MOHAMMAD TAHAIR Vs. SYED KHAJA ALI

JUDGEMENT

(1.) This is a defendant's appeal under Section 96 of the C. P. Code. The suit in question was O. S. No. 72 of 1968 on the file of the Civil Judge at Bidar. The suit was for declaration of title, possession, mesne profits and incidental reliefs and filed by the respondents herein. The suit has been eventually decreed on terms. Hence this appeal by the defendant.

(2.) The case of plaintiffs is that they succeeded to the suit property as heirs of their father, and that the defendant had no manner of right, title, or interest in the said property after the expiry of the period stipulated under an alleged mortgage the terms of which need not be set out for our present purpose. The defence in the main is that the defendant was put in possession of these suit properties pursuant to an agreement to sell entered into by the father of the plaintiffs in the year 1957, produced and marked in the suit as Exhibit D-5.

(3.) The court below came to the conclusion that the agreement to sell was one which would clearly give rise to a defence of part performance under Section 53-A of the Transfer of Property Act. But, having regard to the provisions of Section 47 of the Hyderabad Tenancy and Agricultural Lands Act, 1950 the transaction in question was virtually a permanent alienation falling within the scope and ambit of the said section. It was, therefore, concluded that Section 47 would invalidate such a transfer of possession under Section 53-A of the Transfer of Property Act. In short, it was held that such a defence would be unavailable to the defendant in a suit based on title.