Madras High Court
Parasuraman vs Selvi on 6 October, 2023
S.A.No.530 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06.10.2023
CORAM
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
S.A.No.530 of 2017
Parasuraman ... Appellant
vs.
1.Selvi
2.Sivagami
3.Dhanam
4.Sagundala
5.Anjalai
6.Renuga ... Respondents
PRAYER: Second Appeal is filed under Section 100 of Civil Procedure
Code, to set aside the Judgment and Decree dated 15.02.2017 made in
A.S.No.27 of 2010 on the file of the Court of the Subordinate Judge at
Kanchipuram in confirming the Judgment and Decree dated 08.02.2010
made in O.S.No.3 of 2006 on the file of the Court of the District Munsif
cum Judicial Magistrate at Uthiramerur.
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S.A.No.530 of 2017
For Appellant : Mr.Y.Jyothish Chander
For Respondents : Refused
JUDGEMENT
The 1st defendant is the appellant. The husband of the 1st respondent
and father of the respondents 2 to 6 namely Perumal filed a suit for
declaration of title and recovery of possession. The suit was decreed by the
Trial Court and the appeal filed by the appellant was also dismissed. Hence,
the appellant is before this Court.
2. According to the respondents, the suit property was purchased by
the above said Perumal on 15.07.1976. After purchase, the father of the
respondents 2 to 6 enjoyed the property and constructed a terraced house in
the suit property in the year 1980. The appellant and the other defendant in
the suit tried to interfere with the possession of the respondents based on a
sale agreement allegedly executed by the said Perumal. Hence, initially the
respondents' predecessor Perumal filed a suit for bare injunction against the
appellant and other defendant. During the pendency of the suit, the
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S.A.No.530 of 2017
defendants said to have trespassed into the suit property and hence, the suit
prayer was amended by seeking declaration of title and recovery of
possession.
3. The appellant herein filed a written statement and claimed that the
suit property was purchased out of joint family funds in the name of elder
Member namely Perumal. After purchase, there was a oral partition between
father of the appellant-Ethiraj and said Perumal. The southern portion of the
suit property was allotted to the share of respondents' predecessor Perumal
and northern portion was allotted to the share of appellant's father Ethiraj.
The Government also issued patta in the name of appellant's father by
recognising his possession of half share. After death of the appellant's
father, he has been in possession and enjoyment of the suit property. It is
further alleged by the appellant that Perumal executed a Sale Agreement in
favour of the appellant on 20.09.1993 agreed to convey his half share in the
suit property in favour of the appellant for a sale consideration of Rs.3,000/-
by receiving an advance of Rs.2,500/-. On the date of agreement, possession
was handed over to the appellant. Thereafter, the balance sale consideration
of Rs.500/- was also paid to the said Perumal. The above said Perumal
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S.A.No.530 of 2017
executed a fresh Sale Agreement on 27.05.1996 acknowledging the receipt
of entire sale consideration and agreed to execute the sale deed as and when
called upon by the appellant.
4. It is further averred by the appellant that he has been in possession
and enjoyment of the suit property from 20.09.1993 onwards and though he
was always ready and willing to get the sale deed executed and the same
was evaded by said Perumal by one reason and other. Since the appellant
has been in possession and enjoyment of the suit property pursuant to the
sale agreement, he constructed a terraced house in the suit property in the
year 1997. The appellant also obtained electricity service connection to the
building put by him and he has been paying electricity charges to the Board
regularly. The appellant also claimed that by virtue of his possession
pursuant to oral partition and sale agreement, he has prescribed title over the
suit property by way of adverse possession and as a consequence, sought for
dismissal of the suit.
5. Before the Trial Court, the 1st respondent/wife of the above said
Perumal was examined as PW.1 and 4 documents were marked on behalf of
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S.A.No.530 of 2017
the respondents as Exs.A1 to A4. The appellant was examined as DW.1 and
attestor to the Sale Agreement executed by Perumal in favour of the
appellant was examined as DW.2. The appellant marked 19 documents in
support of his claim of possession over the suit property and the same were
marked as Exs.B1 to B19.
