[Cites 22, Cited by 0]

Karnataka High Court

Sri. P Murugan vs Sri. H Nagaraj on 13 March, 2026

                                     NC: 2026:KHC:15156-DB
                                       RFA No. 501 of 2016
                                  C/W RFA No. 1229 of 2018

 HC-KAR




     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 13TH DAY OF MARCH, 2026

                        PRESENT
            THE HON'BLE MR. JUSTICE D K SINGH
                          AND
      THE HON'BLE MS. JUSTICE TARA VITASTA GANJU
     REGULAR FIRST APPEAL NO. 501 OF 2016 (DEC/INJ)
                          C/W
          REGULAR FIRST APPEAL NO. 1229 OF 2018

IN RFA No. 501/2016
BETWEEN:

1.     SRI. P. MURUGAN
       S/O LATE SRI. PONNU SWAMY MUDALIAR,
       SINCE DECEASED BY HIS LR'S,

1(a) SMT. GANGAMMA
     W/O LATE SRI. P.MURUGAN,
     AGED ABOUT 78 YEARS,
     R/AT OLD NOU-22, NEW NO.12,
     5TH CROSS, OLD OKALI PURAM,
     BANGALORE-21.

2.     M.RAGHUNATHAN
       S/O MURUGAN,
       AGED ABOUT 54 YEARS,

3.     SRI. P.UMAPATHY
       AGED ABOUT 24 YEARS,
       S/O LATE SRI. PONNU SWAMY MUDALIAR,

4.     SRI. P.SANTHI,
       W/O SRI. P.UMAPATHY,
       AGED ABOUT 50 YEARS,




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                                         RFA No. 501 of 2016
                                    C/W RFA No. 1229 of 2018

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       APPELLANTS 1(a), 2, 3 AND 4 ARE
       R/AT OLD NO.U-22, NEW NO.12,
       5TH CROSS, OLD OKALIPURAM,
       BENGALURU-560 021.
                                                ...APPELLANTS
(BY SMT. R.V.NAIK., ADVOCATE)


AND:

1.   SRI. H.NAGARAJ
     S/O LATE SRI. HANUMAIAH,
     AGED ABOUT 67 YEARS,
     PRESENTLY R/AT NO.3, 6TH CROSS,
     40 FEET ROAD, MANJUNATHNAGAR,
     2ND PHASE, BANGALORE-560 010.

2.   SMT. KUPPAMMA.G.
     W/O LATE SRI. GOVINDARAJ.P.,
     D/O LATE SRI. PONNU SWAMY MUDALIAR,
     SINCE DECEASED BY HER LR'S,

a)   SRI. GOVINDARAJ.P.,
     S/O LATE SRI. MUNISWAMY,
     AGED ABOUT 68 YEARS,

b)   SRI. KUMAR
     S/O LATE SRI. GOVINDARAJ.P.,
     AGED ABOUT 40 YEARS,

     RESPONDENTS 2(a) AND 2(b) ARE
     R/O NO.30/13, VIJAYARANGAN STREET,
     SAIDHAPETTAI, ARANI POST,
     ARNI, TIRUVANNAMALAI,
     TAMIL NADU-632 301.

                                              ...RESPONDENTS
(BY SRI. M.ASHWATHANARAYANA REDDY., ADVOCATE FOR
C/R1;
V/O/DTD: 15.11.2023, APPELLANT NO.1 IS TREATED AS LR OF
R2;



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                                     RFA No. 501 of 2016
                                C/W RFA No. 1229 of 2018

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V/O/DTD:18.07.2023, R2(A & B) ARE HELD SUFFICIENT)


THIS RFA IS FILED UNDER ORDER 41 RULE 1 R/W SEC.96 OF

CPC., AGAINST THE JUDGMENT AND DECREE DATED 16.02.2016

PASSED IN O.S NO.7372/2010 ON THE FILE OF THE XII ADDL.

CITY CIVIL & SESSIONS JUDGE, BENGALURU, DECREEING THE

SUIT FOR DECLARATION AND PERMANENT INJUNCTION.


IN RFA NO. 1229/2018
BETWEEN:

1.   SRI. P.MURUGAN
     S/O LATE SRI.PONNUSWAMY MUDALIAR,
     SINCE DEAD BY LR'S,

1a) SMT. GANGAMMA
    W/O LATE SRI.P.MURUGAN,
    AGED ABOUT 79 YEARS,
    R/AT NO.22, NEW NO.12,
    15TH CROSS, OLD OKALIPURAM,
    BENGALURU-560 021.

2.   SRI. M.RAGHUNATHAN,
     S/O SRI. P.MURUGAN,
     AGED ABOUT 56 YEARS,

3.   SRI. P.UMAPATHY
     S/O LATE SRI.PONNUSWAMY MUDALIAR,
     AGED ABOUT 69 YEARS,

4.   SMT. SANTHI
     W/O SRI. UMAPATHY.
     AGED ABOUT 56 YEARS,




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                                         RFA No. 501 of 2016
                                    C/W RFA No. 1229 of 2018

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    ALL ARE R/O OLD NO.V.22,
    NEW NO.12, 5TH CROSS,
    OLD OKALIPURAM,
    BENGALURU-560 021.
                                             ...APPELLANTS
(BY SRI. R.V.NAIK, ADVOCATE )

AND:
SRI. H.NAGARAJ
S/O LATE SRI.B.N.HANUMAIAH,
AGED ABOUT 60 YEARS,
R/A NO.3, 6TH CROSS, 40 FT. ROAD,
MAJUNATHANAGARA, 2ND PHASE,
BENGALURU-560 010.
                                            ...RESPONDENT

(BY SRI. M.ASHWATHANARAYANA REDDY, ADVOCATE
(V/O/DTD: 07.08.2024)


THIS RFA IS FILED UNDER SECTION 96 OF CPC., AGAINST THE

JUDGMENT AND DECREE DATED: 16.2.2016 PASSED IN OS

NO.7371/2011 ON THE FILE OF THE XII ADDL. CITY CIVIL AND

SESSIONS JUDGE (CCH NO.27), BANGALORE, DISMISSING

THE SUIT FOR DECLARATION AND INJUNCTION.


THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR

JUDGMENT ON 27.11.2025, THIS DAY, COMING ON FOR

PRONOUNCEMENT OF JUDGMENT, THIS DAY, THE JUDGMENT

WAS DELIVERED THEREIN AS UNDER:




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                                                    RFA No. 501 of 2016
                                               C/W RFA No. 1229 of 2018

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CORAM:         HON'BLE MR. JUSTICE D K SINGH
                        &
               HON'BLE MS. JUSTICE TARA VITASTA GANJU


                             CAV JUDGMENT

(PER: HON'BLE MS. JUSTICE TARA VITASTA GANJU)

TABLE OF CONTENTS

I. Preface: ............................................................... 5 II. Brief Facts: .......................................................... 6 III. Impugned Judgment: .......................................... 14 IV. Contentions of the Appellants/Defendants: ............. 15 V. Contentions of Respondent No.1/Plaintiff: .............. 20 VI. Issues for Consideration: ..................................... 22 VII. Analysis and Findings: ......................................... 23 VIII.Conclusion: ........................................................ 44

I. Preface:

1. These appeals are directed against the common

Judgment and Decree dated 16-02-2016 passed by the XII

Additional City Civil and Sessions Judge, Bengaluru, in

O.S.No.7372/2010 and O.S.No.7371/2011, whereby the

suit filed by the respondent No.1/plaintiff in

O.S.No.7372/2010 for declaration of title, possession and

cancellation of Gift Deeds was decreed against the

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appellants/defendants and the suit filed by the appellants in

O.S.No.7371/2010 seeking declaration of title by adverse

possession against the respondent No.1/plaintiff was

dismissed.

2. For the sake of convenience, the parties are referred

to as they were arrayed before the learned Trial Court in

O.S.No.7372/2010.

II. Brief Facts:

3. The brief facts are that the respondent

No.1, as plaintiff in O.S.No.7372/2010 and as

defendant in O.S.No.7371/2011, contended that late

Sri. B.N.Hanumaiah was the absolute owner of the suit

schedule property, bearing Old No.U-22, New No.12,

5th Cross, Old Okalipuram, Bengaluru, [hereinafter referred

to as the "suit schedule property"] having purchased it from

Mrs. B. Peacock under a registered Sale Deed dated

13.12.1958. The respondent No.1/plaintiff asserted that

late Sri. B.N.Hanumaiah had been in continuous possession

of the suit schedule property and had effected khata in his

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name and regularly paid all property taxes and statutory

dues in respect thereof.

4. The respondent No.1/plaintiff referred to earlier

litigations between the parties contending that in execution

proceedings arising out of O.S.No.486/1973, the suit

property was attached. However, thereafter, O.S.

No.1019/1973 was filed by Smt. Muttamma, the

appellants/defendants' mother asserting ownership of the

suit schedule property and specific performance of an

Agreement to Sell dated 21.01.1973 which was dismissed,

and the attachment of the suit property was upheld.

Thereafter, O.S.No.7123/1980 filed by her for declaration

of title and injunction in respect of the suit property was

dismissed. A subsequent suit being O.S.No.1010/1993

seeking declaration of title by adverse possession was also

dismissed. It is contended that, in all earlier proceedings,

the claims of ownership and adverse possession set up by

the appellants/defendants' family were consistently

rejected.

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4.1. The respondent No.1/plaintiff further submitted that,

after the death of late Sri. B.N.Hanumaiah, the other legal

heirs executed a registered Release Deed dated 17.04.2010

in his favour, thereby vesting the title of the suit schedule

property with him.

5. The appellants/defendants, on the other hand, other

than admitting that the suit schedule property originally

belonged to Sri. C.B. Oakley have denied that the

respondent No.1/plaintiff had any right, title or interest

therein. It was contended that the father of the

appellants/defendants, Sri. Ponnuswamy Mudaliar and one

Narayanappa entered into an Agreement to Sell

dated 23.11.1949 [Ex.D1] with Sri. C.B.Oakley and

part consideration was paid. Pursuant thereto,

Sri. Ponnuswamy Mudaliar was put in possession of the suit

property. He thereafter got the khata recorded in his name

and started paying taxes and after his death in the year

1965, the mother of the appellants/defendants Smt.

Muttamma got the khata endorsement in her name on

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22.08.1975 [Ex.D-2] and paid property taxes thereafter.

It is further stated that although Sri. C.B.Oakley died in

December 1949 naming his brother Howard Oakley as the

executor of his Will and the said Howard Oakley executed

the Sale Deed in favour of Sri. B. H. Peacock on 23.07.1951,

the possession of the suit property remained with Sri.

Ponnuswamy Mudaliar. It is further averred that on

13.12.1958 when Mrs. B.Peacock, wife of Sri. B.H.Peacock

sold the suit property in favour of Sri. B.N Hanumaiah, the

father of the respondent No.1/plaintiff, the possession of

the suit property continued to remain with Sri. Ponnuswamy

Mudaliar. It is thus contended that Smt. Muttamma has

been in possession and enjoyment of the suit property for

over 40 years continuously and without any interruption

from any of the appellants/defendants. The possession of

the suit scheduled property has been adverse for more than

40 years and thus the second defendant's claim is time

barred. It is further stated that the cause of action to file

the suit arose on 07.12.1976 when the

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appellants/defendants' suit for declaration, injunction and

setting aside of the order was dismissed.

5.1. It is thus averred that the appellants/defendants and

their predecessors in title are in possession and enjoyment

of the suit property since 1949 when the Sale Agreement

between Sri. C.B.Oakley and Sri. Ponnuswamy Mudaliar was

executed and part payment of the consideration in the sum

of Rs.700/- was paid. The appellants/defendants had

thereafter perfected the title by adverse possession and

transfer of rights was complete.

6. In the year 2010, the appellants/defendants

attempted to carry out construction on the suit schedule

property, relying upon Gift Deed dated 22.10.2007

executed by Smt. Muttamma in their favour, which led to

the filing of O.S.No.7372/2010. It was asserted therein that

Smt. Muttamma had no title to the suit property and

therefore she had no right to execute the said Gift Deed.

7. As stated above, two suits were filed being

O.S.No.7372/2010 and O.S.No.7371/2011 by the

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appellants and the respondent No.1 respectively. It is

apposite to set out the reliefs sought in these two suits

which is reproduced below:

"Relief sought by Appellants/defendants in

(a) to declare that the plaintiffs are the absolute owners of the suit schedule property;

(b) for declaring that the plaintiffs have perfected their title by way of adverse possession;

(c) for consequential injunction restraining the defendant and his men from disturbing the peaceful enjoyment of the property by the plaintiffs;

(d) and for such other costs and reliefs the Hon'ble Court may deem fit to grant in the circumstances of the case."

Relief sought by Respondent No.1/plaintiff in O.S.No.7372/2010:

"(a) to declare that the plaintiff is the absolute owner of the suit schedule property;

(b) to direct the defendants to deliver the possession of the schedule property;

(c) to direct the registered Gift Deeds vide Reg.

