MAHADEO KESHAV LINGARKAR Vs. SHAMRAO BALWANT KESARKER

JUDGEMENT

(1.) THE second appeal arises out of a suit filed by the respondent to obtain possession of western half share out of house No. 611 situated at Vadgaon in Ichalkaranji Taluka. According to the plaintiff, the house originally belonged to one Tatoba Laxman Pise. On March 14, 1958, Tatoba sold his undivided half share in the house to defendant No. 1. The defendants were, however, in possession of the entire house as tenants, since 1953. On March 8, 1960, Tatoba sold the remaining half to the plaintiff under a registered sale deed. The defendants were not willing to make an actual petition of the house. The plaintiff, therefore prayed in the suit for an equitable partition of the house and possession of the western half of the house. The defendants resisted the suit contending that on March 8, 1960, Tatoba had no saleable interest in the suit property; hence, the plaintiff could not maintain the suit. They further alleged that on January 24, 1958, Tatoba had entered into an agreement with the defendants to sell the entire house to them and they were in possession of the house since then in pursuance of that agreement. As it transpired later that one Nivritti Haval had half share in the entire house, they entered into an agreement with Haval on October 18, 1958 to purchase the remaining half share in the house. They had, in the meanwhile, got a registered sale deed executed by Pise in respect of his half share on March 14, 1958, as stated by the plaintiff. Thus the defendants claimed to be in possession of the half share under the agreement dated January 24, 1958 entered into with Tatoba and the agreement dated October 18, 1958 entered into with Haval and claimed equity of part performance against any transferee with notice of their possession. They further stated that Haval entered into an agreement with the defendants and thereafter transferred his share to Tatoba Pise and hence Haval had lost all interest in the property and Tatoba was bound to convey the property to the defendants under the original agreement dated January 24, 1958. They submitted that the plaintiff was not a bona fide purchaser without notice of the above transactions between the defendants and the said Tatoba and Haval and hence, the plaintiff was not entitled to recover possession of the house from the defendants. The learned Civil Judge framed the necessary issues and on considering carefully the documentary and oral evidence in the case found (1) that the plaintiff proved the sale deed executed by Tatoba in his favour on March 8, 1960. that Tatoba had only half share in the suit property at the time of the said sale deed dated March 8, 1960. but that defendant No. 1 (though the findings in this behalf have been recorded by the learned Judge in a confused way by referring to both the defendants it appears he meant defendant No. 1) was entitled to protect his possession of the whole house under Section 53-A of the Transfer of Property Act, and that the plaintiff was estopped from bringing his suit in view of the contracts entered into by his predecessor-in-title with defendant No. 1. He, therefore, dismissed the plaintiff's suit with costs by his judgment and decree dated July 25, 1961. Feeling aggrieved by the said decision, the plaintiff carried on appeal in the Court of the District Judge at Kolhapur and the learned District Judge reversed the decree on the ground that although the defendants were entitled to the equity of part performance under Section 53-A against Tatoba and Haval, that equity was not available against the plaintiff because the plaintiff was a bona fide purchaser for value without notice of the contracts or of the part performance thereof. In view of this finding, the learned District Judge decreed the plaintiff's suit.

(2.) THE said decree is challenged in the above second appeal by the defendants and it is urged by Mr. Hombalkar, the learned Counsel for the defendants, that the learned District Judge erred in law in holding that the plaintiff had no notice of the equity of part performance in favour of the defendants. The finding of the learned District Judge that the defendants fulfilled all the requirements of Section 53-A of the Transfer of Property Act and were entitled to protection of their possession under the said Section 53-A is a finding which cannot be assailed by the plaintiff. The finding is recorded by the learned District Judge after carefully considering all the relevant agreements and the requirements of Section 53-A and Mr. Joshi, the learned Counsel for the plaintiff-respondent, has not been able to point out any error in that finding.

(3.) MR. Joshi, however, submitted that the learned District Judge was quite right in further holding that the facts of the case attracted the operation of the proviso to Section 53-A which runs as follows :-