IN THE HIGH COURT OF JUDICATURE AT MADRAS          

Dated: 20/06/2005

Coram

The Honourable Mr. Justice T.V. MASILAMANI  

S.A. No.745 of 1993

1. Sivakozhundu
2. Selvaraj
3. Sakunthala
4. Rajamani
5. Mallika                              .. Appellants

-VS-

1. Saraswathi
2. Sarada
3. Chakkubai (died)
4. S. Rajasekaran                                               .. Respondents
   [R4 is brought on record as L/Rs. Of
    the deceased R3 (vide) order dated 29.12.2004
    in C.M.P.no.20853 of 2004]


        Second Appeal against the judgment and decree dated 26.8.1992 made  in
A.S.No.16  of  1992 on the file of the Additional Subordinate Court, Cuddalore
confirming the judgment and decree dated 10.4.1991 in O.S.  No.769 of 1987  on
the file of the Additional District Munsif, Cuddalore.

!For Appellants :  Mrs.Hema Sampath

^For Respondents :  Mr.T.R.Rajaraman


:JUDGMENT  

        The defendants 2 to 6 in the suit are the appellants.

        2.   The  respondents/plaintiffs filed the suit through their power of
attorney for declaration and recovery of possession of the suit property after
removal of  the  superstructure  and   for   mesne   profits.      Since   the
appellants/defendants  resisted  the suit by filing the written statement, the
trial court having recorded the evidence, heard the arguments  of  both  sides
and decreed the suit as prayed for with costs and also directed the defendants
to pay Rs.300/- per month to the plaintiffs towards mense profits.

        3.   Aggrieved  by  the judgment and decree passed by the trial court,
the defendants filed the appeal before the  Subordinate  Court,  Cuddalore  in
A.S.No.16 of  1992.  The learned Subordinate Judge after perusing the recorded
evidence and upon hearing the arguments of both sides  rendered  a  concurrent
finding by confirming the judgment and
decree passed  by the trial court and dismissed the appeal with costs.  Hence,
the Second Appeal.

        4.  The averments in the plaint filed  by  the  respondents/plaintiffs
are briefly as follows:-

                (a)  The suit property originally belonged to Meenakshi Ammal,
mother of the plaintiffs and she was in possession and enjoyment of  the  suit
property  and  other  properties  in  her own right as absolute owner thereof.
While so, in a  sound  and  disposing  state  of  mind,  she  had  executed  a
registered  will  dated 14.11.1969 bequeathing her properties in favour of her
daughters, the plaintiffs herein.  The said will and testament came into force
after the death of  Meenakshi  Ammal  on  26.1  1.1969  and  since  then,  the
plaintiffs  have  become  absolute  owners  of  the  suit and other properties
bequeathed under the said will.  The plaintiffs executed the power of attorney
deed in favour of the 3rd plaintiff's husband Sivasubramania Chettiar  who  is
in actual management of the properties.

                (b) The suit sale agreement was entered into between the first
defendant and  the  power  of attorney representing the plaintiffs.  The first
defendant executed the agreement for sale on 29.11.1978 in respect of the suit
property whereby, the sale price was fixed at Rs.7,290/-  and  an  advance  of
Rs.1,000/- was  paid  on  that  date.    The first defendant agreed to pay the
balance of Rs.6,290/- within six months and get the sale deed  executed.    He
took  possession  of  the  suit  property on the date of the agreement itself,
i.e., 29.11.1978 and therefore the agreement for sale is true, legal and valid
in law.

                (c) In spite of repeated demands made by the plaintiffs' power
of attorney, the first defendant did not come forward to perform his  part  of
the contract and therefore notice was issued on 28.12.1979 calling upon him to
pay the  balance of sale consideration and get the sale deed executed.  Having
received the same, the first defendant has neither sent any reply nor complied
with the demand made by the plaintiffs.

                (d) The first defendant is liable to pay damages for  use  and
occupation,  as  his  possession  of the suit property has become unlawful and
therefore the plaintiffs reserves their right  to  file  a  separate  suit  in
respect of other reliefs.  The suit property will fetch not less than Rs.400/-
per month  as rental income.  However, the plaintiffs restrict their claim for
past mesne  profits  at  Rs.1,000/-  representing  the  damages  for  use  and
occupation of the suit property.

