IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A.No. 320 of 1999. Decided on : 25.5.2010. Kartar Chand …Appellant. Versus Asha Devi and others …Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the appellant : Mr. Rajnish K. Lall, Advocate vice Mr. K.D.Sood, Advocate. For the respondents : Mr. S.D.Vasudeva, Advocate for respondent No.1. Kuldip Singh , Judge (Oral) The defendant has come in appeal against judgment, decree dated 29.6.1999 passed by the learned District Judge, Kangra at Dharamshala in Civil Appeal No. 3-N/XIII/99 affirming judgment, decree dated 1.12.1998 passed by the learned Sub Judge 1st Class (I) Nurpur in Civil Suit No. 12/93. 2. The brief facts of the case are that respondents had filed a suit for permanent prohibitory injunction restraining the appellant from interfering in peaceful possession of the respondents on the land more specifically described in the plaint. The case of the respondents is that they are owners in possession of the suit land 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes 2 and appellant is complete stranger to the suit land but taking undue advantage of the respondents being women, the appellant is trying to interfere in the possession of the respondents on the suit land. He is threatening the respondents to dispossess them from the suit land. 3. The suit was contested by the appellant on the grounds that Karam Chand father of the respondents was owner of the suit land and he entered into an agreement with appellant on 16.8.1983 to sell the land in dispute for a consideration of Rs. 4,500/- which was paid to him on different dates. It is also the case of the appellant that he was already in possession of the suit land before execution of the agreement and his possession continued on the suit land even after the agreement. He has taken the plea of part performance of the contract and has asserted that respondents have no concern with the suit land. The appellant has also taken the plea that he had always been ready and willing to perform his part of the contract for execution of the sale deed. He is not stranger to the suit land. 4. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiffs are owners in possession of the suit land, as alleged? OPP 2. Whether the father of the plaintiffs, Karam Chand entered into valid agreement to sell the suit land with the defendant, as alleged? OPD 3. Whether the defendant is in possession of the suit land, as alleged? OPD 4. Whether the plaintiffs have got no cause of action, as alleged? OPD 3 5. Relief. The issues No.1 and 2 were answered in affirmative and issues No.3 and 4 in negative and on 1.12.1998 the suit was decreed by the learned trial Court and appellant was restrained from interfering in possession of the respondents on the suit land. The decision dated 1.12.1998 was carried in appeal and the learned District Judge dismissed the appeal on 29.6.1999. In this way the matter has come in second appeal at the instance of the defendant. The second appeal has been admitted on the following substantial questions of law:- 1. Whether in view of a valid agreement of sale, Ex.DA having been executed between the appellant and Karam Chand, deceased and payment of full consideration of Rs. 4500/- having been paid by Ex.DA, DA/A and DA/B, the decree of injunction could be passed in favour of the plaintiffs? 2. Whether the court below has misconstrued the pleadings of the parties and oral and documentary evidence particularly Ex.DA, D/A and D/B and wrongly held that the plaintiff was not ready and willing to perform his part of the contract? 3. Whether the plaintiff was entitled to the benefit of Section 53A of the Transfer of Property Act and protect his possession and right in part performance of the contract Ex. DA? 4. Whether the plaintiff could be granted the discretionary relief of injunction in view of full payment having been paid to the predecessor of the plaintiffs? 5. I have heard Mr. Rajnish K. Lall, Advocate, learned counsel for the appellant and Mr. S.D.Vasudeva, Advocate, learned counsel for respondent No.1 and have also gone through the record. 4 On behalf of the appellant it has been submitted that execution of the agreement dated 16.8.1983 Ex.DA has been proved. The two Courts below have accepted the execution of the agreement Ex.DA by predecessor-in-interest of the respondents in favour of the appellant. The appellant had been coming in possession of the suit land prior to the execution of agreement Ex.DA and, therefore, appellant is entitled to protect his possession under Section 53A of the Transfer of Property Act. There is ample evidence in the form of statement of PW-1 and other witnesses that appellant is in possession of the suit land. The two courts below have misconstrued and mis-interpreted oral and documentary evidence including Ex.DA in decreeing the suit of the respondents. The learned counsel for respondent No.1 has supported the impugned judgment, decree. 