumat Aged 34 Years Caste Jain,
Profession Business,
No.2 to 4 R/o 104, Maruti Enclave, Tatibandh Raipur, Tehsil And
District Raipur, Chhattisgarh,
5. Ramesh Kumar S/o Late Hiralal Age 57 Years Caste Jain,
Profession Business, R/o Navkar Parisar, Near Pulgaon Nala,
Durg, Chhattisgarh
6. Subhash Chand S/o Late Hiralala Ji Kumat Aged 54 Years Caste
Jain, Profession Business, R/o Navkar Parisar, Near Pulgaon
Nala, Durg, Chhattisgarh .................Plaintiffs
---- Petitioner
Versus
1. Bhujan Singh S/o Madhorao Aged About 90 Years R/o
Tikarapara, Raipur Tehsil And District Raipur, Chhattisgarh,
2. Hirasingh S/o Madhovrao, Aged About 85 Years R/o Tikarapara,
Raipur Tehsil And District Raipur, Chhattisgarh
3. State Of Chhattisgarh, Through District Collector, Exofficio
Secretary, District Office, Durg, Chhattisgarh
................Defendants
---- Respondent
2
FA No. 8 of 2015
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For Appellant Mr. Prafull Bharat, Senior Advocate with
Mr. Chetan Singh and Mr. Ashish Surana,
Advocates
For Respondents 1 & 2 None
For Respondent No.3 / Mr. Ashutosh Mishra, Panel Lawyer
State
[
DB.: Hon'ble Mr. Justice Goutam Bhaduri &
Hon'ble Mr. Justice Deepak Kumar Tiwari
Judgment on Board by Goutam Bhaduri, J.
9/3/2022
1. Heard.
2. Challenge in this appeal is to the judgment and decree dated
13.11.2014 against dismissal. The suit was filed by the
appellants/plaintiffs for declaration and to confer title on the
basis of possession and prayer was also made for permanent
injunction not to disturb the possession.
3. In this appeal, respondents 1 & 2 remained ex-parte despite
service of notice by way of publication.
4. The brief resume of the facts are that the suit was filed by the
appellants/plaintiffs for declaration and to confer title in their
favour on the basis of possession along with the prayer for
permanent injunction not to disturb the possession on the basis
of agreement dated 10.2.1984- Ex.P/1. By such agreement,
they agreed to purchase the land bearing Khasra No.487 area
admeasuring 0.303 hectare situated at village Durg from Bhujan
Singh S/o Madhorao and Hirasingh S/o Madhorao (respondents
FA No. 8 of 2015
1 & 2 herein). Accordingly, an amount of sale consideration of
Rs.15,500/- was paid and the possession of the land was handed
over to the appellants. As per the agreement, the sale deed
was to be executed by seller after obtaining necessary revenue
documents within a period of 2 months from the date of
execution of the agreement. Eventually, the sale deed was not
executed and the appellants/plaintiffs continued their
possession over the land by virtue of such agreement of sale.
Lastly, on 4.5.2012, a legal notice-Ex.P/2 was issued to the
respondent-defendants, wherein, objection with respect to
their possession was invited and in the alternate, it was stated
that in the event of no response to such notice, the plaintiffs
would be deemed to be the owner of the property. Even after
the notice, since no response was made, a civil suit was filed by
the appellants on 4.2.2013. The trial Court dismissed the suit.
Hence, this appeal.
5. Mr. Prafull Bharat, learned Senior Counsel appearing for the
appellants, would submit that the trial Court completely erred
in holding that the declaration of title cannot be granted as it
failed to see that a prayer for permanent injunction was also
prayed for. He referred to the law laid down in the matter of
Rame Gowda (Dead) by LRs Vs. M. Varadappa Naidu (Dead) by
LRs. and another1 and would submit that when the
plaintiffs/appellants were in possession of the subject land on
the basis of the agreement, it would be deemed to be a
"settled possession" and such "settled possession" cannot be
disturbed by anyone and also, such possession would be against
1(2004) 1 SCC 769
FA No. 8 of 2015
the public at large. Lastly, he submits that the trial Court ought
to have considered the aspect that the possession of the
plaintiffs was in pursuance of the agreement in the year 1984
and as such, the injunction was necessitated. He would further
submit that the plaintiffs were in possession of the said land
and were holding it to the knowledge of the owner from 1984,
which has passed the period of limitation of 12 years and
consequently, declaratory decree ought to have been passed in
their favour.
6. There is no representation on behalf of respondents 1 & 2
despite service of notice. We heard Mr. Prafull Bharat, learned
Senior Counsel appearing for the appellants and Mr. Ashutosh
Mishra, learned Panel Lawyer appearing for the
State/respondent No.3, on merits.
7. Perusal of the evidence filed would show that initially,
respondents 1 & 2 entered into an agreement dated 10.2.1984
-Ex.P/1 with the appellants, whereby, they agreed to sell the
land bearing Khasra No.487 admeasuring 0.303 hectare
situated at village Durg for sale consideration of Rs.15,500/-. In
lieu of such consideration paid, the possession of the land was
handed over to the plaintiffs/appellants on that date. The
agreement further purports that within a further period of 2
months from the date of execution of the agreement i.e.
10.2.1984, the seller would obtain the necessary revenue papers
and thereafter, would execute the sale-deed in favour of the
appellants.
