HAFEEZUNNISA BEGUM Vs. SYED ARAB

JUDGEMENT

(1.) The plaintiffs, who sought in vain, in the Courts below, recovery of possession of the lands bearing S. Nos. 337 and 338 situate at Kamareddy, are the appellants in this second appeal. They plead that the defendant came into unlawful possession of the lands in 1952, and seek a decree to eject him for his unlawful possession. The defence is that in 1952, the defendant obtained a mortgage of the lands which was followed by an agreement of sale. Pursuant to the agreement, he paid the entire amount of price. The agreement was engrossed on stamp paper and it provides for the execution of the deed of conveyance by the plaintiff's when they are called upon to do so. The defendant has been in possession of the lands pursuant to the agreement of sale and effected improvements to the land at a cost of Rs. 3,000.

(2.) The trial Court held that there was a contract for the transfer of the plaintiffs' interest to the defendant and that the former received the entire consideration and put the defendant in possession of the property. The defendant was accordingly in undisturbed possession of the property for eight years before the suit. The trial Court upheld the plea of the defendant that it was competent for him to resist the suit by pleading part-performance of the contract under section 53-A of the Transfer of Property Act. The lower appellate Court confirmed the decision of the trial Court. In support of the dismissal of the action, it gave as an additional ground that the defendant was entitled to be in possession by virtue of the mortgage deed Exhibit B-i. It opined that apart from the agreement of sale and the unregistered sale deed, the defendant could sustain his possession on foot of the mortgage. Till it was redeemed, his possession could not be dislodged.

(3.) In this second appeal, the main contention urged by Shiv Shanker is that the alienation relied on by the defendant is void and inoperative by reason of section 47 of the Hyderabad Tenancy and Agricultural Land Act, 1950 and that the validating procedure under section 50-B of the Act, not having been availed of by the defendant, his possession should be held to be unlawful. The provisions of section 53-A of the Transfer of Property Act are of no avail to the defendant as the contract is prohibited by law.