S. F. MUNUSWAMI GOUNDER Vs. ERUSA GOUNDER

JUDGEMENT

(1.) THE defendants appeal under the Letters Patent from a judgment of Venkatadri J. who reversed the judgment of the first appellate court and restored the decree of the trial court. There is no dispute that the suit properties belong to the first defendant on the basis of a purchase made by him on 31 -1 -1935. He entered into a contract with one Lakshmiammal as the guardian of the present plaintiff and Krishnaswami who were minors, for sale of the properties to them for a consideration of Rs. 500 within two years. The suit was for declaration of title and for an injunction from interference. This was on the basis that Lakshmiammal and the minors were put in possession of the properties in part performance of the agreement to sell the properties. Defendants 2 and 4 who were among the appellants, had obtained a sale from the 1st defendant and attempted to trespass. That was the case of the plaintiff. The trial court found that there was an agreement of sale and the plaintiff had been put in possession, and, on that basis, it granted the prayers asked for in the plaint. The first appellate court proceeded upon the view that Section 53 -A of the Transfer of Property Act by itself did not confer title on the plaintiff, and that, therefore, he could not rest the claim, on the basis of part performance, for title. As to possession, it considered that the finding of the trial court, in the circumstances, was unnecessary and discharged the finding. When the matter came up in second appeal, Venkatadri J. said : -

(2.) IT seems to us that the judgment in second appeal cannot be supported. Subba Rao, G. J. (as he then was) himself observed in that case -

(3.) WE , therefore, allow the appeal and direct that the appeal before the first appellate court be restored to its file and disposed of in the light of this judgment. If the first appellate court finds that, pursuant to the contract to sell the properties, the plaintiff had been put in possession as part performance and the other conditions of Section 53 -A have been complied with, then it would be justified in granting a decree to the plaintiff for injunction debarring or preventing the defendants from interfering with the plaintiff's right which has accrued to him under Section 53 -A, including his right to be continued in possession. Costs of this appeal will abide the result.