RAMACHANDRA SWAIN Vs. DURYODHAN MOHAPATRA

JUDGEMENT

(1.) Defendant No. 3 in the suit has filed this second appeal against the judgment and decree of the lower appellate Court reversing the decision of the trial Court and decreeing the suit for specific performance of contract of sale of the suit land. The suit land, as described in the schedule to the plaint is : 'District Cuttack, S. R. Tirtol, Touzi No. 2484 Mouza -Raypur patna, Sthitiban Khata No. 134/13 (sabak) plot No. 20, A. O. 21 dec. and plot No. 21, A. O. 20 dec. total A. 0. 41 dec. out of A. 1. 18 dec. towards east, bounded by - N. Bira Sethi and Babaji Sethi, S. River, E. Dhaneswar Behera, W. Keshab Rout.'

(2.) PLAINTIFF -respondent No. 1 Duryodhan Mohapatra filed title Suit No. 68 of 1979 against Gopinath Satapathy (since deceased and substituted by defendants 1,1 /a and 1/b). Laxmidhar Satapathy and Ramachandra Swain, respondents 1, 2 and 3 respectively, with the prayers that defendants 1 and 2 be directed for executing and registering the sale deed with respect to the suit land in favour of the plaintiff after receipt of the balance consideration of Rs. 500/ - within a lime fixed by the Court, otherwise the sale deed may be executed by the Court after depositing the balance consideration of Rs. 500/ -; and that defendant No. 3, his men and agents be permanently restrained from interfering with the peaceful possession of the plaintiff and from coming upon the suit land. After stating facts and findings of trial Court his Lordship found.: 7. On appeal being filed by the plaintiff (Title Appeal No. 20 of 1983), the learned Subordinate Judge. Jugatsinghpur set aside the decision of the learned Munsif, decreed the suit and directed defendants 1 and 2 to execute and register a sale deed in favour of the plaintiff on accepting the balance consideration money of Rs. 500/ -within two months. As the discussion in the judgment (paragraph 5) shows, the only questions raised for determination in the appeal were whether the plaintiff has discharged his initial onus under Section 53A of the Transfer of Property Act, and whether defendant No. 3 has proved his case of being a bona fide purchaser for value without notice. The lower appellate Court believed the case of the plaintiff that he was in possession of the suit land prior to the agreement as a Bhag tenant and after the agreement as the owner. He did not believe the evidence of defendant No. 2, who was examined as DW 3. Relying on the statement of this witness that five to six days after the suit he for the first time identified the suit land to defendant No. 3, the Court below disbelieved the plea of defendant No. 3 that he was in possession of the suit land. The Court below rejected the plea taken by defendant No. 3 that he was a bona fide purchaser for value without notice. On these findings, the learned Subordinate Judge decreed the suit on setting aside the decision of the learned Munsif. Therefore, defendant No. 3 has filed this second appeal challenging the decision of the lower appellate Court. 8. Shri B. Routray appearing for the appellant contended that the plaintiff cannot avail of Section 53A of the Transfer of Property Act in a suit for specific performance of contract of sale, and the requirement of the said section is not satisfied in the case since there is neither any pleading nor any evidence to show that the plaintiff had done anything in furtherance of the contract. He submitted that even accepting the finding of possession in favour of the plaintiff recorded by the lower appellate Court, mere continuance of possession cannot be said to be an act in furtherance of the contract of sale. He cited several decisions in support of his contention. I may notice a few of them here. The Allahabad High Court in the case of Kashi Nath Tewari and Anr. v. Makchhed Tewari and Ors. (AIR 1939 All. 504) held that Section 53A of the Transfer of Propery Act can be used only as a shield and not as a sword and it is not possible for a person who is entitled to the benefits of that Section to bring a suit as plaintiff for the purpose of enforcing his right under that section. The Court placed reliance on the decision of the Privy Council in Currimbhoy & Co. Ltd. v. Creet (AIR 1933 PC 29). In the case of Prabodh Kumar Das and Ors. v. Dantmara Tea Co. Ltd. and Ors.(AIR 1940 PC 1). it was observed : 'The amendment of the law effected by the enactment of Section 53A conferred no right of action on a transferee in possession under an unregistered contract of sale. The right conferred by Section 53A is a right available only to the defendant to protect his possession. The Section is so framed as to impose a statutory bar on the transferor; it confers no active title on the transferee.' Relying on the above decision of the Privy Council, the Supreme Court in the case of Delhi Motor Co. and Ors. v. U. A. Basrurkar (dead) by his legal representatives and Ors. : (AIR 1968 SC 794) took the view that Section 53A of the Transfer of Property Act is only available as a defence to a lessee and not as conferring a right on the basis of which the lessee can claim rights against the lessor. The Calcutta High Court also followed the said decision of the Privy Council in the case of Sm. Parul Bala Ghosh v. Saroj Kumar Goswami and Ors. (AIR 1948 Cal. 147) and held that the right conferred by Section 53A is a right available only to the defendant to protect his possession. It confers no active title on the transferee. Thus a transferee in possession under a contract of safe cannot avail himself of the provisions of Section 53A in a suit by him for specific performance of the contract. A similar view was also taken by the Patna High Court in the case of Garaj Narain Singh v. Babulal Khemka (AIR 1975 Pat. 58). 