Nos.2526/2007-08 dated 22.10.2007 and 2527/2007 dated 22.10.2007 registered in the office of the Sub- Registrar, Srirampura, Bangalore by defendant Nos. 1 to 3 in favour of defendant Nos. 2 and 4 are illegal and null;

(d) for permanent injunction restraining the defendants or their agents, men etc. or anybody claiming under them or through them from alienating or creating a charge in any manner over the Suit Schedule Property;

(e) for mesne profits; and

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(f) to grant such other relief or reliefs as this Hon'ble Court may deem fit to grant to the Plaintiff under the circumstances of the case including the costs of the above proceedings in rendering justice, equity and good conscience."

8. The learned Trial Court after examining the

pleadings between parties, framed the following two

separate sets of Issues in the suits:

1. Whether the plaintiff proves his title over the suit property?

2. Whether the plaintiff proves that the defendants are tenants?

3.Whether the plaintiff proves that the gift deeds executed defendant nos. 1 and 3 in favour of defendant Nos. 2 and 4 on 22.10.2007 are illegal null and void?

4. Whether the plaintiff is entitled for possession?

5.Whether the defendant Nos.2 to 4 prove that Ponnuswamy Modaliar is the absolute owner of the suit schedule property on the strength of an agreement of sale dated 23.11.1949 executed by Mr. C.B. Oakley as pleaded in paras 20 and 21 of the written statement?

6. Whether the defendants prove that they have perfected their title over the suit property by means of adverse possession?

7. What order or decree?"

1. Whether the plaintiff proves his title over the suit property?

2. Whether the plaintiff proves that the defendants are tenants?

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3. Whether the plaintiff proves that the gift deeds executed defendant nos. 1 and 3 in favour of defendant Nos. 2 and 4 on 22.10.2007 are illegal null and void?

4. Whether the plaintiff is entitled for possession?

5.Whether the defendant Nos.2 to 4 prove that Ponnuswamy Modaliar is the absolute owner of the suit schedule property on the strength of an agreement of sale dated 23.11.1949 executed by Mr. C.B. Oakley as pleaded in paras 20 and 21 of the written statement?

6. Whether the suit is in time?

7. Whether the court fee paid is sufficient?

8. What order or decree?"

8.1. The plaintiff in O.S.No.7372/2010, Sri. H. Nagaraj was

examined as PW-1 while plaintiff No.2 in O.S.No.7371/2011

- Sri. M.Raghunathan was examined as DW-1. In addition,

one Perumal, his neighbour was examined as DW-2 to prove

two documents, Exs.D-34 and D-35 which are Election Card

and Marriage Card of Perumal, respectively.

9. The appellants, as defendants in O.S.No.7372/2010

and as plaintiffs in O.S.No.7371/2011, contended that the

suit property originally belonged to Sri. C.B.Oakley, who

executed an Agreement of Sale dated 23.11.1949 in favour

of their father, late Sri. Ponnuswamy Mudaliar and put him

in possession. They asserted that their father constructed a

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residence and a shop premises on the suit property and that

the family remained in continuous and exclusive possession

for several decades. After the death of late Sri.

Ponnuswamy Mudaliar, their mother Smt. Muttamma was

recorded as the khathedar, and that the taxes and statutory

dues were paid. They contended that late Sri.

B.N.Hanumaiah did not ever have possession over the suit

schedule property.

9.1. The respondent No.1/plaintiff on the other

hand contended that he had a valid and legal title to the

property through Sri. B.N.Hanumaiah and that neither

Smt. Muthamma nor Sri. Ponnuswamy Mudaliar had any

title to the suit property.

III. Impugned Judgment:

10. By the Impugned Judgment, the learned Trial Court

held that the respondent No.1/plaintiff had proved his title

through the registered Sale Deed and the Release Deed.

The pleas of tenancy and adverse possession were rejected

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and the Gift Deed dated 22.10.2007 was declared void.

Thus, the respondent No.1/plaintiff's suit was decreed, and

the appellants/defendants' suit was dismissed.

11. This led to the filing of these two appeals before this

Court by the appellants/defendants, one challenging the

decree passed in the suit filed by the respondent

No.1/plaintiff and the second challenging the dismissal of

the suit filed by the appellants/defendants.

11.1. This Court by its order dated 07.06.2016, admitted

R.F.A.No.501/2016 and passed an interim order staying the

impugned Judgment and Decree. The said order has

continued since.

IV. Contentions of the Appellants/Defendants:

12. Learned counsel for the appellants/defendants has

contended that their possession commenced pursuant to

the execution of the Agreement of Sale dated 23.11.1949

and continued openly and uninterruptedly. It was argued

that even if the initial possession was permissive, it became

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hostile when a suit asserting absolute ownership was filed

in the year 1979, and the limitation under Article 65 of the

Limitation Act, 1963 commenced from that date, rendering

the respondent No.1/plaintiff's suit barred by time.

13. The learned counsel for the appellants/defendants

has contended that it is pursuant to the order passed in RFA

No.681/1999 dated 07.07.2006 that the appellants/

defendants filed O.S.No.7371/2011 claiming title by

adverse possession. It is contended that the starting point

of limitation as set out in Article 65 of the Limitation Act

arose when the pleadings are filed in Misc. Case

No.358/1975 and O.S.No.7123/1980 claiming hostile title.

Since the suit for possession as per Article 65 of the

Limitation Act is required to be filed within twelve years

from the date when the possession became adverse, it

should have been filed within twelve years from 1975/1979.

Thus, the suit filed by the respondent No.1/plaintiff

(O.S.No.7372/2010) in the year 2010 was barred by

limitation.

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14. The second contention raised by the appellants/

defendants is that the right to sue in terms of Article 58 of

the Limitation Act first accrued when the sale deed was

executed on 13.12.1958 and despite the execution, the

respondents/plaintiffs were not put in possession of the suit

schedule property. Thus, it is contended that the suit for

declaration of title and possession is barred by the

provisions of Article 58 of the Limitation Act as well. In

support of the said contention, learned counsel for the

appellants/defendants has also placed reliance on the

judgments of the Supreme Court in Rajeev Gupta v.

