HUKMA Vs. MANGA

JUDGEMENT

(1.) Plaintiffs have filed this second appeal against the decree dated 26-7-1980 passed by the Additional District Judge, Jind whereby the appeal filed by the defendants was allowed and the judgment and decree dated 18-8-1979 passed by the trial Court set aside. Facts giving rise to this appeal lie in a narrow compass and they are as under : The appellants filed a suit for possession claiming to have become owners of the land in dispute through a decree in a pre-emption suit. The land had been mutated in their favour as per mutation No. 564 dated 27-9-1997. They alleged that the defendants had taken forcible possession of the land on 1-10-1977 and, therefore, they prayed for a decree for possession. In the written statement filed by the defendants-respondents, the averments made in the plaint were controverted. The defendants pleaded that the plaintiffs had entered into an agreement to sell the land to them for a sum of Rs. 13,000.00 and executed an agreement to sell dated 18-4-1970 and 10-8-1970 and that on part payment of Rs. 7100.00 as the sale price the defendants were put in possession. It was also pleaded that the plaintiffs did not execute the sale deed because they failed to obtain permission of the Court to sell the share of the minors. Pleadings of the parties gave rise to the following issues : 1. Whether the plaintiffs are owners of the land in dispute? OPP 2. Whether plaintiffs are estopped by their own act and conduct? OPD 3. Whether the suit is not maintainable in the present form? OPD 4. Whether the suit has not been properly valued for the purposes of court-fee and jurisdiction? OPD 5. Whether the plaintiffs entered into an agreement to sell the land in dispute to the defendants and delivered the possession of the same on receipt of Rs. 7100.00? If is, its effect? OPD 6. Relief.

(2.) The trial Court decided issue No. 1 in favour of the plaintiffs and held that they were owners of the land in dispute. Issues No. 2 and 3 were decided against the defendants and issue No. 5 was decided in favour of the defendants. On issue No. 4 it was held that the correct court-fee payable was Rs. 16.00 whereas the plaintiffs had paid only a sum of Rs. 6.00. According to the trial Court there was a deficiency of Rs. 10.00 and the plaintiffs were given time to make good the deficiency within a week, failing which, the suit would stand dismissed. In view of these findings the suit of the plaintiffs was decreed on 18-8-1979. The plaintiffs did not make up the deficiency in the Court-fee within the time prescribed by the trial Court. They filed an application for extension of time under Section 149 read with Section 148 of the Code of Civil Procedure (for short the Code). It was pleaded by them that at the time of the pronouncement of the judgment they were not told that the deficiency had to be made up and that it was only on receipt of a certified copy of the judgment and decree that they came to know that there was a deficiency in the payment of court-fee and that they were required to make up the same. It was pleaded that by the time the certified copies were made available, the time granted by the Court for making up the deficiency had already expired. The application was opposed by the defendants-respondents who pleaded that since the deficiency was not made good within the prescribed time, the suit stood dismissed and, therefore, the Court could not extent the time. On a consideration of the submissions made by the parties, the trial Court came to the conclusion that the request made by the applicants was genuine and, therefore, while exercising the powers under Section 148 of the Code the time was extended and the prayer made in the application allowed by order dated 24-12-1979. Feeling aggrieved by the judgment and decree dated 18-8-1979 and also by the order dated 14-12-1979 granting extension in time to deposit the deficient court-fee, the defendants preferred an appeal in the Court of Additional District Judge, Jind. The lower Appellate Court affirmed the findings of the trial Court on issues No. 1 and 5 and it was held that the plaintiffs were the owners of the land in dispute and that the defendants had been put in possession thereof under the agreement to sell. Findings on issues Nos. 2 and 3 were reversed and it was held that since the plaintiffs failed to take permission to sell the share of the minors they were estopped from bringing the suit and that the same was not maintainable. The lower Appellate Court also found that the trial Court was not right in allowing extension of time to the plaintiffs to make up the deficiency in Court fee. In view of these findings the appeal was allowed and the judgment and decree of the trial Court set aside. Hence this appeal.

(3.) I have heard counsel for the parties and perused the judgments of the Courts below. Both the Courts have recorded a concurrent finding that the plaintiffs are the owners of the land in dispute and that the defendants had been put in possession thereof in pursuance to the agreement to sell dated 18-4-1970. These findings have not been challenged before me. What was contended by the learned counsel for the plaintiffs-appellants is that since the sale had not been completed and the plaintiffs have been found to be the owners of the land in dispute they are entitled to a decree for possession. It was also urged that the plea of part performance was not available to the defendants as a defence in the circumstances of the present case. I find merit in these contentions. Plaintiffs are the owners of the land in dispute and they have not executed any sale deed in favour of the defendants. They have claimed possession on the basis of their title and the defendants could defeat that claim only if they establish their defence of part performance under Section 53-A of the Transfer of Property Act. The fact that the plaintiffs failed to seek permission of the Court to sell the land of the minors is of no consequence. The defendants could succeed in their defence of part performance only if the following conditions were satisfied : (1) that the transferor had contracted to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer could be ascertained with reasonable certainty. (2) that the transferee had in part performance of the contract, 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; (3) that the transferee had done some act in furtherance of the contract; and (4) that the transferee had performed or was willing to perform his part of the contract.