Smt. Sushila Kumari vs Rama Stores
2005 Latest Caselaw 684 Del

JUDGMENT

Pradeep Nandrajog, J.

1. Late Sh. Bansi Lal, husband of plaintiff No. 1 and father of plaintiffs 2 to 6 purchased, vide registered sale deed dated 29.1.1980, a plot of land bearing Municipal No. 8, Sector-I, Punjabi Bagh Market, East Punjabi Bagh, New Delhi. Unfortunately for him the plot of land was under the occupation of M/s. Rama Store, defendant No. 1. It's partners were late Sh. Baij Nath, father of defendant No. 3 and Kishan Chand, defendant No. 2. Late Sh. Bansi Lal could not enjoy the use of the plot. His family members have also been denied the use thereof. Present suit seeks a decree for possession against the defendants in respect of the plot in question. Mandatory injunction is prayed for against the defendants directing them to remove the goods stored/stacked by them on the suit land. Damages from 3.5.1997 to 28.2.2000 in sum of Rs. 16,91,666/- and damages in sum by Rs. 1,89,000/- from 29.2.2000 to 2.5.2000 are claimed. Damages for continued unauthorised occupation during pendency of the suit and thereafter tile possession is delivered are also prayed. Needless to state, according to the plaintiffs, defendants are in unauthorised occupation of the plot in question.

2. The facts leading to the filing of the suit may be noted with a little more detail.

3. Sh. Baij Nath, father of defendant No. 3 and Sh. Kishan Chand, defendant No. 2 were carrying on business under the name and style of "M/s. Rama Store" from shop No. 1-A, East Avenue Market, Punjabi Bagh, New Delhi. Late Sh. Bansi Lal purchased the suit land in an open auction held on 18.4.1965 by the Refugees Co-operative Housing Society Limited. He paid 1/4th sale price. Execution of the sale deed was held-up as the society had not obtained requisite sanctions from the Municipal Corporation of Delhi Partners of M/s Rama Store utilised the suit land as it was adjacent to the shop from where they were carrying on business under the name and style of M/s. Rama Store. Regular sale deed was executed by the Refugees Cooperative Housing Society Limited in favor of Sh. Bansi Lal on 29.1.1980. Prior thereto, on 26.8.1979 the partners of M/s Rama Store gave a written undertaking to late Sh. Bansi Lal that they would vacate the suit land as and when it was so desired by late Sh. Bansi Lal. Partners of M/s Raja Stores had stocked certain building material and hardware etc on the plot as business of the partnership was sale of hardware items. Occupation of the plot continued post 29.1.1980. On 31.10.1980, late Sh. Bansi Lal entered into an agreement to sell in favor of M/s. Rama Stores, agreement being in respect of the suit land. He received a sum of Rs. 10,000/- towards earnest money. Sale could not go through. As per the plaintiffs there was litigation within the family of late Sh. Bansi Lal which hampered the execution of the sale deed. Defendants alleged that they were ready and willing to complete the sale formalities but late Sh. Bansi Lal evaded execution of the sale deed. Late Sh. Bansi Lal returned the earnest money on 31.12.1980 by and under a bankers cheque. Defendants refused receipt of the said bankers cheque.

4. Neither late Sh. Bansi Lal took recourse to any legal proceedings for avoiding the agreement to sell, in that, he never sought a declaration that the said agreement stands frustrated, nor did the defendants seek specific performance of the agreement to sell. In the year 1982, late Sh. Bansi Lal filed a suit for recovery of Rs. 2,000/- against M/s Rama Stores and its two partners for damages on account of unuthorised use and occupation of the suit land. Suit was filed on 2.2.1982. Damages were claimed at the rate of Rs. 500/- per month from 1.2.1980 to 31.1.1982 amounting to Rs. 12,000/-. It was stated in the plaint that after adjusting the earnest money received in sum of Rs. 10,000/-, plaintiff was entitled to a decree in sum of Rs. 2,000/-.

5. M/s. Rama Store and its two partners took a defense under the agreement to sell dated 31.10.1980. In a nutshell they claimed benefit under Section 53A of the Transfer of Property Act. According to them, possession qua the suit land was in furtherance of the agreement to sell and they having part performed under the agreement and further being ready and willing to comply with their obligations there under were not in unauthorised occupation of the plot in question. In the said suit which was originally registered as Suit No. 116/1982 but was re-numbered as Suit No. 604/1998, following issues were framed:-

"(i) Whether the plaintiff is entitled for damages, if so, at what rate and for what period? OPP

(ii) What is the effect of agreement to sell executed between the parties of issue No. 1? (Onus on parties)

(iii) Whether the suit has not been properly valued for purposes of court fees and jurisdiction? OPD

(iv) To what amount the plaintiff is entitled for?

(v) Relief."

6. During the pendency of the suit, Sh. Bansi Lal expired. Plaintiffs were imp leaded as his legal heirs. Suit was decreed vide judgment and decree dated 27.1.2000.

7. Vide judgment dated 27.1.2000 (Ex.P-3), learned trial court, in respect of issue No. 2 framed in the suit, returned a finding that possession was not handed over pursuant to the agreement to sell dated 31.10.1980. The learned trial court held that the agreement to sell had no effect on the entitlement of the plaintiffs to seek damages.

8. I may note at the outset that the judgment of the learned trial Court on issue No. 2 is a little incoherent, in that, a whole mass of facts is noted by the learned trial Court but while co-relating the facts, definite conclusions have not been arrived at, but finding has been returned as noted above.

9. Defendants filed an appeal against the judgment and decree dated 27.1.2000. Appeal was registered as RCA No. 311/2000, renumbered as RCA No. 15/2004

10. Finding on issue No. 2 by the learned Appellate Court which disposed of the appeal on 16.2.2005 are against the defendants. Findings are cohate. The first Appellate Court maintained the judgment and decree of the trial court pertaining to issue No. 2 but clarified that it was for the observations made by the appellate Court in paras 23 to 33 of its judgment.

11. Findings of the learned Appellate Court in its judgment dated 16.2.2005 pertaining to issue No. 2 are as under:-

23. ISSUE No. 2:- Agreement to sell Ex.PW-1/D1 is an admitted document. Thus it is immaterial whether the plaintiff has proved the same or not. The appellants have neither claimed themselves to be owner of the suit plot nor in lawful of the possession of the same prior to 29.01.1980. It is also admitted that they were enjoying the possession prior to 29.01.1980 by storing their building materials on the vacant plot. They have admitted the written undertaking given by them to the respondent on 26.08.1979 to vacate the said plot. The appellants have failed to prove as alleged by them that the said undertaking was obtained from them as a result of misrepresentation.

24. It was contended that after 29.01.1980 the appellants were in possession of the suit plot in part performance of the said agreement till the sale deed was executed by the respondent and the appellants were prepared to perform their part of agreement to pay the balance consideration. Thus the respondent could not unilaterally and arbitrarily cancel the agreement.

25. In order to show that the appellants were willing to perform their part of contract, it was contended that they had executed various documents which were proved in the testimony of DW-1 Sh. Baij Nath. This witness has testified that he wrote a letter to Sh. Bansi Lal to execute the sale deed as was agreed. However, the said letter has neither been produced and nor proved by the appellants. DW-1 has further deposed that he went to the office of Registrar on 30.12.1980 and waited there for Sh. Bansilal for the whole day but he did not turn up. On the same day he had made an application to Sub-Registrar, Delhi which is Ex. P-2. The appellants have not shown that they had informed the respondent to come to the office of Sub Registrar on 30.12.1980 and still he did not come. Moreover, the letter Ex.P-2 was made for inspection of the records to ascertain particulars about the property situated in East Punjabi Bagh, New Delhi. The appellants have failed to show that how this letter has helped them to prove their willingness to perform their part of the agreement.

26. The other documents relied upon on behalf of the appellants to prove their willingness are the three notices. DW-1 has deposed that he also served notices to Sh. Bansi Lal and proved the same as Ex.P-3, Ex.P-4 and Ex.P-5 which were received by him but he did not reply the same. These notices are dated 12.01.1981, 18.01.1981 and 11.03.1981 respectively.

27. In the notice Ex.P-3 the appellants have claimed that they are entitled for specific performance of the agreement through a court of law as the time was the essence of the contract and the sale deed was not executed by the respondent within two months time. In the subsequent notice Ex. P-4, the appellants have called upon the respondent to execute the sale deed after complying with all the legal formalities to be performed on his behalf. Similarly in the Ex.P-5 which is the reply of appellants to the notice dated 12.01.1981 received by them in which they have mentioned that they were reading and willing to perform their part of agreement and pay the balance amount as per the agreement. However none of these documents, Ex.P-2 to Ex.P-5 are sufficient to prove the appellants had performed any act in furtherance of the agreement. The mere inspection of the records in the office of Sub Registrar or serving of notices is alone not sufficient if no other overt act is done in furtherance of these notices.

28. On the other hand, on behalf of the respondent, the contention was raised that the Agreement Ex.PW-1/D1 was frustrated on 31.12.1980 due to the circumstances which were beyond his control. Thus it can be seen that the said agreement was put to an end from the side of the respondent. Whether the agreement was validly terminated by the respondent or not is beyond the scope of the subject matter of this case. The appellants have alleged that the said termination was a unilateral and arbitrary act on part of the respondent. Therefore it was the duty of the appellants to have challenged the said act of unilateral termination of the agreement by the respondent by adopting appropriate legal remedies which they have failed to do. Even after serving the notices Ex.P-3, P-4 and P-5 when the respondent did not come forward to execute the sale the appellants still did not take any step to protect their rights be seeking specific performance of the agreement as they were willing to perform their part of the contract.

29. The appellants have merely raised the plea that the agreement still existed as the same was not got cancelled or declared void on behalf of the respondent from any Court of law. The said argument is not tenable as the respondent had already set aside the agreement and thus he was not required to get it cancelled or declared void. Rather the appellants should have ensured its specific performance. Thus the appellants have failed to show any intention on their part to carry out the said agreement even though the respondent was not willing to do so.

30. During the course of arguments much stress was laid on the provision of Section 53A of the Transfer of the Property Act. On behalf of the appellants it was contended that they were in possession of the suit plot in part performance of the agreement which was denied on behalf of the respondent.

31. In Hari Singh (Deceased) though LRs. v. S.S. Jogi etc. (supra) it was observed by the Hon'ble Delhi High Court: "Continuation of part performance of the contract remains valid provided both the parties are ready or willing to perform their part of the contract."

32. However, the contention raised in respect of the provision of Section 53A of Transfer of Property Act are not of much relevance in the facts of the present case. These could have been substantiated effectively only in a suit for specific performance. Since the present appeal is not arising from a suit for specific performance. Thus the contentions in respect of Section 53A of the Transfer of Property Act that the appellants were willing to perform their part of contract are beyond the scope of the case.

33. Even if, for the sake of agreement it is assumed that the appellants were put in possession of the suit plot in part performance of the agreement then the moment when the agreement came to an end which was not got legally enforced on behalf of the appellants their possession in the suit plot became unlawful. Therefore, once the agreement came to an end it ceased to create any right/interest in the suit plot in favor of the appellants. Accordingly, issue No. 2 has been decided correctly be the learned Trial Court but for the observations made as herein above."

