Page No.# 1/19 vs Sri Khargeswar Das And 2 Ors
2025 Latest Caselaw 4164 Gua

Gauhati High Court

Page No.# 1/19 vs Sri Khargeswar Das And 2 Ors on 18 March, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

                                                                    Page No.# 1/19

GAHC010018472016




                                                              2025:GAU-AS:3294

                          THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                             Case No. : RSA/162/2016

            SRI MADHAB CHANDRA DAS
            S/O LATE MAHINDRA DAS, VILL. DORAKAHARA, P.S. and P.O. KAMALPUR,
            DIST. KAMRUP, ASSAM



            VERSUS

            SRI KHARGESWAR DAS and 2 ORS


            2:HANSHADHAR DAS


            3:LOHIT DAS
             NO. 1 TO 3 ARE THE SONS OF LATE BATAHU RAM DAS AND R/O VILL.
            DORAKAHARA
             P.S. and P.O. KAMALPUR
             DIST. KAMRUP
            ASSAM

For the Appellant(s)    : Mr. A.C. Sarma, Sr. Advocate
                         Mr. G. Bharadwaj, Advocate
For the Respondent(s)   : Mr. R. Ali, Advocate


Date of Hearing                      : 18.03.2025
Date of Judgment                     : 18.03.2025
                                                                              Page No.# 2/19




                                BEFORE
                 HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                         JUDGMENT AND ORDER (ORAL)

Heard Mr. A.C. Sarma, the learned Senior Counsel assisted by Mr. G. Bharadwaj, the learned counsel appearing on behalf of the Appellant. Mr. R. Ali, the learned counsel appears on behalf of the Respondents.

2. The present appeal is filed under Section 100 of the Code of Civil Procedure, 1908 (for short, "the Code") challenging the judgment and decree dated 10.07.2015 passed by the learned Court of the Civil Judge, Kamrup at Amingaon (hereinafter referred to as, "the learned First Appellate Court") in Title Appeal No. 12/2014 whereby the judgment and decree passed on 10.10.2013 by the learned Munsiff, Rangia (hereinafter referred to as, "the learned Trial Court") in Title Suit No. 21/2010 was affirmed.

3. It is seen from the records that the learned Coordinate Bench of this Court vide an order dated 20.06.2016 had admitted the instant appeal by formulating a substantial question of law which reads as under:

"Whether the suit of the plaintiff is barred under Section 53A of the Transfer of Page No.# 3/19

Property Act 1882?"

4. The question arises, as to whether, the substantial question of law so formulated by the learned Coordinate bench of this Court vide the order dated 20.06.2016 is involved in the instant appeal.

5. For the purpose of ascertaining the said aspect, this Court finds it relevant to take note of the facts which led to the filing of the instant appeal. For the sake of convenience, this Court would refer to the parties in the same status as they stood before the learned Trial Court.

6. One Batahu Ram Das(since deceased) was the original owner of two plots of land admeasuring in total 2 Bighas 1 Katha covered by Dag No. 86 and Dag No. 950, both included in Patta No. 300 at village Dorakahara under Mouza Madartola in the district of Kamrup, Assam. The land included in Dag No. 950 admeasures 1 Bigha 1 Katha 0 Lecha and the land included in Dag No. 86 admeasures 1 Bigha 0 Katha 0 Lecha. After the death of the father, the plaintiffs along with their mother inherited the lands, the same have been more specifically described in the Schedule to the plaint. It is the case of the plaintiffs that the plaintiff Nos. 1 and 3 with the consent of the plaintiff No. 2 approached the defendant on 15.02.2001 for a loan of Rs. 20,000/- by mortgaging the land. However, the plaintiffs did not execute any Page No.# 4/19

mortgage deed in black and white.

