Sohanlal Agarwalla vs Krishto Mohan Choudhury

J.N. Sarma, J.—This Second Appeal, has been filed by the Plaintiff. The Plaintiff brought a suit being Title Suit No. 130 of 1979 before the learned Munsiff No. 1 at Dibrugarh for delaration of title and recovery of Khas possession by demolishing the house of Defendant No. 1. That suit was decreed by the Trial Court. There was an appeal being Title Appeal No. 5 of 1987 before the learned Additional District Judge, Dibrugarh and the learned Additional District Judge allowed the appeal and reversed the judgment of the Trial court. The Appellate Court held inter-alia as follows:

(i) That the Defendant No. 1 is protected u/s 53A of the Transfer of Property Act.

(ii) That the Defendant No. 1 has constructed a permanent house on the basis of which he is protected Under Sections of the Assam Non-Agricultural Urban Areas Tenacy Act, 1955 as amended from time to time. Hence this second Appeal.

I have heard Shri A.K. Goswami, learned Advocate for the Appellant and Shri A. Roy, learned Advocate for the principal-Respondent. None appears for the proforma-Respondent. Shri Goswami raises three questions:

(i) That the finding of the learned Additional District Judge that without filing a cross-objection a Respondent can not challenge a finding, is an erroneous one.

(ii) That the Defendant No. 1 is protected u/s 53 A of the Transfer of Property Act is not a correct finding inasmuch as according to the contract between the Plaintiff and Defendant No. 1 the essentials of Section 53 A are not present.

(iii) That the Defendant having denied the title of the landlord is not entitled to get the protection under the Act as such the finding that he is protected u/s 5 of the Assam Non-Agricultural Uraban Areas Tenancy Act, 1955 is an erroneous finding.

Before we go to the detail let us have a look at the fact of the case. The Plaintiff herein purchased the suit land alongwith other land vide Exhibit-1, the deed of sale dated 29.3.71 from proforma-Defendant. As the Defendant No. 1 was in possession of a part of the land of the deed of sale and did not vacate the same, so this case was filed. Before this suit was filed another suit was filed that is, Title suit No. 169/71 and in that suit the Defendant No. 1 appeared and filed a written statement claiming that a part of the suit land was taken on lease on 3.5.53 from Pabitra Jiban Das and thereafter on 18.6.65 Pabitra Jiban Das by executing the Exhibit-X took an amount of Rs 5000/- from him as loan and there was a clause that if this amount of Rs 5000/- with interest is not paid within 31.12.70, the land which was the subject matter of that document shall be deemed to be sold in favour of Defendant No. 1 and Pabitra failed to pay the money as promised and as such by virtue of this document the Defendant No. 1 became the owner of the land , and as he also claim the protection u/s 53-A of the Transfer of Property Act. That earlier suit, was withdrawn by the Plaintiff and thereafter this suit, the present Title Suit No. 130/79 was filed. In the aforesaid suit the defendent No. 1 filed the written statement and he took the same plea as taken in the earlier suit meaning thereby that he is protected u/s 53-A of the Transfer of Property Act and he is also entitled to be protected u/s 5 of the Assam Act as he has constructed the houses thereon of permanent in nature within 5 years of lease. It is the concurrent findings of fact of both the Courts below that the Defendant No. 1 constructed permanent houses within 5 years from the date of lease and he was in continuous possession. But the Trial Court held that the Defendant No. 1 is not entitled to protection u/s 53-A of the Transfer of Property Act and it was further held by the Trial Court that as the title of the Plaintiff was denied so he will also not be entitled to protection u/s 5 of the Assam Non Agricultural Urban Areas Tenancy Act, 1955. These two findings of the trial court were reversed by the Appellate Court. Let us take the questions one by one. First question is whether without filing across objection a finding can be challenged. Let us have a look at Order 41 Rule 22 of the CPC which is the provision for filing cross-objection. In order 41 Rule 22 it should be borne in mind that there are two remedies:

(i) Any Respondent, though he may not have appealed from any part of the decree, may not only support the decree but may also challenge that the findings against him in the court below in respect of any issue ought to have been in his favour, and may also take any cross-objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appeallate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow.