12. For record, certified copy of the judgment of the first Appellate Court was placed on record by the defendants by and under I.A.1521/05

13. Though no formal orders have been passed on I.A. No. 1521/05, learned counsel for the plaintiffs during final arguments referred to the judgment of the first Appellate Court. To formalise the record of this Court, I allow I.A.1521/05 and take on record the judgment dated 16.2.2005 passed by Ms. Shailinder Kaur, Additional District Judge, Delhi in RCA No. 15/2004 Since certified copy has been filed by the defendants and plaintiffs not only did not challenge the same but relied upon it during arguments, I would treat it as proved document.

14. Learned Appellate Court modified the decree of the learned trial court on the quantification of damages. It held that the plaintiffs would be entitled to damages at the rate of Rs. 250/- per month as against the finding of the learned trial court that the damages would be in sum of Rs. 500/- per month.

15. With this backdrop of the past history, claim of the plaintiffs in the present suit can be noted. Stating the past facts of unauthorised occupation over the plot prior to late Sh. Bansi Lal purchasing the same; purchase thereof by late Sh. Bansi Lal; parties entering into the agreement to sell on 31.10.1980; sale not fructifying; defense of the defendants to possession under Section 53A of the Transfer of Property Act, 1892 negated in the earlier litigation; plaintiffs allege that the defendants are in unauthorised occupation of the suit land. It is alleged that the land had a commercial usage and accordingly damages/mean profits have to be at commercial rates. Since defendants, according to the plaintiffs, have no right of possession over the plot, decree for possession is prayed for. Mandatory injunction is sought that the defendants should remove the hardware material stored on the plot.

16. Defendants have defended possession on the basis of the agreement to sell. defense under Order 2 Rule 2 has been taken on the averment that right to possession was available to the plaintiff when previous suit was filed seeking damages. Damages for unauthorised occupation and right to seek possession from the unauthorised occupant are stated by the defendants to arise on the same cause of action. It is stated that by not praying for possession when the earlier suit was filed, plaintiffs would be barred from claiming possession under Order 2 Rule 2. defense of limitation has also been raised. It is urged that right to recover possession of immoveable property from an unauthorised occupant accrues when possession becomes unauthorised. It is alleged that since possession was not regained within a period of 12 years, claim for possession is barred by limitation. It is denied by the defendants that the plot has a commercial usage.

17. On the pleadings of the parties, following issues were framed on 10.9.2003:-

1. Whether the suit is barred by time? OPD

2. Whether the suit is maintainable under Order VII Rule 11 CPC? OPD

3. Whether the suit is maintainable under Section 53A of Transfer of Property Act? OPP

4. Whether the plaintiffs are entitled to the possession of the suit property? OPP

5. Whether the suit is barred under Section 31 of the Specific Relief Act? OPD

6. Whether the suit is properly valued for the purpose of Court fee and jurisdiction? OPP

7. Whether the plaintiff is entitled to damages, recovery of possession and mesne profits, if so, at what rate and at what amount? OPP

18. On 20.8.2002, another issue being issue No. 1-A was framed as under:-

1-A. Whether the suit of the plaintiff is not maintainable and liable to be dismissed under the provisions of Order 2 Rule 2 C.P.C? OPD

19. Defendants had filed I.A. No. 1027/04 praying that the suit should be dismissed as being barred under Order 2 Rule 2. Said application has remained pending. Since issue No. 1-A, as noted above has been framed, I would be deciding the same along with the other issues. I.A.1027/04 is accordingly dismissed as infructuous.

20. Issue No. 1, 1A, 2, 3 and 5 may be decided together for the reason issue No. 2 is whether the suit is maintainable under Order 7 Rule 11 CPC. At the outset I may note that the issue is not happily worded. Issue should have been:-

'Whether the suit is liable to be rejected under Order 7 Rule 11 CPC?'

21. Similarly, issue No. 3 is also not happily worded. Section 53A of the Transfer of Property Act, 1882 gives a protective umbrella to the buyer of a property who enters into possession pursuant to an agreement to sell and has performed acts in furtherance of the agreement and has performed or is ready and willing to perform his obligations under the agreement. If defense succeeds, it non-suits a plaintiff. defense under Section 53A may defeat an action and therefore Section 53A of the Transfer of Property Act, 1882 has nothing to do with the maintainability of a suit. It may affect the sustainability of the action. I may elaborate a little further. If a transferee wants to defend or protect his possession under Section 53A of the Transfer of Property Act he has to plead and prove various facts which are necessary before which it could be urged that Section 53A applies. Established rule of law is that limitation is not applicable to a plea taken in defense unless an express provision is made in the statute. Various Articles of the Limitation Act, 1963 show that that do not apply to a defense taken by the defendant in a suit. Law of limitation bars an action in a court of Law. Remedy of a plaintiff to enforce his rights is distinct from the right of the defendant to put forward any defense to non-suit the plaintiff. (See 1 (2002) SLT 778 Shrimant Shamrao Suryavanshi and Anr. v. Pralhad Bhairoba Suryavanshi, para 18).

22. Order 7 Rule 11 of the Code of Civil Procedure, 1908 reads as under:-

11. Rejection of plaint.- The plaint shall be rejected in the following cases:-

a) where it does not disclose a cause of action;

b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;

c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;

d) where the suit appears from the statement in the plaint to be barred by any law;

e) where it is not filed in duplicate;

f) where the plaintiff fails to comply with the provisions of rule 9:

Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature for correcting the valuation or supplying the requisite stamp paper, as the case may be, within the time fixed by the court and that refusal to extend such time would cause grave justice to the plaintiff."