7. Be that as it may, the defendant took signatures of the plaintiff Nos. 1 and 3 on 15.02.2001 in blank stamp paper assuring them that he will make a Deed of mortgage specifying the conditions as agreed between the parties. The verbally agreed condition was that the plaintiff Nos. 1 and 3 would repay the loan and the defendant, who was handed over the possession, would return back the possession of the land. It is the case of the plaintiffs that the plaintiffs wanted to pay the said amount of Rs. 20,000/- and wanted that the defendant shall vacate the land and hand over the possession. However, the defendant neither accepted the amount of Rs. 20,000/- nor handed over the possession back to the plaintiffs. Certain proceedings were initiated under Section 145 and 146 (A) of the Cr.P.C. wherein the possession was declared in favour of the defendant. It is under such circumstances, the suit was filed seeking declaration of right, title and interest of the plaintiffs over the Schedule land; for recovery of khas possession of the Schedule land by evicting the defendant, their men, servants, agents, employees etc; and for permanent injunction restraining the defendant, their men, servants, agents etc. from disturbing peaceful possession by demolishing the boundary post. The said suit was registered and numbered as Title Suit No. 21/2010 and was endorsed for Page No.# 5/19

disposal before the learned Trial Court.

8. The defendant filed his written statement along with a counter claim wherein various pleas were taken as regards the maintainability of the suit. In the written statement, the defendant denied the case of the plaintiffs and stated that on 13.01.2001, the plaintiff Nos. 1 and 3 visited the house of the defendant accompanied by one Nabajit Ch. Deka (petition writer) in order to enter into a sale agreement in respect to the land admeasuring 1 Bigha 1 Katha out of 6 Bighas covered by Dag No. 950 of K.P. Patta No. 300 of village Dorakahara under Mouza Madartola. As per the discussion, Sri Nabajit Ch. Deka prepared the sale agreement dated 13.01.2001 in respect to the land admeasuring 1 Bigha 1 Katha at a total consideration of Rs. 1,20,000/- and the plaintiff Nos. 1 and 3 had put their signatures on the sale agreement dated 13.01.2001. It was further mentioned that as the mother of the plaintiffs and Sri Hangshadhar Das who is the plaintiff No. 2 were not present, it was informed to the defendant that they had no objections in entering into the sale agreement. It was further mentioned that in respect to the land i.e. 1 Bigha covered by Dag No. 86, the land was mortgaged at Rs. 20,000/- for a period of one year with the proposal that the plaintiffs would have to repay the said amount within the period of one year. It was averred that on Page No.# 6/19

13.01.2001 itself, the possession of both the lands i.e. land covered by Dag No. 86 and Dag No. 950 as stated herein above were handed over to the defendant. It was further mentioned that the plaintiff however did not execute the registered deed of sale in favour of the defendant in spite of several requests made by the defendant. A plea under Section 53A of the Transfer of Property Act, 1882 (for short, "the Act of 1882") was taken by the defendant at paragraph No. 14 of the written statement. It is further pertinent to mention that in the counter-claim the defendant sought for a direction be given to the plaintiffs to execute the sale deed in favour of the defendant in respect to the Schedule land which have been so specifically described to the counter-claim as Schedule-A land. It is relevant to mention that the said Schedule-A land is the land admeasuring 1 Bigha 1 Katha covered by Dag No. 950 of K.P. Patta No. 300 of village Dorakahara under Mouza Madartola in the district of Kamrup, Assam.

9. On the basis of the pleadings, the learned Trial Court framed as many as 5 (five) issues. The said issues being relevant are reproduced herein under:

"i. Whether there is cause of action for the suit?

ii. Whether the suit is bad for non-joinder for necessary parties?

Page No.# 7/19

iii. Whether the plaintiffs have acquired right, title and interest over the suit and entitled to get decree for recovery of khas possession?

iv. Whether the plaintiffs are bound to execute a registered sale deed in favour of the defendant in respect of schedule A by virtue of sale agreement dated 13.01.2021?

v. What relief the parties are entitled to?"

10. At this stage, it is very pertinent to note that there was no specific issue framed as regards the claim of the defendant under Section 53A of the Act of 1882. It appears from the reading of the judgments of both the learned Trial Court and the learned Appellate Court that the issue as regards the claim of the Defendant under Section 53A of the Act of 1882 was all along dormant and this claim became active at this Second Appellate stage. The said aspect is not worthy inasmuch as it is well settled that to be a substantial question of law involved in the second appeal, it is essential that the substantial question of law should emerge from the finding of facts. In this regard, this Court finds it relevant to take note of the Judgment of the Supreme Court in the case Santosh Hazari v. Purushottam Tiwari [1].

14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if Page No.# 8/19

answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis."

