LAKSHMIBAYAMMA Vs. LAKSHMINARASAMMA

JUDGEMENT

(1.) This is a defendant's second appeal against the concurrent findings of the Courts below. Respondent herein filed OS 329 of 1974 in the Court of the II Addl. Civil Judge at Bangalore seeking declaration of title and also possession of the suit schedule property. It was his case that the appellant defendant had conveyed the property to him by a deed of sale as far back as in the year 1964 for valuable considera tion. He has continued in possession as tenant paying the agreed rent. Respondent's earlier effort to evict the appellant- defendant under the provisions of the Rent Control Act did not meet with success, as in that case it was held that there was no relationship of tenant and landlord. It was in that circumstance that the original suit was filed for declaration of title to the property and possession thereof.

(2.) The defendant resisted the suit on the main plea that the deed of sale was fraudulently obtained, that the defendant had signed before the Sub-Registrar without knowing what that document was and it was alternatively pleaded that in any event the property was to be reconveyed by a separate agreement of sale executed and registered on the same day in respect of the same suit schedule property. The Courts below having taken note of the circumstances, disbelieved the version put forward by the defendant mainly for the reason that the defendant could not be allowed to plead in respect of the sale deed which was said to be fraudulent and also plead that she was aware of her rights under the second agreement of sale which came to be executed on the same day.

(3.) In this Court, for the first time, the learned counsel for the appellant made an attempt to prove that the property was mortgaged and he continued to be in possession of the suit schedule property even as on the date of filing of the suit which should be considered and construed as part performance of the contract under the second deed executed at the time of the suit sale deed This h a vague proposition and reliaace was placed upon a decision of the Allahabad High Court in the case of Yekadashi v. Ganga(1), wherein it has been held that the plaintiff should be given the benefiit of S. 53 A if he had continued in possession. But that case indistinct from the facts of the case on hand in asmuch as the plaintiff in that case went to the Court seeking specific performance of the contract and in furtherance of his plea he had pleaded possession as evidence of part performance. In the instant case, the plea put forward by the defendant is an alternative defence that she had performed partly because she had continued in possession. I do not think such a plea is permissible for the defendant in a suit for declaration of title and possession of the suit schedule property.