23. What the defendants have actually pleaded is that the suit is barred by limitation and that it is barred under Order 2 Rule 2 of the Code of Civil Procedure, 1908. Thus, for the purposes of Order 7 Rule 11, Clause(d) thereof would get attracted on the defense taken. Whether the defense succeeds under Clause (d) is a matter which requires adjudication.

24. Shri Jatin Singh, learned counsel for the defendant, relying upon: (a) AIR 2000 Delhi 31336 Ashok Kumar Khurana v. Steelman Industries and Anr., 2003 (3) RCR (Civil) 213 Amar Kaur v. Paramjit Kaur, 1992 RLR (SC) 263 Punjab National Bank v. Surendra P. Sinha, AIR 1995 SC 1927 U.O.I. v. Momin Construction Co., VIII (1999) SLT 587 Steel Authority of India v. J.C.Budhiraja, V (2004) SLT 586 Draupadi Devi and Ors. v. U.O.I., and JT 2004 (9) SC 124 Fairgrowth Investments Ltd. v. The Custodian, urged that a suit filed beyond period of limitation cannot be taken cognizance of by a civil court and has to be dismissed in terms of the mandate of Section 3 of the Limitation Act, 1963. Shri Dinesh Agnani counsel for the plaintiff urged that there was no dispute with the proposition of law urged by counsel for the defendant but issue in the present suit was as to when limitation began to run against the plaintiffs.

25. Decisions relied upon by Shri Jatin Singh, learned counsel for the defendant are not dealing with cases where the owner of a property brings an action for recovery of immovable property against a person alleging possession of the defendant to be unauthorized and without authority of law. I need not therefore venture into a detailed discussion on the judgments relied upon as the proposition of law urged by Shri Jatin Singh is unexceptionable. Question is as to when limitation commenced qua the action brought by the plaintiffs.

26. Facts of the case in the decision reported as 2002 (VII) AD (Delhi) 333 Rakesh Sharma v. Smt. Laxmi Sharma were that the plaintiff-respondent filed a suit against the appellant-defendant for recovery of immovable property and mesne profits/use and occupation charges on the averment that at the time she purchased the suit property, appellant-defendant was in possession thereof. Since previous owner had informed that appellant-defendant was a tenant she instituted eviction proceedings to regain possession in which defense taken was that appellant-defendant was the co-owner. Eviction proceedings were dropped in view of the defense taken and suit instituted to recover possession. defense qua limitation in the second suit was that the plaintiff-respondent purchased the property on 28.6.1984 and limitation commenced from said date as the defendant was, on the allegations of the plaintiff in unauthorized occupation without any right.

27. Division Bench of this court held as under:-

"8. Article 64 of the Limitation Act, 1963 prescribes a period of 12 years for filing a suit for possession of immovable property based on previous possession and not on title, when the plaintiff while in possession of the property has been dispossessed, the period of limitation to be computed from the date of dispossession. Article 65 also prescribes a period of 12 years for filing a suit for possession of immovable property or any interest thereon based on title and the period is to be computed from the date when the possession of the defendant becomes adverse to the plaintiff."

28. Their Lordships of the Supreme Court in the decision reported as JT 2004 (6) SC 357 Ramiah v. N.Narayana Reddy held :

"9...... Article 64 of the Limitation Act, 1963 (Article 142 of the Limitation Act, 1908) is restricted to suits for possession on dispossession or discontinuance of possession. In order to bring a suit within the purview of that article, it must be shown that the suit is in terms as well as in substance based on the allegation of the plaintiff having been in possession and having subsequently lost the possession either by dispossession or by discontinuance. Article 65 of the Limitation Act, 1963 (Article 144 of the Limitation Act, 1908) on the other hand is a residuary Article applying to suits for possession not otherwise provided for. Suits based on plaintiff's title in which there is no allegation of prior possession and subsequent dispossession alone can fall under Article 65."

29. As is to be noted from the averments in the plaint in the present suit, plaintiffs claim possession based on title and not on the plea that the defendants dispossessed the plaintiffs. In other words, the suit is based on title alone and not on the plea that the plaintiffs having been in possession subsequently lost the same by dispossession or by discontinuance. Limitation therefore would be governed under Article 65 of the Limitation Act and not Article 64 thereof. Limitation would therefore run from the date when possession of the defendant became adverse to that of the plaintiffs.

30. Onus to prove facts constituting adverse possession was on the defendants. No evidence whatsoever has been lead by the defendants to prove adverse possession. I accordingly hold that the suit has been filed within limitation.

31. In the decision reported as 2003 (4) SCC 705 D.S. Parvathamma v. A. Srinivasan, noting the facts that the appellant was inducted as a tenant by the then owner on 1.11.1967 and he continued in possession as tenant when he entered into an agreement to purchase the suit property from his landlord/owner, but no sale fructified in favor of appellant till respondent purchased the property in question from the owner vide sale deed dated 18.4.1983, dealing with the defense under Section 53A of the Transfer of Property Act in an action brought for recovery of possession, their Lordships held:-

"8.....the appellant has failed to allege and prove that he was delivered possession in part performance of the contract or he, being already in possession as lessee, continued in possession in part performance of the agreement to purchase i.e. by mutual agreement between the parties his possession as lessee ceased and commenced as that of a transferee under the contract...... When a person already in possession of the property in some other capacity enters into a contract to purchase the property, to confer the benefit of protecting possession under the plea of part performance his act effective from that day must be consistent with the contract alleged and also such as cannot be referred to the preceding title."

