VENKATESWARULU Vs. KOTILINGAM

JUDGEMENT

(1.) This is a plaintiff's appeal against the decree and judgment of the Court of the Subordinate Judge, Guntur, setting aside that of the District Munsif, Guntut in O. S. No. 215 of 1951, a suit filed by the appellant for specific performance of a contract of lease by .directing the respondents to execute a registered lease deed in his favour and for an injunction restraining them from interfering with his possession.

(2.) The facts, found or admitted, may be briefly stated. The 1st defendant is the owner of the plaint schedule property. The 2nd defendant is his undivided son. The 1st defendant borrowed amounts from the plaintiff from time to time by executing promissory notes Exs. A-3 to A-8 between 1-5-1949 and 31-7-1949 On 30-1-1951, in addition to the sum of Rs. 545-13-0 found to be due under the said promissory notes, he borrowed another sum of Rs. 2054-3-0 from the plaintiff and executed the promissory note Ex. A-l for the consolidated amount of Rs. 2600/-. On the same date, the 1st defendant for himself and as guardian of his minor sots executed Ex. A-2, an unregistered lease deed leasing out the plaint schedule property to the plaintiff for a period of five years. On 24-4-1951, the 1st defendant leased out the same property to the 3rd defendant for a term of five years stipulating an annual maktha of Rs. 450/-. The suit was filed for specific performance of the agreement of lease in favour of the plaintiff. Defendants 1 and 2 pleaded that the agreement to lease in favour of the plaintiff was not a genuine document, that it was not true that the 1st defendant was paid Rs. 2054-3-0 and he executed a promissory note in favour of the plaintiff and that he did not put the plaintiff in possession of the property. They supported the lease in favour of the 3rd defendant. The 3rd defendant filed a written statement adopting the written statement filed by defendants 1 and 2. The learned District Munsif held on the evidence that the lease in favour of the plaintiff was true and supported by consideraticn He also found that the plaintiff was put in possession of the property on the date of the execution of the lease deed. He held that, though the said lease deed was not registered, the suit was maintainable under Sec. 27-A of the Specific Relief Act. In the result, he decreed the suit. On appeal, the learned Judge, while agreeing with the first Court that the lease was true and supported by consideration, differed from him on the question of possession. The learned Judge held that the plaintiff failed to establish that he was put in possession on the date of Ex. A-2 or subsequently. On that finding, he held that Section 27-A of the Specific Relief Act would not apply and dismissed the suit. Hence, the Second Appeal. Mr. Chandrasekhara Sastry, learned counsel for the appellant, raised before me two points. (i) The finding of the learned Judge that the plaintiff was not put in possession on the date of Ex. A-2 was wrong and (ii) A suit for specific performance of an agreement to lease would lie apart from Section 27-A of the Specific Relief Act. On the first question, he pointed out the following four defects in the finding of the learned Judge. , (i) The recital in Ex. A-2 that the plaintiff was put in possession on the date it was executed was not considered by the learned Judge. (ii) In appreciating the evidence, the defence set up by the defendants was not taken notice of by the learned Judge. (iii) The 1st defendant, who was in the best position to depose to the facts, was not examined. (iv) Though it was not necessary for the application of Section 27-A that the lessee, who was put in possession pursuant to the lease deed, should continue to be in possession up to the date of the suit, the learned Judge, on a wrong impression that he should do so mixed up the two questions, namely, the plaintiff's possession pursuant to the agreement and his subsequent possession with the result that he arrived at a wrong finding.

(3.) The arguments of the learned Counsel may have some force in a first appeal. But, in-a Second Appeal, they are not sufficient to upset a finding of fact. It is true that, in considering the question of possession, the learned Judge did not specifically consider the statement in Ex. A-2 that the plaintiff was put in possession but his discussion clearly indicates that that fact was in his mind and that he was considering whether that statement was correct. Nor can it be said that the learned Judge did not have in his mind the defence version, namely, that the document was a forgery for, in the previous paragraphs, the learned Judge considered that version and rejected it. Though the 1st defendant was not examined, the learned Judge was certainly within his rights to come to a,conclusion on a consideration of the evidence actually adduced in the case. It may be, as the learned Counsel contendsit is not necessary to express my opinion thereon in the present case that once it was established that the plaintiff was put in possession puisuant to Ex. A-2, it was not necessary for the application of Section 27-A that he should ontinue to be in possession up to the date of suit. 1 do not see how that circumstance vitiated the finding of the learned Judge. He has borne in mind the aforesaid distinction between the initial possession and the continuance thereof and, considering the evidence on the two aspects, he came to the conclusion that he did not obtain possession on the date of Ex. A-2 or on the date of the suit The finding therefore, is one of fact and there are no permissible grounds for interference. If so the next question is whether the plaintiff, who was not put in possession pursuant to Ex. A-2, could maintain a suit for specific performance on the basis of - Ex. A-2. Sec. 27-A of the Specific Relief Act, which was inserted by the Transfer of Property (Amendmerr) Supplementary Act 1929 (Act XXI of 3929) reads: Subject to the provisions of this Chapter, where a contract to lease immoveable property is made in writing signed by the parties thereto of On their behaif either party may, notwithstanding that the contract, though required to be registered has not been registered sue the other for specific performance of the contract if, (a) where specific performance is claimed by the lessor, he has delivered possession of the property to the lessee in part performance of the contract; and (b) where specific performance is claimed by the lessee he has, in part performance of the contract, taken possession of the property, or being already in possession continues in possession in part performance of the contract and has done some act in furtherance of the contract." This section in terms does not apply for it has been held by the Court below, and I have accepted it, that the plaintiff did not take possession of the property in part performance of the contract of lease. So much is conceded. But, it is contended that though Section 27-A cannot be invoked, the suit is maintainable under Section 27 read with Section 49 of the Registration Act. Section 27 of the Specific Relief Act says that "except as othetwise provided by (his Chapter, specifie performance of a contract may be enforced against either party thereto." Section 49, to which a proviso was added by Section 10 of the Transfer of Property (Amendment) Supplementary Act, 1929, reads: