1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 614 OF 1989 Shri Babulal Gajmal Patil since deceased through his legal representatives: 1) Ratnamala Babulal Patil Age about 36 years, 2) Poonam Babulal patil Age about 11 years, 3) Varsha Babulal Patil Age about 8 years, R/o Room No.21, 2nd floor, Shri Evarest Co-operative Housig Society Ltd., Vishnu Nagar, Dombivali (West), District Thane. ..Appellant (Org.Deft.No.1) Versus 1. Shri Shankar Kadu Patil, Aged about 50 years, occupation Service, Residing at Room No.25, 4th floor, Aparna Building, Aparna Co-operative Housing Society Ltd. Din-Dayal Marg, Dombivali (West) Dist. Thane. 2. Shri Ashok Gajma Patil, age 30, years, occupation service, resindig at Room No.21, and Floor, Shri everest Co-operative 2 Housing Society Ltd., Vishnu-Magar, Dombivali (West), Dist. Thane. ...Respondents Mr. Rahul S. Kate, Advocate, for the appellant. Ms. Jahanara Sarkhot, i/b. Ms. R.A.Baig,Advocate, for the respondent No.1. CORAM: J.H.BHATIA,J. DATE : 31st August, 2009. JUDGMENT: 1. The Appeal was admitted without formulating any question of law. However, while admitting the Appeal on 1.12.1989, this Court had observed that “There are substantial questions of law involved in the appeal”. After hearing the learned Counsel for the appellant and perusal of the grounds in the Memo of Appeal, the following question of law arises for consideration :- “Whether the first appellate Court committed an error in refusing protection under Section 53-A of the Transfer of Property Act to the defendants/appellants who had paid part of the consideration amount and were found to be in possession on the basis of the agreement for sale of the suit house?” 3 2. To state in brief, the property involved in the suit is Room No.21, in Everest Building No.17, situated at Dombivli (West), District Thane. The defendants/appellants are sons of the real sister of the plaintiff/respondent. The plaintiff had purchased the said room in June 1972. In 1976, he purchased another flat in Aparna Co-op. Housing Society and in June 1980, he along with his family shifted to the said flat. In view of this, the suit flat became vacant. According to the plaintiff, the defendants, who were then residing at Kalwa, requested the plaintiff to permit them to reside in the house. Due to close and cordial relationship, the plaintiff allowed them. Later on, the defendants insisted him to accept some compensation or license fee at the rate of Rs.120/- per month. Accordingly, defendant No.1 paid amount of Rs.4,500/- on 1.6.1980 and further amount of Rs.2,500/- on 5.12.1980 to the plaintiff. That amount was to be adjusted in the license fee at the rate of Rs.120/-. According to the plaintiff, his flat in Aparna Co-op. Housing Society was not sufficient for the needs of his family and, therefore, he requested the defendants to vacate the premises which they agreed, but inspite of that they failed to vacate the premises in 1983. The plaintiff had issued a notice dated 3.10.1983, Exhibit 58, to the defendants asking them to vacate the suit premises. In view of this, the plaintiff filed the suit for eviction and possession. 4 3. The defendants denied that they were the licensee and that they have made any payment to the plaintiff to be adjusted towards the license fee. According to them, the plaintiff had agreed to sell the suit house for consideration of Rs.10,500/-, out of which an amount of Rs.7,000/- paid as stated by the plaintiff himself and balance amount was to be paid at the rate of Rs.120/- per month. Therefore, according to them, they are in possession of the property on the basis of he agreement for sale and as they had paid the consideration amount the suit is liable to be dismissed. 4. After hearing the parties, the trial Court held that the plaintiff is the owner of the suit house and that the defendants were inducted as licensees. Their claim of being in possession on the basis of the agreement for sale or as owners was rejected. Accordingly, the suit came to be decreed for possession as well as for mesne profits at the rate of Rs.120/- per month. The said judgment and decree was challenged by the defendants in Civil Appeal No.256 of 1986. The learned first appellate Court held that the plaintiff is the owner of the suit house. However, the appellate Court rejected his contention that the defendants were inducted as licensees. The first appellate Court upheld the plea of the defendants that they were inducted on the basis of the agreement for sale. The appellate Court held that they had paid Rs.7,000/- towards part consideration. However, 5 the appellate Court dismissed the appeal holding that the alleged agreement for sale was oral and the defendants had neither filed any suit nor any counter claim for specific performance of the contract. It was found that by the time the appeal was heard, even the suit for specific performance would be barred by limitation and therefore the defendants would not be protected under Sec. 53A of the T.P. Act. Hence, the Second Appeal. 5. Even though on the issues of facts, there are conflicting findings of the Courts below the findings of the appellate Court have not been challenged by the original plaintiff either by filing cross-appeal or by filing cross-objection. Therefore, the findings of the first appellate Court on facts have become final. In view of this, it can be held that there was an agreement for sale between the plaintiff and the defendants for sale of the suit house to the defendants for consideration of Rs.10,500/-. The defendants had paid amount of Rs.4,500/- and Rs.2,500/- on 10.6.1980 and 5.12.1980 respectively. Thus, the plaintiff had received amount of Rs.7,000/- as part of consideration. However, three is no evidence to show that balance amount of consideration was paid. Even according to the defendants, there was no written document. 6. Section 53-A of the T.P. Act requires that the agreement for transfer 6 should be in writing and signed by the transferor that the transferee should have been put in possession of the immoveable property in part performance of he contract and the transferee should be ready and willing to perform his part of the contract or should have already performed his part of the contract in its entirety. The protection is given to the transferee under Sec.53A against dispossession so that unscrupulous vendor should not take undue advantage of situation merely because the sale deed has not been executed and registered as per law. However, it is settled position that the essential requirements of sec.53A should have been fulfilled before the protection of part performance is given to the transferee. In the present case, even according to the defendants, there was no written agreement and they tried to defend the suit only on the basis of an oral agreement with the plaintiff. Therefore, Section 53A cannot be invoked. 7. The learned counsel contended that the appellate Court should not have dismissed the appeal observing that the claim of the defendants for specific performance was barred by limitation. In fact, that observation was made only to substantiate the finding that the appeal of the defendants could not be allowed and they would not be entitled to protection from dispossession. It was observed in the judgment of the first appellate court that the suit for possession was filed by the plaintiff in 1984 taking pleas which clearly indicated that he had denied 7 the alleged agreement for sale. If not from any earlier date, at least from the date of filing the suit, there was refusal of performance of the contract and with that knowledge, the defendants could have filed the suit for specific performance of contract within the period of limitation as provided in Article 54 of the Limitation Act. It was noted that instead of filing suit for specific performance or any counter-claim in the suit filed by the plaintiff, the defendants had filed a suit only for an injunction and that suit was also withdrawn. After the suit of the plaintiff was decreed, the defendants preferred First Appeal in 1986 and that appeal was decided on 23.8.1989. Till that time, the defendants had not filed any suit for specific performance of contract. In view of these facts and circumstances, the first appellate court had observed that by that time even the suit for specific performance would have been barred by limitation. I find no illegality or impropriety in these observations. 8. In view of these facts and circumstances, I find that the first appellate Court was right in holding that the defendants/appellants are not entitled to get protection under Section 53-A of the Transfer of Property Act. Therefore, there is no substance in the present Appeal. 9. For the aforesaid reasons, the Appeal stands dismissed. 8 10. As the Appeal itself is dismissed, the C.A. No.2340 of 2000 does not survive and stands disposed of accordingly. (J.H.BHATIA,J.)