Prashant Garg1 and Khatri Hotels (P) Ltd. v. Union of

India2 to contend that under Article 58 of the Limitation

Act, the period of limitation commences when the right to

sue first accrues, and that successive or continuing causes

do not give rise to a fresh period of limitation. Reliance was

also placed on the judgment of the Supreme Court in

2025 SCC OnLine SC 889

(2011) 9 SCC 126

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Rajpal Singh v. Saroj3 to submit that where the principal

relief is one of declaration, the limitation applicable is three

years, and the prayer for possession being consequential

cannot extend the period of limitation. It is therefore

contended that once the right to sue had accrued in the year

1958 upon execution of the registered sale deed, the failure

to institute the suit within the prescribed period renders the

present suit barred by limitation. The relevant extract of the

Rajeev Gupta's case relied upon is below:

"17. A coordinate Bench of this Court, in its decision of Khatri Hotels (P) Ltd. v. Union of India, examined the position Under Article 120 of the Limitation Act, 1908 vis- a-vis Article 58 of the Limitation Act to observe that the right to sue would accrue when there was a clear and unequivocal threat of infringement of the Plaintiff's right. However, while the former provision simply stated that the period of limitation commenced when the right to sue accrues, in a marked linguistic departure, the latter provision stated that the limitation would commence when the right to sue "first" accrued. Having observed so, this Court held that:

30. While enacting Article 58 of the 1963 Act, the legislature has designedly made a departure from the language of Article 120 of the 1908 Act. The word 'first' has been used between the words 'sue' and 'accrued'. This would mean that if a suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue first accrues. To put

(2022) 15 SCC 260

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it differently, successive violation of the right will not give rise to fresh cause and the suit will be liable to be dismissed if it is beyond the period of limitation counted from the day when the right to sue first accrued."

[Emphasis Supplied]

xxx xxx xxx

23. Further, in Rajpal Singh v. Saroj, this Court held that where a composite suit had been filed for cancellation of the sale deed and of possession, the limitation period would have to be adjudged from the primary relief of cancellation which is 3 (three) years, and not the ancillary relief of possession which is 12 (twelve) years. In holding so, this Court held that:

14. The submission on behalf of the original Plaintiff (now represented through her heirs) that the prayer in the suit was also for recovery of the possession and therefore the said suit was filed within the period of twelve years and therefore the suit has been filed within the period of limitation, cannot be accepted. Relief for possession is a consequential prayer and the substantive prayer was of cancellation of the sale deed dated 19-4-1996 and therefore, the limitation period is required to be considered with respect to the substantive relief claimed and not the consequential relief.

When a composite suit is filed for cancellation of the sale deed as well as for recovery of the possession, the limitation period is required to be considered with respect to the substantive relief of cancellation of the sale deed, which would be three years from the date of the knowledge of the sale deed sought to be cancelled. Therefore, the suit, which was filed by the original Plaintiff for cancellation of the sale deed, can be said to be substantive therefore the same was clearly barred by limitation. Hence, the learned Trial Court ought

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to have dismissed the suit on the ground that the suit was barred by limitation...."

[Emphasis Supplied]

V. Contentions of Respondent No.1/Plaintiff:

15. Learned counsel for the respondent No.1/plaintiff

supported the Impugned Judgment and submitted that

absolute title flowed from the registered Sale Deed dated

13-12-1958 and the subsequent Release Deed executed by

the legal heirs of late Sri. B.N.Hanumaiah. It was submitted

that possession of the appellants/defendants originated

under an Agreement of Sale and was permissive in nature,

that there was no pleading or proof of hostile repudiation of

title. It was averred that the cause of action arose only in

2010 when the appellants/defendants asserted hostile title

by executing Gift Deed and attempting construction.

16. Learned counsel for the respondent No.1/plaintiff has

further contended that despite claiming title through an

Agreement to Sell dated 23.11.1949, no suit for specific

performance was filed by the appellants/defendants

claiming ownership of the property. In addition, it has been

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contended that after the decree was passed in RFA

No.681/1999 and attachment order qua suit schedule

property was set aside, Sri. Murugan (appellant No.1)

executed a registered Gift Deed in favour of his son of the

southern portion of the suit schedule property on

09.10.2004 (Ex.P6) and also on the same day, Sri. P.

Umapathi (appellant No.3) executed a Gift Deed in favour

of his wife Smt. Shanthi on the remaining northern portion

of the suit schedule property (Ex.P7). The respondent

No.1/plaintiff has contended that in the suit in

O.S.No.7372/2010 for declaration of title and delivery of

possession, the respondent No1/plaintiff has specifically

pleaded that cause of action has arisen on 02.03.2010 when

the respondent No.1/plaintiff had knowledge of the

fraudulent Gift Deeds and when the FIR against these Gift

Deeds was registered on 07.08.2010. It is thus contended

that the suit is filed within time and is not barred by

limitation.

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17. Learned counsel for the respondent No.1/plaintiff has

also sought to rely upon the judgment of the Supreme Court

in Achal Reddy v. Ramakrishna Reddiar4, to submit that

the party who obtains possession under an Agreement to

Sell, cannot claim adverse possession and that if the

possession is legal and proper referable to a contract, it

cannot be adverse. Thus, it is contended that the

appellants/defendants cannot claim title by adverse

possession.

VI. Issues for Consideration:

18. The questions that arise for consideration before this

Court are:

(i) Whether the suit as filed by the respondents was barred by limitation, and

(ii) Whether the appellants had perfected the title of the suit scheduled property by adverse possession?

(1990) 4 SCC 706

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VII. Analysis and Findings:

19. At this stage, it is apposite to set out the provisions of

the Limitation Act, which would be relevant:

Description of suit Period of Time from which the Limitation period begins to run

58. To obtain any other 3 years When the right to sue declaration. first accrues.

             XXX               XXX                XXX
  65. For possession of 12 years        When the possession of
  immovable property or                 the defendant becomes
  any interest therein                  adverse to the plaintiff.
  based on title.

19.1. A plain reading of these provisions shows that Section

58 of the Limitation Act provides for a limitation of three

years to obtain a decree of declaration. Section 65 of the

Limitation Act provides a period of limitation for a

possession of immovable property as 12 years from when

the possession continues adverse to a plaintiff.

20. In order to better appreciate the contentions of the

appellants/defendants, it is apposite to set out the

transaction in relation to the suit property through the flow

chart prepared.




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                          FLOW CHART

                                       Havard Oakley
          C. B. Oakley                   (Brother)
         (died in 1950)               (Executor of will)




     ATS 1949, Ponnuswamy
                                       B. H. Peacock
       part consideration
                                   Registered Sale Deed:
          paid Rs.700/-
                                        23.07.1951




            Gift Deed
         dt.22.10.2007                 B.N. Hanumaiah
         by Muttamma                 Registered Sale Deed:
          in favour of                    13.12.1959
           appellants
           (Murugan)
                                     Mortgaged property
                                         12.08.1959
                                      Nagarathnamma

  Murugan is descendent of
  Ponnuswamy/Muttamma
                                     Agreement to Sell -
                                       21.01.1973 by
                                     Muttamma with B.N.
                                    Hanumaiah-Mortgagee

  Property was mortgaged
   embroiled in litigation


                                     Release Deed by B.N.
                                      Hanumaiah's heirs
                                      dt.17.04.2010 -in
                                       favour of Nagaraj



                                       Nagaraj claims title
                                            through
                                     B.N.Hanumaiah(father)





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20.1.     As   can   be    seen     from    the   above,    the

appellants/defendants' predecessor-in-interest do not have

a registered title. The appellants/defendants claim rights by

virtue of the Agreement to Sell. On the other hand, the title

with the respondent No.1/plaintiff is based on a registered

instrument and is continuous. Learned counsel for the

appellants/defendants has laid emphasis on a judgment and

decree dated 08.02.1979 passed by the 18th Additional City

Civil Judge, CCH-10, Bangalore City, in O.S.No.7123/1980

to contend that this case was filed by Muttamma, mother of

the appellants/defendants and the suit was filed for

declaration of title and injunction and originally was

numbered as O.S.No.415/1979 (re-numbered as

O.S.No.7123/1980). It is contended that in this suit, the

said Muttamma had stated that she has been in possession

and enjoyment of the suit schedule property continuously

and without any interruption for over 40 years and that

B.N.Hanumaiah or his persons claiming through him do not

have any right, title or interest in the suit schedule property.

It is further contended by the appellants/defendants that in

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this suit, the Court restrained the respondents herein from

any kind of interference with the suit schedule property till

the plaintiff (Muttamma) is evicted in due course of law.

20.2. This judgment was challenged by the

appellants/defendants by filing RFA No.681/1999 and by a

judgment and decree dated 07.07.2006 the High Court

modified the decree of the Trial Court and held that the title

could not be declared of the appellant Muttamma in the

appeal since the suit was not filed for declaration of title and

if a suit is subsequently filed claiming title by adverse

possession, the parties are at liberty to place their

appropriate contentions. The High Court also set aside the

order of attachment passed in O.S.No.486/1973 which

attached the property in a suit for recovery filed against said

B.N.Hanumaiah. The relevant extract of the order dated

07.07.2006 is below:

"9. As regards the claim of the appellant for a declaration of title, the basis for such declaration is only the possession of the property for a considerable number of years. This is not a suit for a declaration of title against the owner of the property. Though the respondent No.2 claimed title to the property, no documents having been produced in evidence and the plaintiff's claim

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itself being that he is not the owner of the property, the question of adverse possession against him does not arise. It is submitted by Sri. Vidyadhar, learned counsel for the respondent No.2(b), (d) and (e) that certain documents had been produced by the defendant No.2 in the Trial Court, but they have not been exhibited and they have not been kept in the Lower Court records. In the absence of admission of those documents in evidence, the Court is not in a position to determine the claim of the defendant No.2 that he was the owner of the property. Therefore there being no evidence to show the ownership of the property by the defendant No.2, the question of granting a declaration of title in favour of the plaintiff against the defendant No.2 in this case does not arise. In case subsequently there is any suit, the parties are at liberty to place their contentions and the present plaintiff is not precluded from showing that by adverse possession, she had become the owner. However, it is clear that she was in possession of the suit property since long and she was in possession on the date of the suit."

[Emphasis Supplied]

21. It is also the case of the respondent No.1/plaintiff that

the appellants and late Smt.Mutamma are only tenants in

respect of the suit schedule property and they are in illegal

occupation of the suit schedule property and liable to pay

damages. The respondent No.1/plaintiff has also challenged

the execution of the fraudulent Gift Deeds that the Gift Deed

executed by late Smt. Muttamma in favour of Defendant

Nos.1 and 2, which was produced and marked in evidence

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on behalf of the defendants, was fraudulent, void and not

binding on him.

21.1. Thus, the cause of action as set out in the plaint,

arose on 2/3 March 2010. It is apposite to set out cause of

action as reproduced in the plaint in O.S.No.7372/2010

which is below:

"24. That the cause of action for the above suit arose on 2/3.3.2010 when the plaintiff had the knowledge of the fraudulent Gift Deeds and on 7.8.2010 when the plaintiff lodged police complaint against the defendants for the offences punishable under Section 465, 467, 468, and 471 of IPC and subsequently, within the jurisdiction of this Hon'ble Court."

22. Indisputably, the appellants/defendants' possession,

originated under an Agreement of Sale dated 23.11.1949.

23. The Supreme Court in Achal Reddy's case has held

that an Agreement of Sale does not by itself create any

right, title or interest in immovable property and that where

the parties contemplate execution of a registered sale deed,

title passes only on such execution and registration; till

then, the possession of the transferee cannot be considered

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as adverse and remains permissive and on behalf of the true

owner. The relevant extract is set out below:

"8. The Division Bench noticed that all that the plaintiff has to prove is that he or his predecessor-in-title was in possession at any time between February 11, 1947 and February 11, 1959. If between February 11, 1947 and July 17, 1947 the possession of Varada Reddi was possession held on behalf of Dasu Reddi then it could be held that the plaintiff's predecessor-in-title had been in possession within 12 years prior to the suit. The Division Bench held that the transaction of July 10, 1946 was in fact and in law only on oral agreement for sale and that on the assumption that it was an oral sale the learned Single Judge failed to apply the legal position as enunciated in Annamali v. Muthiah5. They observed that possession as held by Varada Reddi subsequent to July 10, 1946 and before he instituted the suit in 1949 for specific performance was in the consciousness that it was only possession on behalf of the real owner. Even if the execution of an infructuous sale deed on July 17, 1947 by Dasu Reddi in favour of Varada Reddi is assumed to have altered the complexion of events in any manner, the possession by Varada Reddi from July 1, 1946 up to July 17, 1947 at least was clearly possession held on behalf of Dasu Reddi, the predecessor-in-title of the plaintiff. If the plaintiff's predecessor had been in possession of the suit property on July 17, 1947, that is to say within 12 years prior to the institution of the present suit on February 11, 1959, there can be little doubt that the plaintiff must succeed on the question of possession as well. In this view the judgment of the learned Single Judge was reversed.

9. There is no controversy that the plaintiff has to establish subsisting title by proving possession within 12 years prior to the suit when the plaintiff alleged dispossession while in possession of the suit property. The first appellate court as well as the second appellate court proceeded on the basis that the plaintiff is not entitled to succeed as such possession has not been proved. The concurrent findings that the plaintiff had

ILR (1965) 1 Mad 254

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title in spite of the decree for specific performance obtained against him, when that decree had not been executed are not assailed by the appellant in the High Court. The appellant cannot, therefore, urge before us on the basis of the findings in the earlier suit to which he was not a party that Ex. A-1 sale deed is one without consideration and does not confer valid title on the plaintiff. The sole question that has been considered by the High Court is that of subsisting title. We have to consider whether the question of law as to the character of the possession Varada Reddi had between July 10, 1946 and July 17, 1947 is adverse or only permissive. In the case of an agreement of sale the party who obtains possession, acknowledges title of the vendor even though the agreement of sale may be invalid. It is an acknowledgement and recognition of the title of the vendor which excludes the theory of adverse possession. The well settled rule of law is that if a person is in actual possession and has a right to possession under a title involving a due recognition of the owner's title his possession will not be regarded as adverse in law, even though he claims under another title having regard to the well recognised policy of law that possession is never considered adverse if it is referable to a lawful title. The purchaser who got into possession under an executory contract of sale in a permissible character cannot be heard to contend that his possession was adverse. In the conception of adverse possession there is an essential and basic difference between a case in which the other party is put in possession of property by an outright transfer, both parties stipulating for a total divestiture of all the rights of the transferor in the property, and in a case in which there is a mere executory agreement of transfer both parties contemplating a deed of transfer to be executed at a later point of time. In the latter case the principle of estoppel applies estopping the transferee from contending that his possession, while the contract remained executory in stage, was in his own right and adversely against the transferor. Adverse possession implies that it commenced in wrong and is maintained against right. When the commencement and continuance of possession is legal and proper, referable to a contract, it cannot be adverse."

[Emphasis Supplied]

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23.1. It was further held in the Achal Reddy's case that

in the case of a contract of sale or Agreement to Sell, where

the transferee is put in possession of the property and the

parties contemplate the execution of a registered sale deed,

the vendor has to execute a registered sale deed. However,

where in the pursuance of an oral transfer or unregistered

transfer deed, the transferee is put in possession, the

transferor retains no right or title to the property. In such a

case, the transferee is in possession as the owner. It is

apposite to set out relevant extract below:

"10. In the case of an executory contract of sale where the transferee is put in possession of the property in pursuance of the agreement of sale and where the parties contemplate the execution of a regular registered sale deed the animus of the purchaser throughout is that he is in possession of the property belonging to the vendor and that the former's title has to be perfected by a duly executed registered deed of sale under which the vendor has to pass on and convey his title. The purchaser's possession in such cases is of a derivative character and in clear recognition of and in acknowledgement of the title of the vendor. The position is different in the case where in pursuance of an oral transfer or a deed of transfer not registered the owner of a property transfers the property and puts the transferee in possession with the clear animus and on the distinct understanding that from that time onwards he shall have no right of title to the property. In such a case the owner of the property does not retain any vestige of right in regard to the property and his mental attitude

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towards the property is that it has ceased to belong to him altogether. The transferee after getting into possession retains the same with the clean animus that he has become the absolute owner of the property and in complete negation of any right or title of the transferor, his enjoyment is solely as owner in his right and not derivatively or in recognition of the title of any person. So far as the vendor is concerned both in mind and actual conduct, there is a total divestiture of all his right, title and interest in the property. This applies only in a case where there is a clear manifestation of the intention of the owner to divest himself of the right over the property. On the other hand in the case of an executory contract the possession of the transferee until the date of registration of the conveyance is permissive or derivative and in law is deemed to be on behalf of the owner himself. The correctness of the decision in Annamali v. Muthiah cannot, therefore, be doubted."

[Emphasis Supplied]

24. In the present case, it is not disputed that the original

agreement that was entered into by the predecessor in

interest of the appellants is an Agreement to Sell dated

23.11.1949 (Ex.D1) between the said Sri. C.B.Oakley and

Sri. Ponnusawamy Modaliar and Sri. Narayanaswamy for a

sale consideration in a sum of Rs.1,000/- and only a sum of

Rs.700/- was paid. Even at the time of putting the

predecessor in interest in possession of the suit schedule

property, the sale deed was not executed nor was any

agreement to perfect the title executed to enable a transfer

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of rights. However, on the other hand, after the demise of

said Sri. C.B.Okaley, Sri. Havard Oakley, his brother and

executor of the Will executed a registered sale deed in

favour of B.H.Peacock who himself executed a registered

sale deed in favour of B.H.Hanumaiah on 13.12.1958, was

the father of the respondent No.1/plaintiff. The title and

possession of the respondent No.6 was perfected by the

execution of the registered Gift Deed.

25. As stated above, the other question that has been

raised by the appellant / defendant is on limitation. The

issues which are reproduced in paragraph No.8 above

reflect that no ground of limitation was raised by the

respondent No.1/plaintiff in his suit. The issues framed

essentially relate to title of the respondent/plaintiff.

25.1. It is the contention of the appellants/defendants that

the title was adverse to the respondents since the period

when the suit was filed being O.S.No.7123/1980 (filed in

the year 1979 and renumbered). Thus, it is contended that

suit should have been filed within twelve years i.e. by 1982

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and since it was filed in the year 2010, the suit is barred by

limitation.

26. The respondent No.1/plaintiff has on the other hand,

contended that the cause of action had arisen when they

found out about the fraudulent Gift Deed and when the

respondent No.1/plaintiff filed a police complaint with

respect to these fraudulent Gift Deeds on 2/3 March 2010.

27. Thus, it is a case of the respondent No.1/plaintiff that

all along the appellants/defendants did not have any title to

the property and could not have perfected the title by way

of adverse possession.

28. Insofar as the issue relating to limitation in respect of

the alleged fraudulent Gift Deeds is concerned, reliance is

placed on the judgment of the Hon'ble Supreme Court in

Mohd. Noorul Hoda v. Bibi Raifunnisa6. The Supreme

Court, while interpreting Article 59 of the Limitation Act, has

held that a suit for cancellation or setting aside of an

(1996) 7 SCC 767

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instrument on the ground of fraud must be instituted within

three years from the date when the facts entitling the

plaintiff to have the instrument cancelled first become

known to him. The Court further clarified that the

expression "person" under Section 31 of the Specific Relief

Act is of wide import and includes even a person claiming

derivative title, and that such person cannot ignore a

subsisting instrument which stands as an obstacle to his

title. It was held that where the plaintiff seeks to avoid an

instrument on the ground of fraud, limitation necessarily

begins from the date of knowledge of such fraud. It is

apposite to set out relevant extract of the Mohd. Noorul's

case in this regard below:

6. The question, therefore, is as to whether Article 59 or Article 113 of the Schedule to the Act is applicable to the facts in this case. Article 59 of the Schedule to the Limitation Act, 1908 had provided inter alia for suits to set aside decree obtained by fraud. There was no specific article to set aside a decree on any other ground.