9. Coming to the contention raised by Shri Routray that the lower appellate Court also erred in law in holding that the criteria for application of Section 53A of the Transfer of Property Act have been satisfied by the plaintiff merely on the ground that his possession has been found prior to the agreement (Ext. 3) and subsequent to it, it will be helpful to notice the decision of the Supreme Court in the case of Sardar Govindrao Mahadik and Anr. v. Devi Saha and Ors. (AIR 1 982 SC 989), in which the Court ruled : 'To qualify for the protection of the doctrine of part -performance it must be shown that there is a contract to transfer for consideration immovable property and the contract is evidenced by a writing signed by the person sought to be bound by it and from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty. These are pre -requisites to invoke the equitable doctrine of part -performance. After establishing the aforementioned circumstances it must be further shown that a transferee had in part performance of the corract either taken possession of the property or any part thereof or the transferee being already in possession continues in possession in part -performance of the contract and has done some act in furtherance of the contract. There must be a real nexus between the contract and the acts done in pursuance of the contract or in furtherance of the contract and must be unequivocally rferable to the contact.' Dealing with case of continuanace of possession, the Court observed : 'There is an understandable and noteworthy difference in the probative value of entering into possession for the first time and continuing in possession with a claim of change in character. Where person claiming benefit of part performance of a contract was already in possession prior to the contract, the Court would expect something independent of the mere retention of possession to evidence part performance. Therefore, mere retention of possession, quite legal and valid, if mortgage with possession is not discharged, could hardly be said to be an act in part performance unequivocally referable to the contract of sale.' The Court further observed : 'Where, therefore, the mortgagee has failed to prove that he did any act in furtherance of the contract, continued retention of possession being a circumstance of neutral character in the facts and circumstances of the case and it being further established that the mortgagee was not willing to perform his part of the contract, it is dear that the mortgagee is not entitled to the benefit of the equitable doctrine of part performance.' 10. From the conspectus of the views taken in the aforementioned decided cases, the position of law is manifest that Section 53A of the Transfer of Property Act is not available to the plaintiff in a suit for specific performance of contract. Further, in order to avail of the benefit of the said statutory provision, the party concerned has to establish that he has done something in furtherance of the contract and is always ready and willing to perform his part of the contract. In a case where the plea taken is one of continuing in possession with a change of character of possession, the party cannot succeed by establishing mere continuance of possession of the property and he has to establish some other action taken in furtherance of the contract. Applying the aforesaid principle to the case in hand, the suit is bound to be dismissed. The lower appellate Court committed an error of law in applying the provision of Section 53A of the Transfer of Property Act in favour of the plaintiff. He also committed an error of law in applying the said section in support of the plaintiff's case on the mere finding that he continued in possession after execution of the agreement for sale (Ext.3), without recording any finding that the plaintiff has succeeded in establishing any independent act to show that he had done something in furtherance of the contract of sale. The decision of the Supreme Court in the case of Ram Bilas Ojha and Ors. v. Bishwa Muni and Ors. (AIR 1978 SC 1094) on which the lower appellate Court has placed reliance, is clearly distinguishable. That is not a decision on Section 53A of the Transfer of Property Act. There, the Court considered Section 10 of the Specific Relief Act, 1963 in relation to the plea of bona fide purchase without notice. The Court observed that in view of the false plea taken by the subsequent purchasers that they were in possession, it could not be said that they were bona fide purchasers without notice. Indeed, the Court has observed: 'This defence would have had some substance if it was taken in the pleadings and spoken to in the evidence. His plea on the other hand was that the respondents 1 to 3 were not in possession. The usufructuary mortgage was not referred to in the sale deed in favour of the appellant. On the facts, therefore, we have no hesitation in coming to the conclusion that all the Courts below were right in holding that the appellants were not bona fide purchasers without notice.' 11. In the present case, as discussed earlier, the moot question is whether the plaintiff can claim the equitable relief of specific performance of contract of sale relying on Section 53A of the Transfer of Property Act. As I have already held that question, in the facts and circumstances of the case, is to be answered in that negative. Therefore, it is not necessary to consider the further question whether defendant No. 3 was a bona fide purchaser for value without notice of the prior sale. I may observe here that even on this question, the finding of the, lower appellate Court is not satisfactory. He has not come into close quarters with the reasons stated in the judgment of the trial Court. The trial Court has discussed the evidence, on record in great detail and has given cogent reasons for accepting the plea of the purchaser -defendant No. 3. However, it is not necessary for the purpose of disposal of this appeal to discuss that question in detail. 12. In the result, the second appeal is allowed. The judgment and decree passed by the lower appellate Court are set aside and those of the trial Court are confirmed. Parties will bear their respective cost of this Court.