Oyya Thevar vs Ramayyan and Kuppuswami Konar

Sengottuvelan, J.—This second appeal is filed by the plaintiff in the suit O.S. No. 277 of 1978 on the file of the District Munsif''s Court. Nagapattinam, challenging the legality and correctness of the Judgment of the Subordinate Judge, Nagapattinam, in A.S. No. 84 of 1979. The facts of the case are briefly as follows:- The appellant herein as the plaintiff filed the suit O.S. No. 277 of 1978 on the file of the District Munsif, Nagapattinam for declaration of his title to the suit property and for recovery of the same from the first defendant (first respondent in this second appeal). According to the plaint allegations, the appellant is an ex-service man. Considering his service as a soldier in the Indian Army, the Government of Tamil Nadu has granted patta in his favour for the suit property on 28.12.1971 and the same is marked as Ex. A1. By the issue of the patta, the plaintiff became the absolute owner of the suit property. As per the rules and regulations of the Government, the suit property must be converted into cultivable land within three years from the date of patta and the appellant not alienate the same for ten years. In pursuance of the said patta, the appellant did pannai cultivation till the end of fasli 1385. The first respondent approached the appellant to lease out the suit property to him in the beginning the fasli 1386. The appellant due to his ill-health accepted the offer of the first respondent and leased out the property to the first respondent for 11 kalams of paddy per year. The case of the appellant is that in pursuance of the lease, the first respondent got into possession of the suit property and cultivated the land for faslis 1386 and 1387. When the appellant demanded arrears of lease, the first respondent evaded payment, and when he issued a lawyer notice on 14.9.1978 (marked Ex. A2), the first respondent denied title of the appellant in respect of the suit property, setting up title in the second respondent. Hence the appellant has filed the suit for declaration and possession from the first respondent treating him as a trespasser. It is also alleged in the plaint that the appellant borrowed a sum of Rs. 2,000/- from the second respondent on 9.3.1968 and 31.5.1968 and that the second respondent insisted the plaintiff to execute a sale deed for the suit land in his favour as security for the amount borrowed from him. Therefore, an agreement was executed on 2.9.1974, marked as Ex. A7. It is also alleged that unless and until the sale deed is duly executed, the second respondent cannot claim any right of possession or title over the suit property. The further allegation is that the agreement dated 2.9.1974 (marked as Ex. A7) is not acted upon and further it is invalid. Though the second respondent is not a necessary party, yet he is added as a party to avoid technical plea later on regarding the plea of non-joinder.

The first respondent filed a written statement denying the tenancy agreement pleaded in the plaint. The first respondent contended that there is no agreement to pay any rent and that he was not in possession of the land as cultivating tenant. The first respondent came into possession of the suit property under an agreement of sale from the second respondent dated 20.6.1975 marked as Ex. B.4 after paying a sum of Rs.2,000. Before the date of Ex.B.4, the second respondent was enjoying the suit property from the year 1968. The second respondent negotiated for the sale of the suit property from the appellant and the second respondent parted with full consideration and the appellant agreed to execute a regular sale deed on complete accrual of title to him in future. Till the date of execution of the sale deed, the second respondent is entitled to maintain his possession and as such the suit for possession is incompetent. The suit is bad for non-joinder of the Government as a party. The possession of the second respondent is traceable to an agreement of sale between the appellant and the second respondent and such possessory rights are safeguarded under the provisions of the Transfer of Property Act. He further pleads protection under the Tenancy Act 17 of 1978.

The case of the second respondent is the same as that of the first respondent and he specifically pleaded that since he was put in possession of the suit property in pursuance of an agreement, he has even right to be in possession which is safeguarded under the provisions of S. 53A of the Transfer for Property Act,. Therefore the suit for possession is incompetent. Since the appellant executed an agreement of sale even on 9.3.1968 as per Ex.B.5 and delivered possession to the second respondent and subsequent to getting assignment, executed another agreement Ex.A.7 dated 2.9.1974 reciting the consideration mentioned in Ex.B.5 and agreed to execute a sale deed after the period restricted in the assignment order comes to an end, the appellant legally parted with possession and he cannot file a suit for recovery of possession without repudiating the agreement Ex. A.7. The first respondent is in present possession of the land in pursuance of Ex. B.4 dated, 20.6.1975. Hence, both the respondents prayed for dismissal of the suit.

The trial court on a consideration of the evidence, documentary and oral, came to the conclusion that the appellant has got title to the suit property by virtue of the assignment order Ex. A1. The trial Court came to the conclusion that though the agreement Ex. A.7 is valid, as per Ex. A-7 no possession was delivered to the second respondent and as such the second respondent is not entitled to retain possession under S. 53A of the Transfer of Property Act. The Trial Court, taking into consideration the fact that the first respondent denied the tenancy, treated him as trespasser and found that the appellant is entitled to a decree for declaration and possession. As against the said judgment, challenging its legality and correctness, both the respondent filed A.S. No. 84 of 1979 on the file of the Subordinate Judge, Nagapattinam, and the appellant herein also filed Cross-objection challenging the legality of the finding of the trial Court that Ex. A.7 is a valid agreement. The Subordinate Judge on a reappraisal of the evidence and on a consideration of the judgment of the lower court, confirmed the finding of the trial court regarding title; but set aside the relief of possession granted by the trial court on the ground that the appellant failed to establish the relationship of tenancy pleaded in the plaint and as such he is not entitled to the relief of possession. Challenging the legality and correctness of the findings of the appellate Court in A.S. No. 84 of 1979, the second appeal is filed.