32. Decision aforesaid by their Lordships of the Supreme Court noted with approval an earlier decision reported as 1982 (1) SCC 237 Sardar Govindrao Mahadik and Anr. v. Devi Sahai and Ors. In this decision, while dealing with the defense under Section 53A of the Transfer of Property Act 1882, their Lordships of the Supreme Court held :-

"In order to qualify for the protection conferred by the equitable doctrine of part performance as enacted in section 53A, the following facts will have to be established:

(1) That the transferor has contracted to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty;

(2) That 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;

(3) That the transferee has done some act in furtherance of the contract; and

(4) That the transferee has already or is willing to perform his part of the contract." (see Nathulal v. Phool Chand).

33. In said report, their Lordships further held :-

"......Therefore, physical possession having not changed hands, it would be for the mortgagee to show that he continued to retain possession in part performance of the contract and has done some act in furtherance of the contract. Where physical and actual possession was already with the person claiming the benefit of the doctrine of part performance its continued retention by itself without anything more would hardly be indicative of an act unequivocally referable to part performance of the contract.

He must further establish that he has done some act in furtherance of the contract."

"While text books writers and English decisions may shed some light to illuminate the blurred areas as to whether part payment of purchase money or even the whole of the consideration would not be sufficient act of part performance, it is necessary that this aspect may be examined in the background of statutory requirement as enacted in Section 53A, 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. There are pre-requisites to invoke the equitable doctrine of part performance. After establishing the aforementioned circumstances it must be further shown that a transferee had in part performance of the contract either 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. The acts claimed to be in part performance must be unequivocally referable to the pre-existing contract and the acts of part performance must unequivocally point in the direction of the existence of contract and evidencing implementation or performance of contract. There must be a real nexus between the contract and the acts done in pursuance of the contract or in furtherance of the contract and must be unequivocally referable to the contract. When series of acts are done in part performance, one such may be payment of consideration. Any one act by itself may or may not be of such a conclusive nature as to conclude the point one ay or the other but when taken with many others payment of part of the consideration or the whole of the consideration may as well be shown to be in furtherance of contract. The correct approach would be what Lord Reid said in Steadman's case that one most not first look at the oral contract and then see whether the alleged acts of part performance are consistent with it. One must first look at the alleged acts of part performance and see whether they prove that there must have been a contract and it is only if they do so prove that one can bring in the oral contract. This view may not be wholly applicable to the situation in India because an oral contract is not envisaged by Section 53A. Even for invoking the equitable doctrine of part performance there has to be a contract in writing from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty. Therefore, the correct view in India would be, look at the writing that is offered as a contract for transfer for consideration of any immovable property and then examine the acts said to have been done in furtherance of the contract and find out whether there is a real nexus between the contract and the acts pleaded as in part performance so that to refuse relief would be perpetuating the fraud of the party who after having taken advantage or benefit of the contract backs out and pleads non registration as defense, a defense analogous to section 4 of the Statute of Frauds. We may recall here that the acts preliminary to the contract would be hardly of any assistance in ascertaining whether they were in furtherance of the contract. Anything done in furtherance of the contract postulates the pre-existing contract and the acts done in furtherance thereof. Therefore the acts interior to the contract or merely incidental to the contract would hardly provide any evidence of part performance."

".....There is no evidence to show that he moved the authorities that he would be liable to pay taxes as owner. There is no overt act on his part to so assert possession as owner. A mere recital in the disputed sale deed is of dubious evidentary value and when it would be pointed out that he was never willing to perform his part of contract which is a pre-requisite for claiming protection of the doctrine of part performance it will be shown that he believed himself to be a mortgagee and acted as such even at a date much later than October 10, 1950, from which date he claimed to be the owner.

Induction into possession of an immovable property for the first time subsequent to the contract touching the property, may be decisive of the plea of part performance. Mere possession ceases to be of assistance when as in this case the person claiming benefit of part performance is already in possession, prior to the contract and continues to retain possession."

34. Learned counsel for the defendant relied upon certain observations of their Lordships of the Supreme Court in the decision in Shrimant Shamrao Suryavanshi's case (supra) to urge that it was not necessary for the defendants to seek relief of specific performance and that the defense under Section 53A of the Transfer of Property Act 1882 was available whenever a seller sought to regain possession.

35. No doubt, defense under Section 53A is available notwithstanding that a suit for specific performance has not been filed, but that leads us nowhere. Question is, whether evidence is brought on record to sustain the defense.

36. What evidence has to be brought on record to sustain the defense? Decision in Shrimant Shamrao Suryavanshi's case was noted and explained by their Lordships of the Supreme Court in the subsequent decision in D.S.Parvathamma's case (supra). In para 11 of the report, their Lordships of the Supreme Court observed:-

"11. Strong reliance was placed by the learned senior counsel for the appellant on a recent decision of this Court in Srimant Shamrao Suryavanshi and anr. v. Pralhad Bhairoba Suryavanshi (Dead) by Lrs. and Ors., 2002(3) SCC 676, wherein this Court has held that a person obtaining possession of the property in the performance of an agreement of sale, can defend his possession in a suit for recovery of possession filed by the transferor or by subsequent transferee of the property claiming under him, even if a suit for specific performance of the agreement of sale had become barred by limitation. Clearly it was a case where the person in possession was so inducted in part performance of the agreement of sale. Excepting that his suit had gone barred by limitation there was nothing else to deny the benefit of the plea to the person in possession. The court proceeded on the reasoning that the law of limitation barred the remedy but did not bar the defense. The distinguishing features of that case are that : (i) it was admitted that the transferee had taken possession over the property in part performance of the contract, (ii) that the transferee had not brought any suit for specific performance of the agreement to sell, and (iii) the transferee was a ways and still ready and willing to perform his part of the contract. These three significant factual features are missing in the case before us and therefore the appellant's effort to find support from the authority of Shrimant Siamrao Suryavanshi's case (supra) must fall. Bar of limitation alone does not bar the plea of part performance being raised if all other requisites of Section 53A of T.P. Act are available."

