1 S.A. 528/2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 528/2010 1 Jayraj s/o Kamlakar Pande, Age : 49 years, Occu. Legal Practitioner, R/o Begumpura, Aurangabad. 2 Kamlakar Chotelal Pande, Died through L.Rs. 2(a) Usha w/o Kamlakar Pande, Age : 67 years, Occu. Houseold, R/o Begumpura, Aurangabad. 2(b) Sunil s/o Kamlakar Pande, Age : 51 yeas, Occu. Business, R/o Begumpura, Aurangabad. 2(c) Seema w/o Shantanu Pathak, Age : 48 years, Occu. Household, R/o Plot No. 45, Near Dashbhuja Ganpati, Tulshibagwale Colony, Pune-09. 2(d) Jayraj s/o Kamlakar Pande, Age : 46 years, Occu. Advocate, R/o Begumpura, Aurangabad. 2(e) Sou. Jaymala w/o Satish Ravat, Age : 42 years, Ocu. Household, R/o Begumpura, Aurangabad. ...Appellants. (Orig. Defendants) Versus 1 Sudhakar Raghunath died through L.Rs. (a) Suhasini w/o Sudhakar Sohoni, Age : 55 years, occu. Household, R/o 1975, Sadashiv Peth Pune. (b) Sunil s/o Sudhakar Sohoni, Age : 40 years, Occ. Service, R/o 1975, Sadashiv Peth, Pune. (c) Sanjay s/o Sudhakar Sohoni, Age : 35 years, Occu. Service, R/o 1975, 2 S.A. 528/2011 Sadashiv Peth, Pune. (d) Sow. Surekha w/o Prakash Garud, Age : 37 years, Occu. Service, R/o 1975, Sadashiv Peth Pune. 2. Indubai Madhukar Sohoni, died through legal representatives. (a) Hemant /o Madhukar Sohoni, Age : about 30 years, R/o Plot No. 21, N-8, J-3, Sahakari Gruha Nirman Sanstha, CIDCO, Aurangabad. (b) Pradip s/o Madhukar Sohoni, Age : 27 years, R/o N-7, Maharana Pratap Hsg. Society, CIDCO, Aurangabad. (c) Harshwardhan s/o Madhukar Sohoni, Age : about 21 years, Occu. Service, R/o N-7, Maharana Pratap Hsg. Society, CIDCO, Aurangabad. 3. Mangal Shardchandra Pande (before marriage maiden name Shantabai Raghunath Sohoni) Age : about 40 years, Occu. Household, R/o Satyam Apartment, Gavdevi Road, Kalwa, District : Thane. 4. Shakuntala Moreshwar Gokhale (before marriage maiden name Mathurabai Raghunath Sohoni) Age: about 61 years, Occu. Household, R/o Tukaram Jayaji Road, Near to Bhatta Hospital, Grand Road, Bombay. 5. Madhukar s/o Raghunath Sohoni, Age : 55 years, Occu. Nil, R/o Begumpura, Aurangabad, absconding since last 9 years. ...Respondents. (Resp.No.1 to 4- Orig.pltff.) (Resp.No.5-Orig. Deft No.3.) 3 S.A. 528/2011 Mr. A.D. Kasliwal, Advocate for the appellants. Mr. M.M. Patil (Beedkar), Advocate for respondent No.1-C. CORAM : A.V. NIRGUDE, J. DATED : 14th Sept., 2011. ORAL JUDGMENT :- 1. The facts leading to the litigation can be stated as under :- 2. The suit property in 1974-75 and even today is a plot of land in Aurangabad city admeasuring about 11000 sq. ft. and a structure standing thereon. This structure was in occupation of a tenant. The suit property was belonged to joint family of respondents/plaintiffs and one Madhukar respondent No.5 (original defendant No.3), whereabout of who are not known since 1974 or so. The cause of action for the respondents/plaintiffs’ suit in short was as under :- 3. They stated that the suit property belonged to the joint family. Madhukar went missing some time prior to 1974 and so a public notice issued was by Madhukar’s wife in that regard. They further said that the appellants were trying to get the suit property from Madhukar and so they issued a notice to them that they should not deal with their family member Madukar without their permission. Thereafter, they learnt that Madhukar had apparently sold suit property to appellant No.1 vide a sale deed in 1982. They claimed that Madhukar could not have sold the property because he had gone missing since 1974 and that the document–sale-deed of 1982 was a forgery. They therefore sought a declaration that the document be 4 S.A. 528/2011 declared as null and void and they also sought possession of the suit property. The appellants came up with a case that initially in 1974 Madhukar agreed to sell the suit property to one Shaikh Gafur and received Rs. 500/- from him as earnest. They say that Madhukar thereafter within few days came to them and agreed to sell the suit property to appellant No.1. He executed a document to that effect in favour of him. They say that pursuant to this, they approached Shaikh Gafur, the earlier purchaser and paid him Rs.500/- and took possession of the suit property from him. They further say that within few months thereafter in 1975, respondent No.1 Sudhakar (Madhukar’s brother) approached them and agreed to sell the suit property to appellant No.1. After negotiations the price of the property was fixed at Rs. 10,000/- and he executed an agreement for sale on 18.08.1975 in favour of appellant No.1 agreeing to sell the suit property to him. In this document he clearly mentioned that he had received Rs. 2500/- as earnest and that he had also put appellant No. 1 in possession of the suit property. They came up with a defence that in view of this they are entitled to protection on the basis of two agreement for sale executed by two members of the same family. Sometime thereafter respondents amended the plaint and stated that they decided to sell the suit property to the appellants because they realized that the appellant is resident of same area and that they had shifted permanently to Mumbai and they are unable to take proper care of the suit property. They then stated that they agreed to sell the suit property vide the agreement referred to above dated 19.08.1975 to appellant No.1. However, they say that the appellant No.1 or his father – appellant No.1 made no further attempts to get the sale-deed 5 S.A. 528/2011 executed. After this amendment, rather belatedly in 1993 the appellants too amended the written statement and said that appellant No. is entitled to protection under S.53A of Transfer of Property Act. They added a counter-claim in which appellant No.1 claimed that in view of agreement of sale of 1975 admitted by respondent Nos.1 to 3, he is entitled to specific performance of the contract and that he was ready and willing to perform his part. The Courts below concurrently held (i) that the appellants’ possession of the suit property was unauthorized and illegal (ii) that the appellants’ claim for specific performance was time barred and so they decreed the suit for possession. 4. There are two substantial questions of law arising in this appeal. (i) Whether the appellant No.1 is entitled to protection under Section 53-A of the Transfer of Property Act, pursuant to the admitted document of agreement on 1975? (ii) Whether his counter claim seeking specific performance is time barred, though no written statement is filed by the plaintiffs? 5. With the help of learned Counsel for the parties, I went through the record and found that the appellants in their defence clearly pleaded that they were put in possession of the suit property firstly by Gafur, who was the proposed purchaser of the suit property from Madhukar and that even respondent No.1–Sudhakar put them in possession in 1975 when the admitted document of 19.08.1975 was executed. It has also come on record that in 1974-75 appellant No.1 6 S.A. 528/2011 was only ten years old boy and his father appellant No.2 was acting on his behalf. They sought protection under Section 53-A of the Transfer of Property Act. The Courts below brushed aside this part of case saying that their possession was “illegal”. The question, therefore, is whether their possession could be said to be illegal? The answer to this is in negative in view of the specific pleading and evidence that has come on record. 6. The next question is – Whether the appellant No.1 is protected under Section 53-A of the Transfer of Property Act? Section 53-A reads as under :- “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 performance 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. 7 S.A. 528/2011 7. The learned counsel for the respondents/plaintiffs placed reliance on a Judgment of Division Bench of this Court in the case of Ramesh Kumar Jhamb and another v. Official Assignee, High Court, Bombay and others (AIR 1993 Bombay 374) and asserted that if the appellants / defendants took up a stand that pursuant to 1975 agreement for sale, Sudhakar executed a sale-deed of the suit property in their favour in 1982, the agreement of 1975 got merged into the sale-deed and the status of the appellant No.1 as that of a prospective purchaser got extinguished and emerged as purchaser. So defence of Section 53-A is not permissible to him. I am afraid, this is not a plausible argument. The ratio of the above mentioned Judgment is by no stretch of imagination can be utilized for deciding this aspect of the case. The appellant No.1 could certainly take alternate pleas one based on 1982 document and the other based on 1975 document independently. When he takes up a defence of Section 53-A on the basis of agreement of sale of 1975, the Court has to ignore the other plea based on sale of 1982. Both these pleas apparently are not mutually exclusive and the appellant No.1 is certainly permitted to take up such inconsistent alternate pleas. 8. In order to get protection under Section 53-A the appellant No.1 ought to have proved the necessary conditions which are as under :- (1) there must be a contract to transfer for consideration any immovable property; (2) the contract must be in writing, signed by the transferor, or by 8 S.A. 528/2011 someone on his behalf; (3) the writing must be in such words from which the terms necessary to construe the transfer can be ascertained; (4) the transferee must in part performance of the contract take possession of the property, or of any part thereof; (5) the transferee must have done some act in furtherance of the contract; and (6) the transferee must have performed or be willing to perform his part of the contract. 9. In this case, there is no dispute between the parties that a contract in writing signed by original respondent No.3 that he agreed to transfer the suit property to the appellant. This document is proved and is on record. It is further not in dispute between the parties that the appellant had paid Rs. 2500/- to original respondent No.3 at that time and respondent No.3 in turn put the appellant in possession of the suit property. It is further not in dispute that the appellant/transferee has done some acts in furtherance of the contract by recovering rent from the tenant by paying the property taxes etc. However, the question is whether the appellant/transferee proved his willingness to perform his part of the contract? 10. The Courts below held that he did not prove it. However, the reasons which they mentioned for coming to this conclusion are not found correct. In 1975, as said above, original respondent No.3 Sudhakar executed an agreement for sale in favour of the appellant and received Rs. 2500/- out of Rs. 10,000/- and put him in possession. He even asked him to pay property taxes and to recover rent from the existing tenant. Thereafter, nothing happened between the parties for next seven years. In 1982 the appellant No.1 obtained 9 S.A. 528/2011 and secured registered sale-deed of the suit property in his favour. Soon thereafter within few months, respondents/plaintiffs came to Civil Court challenging the genuineness of the sale-deed of 1982. In the plaint they accused the appellant that he had forged the document or none of them had come to the Registrar’s office to execute the sale- deed. The appellant/defendant defended this allegation and asserted that Madhukar – the absconding brother of original respondent No.3 probably had come and had executed the document and it was not forgery etc. But they did not file the written statement within reasonable time despite the serious allegations. Nor did they specifically plead that the appellant No.1 was entitled to protect his possession in view of the provisions of Section 53-A of the Transfer of Property Act. They did not state that if the sale-deed of 1982 was proved to be a forgery, appellant No.1 was still willing to perform his part pursuant to the agreement of 1975. The Courts below held on facts that the sale deed of 1982 was a forgery. 11. The Supreme Court in the case of Mohan Lal (Deceased) Through His LRs. V/s. Mirza Abdul Gaffar & Anr., 1996 AIR 910 observed as under :- “Under Section 16 (c) of Specific Relief Act, 1963, the plaintiff must plead in the plaint, his readiness and willingness from the date of the contract till date of the decree. The plaintiff who seeks enforcement of the agreement is enjoined to establish the same. Equally, when transferee seeks to avail of Section 53-A to retain possession of the property which he had under the contract, it would also be incumbent upon the transferee to plead and prove his readiness and willingness to perform his part of the contract. He who comes to equity must do equity. The doctrine of readiness and willingness 10 S.A. 528/2011 is an emphatic way of expression to establish that the transferee always abides by the terms of the agreement and is willing to perform his part of the contract. Part performance as statutory right is conditioned upon the transferee’s continuous willingness to perform his part of the contract in terms covenanted thereunder.” 12. In view of these observation let us assume that while defending the suit initially the appellants did not wish to claim specific performance, but if the appellant No.1 wished to to get protection of Section 53-A, he ought to have empathetically stated in his written statement that he was ready and willing to perform his part of the contract. In 1986 when for the first time he got opportunity to put- forward his plea to the Court, he ought to have mentioned in it that he was ready and willing to pay Rs. 7500/- and to secure the sale-deed. The facts mentioned above obviously did not prevent the appellant/defendant to say so at the first opportunity in 1986. In 1993 the written statement was amended and a counter claim seeking specific performance was raised along with alternate plea of protection under Section 53-A. 13. The question now arises is whether the statement made by the appellant No.1 in their amended written statement and counter-claim would relate back to the date of filing of the written statement of 1986, and secondly; whether the pleading in the counter- claim can also be used as a pleading of written statement by way of defence. 14. The learned Advocate appearing for the appellants asserted that in 1993 the appellants / defendants were permitted to amend the written statement while amending the written statement. 11 S.A. 528/2011 They were even permitted to file a counter-claim. Thus, the amended written statement and counter-claim would relate back to the date of filing of the written statement unless it is specifically prohibited. He therefore suggested that if we read the written statement so amended along with the counter-claim, we would find the statement made by the appellants / defendants that on the date of filing of the written statement they were ready and willing to perform their part of the contract i. e. they were ready and willing to pay remaining consideration to the respondents / plaintiffs. 