VARKEY ABRAHAM Vs. VARKEY DEVASSIA

JUDGEMENT

(1.) I will first deal with S. A. 835 of 1993. This appeal is filed by the plaintiff who lost the suit for injunction and ejection at the lower appellate stage. Ext. Al is his title. It is a partition deed. The 1st defendant is none other than his brother. At the lower appellate stage equitable relief was granted in favour of the 1st defendant in terms of S. 53-A of the Transfer of Property Act on the strength of ext. B1 agreement and which is supported and corroborated by Exts. B2 and B3 letters by the plaintiff himself. According to the lower appellate court, there was an agreement for sale as revealed by Ext. B1 executed by the plaintiff in favour of the 1st defendant and the plaintiff had demanded for its fulfilment as per Exts. B2 and B3 letters. So, the lower appellate court found that the 1st defendant was entitled for equitable relief. It was in the above circumstances, the decree of the trial court was reversed.

(2.) IT is contended on the substantial question of law, relying upon the Division Bench decision of this court in Jacob's (P) Ltd. v. Thomas Jacob (1994 (2) KLT 848) that in the absence of specific pleading in the written statement seeking the benefits of the said section and also the readiness and willingness to abide by the agreement Ext. B1, the lower appellate court ought not to have granted the relief in that regard to the 1st defendant to non-suit the plaintiffs. IT is also contended that that was not an issue at all before the trial court. The lower appellate court has taken the plaintiff to surprise, while entering into a finding on the basis of S. 53-A of the Transfer of Property Act.

(3.) IT is true that the written statement does not refer to the provisions of S. 53-A of the Transfer of Property Act. IT is true that there is no whisper in the written statement that he had been willing to perform his part of the contract. IT has to be understood that the pleading is neither an art nor a science. Pleading has to be understood, wholelly. The Supreme court has held m Syed Dastagir v. T. R. Gopalakrishna Shetty (1999 (6) SCC 337)as aforesaid. When we examine the written statement, in that perspective, it can easily be understood that there was a pleading on an agreement and that is nothing other than Ext. B1. The plaintiff cannot dis-own the agreement. Thus, there was Ext. B1 agreement in writing signed by the parties. This is corroborated by Exts. B2 and B3. The pleadings reveal that he is in possession of the building situated in the property mentioned in Ext. B1. That cannot be disputed also. The written statement refers to the improvements made by him to the building including electrification. IT also refers to the boundary walls and 'kayyala' constructed by him in the property and also to the agricultural operations undertaken by him. Thus, a person in occupation of the property will make that much improvement expending money including electrification of the building only upon handing over possession thereof. So, these constructions, electrification and also the agricultural operations undertaken can be termed as exercise of possessory right in terms of and pursuant to Ext. B1 agreement and those are also certain acts performed by him in furtherance of the agreement concerned. The remaining aspect is whether the 1st defendant had shown his willingness to perform his part of the contract which is also an essential ingredient to claim the benefits of S. 53a, as discernible from the literature employed in the said section. The averments in paragraph 9 of the written statement as well as in the additional written statement filed by the 1st defendant disclose that he had paid. ,ff the entire sale consideration. The balance payable was only Rs. 250/- which ought to be adjusted against the royalty payment due to the plaintiff to the extent of more than Rs. 800/ -. In such circumstances, when the 1st defendant had, according to him, performed what all had to be performed by him in terms of the agreement, a further willingness and readiness need not be expressed. Thus, there was clear pleading in terms of the said section to get the benefit thereof. When the lower appellate court, the last court to re-appreciate the evidence to resolve the dispute, in one way or other, had thus found that the defendant is entitled so to the said benefit there is no reason at all when the 1st defendant had satisfied the necessary ingredients, to interfere with that finding.