37. Defendants have led no evidence in the present proceedings to establish that they were always and are still ready and willing to perform their part of the agreement to sell in question. In the previous proceedings between the parties being Suit No. 604/1998, defendants had led some evidence to try and establish that they were ready and willing to perform their obligations under the agreement to sell. As noted above, learned trial court vide judgment and decree dated 27.1.2000 held against the defendants. Even the appellate court while deciding RCA No. 15/2004 held against the defendants. Findings of the learned appellate court are to be found in paras 25 to 27 of its judgment dated 16.2.2005. I have noted in para 11 above the findings of the learned appellate court. Not only have the defendants failed to establish the necessary ingredients of Section 53A in the previous proceedings, but independent thereof, in the present proceedings no evidence has been led to establish readiness and willingness to perform their obligations under the agreement to sell dated 31.10.1980. Defendants have examined defendant No. 2 as DW.1 and one Shri Jagdish Lal as DW.2. Not a whisper in the examination in chief that defendants were ready and willing to perform their obligations under the agreement to sell. In the examination in chief, DW.1, on the issue of agreement to sell has deposed the following:-

(a) That the plaintiff's predecessors had entered into an agreement for sale of the suit property on 31.10.1980 and had received Rs. 10,000/- towards earnest money for sale of the suit property;

(b) That late Shri Bansi Lal due to dishonest intention did not execute the sale deed.

(c) That the agreement to sell cannot be anulled and made infructuous until and unless it is declared null and void by the court of law and it was the duty of the plaintiffs to seek a declaration;

(d) That the defense of Section 53A of the Transfer of Property Act is always available to the defendants as their possession is protected by law.

38. Defendants have not even dared to say in their evidence, much less substantiate that they tendered the balance sale consideration.

39. Though neither party has proved the agreement to sell, but from copy thereof available in the file of the court it is to be noted that sale consideration agreed was Rs. 951/- per sq. yards for the plot measuring 142 sq. yards. Admitted case of the parties is that earnest money in sum of Rs. 10,000/- was received. Thus, out of a sale consideration of about Rs. 1.35 lacs, only Rs. 10,000/- was received at the time of execution of the agreement to sell. Balance sum of Rs. 1.25 lacs had to be paid. Defendants had to establish that not only did they have the means to pay the same but that they tendered the said amount and called upon late Shri Bansi Lal to execute a sale deed. Having failed to so prove, it is held that defendants are not entitled to protect possession under Section 53A of the Transfer of Property Act.

40. Learned counsel for the defendant urged that under Section 31 of the Specific Relief Act till plaintiffs did not obtain a decree annulling the agreement to sell, they could not regain possession.

41. Section 31 of the Specific Relief Act reads as under:-

"31. When cancellation may be ordered.- (1) Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the Court may, in its discretion, so adjudge it and order it to be delivered up and cancelled.

(2) If the instrument has been registered under the Indian Registration Act, 1908 (16 of 1908), the Court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation."

42. Issue need not hold me for long in the teeth of the decision of a learned Single Judge of this court reported as AIR 1992 Delhi 118 Sanjay Kaushik v. D.C. Kaushik and Ors. In para 43 it was observed as under:-

"Be that as it may, in my view the well settled principle of law is that if a particular document or decree is void the person affected by the said document or decree can very well ignored the same and file a suit seeking substantive relief which may be available to him without seeking any declaration that the said decree or document is void or any consequential relief of cancellation of the same."

43. defense under Order 2 Rule 2 of the Code of Civil Procedure 1908 was urged on the ground that when earlier suit for damages was filed by the plaintiffs on the ground that the defendants were in unauthorized occupation of the suit land, cause of action had arisen to seek possession and since right to possession and right to damages being founded on the same cause of action, plaintiffs having omitted to seek relief of possession, were prohibited from filing a subsequent suit for possession for that no leave was obtained from the court in the earlier proceedings to sue for possession afterwards. Learned counsel for the defendant relied upon :- (a) 88 (2000) DLT 606 Ashok Aggarwal v. Bhagwan Das Arora, (b) 2001 (II) AD (Delhi) 635 Kamal Kishore Sahoo v. Nawabzada Humayun Kamal Hasan, (c) AIR 2003 Madras 208 S. Ganeshan v. S. Issae.

44. Decisions cited are on their own facts and do not deal with the issue whether right to claim mesne profits and recover possession are based on the same cause of action.

45. Plea under Order 2 Rule 2 is a plea of a technical bar. It has to be established satisfactorily and cannot be presumed lightly. Pleadings in the previous proceedings have to be filed and in reference thereto case has to be made out under Order 2 Rule 2. Defendants did not bring on record of the present proceedings the pleadings in the previous suit and when the matter was listed for final hearings after parties had closed their evidence they filed IA. 1521/2005 to bring on record the plaint and the written statement of the previous suit. For the purposes of the present decision I would not go by the technicalities of the law and would take on record the said pleadings for the reason certified copies had been filed.

