PARAMU VIJAYASREE Vs. PARAMU JAYAPRAKASH

JUDGEMENT

(1.) The appellant filed two suits (1) O.S. 215 of 1982 for injunction which was later amended as one for recovery of possession as well as (2) O.S. No. 630 of 1983 for specific performance of Ext. A1 agreement dated 21.10.1974. According to the appellant, the 1st defendant executed Ext. A1 agreement to sell 57 cents of property described therein for an amount of Rs. 3,135/-. He received Rs. 2,000/- as advance and possession was given to the plaintiff. Plaintiff has taken possession of properties. There was attempt to trespass by the 1st defendant. That resulted in the former suit. Later, the trespass materialised. Consequently, the first suit was amended seeking recovery of possession as well. As the possession upto that time had been thus interrupted, the second suit was filed seeking specific performance of the agreement. The trial Court dismissed both the suits. It was found that the suit was barred by limitation as well. The lower appellate court came to the conclusion that Ext. A1 agreement itself was not truely executed. The reason stated by the lower appellate court is that if a substantial portion of the sale consideration had been paid on execution of Ext. A1 agreement, with change of possession necessarily it ought to have been registered. Therefore, non-registration of the document Ext.A1 will certainly tell against its genuineness, according to the lower appellate court. It was also found that Ext. A1 did not show transfer of possession of the property. Still another reason stated in the judgment of the lower appellate court to discard Ext. A1 agreement is that the stamp paper in Ext. A1 was purchased in the name of the 1st defendant as against the normal practice of purchasing it in favour of the assignee namely the plaintiff. Added to this, the lower appellate court also found that the suit was filed after a pretty long time of 8 years.

(2.) The judgment and decree of the lower appellate court is assailed by the appellant mainly contending that the approach of the lower appellate court was wrong on essential matters relevant for consideration of the issue involved. It is submitted, on the basis of .the last sentence in Ext. A1 that the agreement itself had spoken about the passage of possession from the 1st defendant to the plaintiff whereas the decision of the lower appellate court rested on its understanding of Ext. A1 that Ext. A1 did not contain any recital with regard to change in possession of the property. Therefore, the approach of the lower appellate court to a very relevant aspect is essentially erroneous and that itself gives rise to a question of law. It is also contended that there was part of performance on the part of the plaintiff by paying substantial portion of the amount agreed upon as consideration for sale of the property and consequently the possession had been transferred in favour of the plaintiff. In such circumstances, S. 53Aof the Transfer of Property Act, 1882 is attracted and therefore, even without registration the plaintiff could have continued in possession and resisted any trespass by the defendant. In such circumstances, even without approaching the court for specific performance within three years, the plaintiff could have, protected her possession over the property. This aspect has never been dealt with by the lower appellate court obviously because of the finding that Ext. A1 was not a true document.

(3.) It is contended by the counsel for the appellant that in such circumstances, the erroneous approach of the lower appellate court on essential matters can certainly be taken as a substantial question of law and the High Court will be perfectly justified in interfering with the judgment of the lower appellate court.