(ii) He may challenge part of the decree by filing cross-objection. The Respondent aggrieved by a finding of the court in the judgment on which the decree appealed against is based may, under this rule, file cross-objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the court on any other finding which is sufficient for the decision of the suit, the decree is, wholly or in part, in favour of that Respondent. The Respondent without filing cross-objection can canvas the correctness of finding against him in order to support the judgment that has been passed against the Appellant. The Respondent challenging the finding which is assailed does not want alteration of the decree. If any authority is required for this proposition of law one may look Sri Chandre Prabhuji Jain Temple and Others Vs. Harikrishna and Another, , The Management of Itakhoolie Tea Estate Vs. Its Workmen, wherein in Paragraphs 5 and 6 the Supreme Court has pointed out that a Respondent may support the decree on any of the grounds decided against him in the Court below. But it does not and can not confer on him a right higher than that he would have had if he had preferred an appeal against the ground decided against him. A ground will not be available which he cannot urge as an Appellant. The Supreme Court has pointed out that the Respondent can support the decree on any of the grounds decided against him. Therefore the law is settled, against the finding given in decision as indicated in Sri Chandre Prabhuji Jain Temple and Others Vs. Harikrishna and Another, a Respondent can challenge the finding even without cross-objection. Both these decisions are before the amendment of 1976. But in the amendment of 1976 no substantial change has been introduced changing this proposition of law. So the finding of the Appellate Court that without filing a cross-objection a finding cannot be challenged by the Respondent is erroneous in law and the same shall stand set aside as urged by Shri Goswami. That does not allow him to cross the hurdle.

The Trial Court as well as the Appellate Court have found that even if the opinion of the expert is not taken into consideration there are adequate evidence to show that this document Ext-x was duly executed by Shri Pabitra Jiban Das and this is a valid piece of document. This is a finding of fact and can not be touched in Second Appeal.

In order to appreciate the second ground urged by Shri Goswami, let us have a look at Exhibit-X, the document which is the basis of the claim u/s 53-A of the Transfer of Property Act. That document in its entirity is quoted below to appreciate the contention of the parties.

TWO RUPEES TWO RUPEES EXHIBIT-X, DEED OF AGREEMENT

This deed of agreement made this the 18th day of June, 1965 between Shri Pabitra Jiban Das son of late Lakhinth Das, resident of Newmasterpara, Dibrugarh P.S. & sub-registry Dibrugarh, Dist. Lakhimpur, Assam hereinafter called the 1st party of the one part and Shri Kristo Mohan Choudhury, son of late Nabin Ch. Choudhury, resident of New Masterpara, Dibrugarh P.S. & sub-registery-Dibrugarh, Dist. Lakhimpur, Assam hereinafter called the 2nd party of the other part.

Now this deed witnesses as follows:

Whereas the 2nd party is a leasee under the 1st party for land described in schedule below on rent of Rs 50/- per year. That the 2nd party has constructed his own house on the lease land of the 1st party and paying the rent to the 1st party regularly.

That now being in urgent need of money the 1st party approached the 2nd party to give a loan of Rs 5000/- and the 2nd party agreed to pay the said sum of Rs 5000/- to the 1st party as a loan which the 2nd party paid today and the 1st party acknowledge the same.

That the 1st party will repay the said sum of Rs. 5000/- (Rupees five thousand) to the 2nd party together with interest at the rate of 12% per annum within 31st December, 1970.

It is further agreed that if the 1st party fails to repay the said amount of Rs 5000 - together with interest within the 31st. December, 1970, the land which is in occupation of the 2nd party will be absolutely treated as sold to 2nd party and he will be the absolute owner of the said land.

That as security for aforesaid loan of Rs 5000/- the 1st party hereby mortgage unto the 2nd party the land described in schedule below, which now under his occupation as a lessee.

In witness whereof the parties hereto have set their hands on this deed on the day. month and year first above written.

SCHEDULE OF THE LAND

A plot of land measuring 18''Ft x 120''ft under Dag No. 155/138 of R. Patta No. 138 of New Master para, Dibrugarh Town Mouza bounded as under North :- Municipal Board, South:- Abdul Kadir, East: Landlord''s own land, West:- Nizamuddin Ahmed.

Witnesses

Sd/- Chitta Ranjan Dass

Sd/-Pijush Kanti Barua.

Signature of the 1st party

Sd/-Kristo Mohan Choudhury

18.6.65

Signature of the 2nd party

It is urged by Shri Goswami that based on this document no protection u/s 53-A of the Transfer of Property Act can be claimed. In this connection by placing Section 53-A he urges that (i) Pabitra did not contract to transfer any Immovable property for consideration, (ii)'' That the terms construing transfer can not be ascertained with reasonable certainty, (iii) That the defendent No. 1 in part performance of the Contract has not done anything to enable him to claim protection u/s 53-A of the Transfer of Property Act.

With regard to that Shri Goswami places reliance on the following decisions :- (i) Nathulal Vs. Phoolchand, wherein in paragraph-9 the Supreme Court laid down four conditions to make out the defence of part performance in an action in ejectment by the owner. It is not necessary to quote the conditions enumerated by the Apex Court as they are same as indicated above in the early part of the judgment.

The next judgment is Sardar Govindrao Mahadik and Another Vs. Devi Sahai and Others, wherein in paragrapah-39 the Supreme Court pointed out that in order to claim the benefit of part performance it must be shown that in pursuance of the contact some overt act was done by the person claiming protection.

The next judgment is 1997 (2) GLT 367 (Niranjan Sarkar and Ors. Appeallants v. Smti. Swapna Dam and Ors. Respondents) That was also a case with regard to Section 53-A and there was no separate contract save and except a money receipt which has been quoted in the judgment in paragraph -9 and in that view of the matter the single Judge of this Court states that this is not a case where Section 53-A is available. There was no contract in writing and the term necessary to construe the contract with a reasonable certainty can not be ascertained from the Money receipt. The present case stands on a different footing. Here, there is a written contract, it has the essentials of Section 53-A or not that will have to be decided.

Regarding the forfeiture of protection on denouncing the title of the landlord Shri Goswami relying on the doctrine of approbate and reprobate submits that a tenant having denounced the tenancy is not entitled to protection. This doctrine of approbate and reprobate can not operate against a statute See Commissioner of Income Tax, Madras Vs. V. Mr. P. Firm, Muar, . A tenant can also plead that the title of the original lessor has since come to an end. A tenant can show without surrendering possession that since the date of tenancy the title of the landlord ceased See D. Satyanarayana Vs. P. Jagadish, A tenant can also challenge the title of the purchaser from his landlord on myriad grounds. Further the waiver of the right/protection must be intentional abandonment of right with knowledge of the existence of right (See Motilal Padampat Sugar Mills Co. Ltd. Vs. State of Uttar Pradesh and Others, Plea of loss of protection, extinguishment of right must be pleaded and factual foundation for it must be laid in pleadings. Section 5 of the Act of 1955 has to be so interpreted as not to destroy the object of enactment. The already vested right of the tenant under the Act can not be wiped out by subsequent events See AIR 1973 A&N 151 (Bireswar v. S.K. Bose)

On the other hand Shri Roy, the learned Advocate for the Respondent submits that on the basis of Exhibit-X, the benefit of Section 53-A shall be available. He submits that Section 53-A mainly is to prevent fraud and not to allow a person to back out from a promise made by him and thereafter to gain wrongfull benefit by subsequently selling the property making a mockery of earlier contract Section 53-A was inserted in the Transfer of Property Act by the Transfer of Property (Amendment) Act, 1929. The Section reflects recognition although in a modified form the principle of part performance which the court in India already applied earlier to 1929 in numerous cases. It was pointed out by Mukherjee J. in Calcutta case as follows:- "It is well settled as the result of long series of decisions and in this case when in pursuance of an agreement to transfer of property, the intended transferee has taken possession through requisite document specific performance can be obtained between the parties in the agreement and the same court and at the same time when the subsequent legal question falls to be determined. This doctrine is based on the well-known doctrine of enquity enunciated long back in Walsh v. Lausdale, wherein it was pointed out that in certain circumstances, equity dictates that to be done or ought to have done. That was later-on approved by the Privy Council in a subsequent decision though the whole principle of equity as laid down in the case of Walsh by the English Court was not accepted in India. The basic principle is accepted in India by adding Section 53-A by the amendment in the year 1929. The origin of the doctrine of part performance is that in England by Section 4 in statute of fraud that no action or suit is maintainable regarding transfer of land which was not in writing, signed by the party to be genuine. The strict application of the provision led to hardship where agreement relating to land have been partly performed by one party and he cannot sue the other party for specific performance. Thus fraud was encouraged and in such a case the court of equity intervened and/or interferred to grant the relief when failure to give relief was found to encourage fraud. As indicated above the true ground of the application of the doctrine itself is prevention of fraud. In India part performance does not give right to an equity as in England but to a statutory right. It is a shield and not a sword meaning that it is available only as a defence. For the exercise of the right, no question of limitation can arise, it is immaterial whether the suit for specific performance is barred. In order to prevent fraud such circumstances led to introduction of the equitable doctrine in England and to up-hold said principle the legislature only gave recognition in India to many decisions earlier to 1929. Shri Roy places reliance in Sardar Govindrao Mahadik and Another Vs. Devi Sahai and Others, The cases which have been relied by Shri Goswami are relied in paragraph-13 and 31 Sardar Govindrao Mahadik and Another Vs. Devi Sahai and Others, was a case with regard to the question that how far a mortgage in possession can acquire the title of ownership which would deny the suit of the mortgagor and it was this question which was canvassed in the two appeals before the Apex Court. In that case a suit was filed in respect of house No. 41 and a loan of Rs. 10,000/- (Rupees Ten thousand) was secured for the mortgage while the mortgaged was in possession. The Plaintiff No. 2 is the purchaser of the mortgaged property from Plaintiff No. 1 under registered sale deed. Subsequently because of some negotiation a sale was made against the mortgaged property in favour of the mortgage for Rs 50,000/- (Rupees fifty thousand) and the sale of equity of redemption also was worked out. But this document was never registered. Thereafter the property which was sold in favour of a subsequent purchaser was resisted on many grounds including the ground of Section 53-A of the Transfer of Property Act. In paragraph-13, the Supreme Court after considering Section 4 of the Statute of fraud of 1677 of United Kingdom pointed out that

No persons shall be charged upon any contract for sale of lands or any interest in land etc. unless the agreement or some memorandum or some note thereof shall be in writing and signed by the party to be charged thereunder or some other persons there unto by him lawfully authorised. This provisions has been substantially re-enacted in Section 40 (i) of the Law of Property Act, 1925 with this departure that Sub-section (2) specifically provides that the substantive provision in Sub-section (1) does not affect the law relating to part performance or sales by the court. As no action could be brought on oral agreement the doctrine of part performance was devised by the Chancery Court with a view to mitigating the hardship arising out of an advantage taken by a person under an oral contract and failure to enforce it would permit such person to retain the underserved advantage by the Equity Court enforcing the contract. The situation must be such that not to enforce the contact in face of the defence of Statute of Frauds after taking advantage of oral contract would perpetuate the fraud which the statute sought to prevent. The party who altered its position under the contract must have done some at under the contract and it would amount to fraud in the opposite-party to take advantage of the contract not being in writing. Such a situation arose whereone of the parties to the oral agreement altered its position and when specific performance who sought after taking advantage under oral contract, setup the defence available under the Statute of Frauds. The chancery court while granting relief of specific performance wanted to be wholly satisfied that the pleaded oral contract exists and is established its almost satisfaction and in order to ascertain the existence of the oral contract before granting a relief of specific performance the court wanted to be satisfied that some such act has been done which would be unequivocally referable to the oral contract as would prove the existence beyond suspicion, meaning part performance of the contract.

In paragaph-31 the Supreme Court pointed out that to qualify for the protection of the doctrine of part performance it must be shown that there is a contract to transfer for consideration immovable property and the contract is evidenced by a writing, signed by the persons sought to be bound by it and from which the term necessary to constitute the transfer can be ascertained with reasonable certainty. It must be further shown that a transferee had in part performance of the contract either taken possession of the property or any part thereof or the transferee being already in possession, contributes in possession in part performance of the contract, and has done some act in furtherance of contract.