In such a case, the residuary Article 120 in Schedule III was attracted. The present Article 59 of the Schedule to the Act will govern any suit to set aside a decree either on fraud or any other ground. Therefore, Article 59 would be applicable to any suit to set aside a decree either on fraud or any other ground. It is true that Article 59 would be applicable if a person affected is a party to a decree or an instrument or a contract. There is no dispute that Article 59 would

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apply to set aside the instrument, decree or contract between the inter se parties. The question is whether in case of person claiming title through the party to the decree or instrument or having knowledge of the instrument or decree or contract and seeking to avoid the decree by a specific declaration, whether Article 59 gets attracted? As stated earlier, Article 59 is a general provision. In a suit to set aside or cancel an instrument, a contract or a decree on the ground of fraud, Article 59 is attracted. The starting point of limitation is the date of knowledge of the alleged fraud. When the plaintiff seeks to establish his title to the property which cannot be established without avoiding the decree or an instrument that stands as an insurmountable obstacle in his way which otherwise binds him, though not a party, the plaintiff necessarily has to seek a declaration and have that decree, instrument or contract cancelled or set aside or rescinded. Section 31 of the Specific Relief Act, 1963 regulates suits for cancellation of an instrument which lays down that any person against whom a written instrument is void or voidable and who has a reasonable apprehension that such instrument, if left outstanding, may cause him serious injury, can sue to have it adjudged void or voidable and the court may in its discretion so adjudge it and order it to be delivered or cancelled. It would thus be clear that the word 'person' in Section 31 of the Specific Relief Act is wide enough to encompass a person seeking derivative title from his seller. It would, therefore, be clear that if he seeks avoidance of the instrument, decree or contract and seeks a declaration to have the decrees set aside or cancelled he is necessarily bound to lay the suit within three years from the date when the facts entitling the plaintiff to have the decree set aside, first became known to him.

[Emphasis Supplied]

28.1. Thus, applying the said ratio, the respondent

No.1/plaintiff's contention that the cause of action arose

when the fraudulent Gift Deeds came to his knowledge, as

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evidenced by the filing of a police complaint, is in

consonance with Article 59 of the Limitation Act.

29. This Court has also examined the deposition including

examination in chief and additional affidavit of P.W.1 in

support of his contention qua limitation. P.W.1 sets out that

the appellants/defendants had started putting up illegal

construction on the vacant portion of the suit property in

the month of March 2010 and at that time, a police

complaint was lodged with the Bruhath Bengaluru

Mahanagara Palike (BBMP) with respect to the illegal and

unauthorised construction. The appellants/defendants

appeared before Srirampuram Police Station and produced

the Gift Deed dated 22.10.2007 and thereafter, the

respondent No.1/plaintiff obtained copies of the Gift Deeds

from the jurisdictional Sub-Registrar. The relevant extract

of deposition of P.W.1 is set out below:

"14. I submit that being aggrieved by the said order of dismissal the LRS of late Muthamma filed R.F.A.No.681/1999 on the file of the Hon'ble High Court of Karnataka, Bangalore. The Hon'ble High Court of Karnataka, has passed an order on 7-7-2006 in the said R.F.A by partly allowing the said R.F.A., thereby the order

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of attachment passed on 20-2-1973 in O.S.No.486/1973 attaching the suit schedule property was thereby raised. In the said R.F.A the Hon'ble High Court has made an observation that in case subsequently, there is any suit; the parties therein are at liberty to place their contentions. The order passed by the Hon'ble High Court of Karnataka in the aforesaid R.F.A. raising the Attachment order attaching the suit schedule property is advantageous to the LRS of my father late B.N.Hanumaiah. The said order is not at all beneficial to the LRS of late Smt. Muthamma. That being the position, the defendants started putting up illegal structures in the vacant portion of the suit schedule property in the month of March 2010. Then immediately, I had questioned about their illegal construction but they did not give any reply and therefore, I lodged a police complaint with respect to their illegal construction and also complaint to the BBMP with respect the unauthorized illegal construction. The jurisdictional police had sent a word to the defendants and they appeared before the Sriramapuram Police Station and produced fabricated alleged Gift Deeds dated 22-10-2007 which were said to have registered in the office of the Sub-Registrar, Srirampuram, Bangalore and therefore immediately, I rushed to the office of the Jurisdictional Sub-Registrar, and found that defendants 1 and 3 had executed the Gift Deeds in respect of the suit schedule property in favour of his son and wife respectively that is defendants 2 and 4 herein."

[Emphasis Supplied]

29.1. No cross-examination on this aspect was conducted

by the appellants/defendants except for the following:

"29. Smt.Puttalingamma is the first wife of my father. Nanjundappa is the son of Smt.Puttalingamma. We had not produced Death extracts of both the persons in earlier

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proceedings. We obtained certified copies of Death Certificates immediately after effecting entries in the concerned register. As per charge sheet and Ex.P62, I was the complainant in that criminal case. We did not receive any notice from Sub-registrar office before lodging complaint. An enquiry was made in the office of Sub-registrar. There is a record to show such enquiry held and the charge sheet is filed in that regard. I am not having copy of record showing the said enquiry. I have not produced such record in the suit. It is not true to suggest that no such enquiry was held in Sub-registrar office. It is not true to suggest that I am deposing falsely.

[Emphasis Supplied]

29.2. Thus, this contention of the respondent No.1/plaintiff

remained unimpeached.