        5.    Since   the   first  defendant  died  pending  suit,  his  legal
representatives are impleaded as defendants 2 to 6.    The  averments  in  the
written  statement  filed  by  the deceased first defendant and adopted by the
defendants 2 to 6/ appellants herein are briefly as follows:-

                (a) The suit property  is  a  tank  porampoke  and  the  first
defendant entered  into possession of the same in 1940.  He spent considerable
amount reclaiming the land and also built a  house  and  shop  at  a  cost  of
Rs.50,000/- in  the suit property.  He is in open and continuous possession of
the suit property and he is also running a grocery shop in the  suit  property
adjoining the road.

                (b)  The  first  defendant by his open, continuous and hostile
possession for over the statutory period has  prescribed  title  to  the  suit
property by  adverse possession.  The plaintiffs have suppressed the existence
of the  superstructure.    The  suit  without  a  prayer  for   removable   of
superstructure is  not maintainable.  The first defendant is assessed to sales
tax in respect of the said grocery shop in the suit property from 1952 and  he
was  running the said business for about 25 years and his sons are carrying on
the business for the last 10 years.  The suit is bad for  non-joinder  of  the
sons of this defendant.

                (c)  It is denied that the suit property belonged to Meenakshi
Ammal and that she had executed a will in respect of  the  suit  property  and
other properties in favour of the plaintiffs.  This defendant therefore denies
the  truth,  validity  and  due  execution and attestation of the alleged will
executed by Meenakshi Ammal.  

                (d) It is false to say that this defendant wanted to  purchase
the  suit  property from the plaintiffs and that he entered into the agreement
of sale deed dated 29.11.1978.  If there is any such agreement, it  may  be  a
forged document.   There was no necessity at all for this defendant to execute
any agreement of sale, as he is in possession of the suit property in his  own
right.

                (e)  The  plaintiffs  never demanded this defendant to perform
his part of the contract, as he was not put in possession of the  property  in
pursuance of  any agreement of sale.  He has not acknowledged the title of the
plaintiffs to the suit property at any time.  Further he has not received  any
notice from  the  plaintiffs.  This defendant is not liable to pay any damages
for use and occupation.  Hence the suit may be dismissed with costs.

        6.  On the above pleadings, the following issues were  framed  by  the
trial court for disposal of the suit:-

        (1)  Whether  the suit property belonged to Meenakshi Ammal as alleged
in the plaint?
        (2) Whether the last will and testament dated 14.11.1969 is  true  and
valid in law?
        (3) Whether the agreement of sale dated 29.11.1978 is true and valid?
        (4) Whether the plaintiffs are entitled to the suit property?
        (5)  Whether  the  defendants  acquired  title to the suit property by
adverse possession?
        (6)  Whether  the  suit  without  a  prayer   for   removal   of   the
superstructure is not maintainable in law?
        (7) Whether the suit is bad for non-joinder of necessary parties?
        (8)  Whether the plaintiffs are entitled to the relief of declaration,
recovery of possession and mense profits as prayed for?
        (9) To what relief, the plaintiffs are entitled to?

        7.  The plaintiffs who are respondents in this Second Appeal have  let
in  oral  evidence  by examining P.Ws.1 to 5 and produced documents Exs.A-1 to
A-27 in  support  of  their   claim.      But   on   the   other   hand,   the
appellants/defendants  have  not  produced  any  document,  but examined three
witnesses of whom the deceased first defendant deposed as D.W.1.  The  learned
Additional  District  Munsif having anlaysed the oral and documentary evidence
of the plaintiffs and the oral evidence of defendants and  upon  hearing  both
sides rendered the following findings on the above issues:-

"The  suit  property  originally  belonged  to Meenakshi Ammal; the will dated
14.11.1969 is true and valid in law; the agreement for sale  dated  29.11.1978
is  true  and  valid;  the  plaintiffs  are entitled to the suit property; the
defendants  have  not  prescribed  title  to  the  suit  property  by  adverse
possession;  the  suit is maintainable, as the plaint contained the prayer for
recovery of possession of the suit property after removal  of  superstructure;
the  suit is not bad for nonjoinder of the necessary party; the plaintiffs are
entitled to the reliefs of  declaration,  recovery  of  possession  and  mense
profits  at  Rs.300/- per month and therefore the plaintiffs are entitled to a
decree as prayed for with costs."

        8.  In the first appeal  preferred  by  the  defendants,  the  learned
Subordinate Judge framed the following issues for consideration:-

        (1)Whether  the  first defendant executed the agreement for sale dated
29.11.1978 as claimed in the plaint?
        (2)  Whether  the  relief  with  reference   to   the   removable   of
superstructure has to be dealt with separately for the purpose of court-fee?
        (3) Whether the appeal has to be allowed as prayed for?