11. Be that as it may, proceeding further, it would be seen that on behalf of the plaintiffs as well as the defendants, both sides examined 5 (five) witnesses each and have also exhibited various documentary evidence.

12. The learned Trial Court vide the judgment and decree dated 10.10.2013 decreed the suit in favour of the plaintiffs and dismissed the counter-claim. While deciding the Issue No. iii, the learned Trial Court came to a categorical finding that the defendant had no title over the suit land and as the defendant was possessing the said plot of land by giving Rs. 1,20,000/- to the plaintiffs in the year 2001, the said amount has to be repaid by the plaintiffs in order to recover the possession from the defendant. As regards the Issue No. iv, the learned Trial Court Page No.# 9/19

came to an opinion that the plaintiffs were not bound to execute the sale deed in favour of the defendant in respect to the Schedule-A land by virtue of the sale agreement dated 13.01.2001 on the ground that it was barred by limitation.

13. This Court further finds it relevant to observe that the learned Trial Court while decreeing the suit observed that the plaintiffs were entitled to redeem the mortgage land admeasuring 1 Bigha covered by Dag No. 86 of Patta No. 300 subject to payment of Rs. 20,000/- as well as the payment of deficit fee as per law in the Court. It was further observed that the plaintiffs are entitled to recover possession over the other plot of land admeasuring 1 Bigha 1 Katha covered by Dag No. 950 of Patta No. 300 subject to the deposit of an amount of Rs. 1,20,000/- to the Court which will be delivered to the defendant. It was held that the plaintiffs would be entitled to get delivery of possession. The counter- claim so filed by the defendant was dismissed.

14. Being aggrieved, an appeal was preferred by the defendant before the learned First Appellate Court which was registered and numbered as Title Appeal No. 12/2014. The said appeal was dismissed vide the judgment and decree dated 10.07.2015 thereby affirming the judgment and decree passed by the learned Trial Court. It is under such circumstances, the instant Page No.# 10/19

appeal has been preferred.

15. In the backdrop of the above, let this Court now consider, as to whether, the substantial question of law so formulated by the learned Coordinate Bench of this Court on 20.06.2016 is involved in the instant appeal. As the substantial question of law relates to Section 53A of the Act of 1882, this Court finds it relevant to deal with the said provision before analyzing, as to whether, the appellant herein would be entitled to the benefit under the said provision.

16. Section 53A of the Act of 1882 was inserted to the Act of 1882 by the Transfer of property (Amendment) Supplementary Act, 1929. The Act of 1882 as well as the amendment made in the year 1929 are during the British era. It is notable to observe that by inserting Section 53A to the Act of 1882, the Legislature imported into India a modified form of the equity of part- performance as it was developed in England over the years. The doctrine of part-performance as enshrined in Section 53A of the Act of 1882 is an equitable doctrine which creates a bar of estoppels in favour of the transferee against the transferor. The reason for import of the said doctrine is on the ground that many a time a transferee takes possession of the property in part- performance of the contract and he is willing to perform his part Page No.# 11/19

of the contract. However, the transferor somehow or the other does not complete the transaction by executing a registered deed in favour of the transferee which is required under the law. At times, the transferor tries to get back the possession of the property.The Courts in England, on the basis of the equitable principle held that it would be unfair to allow the transferor to take advantage of his own fault and evict the transferee from the property.

17. However, for the purpose of application of the doctrine of part-

performance, Section 53A of the Act of 1882 itself enumerates certain conditions. The essential conditions which are required to be fulfilled if a transferee wants to defend or protect his possession under Section 53A of the Act of 1882 had been culled out by the Supreme Court in the case of Shrimant Shamrao Suryavanshi & Another Vs. Pralhad Bhairoba Suryavanshi (Dead) by Lrs. &

Others [2]. Paragraph Nos. 16 and 17 of the said judgment being

relevant are reproduced herein under:

"16. But there are certain conditions which are required to be fulfilled if a transferee wants to defend or protect his possession under Section 53-A of the Act. The necessary conditions are:

(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 Page No.# 12/19

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.

17. We are, therefore, of the opinion that if the conditions enumerated above are complied with, the law of limitation does not come in the way of a defendant taking plea under Section 53-A of the Act to protect his possession of the suit property even though a suit for specific performance of a contract is barred by limitation."