15. To this, the learned Advocate for the respondents / plaintiffs asserted first that the pleading in respect of readiness and willingness to complete the transaction still did not occur in the written statement part, but it occurs in only one line in the counter-claim part. He said that what is stated in the counter-claim cannot be imported in the written statement and cannot be used as defence. He in other words asserted that the defence in respect of protection under Section 53-A including the readiness and willingness etc ought to have been mentioned in the written statement, and if it is not done after getting an opportunity to do so, it should be held that the appellant No.1 failed to prove readiness and willingness. 16. The learned advocate appearing for the appellants placed reliance on the judgment of Supreme Court in the case of Siddalingamma Vs. Mamtha Shoenoy (Case No. 7292 of 2001) : 2001 AIR (SC) 2896, in which the Supreme Court very clearly held that the doctrine of “Relation Back” should govern the amendment of pleadings, unless the Court granting such amendment, excludes the application of such doctrine. In this case, admittedly in 1993 when 12 S.A. 528/2011 amendment was allowed, no order for excluding the application of doctrine of Relation Back was made. It can therefore, be said that whatever is stated in written statement filed in 1993 can be treated as a written statement which was initially filed in 1986. But even in the written statement part, the appellants/defendants did not make a specific statement that they were ready and willing to perform their part of the contract and to pay the remaining consideration to the vendor. This statement curiously appears in the counter claim part of the written statement. The question therefore, is whether what is stated in the counter claim can be treated as written statement or statement in the written statement. The learned advocate appearing for the appellants said that since the counter claim is part of written statement, whatever is stated in the counter claim can also be considered as a written statement. I am afraid, this is not acceptable. The Civil Procedure Code makes a clear distinction between a written statement and a counter claim. Order VIII Rule 6 provides that while preparing a written statement, the defendant may include particulars of ‘set off’ in the written statement, and such ‘set off’, would be part of written statement. But, Rule 6-A which deals with 'counter claim' deals the subject rather differently. In order to understand the distinction between the written statement and a counter claim, one must read Rule 6-A of Order VIII. Rule 6-A:- Counter-claim by defendant. (1) A defendant in a suit may, in addition to his right of pleading a set-off under rule 6, set up, by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not: 13 S.A. 528/2011 Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court. (2) Such counter-claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim. (3) The plaintiff shall be at liberty to file a written statement in answer to the counter-claim of the defendant within such period as may be fixed by the Court. (4) The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints. 17. Sub rule (1) clearly stated that a defendant in his written statement is able to add a counter claim. But, how such counter claim is written is also mentioned in this sub rule. It says that the defendant in that case should plead independently his right or claim in respect of cause of action accruing to him against the plaintiff either before or after filing of the suit but before the filing of the written statement. This sub rule thus indicates that the narration in respect of the cause of action for counter claim would be alien to the subject matter of the suit. In other words, the counter claim though is a part of written statement, is a distinct statement of claim / plaint which is written as if a plaint is written. So, whatever is stated in the counter claim, can not be treated as part of written statement and if the statement in respect of readiness and willingness made by the appellants / defendants in their counter claim, is not considered as part of the written statement, the same can not relate back to their first written statement of 1986. With the result, the appellant No.1 has failed to prove that he was ready and willing to pay Rs.7,500/- to the vendor for completing the transaction which was initiated in the agreement of 1975. In view of 14 S.A. 528/2011 this serious laps on his part, he would lose protection under provision of Section 53-A of the Transfer of Property Act. The learned judges of the Courts below while recording the finding that the appellants / defendants did not prove their readiness and willingness to perform their part of the contract of 1975’s agreement, did not refer to this reason. They referred to some other reasons and in my considered opinion, the reason mentioned by them is not correct. While confirming the findings, I have substituted the reason which is recorded above, for coming to the same conclusion and confirming the finding. ORDER The appeal is dismissed. Civil Application No. 9745/2011 is disposed of. [A.V. NIRGUDE,J.] ts k/2011/Sept14/sa528.11ok