        9.   After  analysing the recorded evidence and the arguments advanced
on either sides, the learned Subordinate Judge held on the above  issues  that
the  plaintiffs  have proved the execution of the agreement for sale marked as
Ex.A-15, that therefore the first defendant had  in  fact  executed  the  said
agreement  in  favour of the plaintiffs, that since the construction put up by
the first defendant was unauthorised, the suit without a separate  prayer  for
removable of the same is maintainable and payment of court-fee therefor is not
necessary,  and that ultimately the judgment and decree of the trial court are
confirmed and the appeal is dismissed with costs.



        10.   Heard  Mrs.Hema  Sampath,  learned  counsel  appearing  for  the
appellants   and   Mr.T.R.Rajaraman,   learned   counsel   appearing  for  the
respondents.

        11.  The learned counsel for the appellants  has  submitted  that  the
courts  below  failed to see that the plaintiffs failed to prove the agreement
of sale, Ex.A-15, as there was no necessity for the defendant to  execute  the
same.   Similarly,  both  the  courts  ought  to  have rendered a finding that
Ex.A-15 is concocted document, that the defendants were in possession  of  the
suit  property  in their own right and that the plaintiffs had no title to the
same.  Similarly, it should have been held that proper court-fee had not  been
paid  and  that  there  was  no  evidence for arriving at the quantum of mesne
profits.

        12.  In the above circumstances, the following substantial question of
law as well as additional substantial question of law were formulated by  this
court on 30.7.1993 and 29.12.2004:-

        (1)  Whether  the  courts below are right in decreeing the suit on the
basis of Ex.A-21 which has not been proved as required under Section 68 of the
Evidence Act?
        (2) Whether in law, have not the courts below omitted to see that when
the plaintiffs admit  that  possession  was  given  to  the  defendants  under
Ex.A-15,  the  defendants are entitled to protection under Section 53-A of the
Transfer of Property Act?

        13.  The parties to this Second Appeal may be referred to as they were
arrayed in the suit before the trial court for the sake of convenience.    The
plaintiffs  are the daughters of one Meenakshi Ammal and the power of attorney
who filed the suit on behalf of the plaintiffs  is  the  husband  of  the  3rd
plaintiff.   The  plaintiffs instituted the suit through the power of attorney
for declaration of title to the suit property and for recovery  of  possession
of  the same after removable of the superstructure and for mense profits based
on Ex.A-15, agreement dated 29.11.1978  entered  into  between  the  power  of
attorney  of  the  plaintiffs  on  the one hand and the first defendant (since
deceased) on the other.  Since the first defendant denied the execution of the
said agreement of sale, the plaintiffs examined P.Ws.1 to 3 in order to  prove
the execution of Ex.A-15 by the first defendant.  On this aspect of the matter
both  the  courts below have rendered the concurrent finding that the evidence
of P.Ws.1 to 3 has established that the first defendant executed the agreement
of sale under Ex.A-15.

        14.   Though  the  learned  counsel  appearing  for  the   appellants/
defendants  has  argued  that  the  courts below have failed to appreciate the
evidence on record so as to arrive  at  the  right  conclusion  regarding  the
execution  of  the  agreement  for  sale  under Ex.A-15, the evidence of first
defendant as D.W.1 has also been taken into account by both the  courts  below
to  arrive  at  the  finding that the first defendant had in fact executed the
agreement of sale under Ex.A-15.  A perusal of Ex.A-15 in  the  light  of  the
evidence of P.Ws.1 to 3 on the one hand and that of D.W.1, the first defendant
on  the  other  would reveal clearly that except the self serving testimony of
D.W .1 by denying the execution of Ex.A-15, no tangible evidence has been  let
in on the side of the first defendant to accept his defence.

        15.   But,  on  the contrary, the evidence of P.Ws.2 and 3, scribe and
attester respectively would go to show and prove that Ex.A-15 was executed  by
D.W.1,  the  first  defendant  and  attested  by P.W.3 and another witness and
thereafter completed by P.W.2, scribe and it is in  these  circumstances  that
the  learned  counsel  for  the  respondents/  plaintiffs has argued and in my
opinion rightly that the courts below have rendered the finding regarding  the
due  execution of Ex.A-15 agreement for sale having analysed the evidence in a
proper perspective.  Hence, this court is of the considered opinion that  such
concurrent  finding  of  fact  rendered  by  both  the  courts below has to be
sustained.


        16.  Similarly, the learned counsel for the plaintiffs  has  drawn  my
attention to the documents under Exs.A-22 to A-27 and the evidence of P.W.5 to
show  that  in pursuance of the bequest under the will, Ex.A-21 the plaintiffs
became entitled to the suit property in their own right  and  that  they  have
also  acted  upon  such  bequest by alienating some of the items bequeathed in
their favour under Ex.A-21 to P.W.5 and others under the said  documents.    A
careful  perusal  of the evidence of P.W.5 and Exs.A-22 to A-27 would indicate
that the contention of the learned counsel for the plaintiffs in this  respect
is well founded and therefore the finding of the court below on this aspect of
the matter has to be affirmed.

        17.   The  learned counsel for the defendants has submitted that since
the plaintiffs have failed to prove the due execution of  Ex.A-21,  registered
will  dated  14.11.1969,  they  have  not  established  the  title to the suit
property.   In  answer  to  such  contention,  the  learned  counsel  for  the
plaintiffs  has  drawn  the  attention of this court to the concurrent finding
rendered by both the courts below on his aspect of the matter  to  the  effect
that  since  both  the attesters to the will, Ex.A-21 died and inasmuch as the
evidence of P.W.4, the scribe is on record, the execution  of  the  registered
will Ex.A-21  by Meenakshi Ammal has been amply proved.  It is in the evidence
of P.W.4, the scribe of the will that both the attesters are not alive and  in
view  of  such  evidence of P.W.4 coupled with the registration of the will in
accordance with law and production of the  same  by  P.W.1  before  the  trial
court,  the learned counsel for the plaintiffs has contended and in my opinion
rightly that the above circumstance would cumulatively prove the due execution
of Ex.A-21 by Menakshi Ammal.


        18.  Moreover as has been rightly argued by him, this court is of  the
opinion  that since the first defendant has not claimed any rival title to the
suit property through the said Meenakshi Ammal and inasmuch  as  the  evidence
adduced  by  the  plaintiffs has amply proved the due execution of the will by
the said Meenakshi Ammal, this court is of the  considered  opinion  that  the
concurrent  finding  rendered  by  the  courts  below does not suffer from any
illegality or perversity.  It follows necessarily that the submissions made by
the learned counsel for the defendants that the plaintiffs have  no  title  to
the suit property as they have not proved the execution of Ex.A-21, registered
will  is  not  acceptable in view of the evidence adduced by the plaintiffs on
this aspect of the matter.

        19.  The last contention of the learned counsel for the defendants  is
that  on  the  admitted ground of possession of the suit property by the first
defendant, under Section 53-A of  the  Transfer  of  Property  Act,  1882  the
defendants are entitled to retain the possession of the suit property.

        20.   Section  53-A  of  the  Transfer  of  Property  Act  1882 may be
extracted hereunder to appreciate the facts and evidence of the case:-

        "53-A.  Part performance.-- Where any person contracts to transfer for
consideration any immovable property by writing signed by him or on his behalf
from which the terms necessary to constitute the transfer can  be  ascertained
with reasonable certainty,
and  the transferee has, 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 and
has done some act in furtherance of the contract,
and the transferee has performed or is willing to  perform  his  part  of  the
contract, then, notwithstanding that where there is an instrument of transfer,
that  the transfer has not been completed in the manner prescribed therefor by
the law for the time being in force, the transferor  or  any  person  claiming
under  him shall be debarred from enforcing against the transferee and persons
claiming under him  any  right  in  respect  of  the  property  of  which  the
transferee  has taken or continued in possession, other than a right expressly
provided by the terms of the contract:


        Provided that nothing in this section shall affect  the  rights  of  a
transferee  for consideration who has no notice of the contract or of the part
performance thereof."

        21.  The learned counsel for the defendants  reiterated  the  decision
SADASHIV CHANDER  BHAMGARE  v.    EKNATH  PANDHARINATH NANGUDE (2004(4) C.T.C.                
465) in support of the  proposition  that  the  transferee  in  possession  is
entitled  to defend such possession under the provision of Section 53-A of the
said Act.  As has been rightly pointed out by  the  learned  counsel  for  the
plaintiffs,  in  view of the ratio laid down in the decision RAM KUMAR AGARWAL
v.  THAWAR DAS (AIR 1999 S.C.   3248),  the  defendants  who  have  failed  to
perform  their  part  of  the  contact under Ex.A-15 are not entitled to claim
protection of their possession of the suit property under Section 53-A of  the
said Act.