18. From the above quoted paragraphs of the judgment of the Supreme Court, it is absolutely clear that in order to invoke the doctrine of part-performance, there must be a contract to transfer for consideration of any immovable property. The contract must be in writing and signed by the transferor or by someone on his behalf. It is further relevant that the contract which is in writing must be in such words from which the terms necessary to construe the transfer can be ascertained. The transferee must in part-performance of the contract, taken possession of the property or any part thereof, and the Page No.# 13/19

transferee must have done some act in furtherance of the contract. It is further relevant to take note of that the transferee must also had performed or be willing to perform his part of the contract. In other words, there is a requirement that there is a contract for transfer containing the terms and conditions how the transfer is to be effected and in consideration of the contract of transfer, possession of the land or part thereof have been handed over to the transferee and the transferor in breach of the terms of the contract of transfer is trying to take over the possession of the land.

19. Let this Court in the backdrop of the above principles analyze Exhibit 1(A) upon which the Defendant/Appellant herein bases his case to invoke the principles of part-performance. A perusal of the said document i.e Exhibit 1(A) would show that though the document is titled as Agreement (Sukti Patra) but the contents of the said document under no circumstances can be said to be a contract to transfer for consideration of any immovable property. The fact being that there is no mention in the said document that a deed of sale would be executed in furtherance to the said document. What is mentioned is that the executants who are the plaintiff Nos. 1 and 3, upon taking an amount of Rs. 1,20,000/- had handed over the possession of the Page No.# 14/19

land described in the Schedule to the said document to the defendant. It is also mentioned that the executants, henceforth shall have no right or title over the land described in the schedule to the document. It is relevant at this stage to mention that though in the document there is mention that there are four vendors but only two persons have executed the said document, i.e. the plaintiff Nos. 1 and 3. The plaintiff No. 2 as well as the mother of the plaintiffs (who was alive at that relevant point of time) did not execute the said document. It is further relevant to observe that Exhibit 1(A) is not a registered document and therefore on the basis of the said document, the question of transfer of title does not arise. Additionally, the property so described in the document would also not be affected in view of Section 49 of the Registration Act, 1908. Be that as it may, it is relevant to note that at the time of execution of Exhibit -1(A), Section 17(1A) of the Registration Act, 1908 was not inserted and as such the said document did not require registration for the purpose of invoking Section 53A of the Act of 1882.

20. This Court further finds it relevant to take note of Section 54 of the Act of 1882, which defines a contract for sale to mean that a contract for sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. From a reading of Exhibit 1 (A), as stated above, it is Page No.# 15/19

apparent that there is no contract for sale of the property described in the Schedule mentioned in the document. Consequently, the primary requisite for the purpose of taking the plea under Section 53A of the Act of 1882 is not satisfied. Resultantly, this Court is of the opinion that the defendant could not have pleaded the doctrine of part-performance as enshrined in Section 53A of the Act of 1882. In that view of the matter, the substantial question of law so formulated cannot be said to be involved in the instant appeal.

21. Additionally, this Court further finds it relevant to observe that Section 53A of the Act of 1882 can only be invoked against the parties who had entered into the agreement and not against third parties. A perusal of Exhibit 1(A) categorically shows that the names of four vendors of the property in question. Out of the four vendors, only two vendors have executed the said document [Exhibit 1(A)]. The plaintiff No. 2 as well as the mother of the plaintiffs (who was admittedly alive) at the time of execution of Exhibit 1 (A) were not parties to the said document. In this regard, this Court finds it relevant to refer to a judgment of the Supreme Court in the case of Rambhau Namdeo Gajre

Vs.Narayan Bapuji Dhotra (dead) through Lrs.[3] wherein the Supreme

Court categorically observed that the doctrine of part- performance as contemplated in Section 53A can be availed of Page No.# 16/19

by the transferee or any person claiming under him against his transferor or any person claiming under him and not against the third party with whom he has no privity of contract. Paragraph Nos. 13 and 14 of the said judgment being relevant is reproduced herein under:

