1 SA202/88 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 202 OF 1988 Karbhari Bhagaji Samashe Appellant V E R S U S Laxmibai w/o Gangadhar Samshe, deceased, through her legal heris Respondents 1 Asrabai w/o Maruti Kale, deceased, through her legal heirs 1-A Umaji s/o Maruti Kale, Age 50 years, Occupation Agriculture, Resident of near Advocate Yamajirao Satpute, Gangapur, Taluka Gangapur, District Aurangabad 1-B Kadubai w/o Shivajirao Jadhav, Age 45 years, Occupation Household, Resident of Morge Wasti, Shrirampur, Taluka Shrirampur, District Ahmednagar 1-C Pandharinath s/o Maruti Kale, Age 40 years, Occupation Agriculture, Resident of behind Gangapur Post office, Gangapur, Taluka Gangapur, District Aurangabad 2 Babanbai w/o Rathunath Ghodke, Age 65 years, Occupation Household, Resident of Care of Raghunath Anandrao Ghodke, behind Police Colony, Gangapur, Taluka Gangapur, District Aurangabad 2-A Raghunath Anandrao Ghodke, Age 74 years, Occupation Agriculture, Resident of Gadhe Pimpalgaon, Taluka Vaijapur, District Aurangabad 3 Vastyalabai Bhikchand Kakade, Age 70 years, Occupation Household, Resident of Nevargaon, Taluka Gangapur, District Aurangabad Shri S.P. Chapalgaonkar, Advocate for the appellant Shri P.C. Mayure, Advocate for respondent Nos. 1-A to C Shri A.D. Kasliwal, Advocate for respondent No. 2-A CORAM : A.V. NIRGUDE, J. DATED : 20th September, 2011 2 SA202/88 ORAL JUDGMENT : 1. This second appeal challenges the Judgment and order passed by the learned II Additional District Judge, Aurangabad, dated 11th January, 1988, in Regular Civil Appeal No. 124 of 1984 (Regular Civil Suit No. 126 of 1976) and Regular Civil Appeal No. 184 of 1984 (Regular Civil Suit No. 164 of 1979). 2. In order to explain factual aspects of this case, I would refer the parties by their names. The appellant here is one Karbhari. The original respondent was one Laxmibai, and since she died, she is represented by her legal representatives, her three daughters. 3. It is common ground that Laxmibai was owner of the suit land Gat No. 40 of village Gadhe Pimpalgaon, Taluka Vaijapur, District Aurangabad. It is the case of Karbhari (the appellant) that Laxmibai agreed to sell the said land to him way back in 1960 when she was in need of cash for getting her daughters married of. The land was then in possession of one Manik, who was Laxmibai’s tenant. He said, Laxmibai agreed to sell suit land for sum of Rs.9,000/- to him. She received the amount and executed a writing in his favour. He said, he was even put in possession, because even Manik agreed to give up his right as tenant and left the land. He said, since then, he was cultivating the land. Nothing happened between the parties till 1976. Karbhari then felt threatened, because, according to him, Laxmibai and her daughters started interfering in his possession. So he filed a suit for perpetual injunction against Laxmibai and her daughters. In the plaint, he narrated all the facts, mentioned above. On the other hand, Laxmibai in her written statement said that she had never agreed to sell the suit land to Karbhari. She said that she was in possession of the suit land, and so, there was no question 3 SA202/88 of awarding decree of perpetual injunction. It seems, Laxmibai realized later that she can no longer continued her defence that she was in possession of suit land. Therefore, in 1979, she filed her own suit for declaration of title and possession. Her case, as said above, was based on assumption that she is owner of the land, she never agreed to sell the land to Karbhari and she added thereafter that during the pendency of suit of 1976, she was dispossessed. Karbhari filed written statement in this suit saying that he is in possession since 1960 pursuant to the agreement, referred to above. He also said that he is in continuous and hostile possession for more than 12 years to the knowledge of Laxmibai and her daughters, and so, he had acquired title. He said, the suit of 1979 was time barred. He made no attempt to show in his written statement that he was ready and willing to perform his part of contract of 1960 and that his possession was that of a proposed purchaser and that he could fulfill the ingredients of Section 53-A of the Transfer of Property Act. Although, he took up this rather strange stand in the written statement, on the other hand, Karbhari was advised to amend the plaint of his suit of 1976. Rather belatedly, he added in the plaint a plea that he was entitled to specific performance of the contract of 1960, and for supporting such plea, he added in the plaint that he was ready and willing to perform his part of the contract, and he even said that if the suit is not found to be within limitation, his possession should be protected under the provisions of Section 53-A of the Transfer of Property Act. 4. In view of the pleadings, as narrated above, and since these suits were pending in one Court, the learned Judge of the trial Court rightly decided the case together by recording common evidence. The learned Judge of the trial Court framed issues. While framing such issues, the trial 4 SA202/88 Court rightly avoided to frame an issue putting burden on Karbhari to prove that he was entitled to protection Section 53-A of the Transfer of Property Act. After recording evidence of the parties, the trial Court held that Karbhari could prove the agreement of 1960 and his possession since then also. He therefore decreed Karbhari’s suit only to the extent of perpetual injunction and dismissed his claim for specific performance mainly because it was time barred. 