46. As far as this court is concerned, issue stands concluded by a Division Bench judgment of this court in FAO (OS) No. 350/2001 U.K. Paints Sales v. Madhoram Budh Singh decided on 24.2.2003, after noting provisions of Order 2 Rule 2 of the Code of Civil Procedure and decision of the Privy Council reported as 26 IC 228 Payana v. Pannalal it was held as under:-

"The principle enshrined under Order 2 Rule 2 is aimed against a multiplicity of suits in respect of the same cause of action. The Rule is based on the principle that a party should not be vexed twice for the one and the same cause of action. However, the said rule must be applied with caution. The plea of bar under Order 2 Rule 2 defeats, what otherwise may be legitimate claim of a party, and therefore, care must be taken to see that complete identity of cause of action is established. Can it be said that the recovery of damages for unauthorised use and occupation of a premises for different periods constitutes a single cause of action. To our mind it does not. Cause of action to recover rent for a premises or damages for unauthorised use and occupation would arise each month for which possession is retained by the tenant or the person in unauthorised occupation as the case may be. Reference may be made to the decision of the Calcutta High Court reported as 2nd 1973 (1) CAL 343. It was held that recovery of rent from Badrapad to Kartik 1377, B.S. would not bar a subsequent suit for recovery of rent from Baisakh to Shrawan 1377 B.S. The principle of law was set out with clarity by the judgment of the Privy Council reported as 26 IC 228 titled Payana v. Panna Lal. It was held that the rule is directed to securing the exhaustion of the relief in respect of cause of action and not to the inclusion in one and the same action of different causes of action, even though they arise from the same transaction."

46. In the decision reported as AIR 1964 SC 1810 Gurbux v. Bhoora Lal their Lordships of the Supreme Court on the issue, whether a suit for possession of immovable property and a suit for the recovery of mesne profits for the same property are both based on the same cause of action, held in para 6 :-

"6......from this analysis it would be seen that the defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed, for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the later suit is based there would be no scope for the application of the bar. No doubt a relief which is sought in a plaint could ordinarily be traceable to a particular cause of action but this might, by no means, be the universal rule."

47. Further, in para 7 of the report their Lordships held :-

7. ...... As the plea is basically founded on the identity of the cause of action in the two suits the defense which raises the bar has necessarily to establish the cause of action in the previous suit. The cause of action would be the facts which the plaintiff had then alleged to support the right to the relief that he claimed. Without placing before the Court the plaint in which those facts were alleged, the defendant cannot invite the Court to speculate or infer by a process of deduction what these facts might be with reference to the reliefs which were then claimed. It is not impossible that reliefs were claimed without the necessary averments to justify their grant. From the mere use of the words 'mesne profits' therefore one need not necessarily infer that the possession of the defendant was alleged to be wrongful. It is also possible that the expression 'mesne profits' has been used in the present plaint without a proper appreciation of its significance in law. What matters is not the characterisation of the particular sum demanded but what in substance is the allegation on which the claim to the sum was based and as regards the legal relationship on the basis of which that relief was sought. It is because of these reasons that we consider that a plea based on the existence of a former pleading cannot be entertained when the pleading on which it rests has not been produced. We therefore consider that the order of remand passed by the learned Additional District Judge which was confirmed by the learned Judge of the High Court was right. The merits of this suit have yet to be tried and this has been directed by the order of remand which we are affirming."

48. Pleadings of the plaintiffs in the previous suit reveal that in paras 1 to 7 of the plaint, after making averments qua title and execution of the agreement to sell dated 31.10.1980, in paras 8 to 10 following was pleaded:-

8. That unfortunately the aforesaid plot has become a subject matter of litigation between Smt. Sheela Rani and the plaintiff in a case pending in the court of Shri S.M.Gupta, Sub Judge, 1st Class, Delhi. The plaintiff has been restrained by the court from transferring the aforesaid plot during the pendency of the suit. The plaintiff has informed the defendants accordingly and the defendants are very well aware of all the facts of the case.

9. That the plaintiff in accordance with the said agreement with the defendants returned the aforesaid sum of Rs. 10,000/- by a draft by Regd. Post on 31.12.80, in view of the restrained orders passed by the Court but the defendants refused delivery of the said Regd. letter with malafide intentions.

10. That the plaintiff thereafter requested the defendants to vacate and to remove their goods lying on the said plot as the Agreement to Sell between the parties has been frustrated due to the circumstances beyond the control of the plaintiff. The defendants however in order to continue using the plot of the plaintiff illegally and unauthorisedly started harassing the plaintiff by calling upon the plaintiff to execute the Sale Deed in favor of the defendants and threatening the plaintiff with legal consequences. The plaintiff has repeatedly informed the defendants to be reasonable and to remove their materials from the plot of the plaintiff."

49. Plaintiffs founded the previous suit on the cause that due to court injunction obtained by one Smt. Sheela Rani, they could not comply with the agreement to sell and therefore requested the defendants to vacate the suit land and since this was not done by the defendants, plaintiffs would be entitled to damages. It has to be noticed in this context that when plaintiffs filed the suit in the year 1982 limitation for the defendants to seek specific performance of the contract agreement dated 31.10.198 had not expired. In other words, since claim of defendants to seek specific performance was alive, one could say that the cause of action to recover possession had not matured and crystalized into a definite right.

50. For the reasons above, findings on issues 1, 1A, 2, 3 and 5 are as under:-

(a) That the suit is not barred by limitation;

(b) That the suit is not barred under Order 2 Rule 2 CPC;

(c) That the plaint is not liable to be rejected under Order 7 Rule 11;

(d) Defendants are not entitled to the protection under Section 53A of the Transfer of Property Act, 1882;

(e) That the suit is not barred by virtue of Section 31 of the Specific Relief Act, 1963;

51. Issue No. 6 is whether the suit is properly valued for purposes of court fee and jurisdiction.

52. In para 31 of the plaint valuation for purposes of court fee and jurisdiction are stated as under:-

(a) For relief of past damages for the period from 3.5.1997 to 28.2.2000 @ Rs. 50,000/- p.m. .... Rs. 16,91,666/-

(b) For relief of damages for the period from 29.2.2000 to 2.5.2000 @ Rs. 3000/- per day..... Rs. 1,89,000/-.

