IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN WEDNESDAY, THE 27TH DAY OF NOVEMBER 2013/6TH AGRAHAYANA, 1935 RSA.No. 824 of 2003 (F) AGAINST THE JUDGMENT IN AS 15/1996 of SUB COURT, MANJERI AGAINST THE JUDGMENT IN OS 740/1986 of MUNSIFF COURT, MANJERI APPELLANT(S)/APPELLANTS/PLAINTIFFS 1. K.J.ANTONEY,S/O.KOLATHIKAL JOSEPH AGED 49 YEARS, RESIDING AT KUPPATHODU AMSOM DESOM SULTHAN BATHERI TALUK. 2. THRESSIA,D/O.ABRAHAM, AGED 45 YEARS RESIDING AT KUPPATHODU AMSOM DESOM SULTHAN BATHERI TALUK. BY ADVS.SRI.ALEX.M.SCARIA SRI.K.G.BALASUBRAMANIAN RESPONDENT(S)/RESPONDENT/DEFENDANT: K.M.JOSEPH,A/O.KADUKKAMTHODIYIL MATHAI, AGED 67 YEARS, CHERUR AMSOM DESOM, TIRUR TALUK MALAPPURAM DISTRICT. BY ADV. SRI.P.R.VENKETESH THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 27-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CR N.K.BALAKRISHNAN, J. R.S.A. No. 824 of 2003 Dated: 27-11-2013 JUDGMENT
Plaintiffs are the appellants. The suit was for recovery of possession on the strength of their title. Item no.1 of the plaint schedule property belonged to the 1st plaintiff and item no.2 belonged to the 2nd plaintiff. It was contended that the defendant trespassed into the plaint schedule property on 20.11.1986 and hence the suit.
2. The defendant denied the trespass alleged and contended that an agreement was entered into between the 1st plaintiff and the defendant as per which the 1st plaintiff agreed to assign 6.50 acres, being the northern portion of the plaint schedule property. On 24-12-1984 as per an oral agreement, a sum of Rs.35,900/- was paid by the defendant to the Ist plaintiff as advance consideration. The balance consideration payable was Rs.1,150/-. It was agreed that on payment of the aforesaid balance consideration, the plaintiffs will execute the sale deed in respect of the said property in favour of the defendant. Pursuant to the said agreement the defendant was put in possession of the said property and he is residing in the house situated in the said property. On 22.8.1986 the 1st plaintiff agreed to execute the document and thus an agreement was prepared. That original agreement dated 22.8.1986 was lost from K.J. Philip, who was one of the Mediators, who was in custody of that agreement. Draft agreement was given possession to the defendant. Again another mediation took place. Pursuant thereto an agreement was reduced in writing. The defendant contended that since possession was handed over pursuant to the agreement for sale, he is entitled to get protection under section 53A of the Transfer of Property Act, 1882 ("T.P.Act" for short).
3. The 1st plaintiff was examined as PW1 and Exhibits A1 to A3 were marked. DWs 1 to 3 were examined on the side of the defendant and Exhibits B1 to B7 were marked. The Commissioner's report and plan were marked as Exhibits C1 and C2.
4. With regard to item no.2, which belonged to the 2nd plaintiff, the defendant had no case that any agreement was executed by the 2nd plaintiff and as such the defendant is not entitled to get any relief in respect of plaint item no.2 measuring 3.82 acres in Re-Survey No.105. That is not in dispute now. But in respect of item No. 1, claim made by the defendant was accepted by the courts below.
5. The plaintiffs/appellants contend that the courts below went wrong in holding that the defendant is entitled to the protection under section 53A of T.P. Act and in negativing the claim for recovery of possession of plaint item no.1. Though it was contended by the plaintiffs that there was a tenancy arrangement between the plaintiffs and the defendant regarding the house situated in the property, that was found against by the courts below. After analysing the entire evidence the courts below found that the defendant is entitled to protection under section 53A of T.P.Act in respect of plaint item no.1 and thus the suit with regard to plaint item no.1 was dismissed.
6. The learned counsel for the plaintiffs/appellants submits that the courts below should have found that the claim originally laid by the respondent was based on an oral agreement and so the respondent is not entitled to the benefit of section 53A of T.P. Act. No reliance should have been placed on Exhibits B3 and B4; Ext.B3 is an agreement on a plain paper and Ext.B4 is only a draft agreement and so, without production of the original of Ext.B4, the courts below went wrong in holding that there was a written agreement and that possession of item no.1 was given pursuant to that agreement, submits the learned counsel for the appellants. Mr. K.J. Philip, from whose custody the original of Ext.B4 was stated to have been lost, was not examined by the defendant and so the case set up by the defendant that the original was lost should not have been believed by the courts below, the appellants contend.
7. The learned counsel for the respondents would submit that the courts below had a thread bare analysis of the entire pleadings and evidence adduced by the parties and since there is a concurrent finding that there was a written agreement and the entire consideration in respect of plaint item No. 1 was paid by the defendant to the plaintiff, that finding cannot be assailed at all.
8. Following are the questions of law formulated by this Court:
i. Whether the courts below were justified in relying on Ext.B1 without proof of loss of the original?
ii. Whether the courts below were justified in granting benefit to the respondent under section 53A of Transfer of Property Act when the case is that the agreement for sale was oral and the subsequent written agreement was not produced?
9. The suit was filed by the plaintiffs projecting a case that the defendant was permitted to reside in the house and that he is in possession of the house situated in the plaint schedule property based on that permission. Since the defendant did not surrender the house, the suit for recovery of possession was filed. Originally the suit was for injunction. Subsequently it was amended seeking recovery of possession. The case of the defendant is that the total extent of property agreed to be sold was 6 acres and 50 cents. Exts. B3 and B4 are the two documents pressed into service by the defendant to prove the agreement set up by him. It was contended that originally there was an oral agreement and subsequently in the presence of the mediation an agreement was entered into. The courts below found that as per the oral agreement itself the property was put in possession of the defendant. Subsequently, since Exts. B3 and B4 agreements were proved to have been executed by the plaintiff the courts below found that the defendant is entitled to the protection under Section 53A of the T.P.Act. Since a specific case was put forward in the written statement regarding the execution of Ext. B3 agreement, the plaintiff should have filed a replication or a rejoinder denying the plea so raised by the defendant in the written statement since that was a new plea. But unwittingly or not no rejoinder was filed by the plaintiff denying the averments in the written statement that there was an agreement to sell the suit property measuring 5 acres and 70 cents. Therefore, the learned counsel for the respondent would submit that on that score alone the contentions raised by the plaintiffs cannot be sustained.
10. Be that as it may, the defendant has relied upon the evidence given by DW2 and DW3 in support of the evidence given by the defendant as DW1. The definite case of DW3 is that Ext. B3 was written by the plaintiff himself and it was signed by the plaintiff in his presence. That could not be effectively controverted by the plaintiff. When P.W.1 was in the witness box and Ext. P3 was confronted to him he did not specifically deny the fact that it was in his handwriting nor did he say it was not signed by him. A vague plea was raised by the plaintiff to the effect that the agreement was entered into at the behest of the police from the police station.
11. With regard to the same also there is no pleading. Not only that the evidence given by DW3 who is a witness to Ext. B3 could not be challenged by the plaintiff. It was contended by the defendant that a total extent of 6 acres and 50 cents was agreed to be sold at the rate of Rs. 5,700/- per acre and if so the total consideration payable would come to Rs. 37,050/-. It may be remembered that the agreement was entered into the year 1984. It is argued by the learned counsel for the respondent that considering the then prevailing rate it cannot be said that the amount fixed as consideration was too low or inadequate. It is not the case of the plaintiff that the agreement is vitiated because the consideration shown therein is too low or unconscionable.
12. Ext. B4 is the draft agreement allegedly prepared on 22-08-1986. According to DW3, Ext. B4 was also written by P.W.1. When Ext. B4 was confronted to P.W.1, he could not deny the suggestion that it was in his handwriting. Therefore, that also would scuttle the plea raised by the plaintiff that Ext. B3 and B4 are not true or valid documents. As stated earlier, the attempt made by the plaintiff was to say that these documents were brought by duress or coercion. But except the unfounded allegation so made by P.W.1, there is nothing on record to show that there was any such threat, coercion or duress. It is proved that these two documents were in the handwriting of the plaintiff himself . Those documents were signed by the plaintiff. The evidence given by P.W.3, one of the attesting witnesses, could not be effectively controverted. That evidence which fully supports the evidence of P.W.1 has to be accepted as true. The courts below have thus found that the agreement set up by the defendant is true. I find no reason to upset that concurrent finding.
13. It is vehemently argued by the learned counsel for the appellant that since the case of the defendant is that he was put in possession of the property as per an oral agreement the defendant is not entitled to get the protection under Sec. 53A of the T.P. Act. It is pertinent to note that though earlier there was an oral agreement, subsequently, a written agreement, Ext. B3 was entered into. Therefore, it is clear that even if the defendant was not put in possession of the property as per Ext. B3, it is a case where the defendant was already in possession of the property and his possession continued in part performance of the contract. Therefore, it is a case where the transferor had contracted to sell the property for consideration and that contract was reduced to writing and was signed by the vendor-first plaintiff who agreed to sell the property. The terms of the contract are well narrated in Ext. B3 document. Ext. B12 which is the draft contains those recitals. There is evidence to show that in part performance of the contract, the defendant took possession of the property and he continued to be in possession of the property.
14. Section 53A of the Transfer of Property Act, 1882 reads:
" 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"
15. The consideration for the extent of 5 acres 70 cents at the rate of Rs. 5,700 would come to Rs. 32,490/-. The evidence would show that the total consideration paid by the defendant to the plaintiff as evidenced by the agreement is Rs. 35,900/- which is much more than the amount payable for an extent of 5 acres 70 cents at the rate of Rs. 5700/-. Therefore, there remained nothing to be paid by the defendant to the plaintiff. If so, it can be found that the defendant had performed his part of the contract and was always ready and willing to perform his part of the contract.
16. There is also evidence show that he had preferred several complaints for getting the document executed in his favour. It is true that he did not file a suit for specific performance. But that does not preclude the defendant from claiming the benefit under Sec. 53A of the T.P.Act if he is able to prove that he could satisfy all the four ingredients required to be proved under Sec. 53A of the T.P.Act.
17. The courts below found that the defendant could prove or satisfy all the ingredients contained in Sec. 53A of the T.P. Act and as such the contention to the contrary advanced by the learned counsel for the appellants/plaintiffs cannot be sustained. The contention that there was only an oral agreement and that the alleged handing over of possession was as per an oral agreement and so the defendant is not entitled to get protection under Sec. 53-A cannot be sustained in view of Exts. B3 and B4 documents which would clearly show that the possession handed over by the plaintiff to the defendant continued in part performance of the contract.
18. The case set up by the plaintiff was that the defendant was only a tenant of the house situated in the plaint schedule property. That could not be substantiated. On the other hand the evidence would clearly show that the defendant was put in possession of the property pursuant to the agreement for sale and in part performance of the contract. It was admitted by P.W.1 also that from 1986 onwards the defendant has been in possession of the plaint schedule property. Though according to him the defendant was in possession only as a trespasser. That was belied by Exts. B3, B4 and other documents. Ext. B2 the original tax receipt was given to the defendant by the plaintiff when the defendant was put in possession of the property on the basis of the agreement for sale. Therefore, that fact also fortifies the case of the defendant.
19. Even though a suit for specific performance at the instance of the defendant was barred by limitation that does not preclude the defendant from putting forth a plea of protection under Sec. 53A of the T.P. Act provided he is able to satisfy all the ingredients which are required to be proved under Sec. 53A of the T.P.Act. The courts below concurrently found that the defendant could prove that he has proved all the ingredients to satisfy the same and so it was held that the defendant is entitled to the protection under Sec. 53A of the T.P.Act.
20. Since the case of the defendant was that the original of Ext. B4 was lost and the contention that without proof of the original, Ext. B4 could not have been relied upon by the court below also is unsustainable since secondary evidence with regard to the same could be adduced by the defendant and it was accepted by the courts below. When Ext. B4 was confronted to the plaintiff he did not deny the fact that it was in his handwriting nor did he say that it was not signed by him. Therefore, the contention that Ext. B4 could not have been relied upon by the courts below without the proof or loss of the original is also unsustainable . Unless there is something else to discredit that version that evidence has to be accepted as true especially when the draft of the document (Ext. B4) could be produced and evidence regarding the same could be had by the defendant. It has already been found that it was not based on an oral agreement that the defendant has put forward a plea under Sec. 53A of the T.P.Act based on a written agreement which was proved to be in the handwriting of the plaintiff himself. Therefore, the second question raised by the appellant also is found untenable.
21. The learned counsel for the appellant has relied upon the decision of the Division Bench of this Court in Thampy T.V. v. Varkey Emmanuel - ILR 2005 (3) Kerala 763 in support of his submission that secondary evidence is admissible only when the original is shown or appears to be in possession of the defendant or any person out of reach of or not subject to the process of the Court. But, so far as the case on hand is concerned, the specific case put forward by the defendant is that the original of Ext. B4 was lost; the draft (Ext. B4) was produced and it was proved to be in the handwriting of the plaintiff. That fact could not be denied by the plaintiff also. Therefore, the decision cited supra has no application to the facts of this case.
22. Learned counsel for the plaintiff/appellant has relied upon the decision of the Karnataka High Court in Shivayya v. Praveena & Anr. - AIR 2008 Karnataka 157 in support of his submission that if there was delay in enforcing the contract benefit of Sec. 53A is not available and in such a case the transferee who has obtained possession of property in part performance of the contract cannot resist suit for possession if his right to obtain specific performance is barred by limitation. The decision of the Hon'ble Supreme Court in Sardar Govindarao Mashadik and Another v. Devi Sahai and Others - AIR 1982 SC 989 has also been relied upon by the learned counsel for the appellant. In that case it was held that there was 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. It was held that 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 and so, 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.
23. Sec. 53A requires that the person claiming the benefit of part performance must always be shown to be ready and willing to perform his part of the contract. The learned counsel for the respondent would submit that so far as the case on hand is concerned, there was nothing to be performed by the defendant since the entire consideration was already paid by the defendant to the plaintiff and the contract was reduced to writing and was signed by the plaintiff. There is nothing on record to show that the defendant was at fault in getting the document executed and registered. On the other hand, the defendant had made several complaints and demand to get the document executed and registered. That evidence also could not be effectively controverted by the plaintiffs. Therefore, the aforesaid decision also does not in any way, help the plaintiff.
24. The decision of the Hon'ble Supreme Court in Manklal Mansukhbhai v. Hormusji Jamshedji Ginwalla & Sons - AIR 1950 SC 1 has also been referred to here. The applicability of Sec. 53A of the T.P. Act was considered in that case. There it was held by the High Court that the correspondence summarised in Ext. 181 (document marked therein) could not be treated as evidence of the contract and that its terms could not be reasonably deduced from that document. It was held by the Apex court that Ext. 181 was merely secondary evidence of the agreement of lease but it was held that it is a very reliable piece of secondary evidence coming as it does from government records and that it furnishes proof of the fact that there was an acceptance in writing under which the contract to transfer the survey numbers in suit by way of lease was effected. Here also, though the original as such was not produced, Ext. B4, the draft agreement could be proved through DW3. The reliability of Ext. B4 could not be controverted by the plaintiff.
25. It is argued by the learned counsel for the appellants that if it is a case where physical and actual possession had already been with the person claiming benefit of the doctrine of part performance, its continued retention by itself without anything more would not be indicative of an act unequivocally referable to the part performance of the contract. It is submitted that going by the plea raised by the defendant, it can be seen that the defendant was put in possession of the property on the basis of an oral agreement. The evidence is clear, cogent and convincing that a written agreement was entered into between the vendor and vendee, the vendee was put in possession or was allowed to continue in possession of the property, and as such the first part of Sec. 53A could be well established. The other aspect to be considered is whether the vendee was always ready and willing to perform his part of the contract. Since the entire consideration had already been paid it would be unreasonable to hold that there was unwillingness on the part of the vendee to get the sale deed executed and registered. Hence, it cannot be said that the vendee was not ready and willing to perform his part of the contract. The decision of the Supreme Court in Mohan Lal v. Mira Abdul Gaffar - AIR 1996 SC 910 has no application to the facts of this case, since in that case it was the admitted fact that suit for specific performance filed by the vendee had been dismissed and became final and so the question raised in the aforesaid case was whether he is entitled to retain possession under the agreement. Once he lost his right under the agreement by the dismissal of the suit, it would be inconsistent and incompatible with his right to remain in possession under the agreement. That is not the position here. In the decision cited supra it was held that Sec. 53A can be used only as a shield but not as a sword. It was stated that if the transferee had performed or is willing to perform his part of the contract he would be entitled to retain possession and to continue in possession which he has already received from the transferor so long as he is willing to perform his part of the contract. Since in that case, the agreement had met with dismissal of the suit his willingness to perform his part of the contract did not arise.
26. If the six conditions enumerated in Sec. 53A are complied with, the law of limitation cannot come in the way of the defendant taking a plea under Sec. 53 A of the T.P.Act to protect his possession of the suit property even though a suit for specific performance of a contract was barred by limitation. Law of limitation is not applicable to a plea taken in defence unless a provision is expressly made in the statute. It is also trite law that law of limitation applies to the suits and applications and not to a defence taken by a defendant in a suit . It was held by the Madras High Court in M.K. Venkatachari and Others v. I.A.R. Arunachalam Pillai and Ors. - AIR 1967 Madras 410 :-
"that defence to limitation is a creature of a positive law and, therefore, cannot be extended to cases which do not strictly fall within the enactment. It is an established cannon of construction of law of limitation not to enlarge the scope of statutory provisions of limitation by analogy or logic".
The view so taken by the Madras High Court was followed by the Hon'ble Supreme Court in Shrimant Shamrao Suryavanshi and Another v. Pralhad Bhairoba Suryavanshi and Others - 2002 KHC 1215, It was held:
"We are, therefore, of the opinion that if the conditions enumerated above are complied with the law of limitation does not come in the way of a defendant taking plea under S. 53-A of the Act to protect his possession of the suit property even though a suit for specific performance of a contract has barred by limitation".
It was also held:
"The law of limitation applies to the suits and applications. The various articles of the Limitation Act show that they do not apply to a defence taken by a defendant in a suit. Thus the law of limitation bars only an action in a Court of law. In fact, what the Limitation Act does is, to take away the remedy of a plaintiff to enforce his rights by bringing an action in a court of law, but it does not place any restriction to a defendant to put forward any defence tough such defence as a claim made by him may be barred by limitation and cannot be enforced in a court of law. On the said principle, a defendant in a suit can put forward any defence though such defence may not be enforceable in a court of law, being barred by limitation".
Therefore, it is clear that the limitation Act does not extinguish a defence but only bars a remedy. Therefore, Even though the period of limitation prescribed for filing a suit for specific performance expired and thus it bars a suit for specific performance of a contract, if brought after the period of limitation, still it is open to a defendant in a suit for recovery of possession on the strength of title brought by the vendor, to take a plea in defence of part performance of the contract to protect his possession, though he may not be able to enforce that right through a suit or action. In the light of the authoritative pronouncement of the Hon'ble Supreme Court the decision rendered by the Karnataka High Court in Sivayya's Case (AIR 2008 Karnataka 157) cannot be accepted. Hence, I hold that respondent is entitled to the protection under Section 53A of the T.P.Act.
27. True, a peculiar situation would arise in cases of this nature. The person who obtained possession in part performance of the contract cannot prescribe title by adverse possession and limitation since his possession is not adverse to or in derogation of the true owners' title. At the same time, the true owner/vendor cannot seek recovery of possession on the strength of title because the vendee's possession is protected under Section 53A of T.P.Act. In such cases, the title of the property would remain with the title holder; it will not be lost. But at the same time, the vendee can keep possession of the property under sec. 53A though he cannot get absolute title of the property because the suit for specific performance was barred by limitation. Though such a situation would be there still the plaintiff cannot be granted a decree for recovery of possession since the defendant's possession is protected under Sec. 53A of T.P.Act.
In the light of what have been stated above, the substantial questions of law raised by the appellants are answered against them. This Second appeal is hence, dismissed.
Dated this the 27th day of November, 2013.
Sd/-N.K.BALAKRISHNAN, JUDGE /truecopy/ P.S.toJudge