FA No. 8 of 2015
8. According to the statement of plaintiff Sohan Bai (since
deceased), by virtue of agreement dated 10.2.1984, the
plaintiffs/appellants came into possession of the land and the
entire sale consideration was paid. She also stated that they are
in possession since 10.2.1984 and till date, they have become
the owners. She further stated that her husband and sons have
tried to search out the sellers to get the sale-deed executed for
the reason that the entire sale consideration was received but
they could not find them. She further stated that from
10.2.1984, since 12 years have passed, the plaintiffs have
become the owners in respect of the said property and
therefore, an application was filed before the Tehsildar to get
their names mutated but it was advised by the revenue
authorities that a decree may be obtained from a Civil Court and
subsequently, the civil suit was filed. Further evidence has
been adduced that the notice-Ex.P/2 was sent, but it was
returned without service. Witness Kapoor Chand Jain (PW-2)
have also given the same statement in similar line that the
entire sale consideration was paid and since then, the plaintiffs
are in possession. Likewise, witnesses Ajay Kumar, (PW-3)
Ramesh Kumar (PW-4) and Ramdeen (PW-5) have made similar
statements except it was added by independent witness
Ramdeen that the plaintiffs are in possession of the subject
land without any disturbance.
9. Reliance placed by learned counsel for the appellants in Rame
Gowda (supra), is an admitted settled position of law. In the
said judgment, the phrase "settled possession" was enunciated.
FA No. 8 of 2015
The "settled possession" is one which is (i) effective (ii)
undisturbed, and (iii) to the knowledge of the owner or without
any attempt at concealment by the trespasser. The Supreme
Court settled that the phrase "settled possession" does not
carry any special charm or magic in it; nor is it a ritualistic
formula which can be confined in a straitjacket.
10. Here, in this case, the factum of possession is not in dispute. By
virtue of agreement dated 10.2.1984, the plaintiffs were placed
in possession in lieu of an agreement. The question which
looms large is as to what was the cause of action which was
available to the plaintiffs to bring the suit for declaration to
declare their title on the basis of possession for last 12 years
and permanent injunction. To demonstrate the same, the
plaintiffs heavily relied on the notice-Ex.P/2. A perusal of the
notice-Ex.P/2 though returned unserved would reveal the fact
that the settled possession of the plaintiffs was not disturbed
by anyone whatsoever. Therefore, if the plaintiffs are in
possession, in absence of any disturbance, the inference cannot
be drawn that the possessions are being disturbed and such
right of possession would be a right in rem.
11. Now reverting back to the nature of claim for which the suit was
filed, on reading of the plaint, it would reveal that a declaratory
decree was sought for that the plaintiffs be declared owner of
the land in question on the basis of their possession for last 12
years. The nucleus of the issue, the pith and substance lies in
the agreement dated 10.2.1984- Ex.P/1. By virtue of the said
agreement, the plaintiffs were in possession and an agreement
FA No. 8 of 2015
for sale was executed. In this case, when the agreement for
sale is executed and the purchasers are in possession, the
possession would be covered under Section 53A of the Transfer
of Property Act, 1882 (in short "the Act, 1882"). For sake of
brevity, Section 53A of the Act, 1882 is reproduced herein
below :
"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."
FA No. 8 of 2015
12. Admittedly, no suit was filed within a period of 3 years from the
year 1984 under Article 54 of the Indian Limitation Act, 1963 for
specific performance of sale-deed. The question therefore
reverts back as to whether the declaratory decree can be
granted on the basis of agreement qua the possession, which
the plaintiffs are enjoying since 1984.
13. Section 53A of the Act, 1882 covers the doctrine of part
performance and it is an equitable doctrine. The object of this
section is to permit the transferor or his successor from taking
any advantage on account of non-registration of the documents
provided the transferee has performed his part of contract and
in pursuance thereof, has taken possession of the immovable
property.
14. In the instant case, the purchaser i.e. the appellants/plaintiffs
have performed their part of contract and are holding
possession of the land. The said Section applies even when the
specific performance of a contract is barred or the contract is
unenforceable. Therefore, a plain reading of Section 53A of the
Act, 1882 makes it clear that this Section protects only the
possession of the appellants/plaintiffs. The whole controversy
revolves around Section 53A of the Act, 1882, where the parties
concerned in pursuance of an exchange of amount of
consideration were put to possession. The equity on which this
Section rests is doctrine of part performance and confers no
title, therefore, this Section cannot be utilised for perfection of
title. The right conferred under Section 53A of the Act, 1882 is
a right available only to transferee to protect his possession and
FA No. 8 of 2015
the Section so framed has to impose a statutory bar on the
transferor but it confers no active title on the transferee. An
exchange by which a person is in possession by virtue of Section
53A of the Act, 1882, does not amount to ownership of the
property. Hence, it is clear that equitable doctrine of part
performance would not create any right in favour of the
plaintiffs to confer the ownership of the property by a
declaratory decree.
15. The appellants no doubt came upon the land lawfully and were
in its peaceful possession. They were put to possession by the
rightful owners but a decree of declaratory title in their favour,
only on the basis of possession, by virtue of Section 53A of the
Act, 1882, cannot be granted. The same will only help the
appellants to defend their possession, if it is held under the
unregistered deed/contract and will not create right to confer
the title.
16. In view of such foregoing discussions, we are of the opinion that
the judgment and decree passed by the trial Court does not
require any interference. The appeal is devoid of any merit and
is dismissed.
Sd/- Sd/-
( Goutam Bhaduri) ( Deepak Kumar Tiwari)
Judge Judge
Shyna
FA No. 8 of 2015
HEAD NOTE
FA No. 8 of 2015
In part performance of contract of immovable property, the
possession under Section 53A of the TP Act will not confer any active
title on transferee.
LFkkoj laifRr ds lafonk ds Hkkfxd ikyu esa] laifRr varj.k
vf/kfu;e dh /kkjk 53d ds varxZr laifRr dk dCtk iznku dj fn;s
tkus ls vUrfjrh dks lfdz; LoRo izkIr ugha gksxkA