        22.  The ratio laid down in the said decision reads as follows:-

"Plea  under  Section  53-A  of  the  Transfer  of Property Act raises a mixed
question of law and fact and therefore cannot be permitted to be urged for the
first time at the  stage  of  second  appeal.    That  apart,  performance  or
willingness  to  perform  his  part  of  the  contract is one of the essential
ingredients of the plea of part performance.   Thawar  Das  having  failed  in
proving  such  willingness,  protection  to his possession could not have been
claimed by reference to Section 53-A of the Transfer of Property Act."

        23.  In view of the concurrent finding of  the  courts  below  on  the
basis  of  the  recorded  evidence that since the defendants failed to perform
their part of the contract under the agreement  Ex.A-15,  the  plaintiffs  are
entitled to the reliefs as prayed for, this Court finds that the contention of
the learned counsel for the plaintiffs is acceptable on the basis of the above
said decision.    It follows that the defendants are not entitled to raise any
plea under Section 53-A of the Transfer of  Property  Act  in  view  of  their
non-performance on their part of the contract.

        24.   On this aspect, the learned counsel for the plaintiffs has drawn
my attention to the decision ROOP SINGH v.  RAM SINGH (2000 (3) S.C.  C.  708)
in support of his contention that the plea of adverse possession adumbrated by
the first defendant in the written statement is inconsistent with the plea  of
right to possession on the basis of the part performance under Section 53-A of
the Transfer  of  Property  Act,  188  2.   It is no doubt true that the first
defendant has pleaded specifically  in  his  written  statement  that  he  has
perfected  title  to  the  suit  property  by  adverse possession by the open,
continuous and hostile possession of the same from 1940.  As has been found by
both the courts below on the basis of the evidence adduced on the side of  the
defendants, no document has been produced by the defendants to prove such plea
of adverse  possession.    As a matter of fact, it is seen from the records of
the case that apart from the evidence of the first defendant as D.W.1 and  two
other  witnesses  as  D.Ws.2  and  3,  no  document  had  been produced by the
defendants before  the  trial  court  to  establish  their  claim  of  adverse
possession  of  the suit property as pleaded in the written statement filed by
the first defendant.

        25.  In view of such circumstances, the claim  of  the  defendants  in
this Second Appeal that they are entitled to the protection under Section 53-A
of  the  Transfer  of Property Act cannot be countenanced in view of the ratio
laid down by the Apex Court in the decision referred supra and the same  reads
as follows:-

"It  is  also  to be stated that the pleas of adverse possession and retaining
the possession by operation of Section 53-A of the Transfer  of  Property  Act
are inconsistent with each other.  Once it is admitted by implication that the
plaintiff  came  into  possession of the land lawfully under the agreement and
continued to remain in possession till the date  of  the  suit,  the  plea  of
adverse  possession would not be available to the defendant unless it has been
asserted and pointed out hostile animus of retaining possession  as  an  owner
after getting in possession of the land."

        26.   Having  regard to the facts and circumstances of the case in the
light of the principle of law laid down in  the  decision  cited  above,  this
Court is of the considered view that the plea of adverse possession as well as
the  contention  that by operation of Section 53-A of the Transfer of Property
Act, the defendants are entitled to retain possession of the suit property are
mutually inconsistent and therefore on this aspect of the matter, I am  unable
to accept  the submission made by the learned counsel for the defendants.  For
the reasons stated above, this Court finds that  the  concurrent  findings  of
both  the  courts  below  that  the  plaintiffs  have proved title to the suit
property, that the first defendant executed the agreement of sale  Ex.A-15  in
favour  of  the plaintiffs and that the defendants have not perfected title to
the suit property by adverse possession are sustained.

        27.  Similarly, in respect of the question of law now raised  in  this
Second Appeal that the defendants are entitled to retain the possession of the
suit  property  by  operation  of Section 53-A of the Transfer of Property Act
1882, this Court finds that such an argument is not acceptable in view of  the
above finding.   For the reasons stated above, this Court is of the considered
view that the Second Appeal deserves no merit and is liable to be dismissed.

        28.  Thus, the Second Appeal is dismissed with costs by confirming the
judgment and decree passed by the Additional Subordinate Judge,  Cuddalore  in
A.S.No.16 of 1992 dated 26.8.1992.


Index:  Yes
Website:  Yes

dpp


To
1.  The Additional Subordinate Court, Cuddalore.
2.  The Additional District Munsif, Cuddalore.
3.  The Section Officer, V.R.Section, High Court, Madras.