The Supreme Court pointed out that in order to ascertain whether the protection is available or not one must look at the writing that the offer to the contract and makes it in furtherance of the contract and find out whether there is a real nexus as in part performance. The Supreme Court said that ordinary people should not be refused the relief as that would mean perpetuating the fraud of the party who after having taken advantage or benefit to the contract takes out the defence of statute of frauds.

The next case is AIR SC 345 ; (41 C.N. 83) (Chundchun Jha, Appellant v. Ebadat Ali and Anr. Respondents). This case has been relied by Shri A. Roy in order to show that the Exhibit-X is not a deed of mortgage by conditional sale, but it is an agreement, a sale and sale only and in this connection he refers to paragraphs-5,6 and 8 of the aforesaid judgment, in order to decide whether this document is a deed of mortgage or agreement for sale. It is the intent of the party which must be scrutinized. The word mortgage-used do not make a document mortagage one can arrive at a finding that this is not a deed of mortgage but an agreement of sale and the amount is only a security.

The next judgment is Bhaskar Waman Joshi (deceased) and Others Vs. Shrinarayan Rambilas Agarwal (deceased) and Others, . That also is a case with regard to a document where the same question arose and whether it is a deed of mortagage or sale deed and there the Supreme Court pointed out that if the words are plain and unambiguous they must be construed in the light of the evidence and surrounding circumstances be given their true, legal effect. It there is ambiguity in the language employed, the intention may be ascertained from the contents of the deed with such extrinsic evidence as may by law be permitted to be adduced to show in what manner and language of the deed was related to existing facts. The Supreme Court also laid down that evidence of contemporaneous conduct is always admissible as a surrounding circumstances. In considering the document the court can find out whether the deed in question ostensibly conveyed an absolute title to the properties, the deed mentioned there contained the following conditions as to reconveyance; (1) that the transferee shall reconvey the properties within five years from the date of the conveyance to the transferor at the expense of the transferors for the price mentioned in the deed; (2) that if within four years and six months from the date of the conveyance, the right of reconveyance in respect of the three houses or any of them is not exercised by the transferors and if the transferees do not desire to retain all or any of the houses, they have the right to recall from the transferors the amount of the consideration and to return all or any of the three houses in the condition in which they may be (3) that in the event of failure on the part of the transferors to comply with the request to take back the houses, a breach of agreement of reconveyendering the tranferors liable to pay damages shall be committed. (4) that in the event of reconveyance the transfers shall pay the full price set out in the sale deed and take back the houses in the condition in which by vis major, Government action or any reasons whatsoever they may be.

The next case is P.L. Bapuswami Vs. N. Pattay Gounder, That also is a case with regard to mortgage by conditional sale and the Supreme Court on the reading of the document found that it was a document of mortagage by conditional sale and not sale with condition for retransfer. On the basis of this decision Shri Roy submits that here is a case where bare reading of the document will show that it is an agreement for sale and there was no uncertainty whatsoever, the sale price was specifically mentioned and he submits that there are other factors/evidence which show certain thing were done by the Defendant No. 1 in part performance of the contract. Shri Roy submits that it is the concurrent findings of fact of both the Courts below that after execution of the document no repayment was made, that the Defendant No. 1 claimed title to the land and he was no longer admitting himself to be tenant of the land. He sumbits as follows:

(2) That consideration money was paid in entirety.

(3) DW-5, the Defendant deposed that after the execution of Exhibit-X he constructed houses on the land.

It is urged by Shri Goswami, that even if there is a contract, that is, Exhibit-X, he must be deemed not to be protected getting the benefit of the proviso to Section 53 A purchaser when he entered into a contract and for this purpose he relies on the last proviso of Section 53-A of the Transfer of Property Act which provides 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. Shri Goswami submits that he will get the protection of this proviso in the facts and circumstances of the case. Regarding this plea of Shri Goswami, it has been negatived by the Appellate Court holding that the Plaintiff did not make any enquiry whatsoever as required and in this connection Shri Roy draws my attention to Section 3 of the Transfer of Property Act and Explanation-II, where it is provided that:

Any person acquiring any immovable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof.

There is no denying of the fact that this Defendant No. 1 was in possession of the part of the land since from 1952 to 1965. He was in possession of the entire suit land after execution of Exhibit-X. The possession was solely on the basis of the contract. Further the Defendant No. 1 had his holding number of the property and they have been exhibited as Exhibits-I to J as the land is situated within Dibrugarh Municipality. So Shri Roy submits that if the Plaintiff would have enquired he would have got the proper information regarding the possession, the holding number of the property under possession of the Defendant No. 1. The Plaintiff did not do so. Further it is submitted that in the earlier suit also this defence was taken by the Defendant, inspite of it when the subsequent suit was filed in the year 1979 nothing was stated in the plaint with regard to the enquiry which is required to be made by a purchaser. Shri Roy also places reliance on the decision reported in The Ahmedabad Municipal Corporation of the City of Ahmedabad Vs. Haji Abdulgafur Haji Hussenbhai, wherein this aspect of the matter was considered by the Apex Court and the Apex Court pointed out in paragraph-7 as follows:

Any person acquring any immovable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person, who is for the time being in actual possession thereof.

The Supreme Court took note of Section 3 of the Transfer of Property Act and held that failure to make proper enquiry meaning wilful abstention or deliberate abstention and/or gross negligence will come within purview of Section 3 of the Transfer of Property Act. It may differ from case to case. But the law requires that in order to claim protection under the last proviso of Section 53-A of the Transfer of Property Act it must be shown that the Plaintiff is a bonafide purchaser for consideration without notice of Defendant having title but with possession. I agree with the finding of the lower appellate court that the Plaintiff did not make any enquiry as required by law. So the contention that he will get the protection by the proviso of Section 53-A of the Transfer of Property Act cannot be accepted. On the question whether Defendant No. 1 will get the protection u/s 53-A of the Transfer of Property Act, the learned District Judge on consideration of the materials on record has come to the finding that he is entitled to get protection as indicated above and on a bare persual of Exhibit-x it will be seen that it is a deed of agreement for sale of the land and nothing else and from that particular document the Defendant. was put in possession in pursuance of that deed of agreement for sale in the rest portion of the land and he continued in possession of the land which was in his possession from the year 1953 and as indicated above he has also made construction in pursuance of the contract.

That being the position the Defendant No. 1 must be deemed to be protected by Section 53-A of the Transfer of Property Act as rightly found by the learned District Judge. Once this decision is arrived at the question of protection u/s 5 of the Assam Non-Agricultural Urban Areas Tenancy Act becomes irrelevant. But I am having a bird''s eye view to the matter as it was argued.

Shri Goswami places reliance on the following decisions AIR 1956 Gau 116 (Jitendralal Dattaroy and Anr. Appellants v. Bharat Loan Company Ltd. Respondents) AIR 1972 Gau 102 (Khargeswar Dutta and Anr. Appellant v. Hironmoyee Dutta and Ors. Respondents) GLJ N.O.C. 40 Suresh Chandra Brahma and Ors. Petitioner v. State of Assam and Ors. Respondents) AIR 1988 SC 664 to urge that defendent No. 1 forfeited the protection u/s 5 by denouncing title, that aspect of the matter has been considered in earlier part of the judgment.

Shri Roy places reliance on a Division Bench decision of this Court in Second Appeal No. 130/87 wherein the question regarding forfeiture of the protection u/s 5 came up for consideration and Division Bench by judgment dated 31.3.87 held that the protection so available shall not be wiped out and the Defendant shall continue to be a tenant unless and until he is evicted from the land. The question of forfeiture was considered in that judgment. That judgment is squarely binding on me. Once protection is available to Defendant No. 1 in view, of the concurrent findings of the Courts below that the Defendant No. 1 made permanent construction/structure on the land within the time frame shall get protection u/s 5 of the Act and he cannot be ejected. Accordingly there is no merit in the second appeal and the same is dismissed.

However, I leave the parties to bear their own costs.