"13. The agreement to sell does not create an interest of the proposed vendee in the suit property. As per Section 54 of the Act, the title in immovable property valued at more than Rs 100 can be conveyed only by executing a registered sale deed. Section 54 specifically provides that a contract for sale of immovable property is a contract evidencing the fact that the sale of such property shall take place on the terms settled between the parties, but does not, of itself, create any interest in or charge on such property. It is not disputed before us that the suit land sought to be conveyed is of the value of more than Rs 100. Therefore, unless there was a registered document of sale in favour of Pishorrilal (the proposed transferee) the title of the suit land continued to vest in Narayan BapujiDhotra (original plaintiff) and remain in his ownership. This point was examined in detail by this Court in State of U.P. v. District Judge and it was held thus: (SCC pp. 499-500, para 7)

"7. Having given our anxious consideration to the rival contentions we find that the High Court with respect had patently erred in taking the view that because of Section 53-A of the Transfer of Property Act the proposed transferees of the land had acquired an interest in the lands which would result in exclusion of these lands from the computation of the holding of the tenure-holder transferor on the appointed day. It is obvious that an agreement to sell creates no interest in land. As per Section 54 of the Transfer of Property Act, the property in the land gets conveyed only by registered sale deed. It is not in dispute that the lands sought to be covered were having value of more than Rs 100. Therefore, Page No.# 17/19

unless there was a registered document of sale in favour of the proposed transferee agreement-holders, the title of the lands would not get divested from the vendor and would remain in his ownership. There is no dispute on this aspect. However, strong reliance was placed by learned counsel for Respondent 3 on Section 53-A of the Transfer of Property Act. We fail to appreciate how that section can at all be relevant against the third party like the appellant State. That section provides for a shield of protection to the proposed transferee to remain in possession against the original owner who has agreed to sell these lands to the transferee if the proposed transferee satisfies other conditions of Section 53-A. That protection is available as a shield only against the transferor, the proposed vendor, and would disentitle him from disturbing the possession of the proposed transferees who are put in possession pursuant to such an agreement. But that has nothing to do with the ownership of the proposed transferor who remains full owner of the said lands till they are legally conveyed by sale deed to the proposed transferees. Such a right to protect possession against the proposed vendor cannot be pressed in service against a third party like the appellant State when it seeks to enforce the provisions of the Act against the tenure-holder, proposed transferor of these lands."

(emphasis supplied)

There was no agreement between the appellant and the respondent in connection with the suit land. The doctrine of part-performance could have been availed of by Pishorrilal against his proposed vendor subject, of course, to the fulfilment of the conditions mentioned above. It could not be availed of by the appellant against the respondent with whom he has no privity of contract. The appellant has been put in possession of the suit land on the basis of an agreement of sale not by the respondent but by Pishorrilal, therefore, the privity of contract is between Pishorrilal and the appellant and not between the Page No.# 18/19

appellant and the respondent. The doctrine of part-performance as contemplated in Section 53-A can be availed of by the proposed transferee against his transferor or any person claiming under him and not against a third person with whom he does not have a privity of contract.

14. The doctrine of part-performance is rooted in equity and provides a shield of protection to the proposed transferee to remain in possession against the original owner who has agreed to sell to the transferee if the proposed transferee satisfies other conditions of Section 53-A. It operates as an equitable estoppel against the original owner to seek possession of the property which was given to the proposed vendee in part-performance of the contract. The appellant being a third party and not a privy to the transaction on which the estoppel rests can take no advantage of it."

22. Taking into account the above exposition of law, it is the opinion of this Court that the substantial question of law so formulated, as to whether, the suit was barred under Section 53A of the Act of 1882 cannot be said to be a substantial question of law involved in the instant appeal in as much as even if it is assumed that Exhibit 1 (A) is a contract for sale, it cannot act as a bar against the plaintiff No. 2, who admittedly was not a party to Exhibit 1 (A).

23. Consequently, as the substantial question of law so formulated is not a substantial question of law involved in the instant appeal, the appeal stands dismissed with costs quantified at Rs. 11,000/-. In addition to that, the plaintiffs shall also be entitled Page No.# 19/19

to cost throughout the proceedings. The judgment and decree passed by the learned Trial Court stands affirmed.

24. The Registry shall send back the LCR to the learned Courts below.

25. With the above observations and directions, the instant appeal stands disposed of.

[1](2001) 3 SCC 179 [2](2002) 3 SCC 676 [3](2004) 8 SCC 614

JUDGE

Comparing Assistant