(c) For relief of recovery of possession being the present market value of the suit property at the rates prescribed by local authorities for same/similar locality........Rs.24,13,612/-.

53. Learned counsel for the defendant urged that the valuation was defective qua relief of recovery of possession. In other words, issue No. 6 requires adjudication only qua the valuation for purposes of court fee and jurisdiction qua relief of possession.

54. I may note that in para 31 of the written statement, while replying to para 31 of the plaint objection taken is that the court fee paid for the relief of possession is highly under valued.

55. When I look to the evidence led by the parties I find that the defendants have led no evidence as to what was the market value of the land when the suit was filed. On the contrary, plaintiffs have proved Ex.PW.1/7 as evidencing market value of land in Punjabi Bagh. Ex.PW.1/7 is a public notice issued by the Debts Recovery Tribunal inviting bids for sale of plot No. 25, Road No. 40, Punjabi Bagh. As per Ex.PW.1/7, plot admeasures 279.37 sq. yards. Reserved price is Rs. 84 lacs. The notice in question is dated 14.9.2001. Suit land admeasures 142 sq. yards i.e. roughly half as compared to the size of plot No. 25. Determination of market value of land always has an element of speculation. Various considerations go in the valuation of land. Smaller plots and very large plots fetch a lesser value. Mid segment plots fetch the highest price. I would therefore be guided by the rule of prudence. In the year 1980 parties had agreed, evidenced by the agreement to sell that the value of the plot was approximately Rs. 1.35 lacs. Plaintiffs have valued the plot when suit was filed in the year 2000 at Rs. 24,13,652/-. Court fees has been paid on this amount. Value of the property in Delhi has risen by about 10% each year till mid 90 i.e. the year 1995 and thereafter there has been fluctuation, plus or minus, depending upon the locality. I therefore hold that the property has been correctly valued for the purposes of court fees and jurisdiction.

56. Issue No. 4 is whether the plaintiffs are entitled to possession of the suit property. For the reasons leading to the decision on issues 1, 1A, 2, 3 and 5, it has to be held that the defendants have no right to continue to possess and occupy the suit land. It is accordingly held that the plaintiffs are entitled to possession of the suit land. The suit is accordingly decreed qua prayers 1 and 2, in that, suit stands decreed as per prayers 1 and 2 of the plaint. Plaintiffs would be entitled to possession of the suit property bearing plot No. 8, measuring 142 sq. yards situated in market Sector-I, East Punjabi Bagh, New Delhi-110026, delineated in site plan Ex.P.1. Mandatory injunction is issued against the defendants directing them to forthwith remove their goods from the suit land.

57. Corollary of the findings aforesaid on issue No. 7 would be that the plaintiffs would be entitled to damages as well as recovery of possession. What would be the quantum of damages?

58. Learned counsel for the defendants urged that the user of the land was residential and therefore evidence led by the plaintiffs pertaining to commercial sites has to be ignored. Shri Dinesh Agnani, learned counsel for the plaintiffs urged that the plot of land was having a commercial usage.

59. Plaintiffs have proved Ex.PW.3/D-1 being certificate dated 4.2.1982 issued by the Refugee Cooperative Housing Society Ltd. The said certificate refers to the suit land as shop Plot No. 8, East Punjabi Bagh Market.

60. Best evidence in favor of a party is the admission of the opposite party. In para 2 of the plaint, plaintiffs have described the property as commercial plot bearing No. 8, measuring 142 sq. yards situated in Punjabi Bagh Market, Sector-I, Punjabi Bagh East, New Delhi'. Replying, to para 2 of the plaint, defendants have pleaded 'the plaintiffs father had represented to the defendants that he was the owner of plot No. 8, measuring 142 sq. yards situated at Punjabi Bagh Market, Sector-I, Punjabi Bagh East, New Delhi and that is why the defendants have entered into an agreement for the sale of the suit property.

61. Defendants themselves admit that the plot is in a market. Defendants are admittedly storing hardware material on the plot i.e. are putting the plot to a commercial use. For purposes of damages, user of the plot has to be therefore treated as commercial.

62. Ex.PW.1/A is a photocopy of lease deed proved by Mr. Pranay Gupta, witness of the plaintiff. The lease deed relates to the demise of the northern portion of Shop No. 1B on the ground floor of a commercial building in East Avenue Market, Punjabi Bagh East. Lease deed shows that a built up portion admeasuring 150 sq. feet has been demised to ICICI Bank Ltd. for setting up an ATM counter at a monthly rent of Rs. 24,500/-. In my opinion, rent of a built up structure cannot afford good guidance to the rent of vacant land. Ex.PW.1/A therefore affords hardly any evidence to this court. Another lease agreement was sought to be proved. The said document has remained as a marked document. Even otherwise, document mark A also pertains to a built up structur

63. The only evidence which I have before me is the market value of the plot, as per the plaintiffs, being Rs. 24,13,652/-. 10% return on the capital value of a property is a good indice to determine its letting value. A safe rental figure would therefore be Rs. 2,41,365/- p.a. that is approximately Rs. 20,000/- p.m. In light of the fact that there is virtually no evidence in the instant case of the prevalent letting value of vacant land, I am left with no alternative but to proceed ahead on the legal promise that the plaintiffs would be entitled to the benefit of every reasonable presumption as to the loss suffered. I award damages to the plaintiffs and against the defendants @ Rs. 20,000/- p.m. w.e.f. 3.5.1997 till date of suit and at the same rate from date of filing of the suit till date of decree. Damages awarded shall carry simple interest @ 12% p.a. from each successive month when the same became due and payable.

64. Suit stands decreed as per para 56 and 63 above.

65. Plaintiffs would be entitled to costs against the defendants.