MAHALINGAM Vs. AYYATHURAI

JUDGEMENT

(1.) The only question that arises in this revision is whether the suit, O.S. No. 1486 of 1969, filed by the first respondent herein for a declaration of his right to be in possession of the suit property in part performance of the contract dated 5th June, 1969 and for an injunction restraining the defendants from interfering with his possession of the same is maintainable in law. The second respondent herein entered into an agreement to sell the suit property to the first respondent on 5th June, 1969, agreeing to sell three items of the property for a sum of Rs. 25,000 receiving an advance of Rs. 10,000 on the same day. It has been agreed that the balance of Rs. 15,000 was to be paid on or before 5th December, 1969, when the sale deed was to be executed. Subsequently the first respondent had sold items 1 and 2 to the petitioner herein for a sum of Rs. 26,000 on 1st November, 1969. The petitioner, in pursuance of the sale in his favour sought to interfere with the possession of the first respondent who is said to have been put in possession of the properties even on 5th June, 1969, the date of the agreement in his favour. Hence he filed the above suit for a declaration that he is entitled to be in possession and for injunction restraining the respondents 1 and 2 from interfering with his possession.

(2.) It is contended on behalf of the petitioner, the second defendant in the suit, that the lower Court was in error in thinking that the first respondent can invoke the doctrine of part performance to sustain his suit for declaration of possession and injunction and that section 54 of the Transfer of Property Act cannot give him such a right. It is also contended that the suit filed by the first respondent should be treated as one for specific performance and if so treated, the value of the suit will be outside the pecuniary jurisdiction of the lower Court. As regards the latter contention that the suit should be in substance and effect treated as a suit for specific performance, the first respondent does not seek to specifically enforce the contract in his favour and the nature of the suit has to be gathered only from the averments in the plaint. When the first respondent does not seek a relief of specific performance, the Court cannot construe the suit as one for specific performance and value the suit on that basis. Hence the petitioner's contention that the suit should be treated as one for specific performance has to be rejected. Therefore, the only question that remains to be considered is whether the suit as framed is maintainable in law.

(3.) Section 54 of the Transfer of Property Act came up for consideration before the Privy Council in Main Pir Bux v. Sardar Mohamed Tahar, (1934) 67 M.L.J. 865 : L.R. 61 I.A. 388, where Lord Macmillan had expressed that an averment of the existence of a contract of sale, whether with or without an averment of possession following upon the contract, is not a relevant defence to an action of ejectment in India, that the English doctrine of part performance which is available by way of defence in an action of ejectment is not applicable to India, that if the contract remained enforceable, the defendant may found upon it to have the action in ejectment stayed, and by suing for specific performance obtain a title which will protect him from ejectment, and that if the contract was no longer enforceable its part performance will not avail to any effect. The above decision of the Privy Council was with reference to the law before the insertion of section 53-A in the Transfer of Property Act. The scope of the newly inserted provision, section 53-A also came up for consideration before the Privy Council in Probodh Kumar Das v. Dantmara Tea Co., Ltd., (1940) 1 M.L.J. 75 : L.R. 66 I.A. 293. In that case a company bought an estate at auction but obtained no conveyance of it to-themselves, and then by letters of offer and acceptance agreed to sell the estate to one R who paid the first instalment of the price and entered into possession. Later the company executed a deed, which was duly registered assigning the estate to the defendants. That deed recited that R had failed to complete his contract of sale in respect of the property. The plaintiff claiming title through R brought an action for declaration that the defendants had no title to the estate as against the plaintiffs invoking section 53-A of the Transfer of Property Act. Their Lordships of the Privy Council held that the right conferred by section 53-A is only a right available only to a defendant to protect his possession, and it confers no right of action on a transferee in possession under an unregistered contract of sale and that, therefore, the suit was not maintainable. Their Lordships observed: