AMAR SINGH Vs. SHIV NARAYAN

JUDGEMENT

(1.) This appeal is by the defendant against the judgment and decree dated 3.11.2007 passed by the 1st Additional District Judge, Shajapur in First Appeal No.l3-A/07. By the impugned judgment and decree, Court below has affirmed the judgment and decree passed by the trial Court in favour of the plaintiff.

(2.) The dispute relates to l/3rd share (hereinafter referred to a the suit property for short) of Late Munshi in agriculture survey no. 363/02, situated in village Nichma Pargana, Tehsil and District Shajapur. It is no longer in dispute that survey no. 363/02 jointly belonged to Munshi, Ambaram and Ganpat each having one- third share. It is also undisputed that late Munshi was survived by his widow Kailashbai and two daughters Naginabai and Sangitabai. Plaintiffs' case in short was that they entered into an agreement of sale on 24.4.1990 with the heirs of late Munshi for purchase of suit property. It was followed by registered sale deed dated 1.8.1990 coupled with delivery of possession and they got the suit property mutated in their name in revenue records. It was alleged that appellant Amarsingh forcefully dispossessed plaintiffs from the suit property on 15.07.1991, which led to the proceedings under Section 145 Cr.P.C. Ultimately, plaintiffs lost in the proceedings under Section 145 Cr.P.C, and direction was issued to them to hand over possession of suit property to the appellant. Hence, plaintiffs filed the suit for declaration and injunction. Subsequently, the plaint was amended and the plaintiffs also sought the relief of possession and mesne profit at the rate of Rs. 12,000/- per annum. The suit was contested by the appellant. He set up an agreement of sale dated 22.5.1990 executed in his favour by Kailashbai and submitted that the subsequent sale deed in favour of the plaintiffs was void. He also denied that he forcefully dispossessed the plaintiffs from the suit land and contended that Kailashbai delivered the possession of the suit land to him pursuant to the agreement of sale. Thus, in sum and substance, the defendant raised the plea of part performance as recognized under Section 53A of the Transfer of Property Act. On the basis of the pleadings of the parties, trial Court framed issues and allowed the parties to adduce evidence. On appreciation of evidence, learned trial Court decreed the suit of the plaintiffs and granted mesne profit at the rate of Rs.5,000/- per annum instead of Rs.12,000/- as claimed from the date of the suit till the possession thereof was delivered to the plaintiffs. Being aggrieved by the judgment and decree passed by the trial Court, appellant preferred first appeal whereas plaintiffs preferred a cross appeal claiming mesne profit at the rate of Rs.12,000/- per annum. By the impugned judgment and decree, learned lower appellate Court dismissed both the appeals and maintained the judgment and decree passed by the trial Court, hence this second appeal by the defendant as is stated hereinabove.

(3.) After having heard Shri A.S.Garg, learned senior counsel for the appellant and going through the record, we find that there is no merit in this appeal. Shri Garg argued that the appellant had the prior agreement of sale in his favour; therefore, by virtue of Section 53A of the Act, he was entitled to protect his possession over the suit land. It was also contended that the agreement of sale in favour of the appellant would get precedence and any subsequent instrument would not confer a valid and legal title of the suit land to the plaintiffs. We find no merit in it. The arguments of Shri Garg, runs counter to Section 53A of the Act. A bare perusal of Section 53A of the Transfer of Property reveals that in order to attract provisions of Section 53A, the property must be owned by the plaintiff. There should be a written agreement to sell or transfer by the plaintiff in favour of the defendant for consideration, and, in pursuance of that agreement, the defendant must have done something more in furtherance of the contract and he himself should be ready and willing to perform his part of the contract from the date of agreement. From the evidence available on record, it is clear that appellant had failed to establish these ingredients, therefore, courts below rightly non-suited him. In the case in hand, Courts below on appreciation of evidence have found as a finding of fact that respondents acquired a valid title by virtue of the registered sale deed in their favour.