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Judgment
S. Padmanabhan J.
Availability of fixity of tenure under the Kerala Land Reforms Act and the benefits of Section 53A of the Transfer of Property Act, coupled with the question whether these two contentions are simultaneously available to the respondents, are the matters to be decided in this second appeal filed by the plaintiffs. Suit property is 90 cents of land and a building. It belonged to deceased Rugmini Amma. She was the paternal grandmother of the appellants, under whom they claim. Their claim is based on the original Ext. A2 will executed by the deceased. Genuineness of the will is denied, though not seriously. Respondent-defendant is the Nayanar Balika Sadan, an institution established to protect destitutes, represented by its Secretary. Rugmini Amma admittedly rented out the building to the respondent and its office is housed in it. Respondent says that it was not a lease of the building alone, but a lease of the land also and there is fixity of tenure under the Kerala Land Reforms Act. That question was found in favour of the respondent by the Land Tribunal on reference and finding was confirmed on the merits by the appellate court. Even the appellants admit that the land and building are in the possession of the respondent and they have no case that possession is otherwise than under the lease. Finding regarding possession as lessee and fixity of tenure under the Kerala Land Reforms. Act cannot now be challenged.
Admittedly there was Ext. B1 agreement between the respondent and Rugmini Amma on 18.5.1957 to sell the property for Rs. 15,000/- An advance of Rs. 4,000/- was paid on that date followed by admitted payments of Rs. 3,000/- more in three installments, evidenced by Exts. B2, B3 and B4. Case of the respondent is that the possession as lessee was thereafter continued in part performance of the contract and the balance amount of Rs. 8,000/- was also paid, as evidenced by Ext. B5. This fact is proved by the depositions of DWs 1 and 2, None of the appellants went to the box. Genuineness of Ext. B5 and the fact that respondent continued in possession after Ext. B1 in part performance of the contract are matters which cannot now be challenged.
The suit is for recovery of possession on the strength of title, as if the respondent committed breach. At the same time, there is no case that the appellants were ready and willing to execute the sale deed. Both the courts below found that the original of Ext. A2 will is not proved and hence the appellants did not establish title. The finding does not appear to be correct. The will is a registered one and the original is not traced. PW 1 and DW 2 are attestors. Both admit their signatures. PW 1 proved the execution of the Will in the manner required by law DW 2 was not examined to prove the will and he did not prove it. When he was asked about the will, in cross examination, he did not admit execution by Rugmini Amma He said that he did not see her executing it. Though PW 1 is the Karyasthan of the appellants and as such interested in them, there is no reason to disbelieve him in this respect, especially when the genuineness of the will is not under serious challenge, even though in such a situation also, the propounded have the duty to prove the will and remove suspicions in the manner required by law. But the question of title of the appellants under the will is not very material. That is because if Rugmini Amma parted with her rights, the will cannot take effect on her death.
Respondent said that he was ready to take the sale deed and Rugmini Amma, who received the full amount, was prepared to execute the sale deed. Respondent wrote to the Government for exemption from stamp duty for the sale deed. Exemption was granted, as per Ext. B28 order, only on 25-7-1962. But Rugmini Amma admittedly died on 14-7-1992. That is said to be the only reason why the sale deed could not be executed. It is said that thereafter the appellants refused to execute the sale deed. These contentions, appear to be correct. Thus, this is a case in which the respondent is evidently in possession by way of part performance of the contract and he has done all what he had to do under the contract, except taking the sale deed. It is true that title will be complete only on execution of the sale deed and its registration because the document is compulsorily registrable both under the Registration Act and the Transfer of Property Act.
There is no merit in the plea that benefits of fixity of tenure under the Kerala Land Reforms Act and Section 53A of the Transfer of Property Act are conflicting and mutually exclusive contentions, which cannot be taken up together. Cause of action pleaded in the plaint is recovery of possession on the strength of title on the ground that the respondent committed breach of the contract for sale. Though the provisions of Order II of the CPC are applicable only to plaint claims Section 11 of the CPC is applicable to both claims and defences. Under Explanation IV to Section 11 of the Code, a party is legally bound to put forward all grounds of attack or defence available in respect of the cause of action, which he might and ought to have raised. Otherwise, that matter will be deemed to have been raised and was directly and substantially in issue and decided. In respect of a cause of action, on which the relief is claimed by the plaintiff, the defendant will be bound to put forward all his available grounds of defence, including alternate grounds also. He cannot reserve any of these grounds to be put forward on another occasion. Alternate grounds may, sometimes, be conflicting and mutually exclusive also. Even then, if they are available by way of defence, they will have to be put forward, If one defence is accepted, sometimes that by Itself may be sufficient and the other or others may not be necessary to negative the claim of the plaintiff. But that is not the consideration. If any available ground of defence is not taken up, that will later lead to a plea of constructive res judicata.
In the suit for recovery of possession on the strength of title, especially when it is on the ground that the defendant, who is in possession on the basis of a contract for sale, committed breach, the claim for fixity of tenure and the claim u/s 53A of the Transfer of Property Act, if available, are grounds which might and ought to be taken. In the nature of this case, they cannot be said to be conflicting'' or mutually exclusive. Even conflicting and mutually exclusive pleas could be raised though in some instances it may weaken or even falsify the defence. But, in other cases, even when one or more such pleas is/are found against, the other or others may be accepted. Fixity of tenure if established is a good defence and it is one which might and ought to have been raised. At the time when the contract was entered into, there was no fixity for tenants. That may be the reason why he entered into the contract for sale and the entire amounts, which he was not bound to pay after the Kerala Land Reforms Act came into force. He is in admitted possession and there is no case of trespass or any other method by which he came into possession. Even for the purpose of proving possession in part performance of the contract in order to establish the defence u/s 53A of the Transfer or Property Act, it was necessary for the defendant to set up and establish possession under the lease. Therefore, on the facts of this case, the two contentions are correlated also. It is true that if the defence u/s 53A is established, the plea of tenancy and fixity of tenure as such may not be necessary. One or the conditions required to be established in order to sustain the defence u/s 53A is "taken possession in part or whole in part performance of the contract" or "being already in possession continues in possession in part performance of the contract". The instant case is one of continuance in possession of the possession already had as lessee. In that way also, the previous possession is relevant and it is necessary to establish the defence u/s 53A. The other conditions are:
a) that there is a written contract signed from which the terms are reasonably certain;
b) that the transferee has performed or is willing to perform his part of the contract; and
c) that the transferee has done some act in furtherance of the contract.
These conditions are also satisfied in this case.
9) If the above condition are satisfied, then, not with standing that (i) though the contract is required to be registered, but not registered; or (ii) when there is an instrument of transfer, it is not completed in the manner prescribed by law, the transfer or any person claiming under him shall be debarred from enforcing claim in respect of the property other than a right expressly provide by the contract. Therefore, it is clear that both the defences will go together and both are available pleas In this case all the requirements of Section 53A are satisfied. What more is necessary to complete title in only a registered sale deed Which could not be had only because the appellants are not willing. In such a situation recovery of possession with or without mesne profits on the strength of title is not a relief available under the express provisions of the contract. The transferee can retain possession under the right on the basis of Section 53A, which is available as a shield. That is an equity given to the transferee, who is in possession under the above conditions and who has done his part bonafide.
Second appeal is dismissed with costs.