6. The substantial questions of law No.1 to 4 are inter- connected, therefore, all of them are being taken up collectively for disposal. The agreement Ex.DA dated 16.8.1983 between predecessor-in-interest of the respondents and appellant has been proved on record. The connected question is whether the appellant is entitled to take benefit of Section 53A of the Transfer of Property Act which at the relevant time reads as follows:- “Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainity, 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 5 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 the contract, though required to be registered, has not been registered or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefore 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.” The perusal of Section 53A indicates that there must be a contract to transfer for consideration any immoveable property in writing duly signed and the transferee in part performance of the contract should have 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. The transferee must be ready and willing to perform his part of the contract. In the present case, the execution of agreement Ex.DA has been proved so also the passing of the consideration to the predecessor-in-interest of the respondents. It is to be seen whether the appellant came in possession of the suit land under the agreement or he was already in possession of the suit land before execution of the agreement and that possession continued after the execution of the agreement. 6 7. The appellant in the written statement has specifically pleaded that land was already in his possession. In other words, according to appellant the possession of the land in dispute was already with him even prior to the execution of the agreement Ex.DA. In these circumstances, it is to be seen whether in fact the appellant has proved his possession on the land in dispute prior to the execution of the agreement. In Ex.DA nothing has been stated regarding the possession of appellant on the suit land. 8. The case of the appellant is that earlier he was tenant on the suit land before the execution of the agreement and thereafter he continued in possession of the suit land under the agreement. The appellant has appeared as DW-1 and has stated that he was tenant on the land in dispute since 1967-68 but his name was not reflected in the Girdwari of the land in dispute. The appellant has led no evidence in support of his claim that he was tenant on the land in dispute since 1967- 68. The tenancy is a creation of contract but in the written statement even the contract of tenancy has not been pleaded. In his statement, he has stated that he has constructed a house over the land in dispute. It is reasonable to infer that now a days electricity and water connection are in almost every house. It is not the case of the appellant that there is no water and electricity supply in the area where the land in dispute is located. The appellant has not produced any documentary evidence of electricity connection or water connection with respect to his house allegedly constructed on suit land. The learned counsel for the appellant has relied statement of PW-1 Smt. Soma Devi and has stated that Soma Devi has admitted 7 possession of appellant on the land in dispute and once respondents are not in possession of the land in dispute then respondents are not entitled to a decree of permanent prohibitory injunction. I have gone through the statement of PW-1 Soma Devi. In the examination in chief she has clearly stated that Kartar Chand is not in possession of the land in dispute. A composite question was put to her in cross- examination which she has denied by stating that it is wrong to suggest that her father was not cultivating the land through tractor or by ploughing as the land was given to Kartar Chand. This statement of Soma Devi cannot be construed that she has admitted the possession of Kartar Chand. In fact, she has denied that land was not given to Kartar Chand. 9. DW-4 Parkash Chand is a witness of agreement Ex.DA. He has stated that prior to 1983 the appellant was cultivating the land and after agreement the appellant is cultivating the land. In cross- examination, he has stated that Kartar Chand had been cultivating the land 3 – 4 years prior to 1983. This witness has contradicted appellant who is claiming possession of the suit land since 1967 – 68, therefore, statement of DW-4 cannot be relied regarding the possession of appellant on the suit land. The two courts below have considered the entire evidence on record and have recorded a finding of fact that appellant is not in possession of the suit land. In these circumstances, the appellant cannot take benefit of Section 53A of the Transfer of Property Act. The learned counsel for the appellant has relied Ramchandra Sakhram Mahajan Vs. Damodar Trimbak Tanksale 2007 (3) CCC 353 wherein it has been held that the failure 8 of the defendants to establish the title set up by them would not enable the plaintiff to a decree. In the present case on facts, the respondents have proved their title on the suit land including the possession. Therefore, on facts, Ramchandra’s (supra) is not applicable. The learned counsel for the appellant has also relied Teja Singh Vs. Ram Parkash Talwar (deceased by L.R’s.) and others AIR 1984 Punjab and Haryana 95 wherein it has been elaborated what are the necessary factors for application of Section 53A of the Transfer of Property Act. There is no dispute with the proposition of law stated in Teja Singh’s case. But on facts, the appellant has not proved that he is in possession of the suit land and he continued to be in possession of the suit land under the agreement. No fault can be found with the findings recorded by the two courts below. There is no perversity in the impugned judgment, decree. The learned counsel for the appellant has failed to make out any case for interference. The substantial questions of law No. 1 to 4 are decided against the appellant. 10. No other point was urged. 11. The result of the above discussion, the appeal fails and is accordingly dismissed with no order as to costs. ( Kuldip Singh ) Judge. May 25, 2010. (GR)