N.KRISHNA RAO Vs. SHAIK BASHEER AHMED

JUDGEMENT

(1.) The plaintiff who lost his suit in both the Courts below, filed this second appeal. He filed the suit in the trial Court for declaration of his ownership to the plaint schedule property, for possession of the same by removing structures raised by the defendant therein and for mandatory injunction for demolition of illegal structures therein. The plaint schedule property consists of 1000 Sq. yards of site in S.No.101/E of Katedan Village, Rajendra Nagar Mandal, Rangareddy District. The defendant constructed six mulgis with old D.No.4-92/22 and present municipal Door Nos.6-3-197, 6-3-197/1 to 6. It is the plaintiff's case that he is owner of Ac.4-20 guntas in S.No.101 having purchased the same from his vendors S.Ramireddy and S.Nagireddy under two separate registered sale deeds Exs.A-1 and A-2 dated 06.11.1963 and 26.03.1965 and that the defendant occupied the plaint schedule property out of the said extent without any authority and made constructions therein illegally and that subsequently after some litigation, the defendant entered into an agreement for sale for purchase of 1000 Sq. yards from the plaintiff on 18.12.1989 for total agreed consideration of Rs.1,00,000/- and paid advance sale consideration of Rs.30,000/- agreeing to pay balance of Rs.70,000/- by 03.02.1990 and that the defendant failed to comply with the said obligation and compelled the plaintiff to issue notice dated 26.04.1990 calling upon the defendant to pay balance sale consideration within one week from the date of receipt of that notice, failing which the agreement stands cancelled and that the defendant did not pay the balance of sale consideration and therefore, the sale agreement Ex.B-18 executed by the plaintiff in favour of the defendant stood cancelled.

(2.) The defendant resisted the plaintiff's suit on the ground that he is absolute owner and possessor of 1000 Sq. yards having purchased the same under registered sale deed from its owner Sadala Pratap Reddy in the year 1988 and that after some litigation and disputes among the legal heirs of original owners Ramireddy and Nagireddy and the plaintiff, there was sub-division of the survey number after measurements and the defendant's vendor Pratap Reddy was allotted Ac.0-38 guntas in new S.No.101/A2, out of which 1000 Sq. yards was sold by Pratap Reddy to the defendant and that in view of the previous litigation started by the plaintiff, to purchase peace and to save money already spent on the construction and to avoid multiplicity of litigation, the defendant entered in Ex.B-18 agreement for sale dated 18.12.1989 with the plaintiff for the said property and paid Rs.30,000/- to the plaintiff as advance under Ex.B-19 receipt and that it was confirmed by delivery of possession and that since the plaintiff did not receive balance of consideration of Rs.70,000/- in spite of approaching him before the due date, the defendant got issued Ex.B-5 legal notice dated 21.08.1990 and that subsequently the plaintiff received balance of sale consideration of Rs.70,000/- from the defendant in the presence of witness and that the plaintiff did not give any notice dated 26.04.1990 to the defendant.

(3.) After trial, the trial Court dismissed the suit; and on appeal by the plaintiff, the lower appellate Court dismissed the appeal. Both the Courts below non-suited the plaintiff mainly on the ground of part performance embodied in Section 53-A of the Transfer of Property Act, 1882 (in short, the Act). It is sought to be contended by the appellant's counsel in this second appeal that since the agreement Ex.B-18 stood cancelled for non-compliance of the stipulation for payment of balance sale consideration of Rs.70,000/- within the time specified in the notice, the defendant is not entitled to the benefit of Section 53-A of the Act. Alternatively, the appellant's counsel urged as substantial question of law that in any event, the defendant is not entitled to the benefits of Section 53-A of the Act since he was not put in possession of the property by the plaintiff under Ex.B-18 agreement for sale and that continuation of possession of the defendant of the suit property even after Ex.B-18 agreement would not make the defendant entitled for the protection under Section 53-A of the Act since the defendant's previous possession was illegal possession as an encroacher. Placing reliance on Mallanna v Dr.Abdul Nabi, 1986 AIR(Kar) 221 of the Karnataka High Court, it is contended by the appellant's counsel that delivery of possession under the agreement for sale is most essential feature for invoking Section 53-A of the Act. There is nothing in that Karnataka decision on the clause relating to the transferee continuing previous possession of the property after obtaining agreement for sale from the transferor. It was not such a case where the transferee was earlier in possession of the property and continued to be in possession of the property even after execution of agreement for sale.