6. The Trial Court on appreciation of oral and documentary evidences
available on record, came to the conclusion that respondents are entitled to
title of the suit property under Ex.A1-Sale Deed executed in favour of
Perumal. As far as the defence raised by the appellant that he was put in
possession of suit property under Sale Agreement is concerned, the Trial
Court said the appellant failed to prove his readiness and willingness to
perform his part of the contract and hence, decreed the suit for declaration
and recovery of possession as prayed for.
7. Aggrieved by the same, the appellant has preferred an appeal in
A.S.No.27 of 2010. The First Appellate Court concurred with the findings
of the Trial Court and dismissed the appeal. Aggrieved by the same, the
unsuccessful 1st defendant is before this Court.
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S.A.No.530 of 2017
8. The learned counsel appearing for the appellant tried to assail the
judgment and decree of the Courts below on the ground that the possession
of the suit property was handed over to the appellant under Ex.B2-Sale
Agreement and therefore, he has been in possession and enjoyment of the
suit property in part performance of the Sale Agreement. The learned
counsel further submitted that though the registered Sale Agreement has not
been executed in his favour in pursuance of the Sale Agreement, the same
can be used as a shield in a suit for recovery of possession. In this regard,
the learned counsel relied on the judgment of the Hon'ble Apex Court in
Shrimant Shamrao Suryavanshi vs. Pralhad Bhairoba Suryavanshi
reported in (2002) 3 SCC 676.
9. Based on the submission made by the learned counsel appearing
for the appellant, the following substantial question of law is framed for
consideration:-
“Whether an agreement vendee in possession of property
in part performance of sale agreement is entitled to use the
same as a shield in a suit for recovery of possession?”
10. Though notice was sent to the respondents, they refused to receive
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S.A.No.530 of 2017
notice and hence, it was treated as deemed to service and the names of the
respondents are printed in the cause-list. There is no representation for the
respondents.
11. It is admitted case that the suit property was purchased in the
name of Perumal under whom the respondents are claiming title. It is
specific case of the appellant that the suit property was purchased out of
joint family funds and subsequent to the purchase, the property was orally
divided between the Perumal and father of the appellant namely Ethiraj. It is
specific case of the appellant that after purchase in the name of Perumal,
there was a partition and Northern half portion was allotted to the share of
Perumal and Southern half portion was allotted to the father of the
appellant. Thus, each entitled to 4 ½ cents in the suit property. The said fact
has been referred to in the sale agreement between Perumal and appellant,
which is marked as Ex.B2. Though respondents denied execution of Ex.B2-
Sale Agreement. The appellant examined one of the attestor to the document
as DW.2 and proved the execution.
12. When Ex.B2-Sale Agreement was shown to 1st respondent, who
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S.A.No.530 of 2017
was examined as PW.1, she could not say whether the signature found in
sale agreement was that of her husband or not. She has gone to the extent of
saying that she did not know her own signature and also that of her
husband. PW.1 also admitted that DW.2, who was examined on behalf of
the appellant was President of the Panchayat at that point of time. She
further admitted there was no enmity between her family and DW.2.
Therefore, the appellant has succeeded in proving due execution of Ex.B2-
Sale Agreement.
13. In Ex.B2-Sale Agreement, there is a clear recital that after
purchase of the suit property in the name of Perumal, he and his brother
Ethiraj namely father of the appellant enjoyed the property. Further, it was
also recited in the sale agreement that Perumal agreed to sell his 1/2 share in
the property in favour of the appellant. The recital in Ex.B2 that Perumal
agreed to convey his 1/2 share in the property in favour of the appellant
supports the case of oral partition pleaded by the appellant. Ex.B2 also
recites that the entire sale consideration of Rs.3,000/- was paid by the
appellant to Perumal and possession of the suit property was also handed
over to the appellant under the Sale Agreement. The relevant recital in
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S.A.No.530 of 2017
Ex.B2-Sale Agreement reads as follows:-
“... ... ... ... Mf fpuaj;bjhif K:thapuKk; ehd; g{uht[k;
bgw;Wf;bfhz;lgoahy; eP vg;nghJ ntz;LkhdhYk; fpwag;gj;jpuk;
vGjp gjpt[ bra;Jf;bfhs;st[k/; cd;dhy; ,ayhky; nghdhy;
,jd;gof;F eP rfy tpjkhdg;ghj;jpa';fSld; Mz;L
mDgtpjJ ; f;bfhs;sntz;oaJ/”
Therefore, it is clear that the appellant paid the entire sale consideration and
he was also given possession under the sale agreement.
14. In the case on hand, Ex.B2 is a written agreement of sale. Under
the agreement, the possession of the property was handed over to the
appellant, there is a recital in the sale agreement that entire sale
consideration has been paid by the appellant to the respondents. Therefore,
all essential ingredients of Section 53A of the Transfer of Property Act,
1882 are duly complied and hence, the appellant is entitled to use his
possession as shield against the transferor or any persons claiming under
him.
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15. In Shrimant Shamrao Suryavanshi vs. Pralhad Bhairoba
Suryavanshi reported in (2002) 3 SCC 676, the Hon'ble Apex Court while
considering the question, observed as follows:-
“20. It is, therefore, manifest that the Limitation Act
does not extinguish a defence, but only bars the remedy. Since
the period of limitation bars a suit for specific performance of
a contract, if brought after the period of limitation, it is open
to defendant in a suit for recovery of possession brought by a
transferor to take a plea in defence of part-performance of the
contract to protect his possession, though he may not be able
to enforce that right through a suit or action.
(emphasis supplied)
21. In the present case, it is not disputed that the
transferee has taken possession over the property in part-
performance of the contract. It is also not disputed that the
transferee has not brought any suit for specific performance of
the agreement to sell within the period of limitation. It is also
not disputed that the transferee was always and is still ready
and willing to perform his part of the contract. Further, the
view taken by the High Court in judgment under appeal was
overruled by the Full Bench of the Bombay High Court in the
case of Mahadeo Nthuji Patil v. Surjabai Khushalchand
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Lakkad which, according to our view, lays down the correct
view of law. In that view of the matter these appeals deserve to
be allowed.”
16. The appellant failed to seek specific performance of the
agreement by filing the suit within the time stipulated by law. As per the law
laid down by the Hon'ble Apex Court in the above mentioned judgment,
even if the suit for specific performance is barred by limitation, still a
person, who is in possession of the property in part performance of the sale
agreement is entitled to use the same as shield in a suit for recovery of
possession filed by the transferor under the agreement or any other person
claiming under him. The law laid down by the Hon'ble Apex Court in the
above said case, is squarely applicable to the facts of the present case.
Hence, the relief of recovery of possession granted by the Court below is
liable to be set aside. Accordingly, the question of law framed is answered
in favour of appellant.
17. Though the respondents able to establish their title under Ex.A1-
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S.A.No.530 of 2017
Sale Deed in favour of Perumal, in view of the law laid down by the Hon'ble
Apex Court in the above mentioned case law, they are not entitled to
recover the possession from the appellant. Hence, the judgment and decree
passed by the Courts below is partly set aside with regard to relief of
recovery of possession.
18. Accordingly, the second appeal is partly allowed by setting aside
the judgment and decree passed by the Courts below in respect of relief of
recovery of possession. In other respects, the judgment and decree passed
by the Courts below is confirmed.
In Nutshell:-
(a) The second appeal is partly allowed.
(b) The judgment and decree passed by the Courts below in respect of
relief of recovery of possession is set aside and the suit is dismissed in
respect of relief of recovery of possession.
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S.A.No.530 of 2017
(c) In respect of other relief, the judgment and decree passed by the
Courts below are confirmed.
(d) In the facts and circumstances of the case, there will be no order
as to costs.
06.10.2023
Index : Yes/No
Speaking order : Yes/No
Neutral Citation : Yes/No
dm
To
1.The Subordinate Judge,
Kanchipuram.
2.The District Munsif cum Judicial Magistrate,
Uthiramerur.
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S.A.No.530 of 2017
S.SOUNTHAR, J.
dm
S.A.No.530 of 2017
06.10.2023
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