30. The principles laid down in Rajeev Gupta's case

further fortify the respondent No.1/plaintiff's case both on

limitation and on the legal effect of possession traced to

impugned instruments. The Supreme Court has

emphatically held that the word "first" occurring in Articles

58 and 59 is of determinative significance, and that once

the right to sue first accrues, limitation cannot be postponed

by relying upon subsequent events or continuing

consequences. It was held that where a registered

instrument invades or jeopardises the rights of a party, the

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right to sue crystallises from the date of knowledge of such

instrument, and later acts such as continued possession,

police complaints, or repeated assertions do not furnish a

fresh cause of action. The Court further observed that

possession referable to a registered document is traceable

to such document and, when disputed, cannot be treated as

inherently hostile from its inception. The relevant extract of

Rajeev Gupta's case is set out below:

"30. Insertion by the Parliament of the word "first" under the column 'Time from which period begins to run' in Article 58 is not without a purpose. Such word, which was not there in the Limitation Act, 1908, has been designedly used in Article 58 to signify that a suit to obtain declaration (other than those referred to in Articles 56 and 57) has to be instituted within three years of 'when the right to sue first accrues'. In simpler terms, if cause of action to sue means accrual of the right for an actionable claim, it is the moment from which such right first accrues that the clock of limitation would start ticking. Thus, even though cause of action for instituting a suit might arise on varied occasions and/or at different times, what is material and assumes relevance for computing the period of limitation under Article 58 is the date when the right to sue first accrues to the aggrieved suitor. Though dominus litus, a suitor cannot pick and choose a time for approaching court. The period of limitation in terms of Article 58 being 3 (three) years, the prescribed period has to be counted from that date of the right to sue first accruing and the suit, if not instituted within 3 (three) years therefrom, would become barred by time.

31. Similarly, under the column 'Time from which period begins to run' in Article 59 providing for a three-year limitation period for cancellation of an instrument, the ordainment is that the period will run 'when the facts

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entitling the plaintiff to have the instrument ... cancelled or set aside ... first become known to him'. Any suit seeking cancellation of a particular instrument as void or voidable would be governed by Article 59 and, therefore, has to be instituted within 3 (three) years from date the suitor could be said to have first derived knowledge of the fact of such an instrument (which, according to him, is void or voidable) coming into existence. The word "first" in Article 59 would ordinarily have the same connotation as in Article 58.

XXX XXX XXX

35. It is not in dispute that the plaintiffs did have knowledge - constructive as well as actual - during the pendency of the second suit or soon thereafter of transfer of the suit property in favour of the appellants effected by Ramesh Chand by way of execution of the sale deeds which were subsequently registered as required by Section 54 of the TP Act. Once the appellants started residing in the suit property, what crystallised was the invasion of the plaintiffs' rights. Their right to the suit property, if any, was put to clear jeopardy. With the execution of the sale deeds, subsequently registered, this was the moment when the right to sue first accrued to the plaintiffs. In fact, according to the plaintiffs, Ramesh Chand was proposing to dispose of the suit property in favour of third parties and such apprehension of an intended transfer was precisely the cause of action that was pleaded for institution of the second suit. In any event, whatever be the relevant date, i.e., execution of the sale deeds by which Ramesh Chand conveyed the suit property to the appellants or the date of taking actual possession of the suit property by the appellants from Ramesh Chand a few days after execution of such deeds, it is from such date of knowledge in June, 1992 that the said transfer effectively did invade or jeopardize the plaintiffs' interest in respect of the suit property. Contention of Mr. Gulati, therefore, has sufficient force that the suit had to be instituted within 3 (three) years, since the title in respect of the suit property had passed on to the appellants. He is also right in submitting that the conduct of the plaintiffs does throw light on how they juggled to overcome the bar of limitation by seeking a decree for cancellation of the sale deeds,

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which they sought to abandon midway by applying for amendment; thereafter, again they made an attempt for insertion of the prayer for declaration, also by way of an amendment at the appellate stage, which did not ultimately fructify."

[Emphasis Supplied]

30.1. Consequently, where the appellants' possession is

founded upon impugned Gift Deeds and has been

continuously questioned, the same lacks the necessary

hostile animus to ripen into adverse possession, the

respondent No.1/plaintiff's contention that no title could

have been perfected by adverse possession gains

significance.

31. A similar view has been taken by the Supreme Court in

Mohan Lal v. Mirza Abdul Gaffar,7 wherein it has been

held that possession which originates under an agreement

of sale or other permissive or derivative arrangement

cannot mature into adverse possession unless there is a

clear, unequivocal and hostile repudiation of the true

owner's title to his knowledge. The Court held that mere

(1996) 1 SCC 639

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long or continuous possession, without animus possidendi

and without denial of the true owner's title, does not satisfy

the legal requirements of adverse possession, and such

possession cannot be construed as hostile in law. The

relevant paragraphs are extracted below:

"4. As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e., up to completing the period of his title by prescription nec vi, nec clam, nec precario. Since the appellant's claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of the land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant.

5. The question then is whether he is entitled to retain possession under Section 53-A. It is an admitted fact that suit for specific performance had been dismissed and became final. Then the question is whether he is entitled to retain possession under the agreement. Once he lost his right under the agreement by dismissal of the suit, it would be inconsistent and incompatible with his right to remain in possession under the agreement.Even otherwise, a transferee can avail of Section 53-A only as a shield but not as a sword. It contemplates that where any person contracts 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 and the transferee has performed or is willing to perform his part of the contract, he would be entitled to retain possession and to continue in possession which he has already received from the

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transferor so long as he is willing to perform his part of the contract. Agreement does not create title or interest in the property. Since the agreement had met with dismissal of the suit his willingness to perform his part of the contract does not arise.

6. Even otherwise, in a suit for possession filed by the respondent, successor-in-interest of the transferor as a subsequent purchaser, the earlier transferee must plead and prove that he is ready and willing to perform his part of the contract so as to enable him to retain his possession of the immovable property held under the agreement. The High Court has pointed out that he has not expressly pleaded this in the written statement. We have gone through the written statement. The High Court is right in its conclusion. Except vaguely denying that he is not ready and willing to perform his part, he did not specifically plead it. Under Section 16(c) of Specific Relief Act, 1963, the plaintiff must plead in the plaint, his readiness and willingness from the date of the contract till date of the decree. The plaintiff who seeks enforcement of the agreement is enjoined to establish the same. Equally, when the transferee seeks to avail of Section 53-A to retain possession of the property which he had under the contract, it would also be incumbent upon the transferee to plead and prove his readiness and willingness to perform his part of the contract. He who comes to equity must do equity. The doctrine of readiness and willingness is an emphatic way of expression to establish that the transferee always abides by the terms of the agreement and is willing to perform his part of the contract. Part performance, as statutory right, is conditioned upon the transferee's continuous willingness to perform his part of the contract in terms covenanted thereunder."

[Emphasis Supplied]

VIII. Conclusion:

32. The appellants/defendants have failed to establish any

such hostile assertion. Earlier litigations instituted by their

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predecessor only sought for protection of possession and

thus negate the plea of adverse possession. The decrees in

those proceedings merely protected possession until

eviction in accordance with law and did not recognise title

in favour of the appellants/defendants or their predecessor.

33. Undisputably, the possession obtained by appellants/