Learned counsel for the appellant raised the following contentions in support of his argument that the judgment and the decree of the appellant court are not sustainable in law (1). The appellate Court ought to have concluded that Ex. A.7 agreement of sale is invalid in view of the infringement of the condition in the assignment Ex. A.1: (2) The alleged possession of the second respondent under which the first respondent claims to taks shelter cannot be a ground of defence against the appellant''s claim for recovery of possession under S. 53A of the T.P. Act; and (3) The appellate Court after finding that the appellant is entitled to declaration of title ought to have granted the relief of possession also in view of the fact that the first respondent has no legal right to retain possession.

The contention on behalf of the appellant is that the appellate Court ought to have held that the second respondent cannot claim any right under Ex. A7 since no title or possession has been conveyed under the said agreement and that since the second respondent has not furnished stamp paper stand taken the sale deed, the said agreement Ex. A7 is not acted upon. At the time of the evidence, the appellant deposed that he was compelled to execute Ex. A7. It is to be stated that the factum of execution of the agreement Ex. A7 in favour of the second respondent is not denied. It is also represented that subsequent to the suit, the second respondent filed a suit for specific performance on the basis of the agreement Ex. A7 and the same is also pending. Since the agreement Ex. A7 will have to be considered in that suit only, with reference to the question whether the second respondent is entitled to resist the suit as per the provisions contained in S. 53A of the Transfer of Property Act, the validity or otherwise of Ex. A7 need not be decided in the second appeal as the same will have to be left to be decided in the subsequent suit said to have been filed by the second respondent.

The next question to be considered is whether the relief of possession claimed in the suit filed by the appellant can be resisted. The first respondent claimed possession under him as per the provisions contained in S. 53A of the Transfer of Property Act which is as follows:-

"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, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, not withstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefore by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken, or continued in possession, other than a right expressly provided by the terms of the contract:

Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof."

It is contended on behalf of the respondents that since the appellant has excluded the sale agreement Ex. A7 and received the entire amount of consideration and since the second respondent had been in possession of the property even as per the earlier agreement Ex.B5 dated 9.3.1968 and since the second respondent has executed an agreement of sale Ex. B4 in favour of the first respondent, both the respondents are entitled to resist the claim for delivery of possession on the ground that the appellant shall be debarred from enforcing any right in respect of the suit property. On the other hand, on behalf of the appellant, it is contended that the possession claimed by respondents land 2 is not lawful possession, and that only in cases where a person is in possession in pursuance of a lawful agreement of sale, S. 53A Transfer of Property Act is attracted. The contention is that under Ex. A7 dated 2.9.1974, no possession is delivered and it is only a mere agreement of sale, whereas the earlier agreement Ex. B5 dated 9.3.1968 is not in favour of the second respondent, but it is in favour of his wife. Even if it is taken that the second respondent is to derive the rights got by his wife as per Ex. B5, yet on the date of Ex. B5 the appellant had no manner of right in the suit property. His possession, if any, can only be attributed to that of trespasser with no valid right. Such trespasser could not have conveyed and valid possession under Ex. B4 which can later on be tacked on Ex. A7 by the Second respondent. In this connection, the learned counsel for the appellant relied on the decision of a Division Bench of Andhra Pradesh High Court in M. Pocham v. Agent, AIR 1978 Andhra Pradesh 242. State Government, Adilabad wherein it has been held:

S. 53A, T.P. Act, postulates taking possession of the property or continuing in possession of the property in part Performance of the contract only in a lawful manner. It cannot be predicated that S. 53A purports to give protection to those transferees who have taken possession of the property in a manner contrary to the law which was in force and applicable to them. S. 53A protects only such possessions which were were valid and lawful and does not safeguard possession which is invalid and unlawful.

It is seen that the doctrine of part performance cannot be availed of in respect of transaction which is null and void. It the case reported in Mistry Amar Singh v. Kulubya 1963 (3) all England Low Reports 499. it has been held that the equitable doctrine of part performance which is founded in good sense, and expresses a clear and well-recognised legal principle, ought not to be allowed the instrument of enforcing obligations alleged to arise out of a contract or transaction which is illegal. Applying the above principles to the facts of this case, it is seen that on the date of Ex. B5 the appellant has no manner of right to put the second respondent in possession and as per Ex. A7, no delivery of possession is recited. As such there is on difficulty, in coming to the conclusion that the alleged possession of the second respondent is not lawful and as such, the equitable doctrine contained in S. 53A, T.P. Act, cannot be made applicable to this Case.

The third question to be decided is whether the appellate Court is correct in negativing the relief of possession to the appellant. As already stated the validity or otherwise of Ex. A7 agreement will be decided in the separate suit instituted by the Second respondent. Even if Ex. A7 is valid, it will not convey any right immovable property to the Second respondent. Under the circumstances, the first respondent''s possession can only be that of a trespasser and the trial Court is right in granting the relief of possession and the conclusion of the trial Court will have to be upheld though for a different reason. Under the circumstances, the second appeal is allowed and there will be a decree for declaration and possession in favour of the appellant. However, there will be no order as for costs.