5. On the other hand, he decreed Laxmibai’s suit to the extent of declaration of title to her, but refused to grant her decree for possession. Laxmibai, therefore, went in appeal against these two Judgments, but the learned Judge of the first appeal Court without framing necessary points for consideration held that Karbhari was not entitled to perpetual injunction because he had not proved his case based on provisions of Section 53-A of the Transfer of Property Act. He, therefore, decreed the suit of Laxmibai and directed Karbhari to deliver possession of the suit land to her. 6. Karbhari did not mind dismissal of his suit of specific performance and perpetual injunction. He did not challenge the said dismissal in this appeal by filing a separate appeal, but he filed this appeal only as against the Judgment of the learned Judge of the first appeal Court granting decree for declaration and possession to Laxmibai in her suit bearing Regular Civil Suit No. 164 of 1979. In view of above, the only question that could arise in this appeal is as under : “Whether the appellant / defendant could prove his case for getting protection under Section 53-A of the Transfer of Property Act ? 7. In order to prove such case, the appellant must first plead his case that he is protected under Section 53-A of the Transfer of Property Act. In order to take such defence, the appellant ought to have stated in the 5 SA202/88 pleadings that there was an agreement for sale in writing, pursuant to such agreement he had paid certain consideration to the vendor, the vendor had put him in possession of the suit land and that he was and is ready and willing to perform his remaining part of the contract. As mentioned above, this plea is absent in his written statement. Despite of opportunity to take such plea, it was not taken. Therefore, there was no need for the learned Judge of the trial Court to frame a issue as to whether the appellant / defendant could prove that he was entitled to protection under Section 53-A of the Transfer of Property Act. It is settled law that a plea under Section 53-A of the Transfer of Property Act is available to the defendant alone and it is also settled law that if a defendant is interested in taking such a plea, he must take it at the first available opportunity and he should be able to prove all the ingredients, mentioned above. In this case, at least the appellant / defendant could prove that there occurred a written contract between him and Laxmibai for sale of the land. He also said that he had paid Rs.9,000/-, the entire consideration to Laxmibai and that she had put him in possession. But the last and equally important assertion that he was ready and willing to perform his remaining part of the contract of 1960 has not been pleaded in the written statement. In view of this, there was no possibility of framing the relevant issue, and so, there could not have been any opportunity to the appellant / defendant to prove such a case. In absence of such plea, the appellant / defendant is virtually helpless, and so, he cannot take up this plea rather belatedly at the stage of second appeal. 8. The learned counsel appearing for the appellant tried to point out that the learned Judge of the first appeal Court did not frame points for consideration properly, and according to him, this would prove fatal to the impugned Judgment. I am afraid, this argument cannot be accepted, 6 SA202/88 because the learned Judge of the first appeal Court though did not frame the points for consideration, discussed the law quite coherently and properly, and recorded his finding as to why he would decree Laxmibai’s suit. He mentioned that the defence under Section 53-A of the Transfer of Property Act is not available to the appellant / defendant. As mentioned above, this was the crux of the case and the learned Judge of the first appeal Court understood it. 9. The learned counsel for the appellant then pointed out that it has come in the evidence that Laxmibai made a statement on oath before the authority under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 that the suit land is in possession of the appellant / defendant Karbhari as her agricultural tenant, and therefore, she said that this land should not be added to her holding for the purpose of deciding whether she held surplus land. In view of this statement, the learned counsel asserted that Laxmibai was estopped from claiming ownership and possession. I am afraid, this plea is taken as an afterthought. This plea was not mentioned in the written statement. During the cross-examination of Laxmibai, she was asked about it, and she admitted that she made such a statement. However, it would not prove fatal to her case, because the evidence on this point was irrelevant for want of pleading. The appeal should therefore fail. The Second Appeal stands dismissed. ( A.V. NIRGUDE, J. ) SRM/sa/202/88/20/09/11ok