RSA 152/2009 BEFORE THE HON’BLE MR. JUSTICE T. VAIPHEI This second appeal is directed against the judgment and decree dated 27- 4-2009 passed by the learned Civil Court, Jorhat in Title Appeal No. 36 of 2008 reversing the decree dated 7-11-2008 passed by the learned Munsiff No. 1, Jorhat in Title Suit No. 63 of 2007. The appeal was admitted for hearing on the follow ing substantial questions of law: 1. 1 Whether the learned first appellate Court wrongly decided the case, mi sinterpreting the doctrine of part performance as envisaged under Section 53-A o f the Transfer of Property Act? 2. Whether the learned first appellate court omitted error of law by not fr aming the points for determination of the case as provided under Order 41 Rule 3 1, Civil Procedure Code? 2. The facts giving rise to this appeal are that the suit land measuring 1 katha 2‰ lochas with the Assam Type House standing thereon and forming a part of the total holding I bigha 2 kathas of land under Dag No. 589 of P.P. No. 54 (N ew) 43 (Old) of Choudang Gaon, Teok Mouza, was purchased by the late Debojit Sai kia, the husband of the appellant No. 1. The suit land was thereafter recorded i n the name of the late Debojit Saikia, who constructed the Assam Type House ther eon and demarcated the suit land by erecting a pucca boundary wall. The said Deb ojit Saikia used to reside in that house before his marriage with the appellant and continued to stay there with her after their marriage. A female child was bo rn to them on 13-3-2002, but the said Debojit Saikia died soon thereafter on 19- 4-2002. The appellant No. 1 before her marriage with the appellant was working a s an Assistant Teacher in Gitarthee Vocational School at Baligaon and used to r eside in a rented house at Baligaon near her school whereas her husband continue d to reside on the suit land. After the death of her husband, the appellant No. 1 was transferred to another school at Panichokuwa. She again shifted to another residence at Charingia, which is close to her school at Panichokuwa. It is alle ged by the appellant No. 1 that the respondent, taking advantage of her absence, wrongfully occupied the suit land and the house standing thereon. When she trie d to get the suit land mutated in her name in place of her husband, the revenue authority refused to do so as she was found to be not in possession of the same. The notice sent by her to the respondent to vacate the suit land proved futile which prompted her to file the title suit for ejectment and for a direction to t he revenue authority to get her name mutated in the record of right in respect o f the suit land. 3. The suit was contested by the respondent. In his written statement, the respondent pleaded that in the year 1996-97, he constructed the said house on th e suit land with the knowledge of the late Debojit Saikia as he had a good relat ionship with him. In the year 2001, the late Debojit Saikia had proposed to sell the suit land to him which ultimately resulted in the execution by and between them of the agreement of sale on 2-3-2001 for a consideration of Rs. 1,37,000/-, which was immediately paid by him to the late Debojit Saikia. It was also agree d between them that a registered sale deed for the suit land would be executed a fter obtaining necessary permissions, etc. The respondent maintained that he had been in possession of the suit land since 1996 and that the land record maintai ned by the revenue authority also reflected that it was him who was in possessio n of the suit land. These are the sum and substance of the case of the responden t. On the pleadings of the parties, the trial court framed the following is sues: 1. Is there any cause of action for the suit? 2. Whether the plaintiffs have right, title and interest over the suit land and Assam Type house standing thereon/ 3. Whether the defendant has occupied/possessed the suit land and house in question unlawfully? 4. Whether the plaintiffs are entitled to get right, title, interest and kh as possession over the suit land and house by evicting the defendant from the di sputed land? 5. What other relief the parties are entitled. 4. On the conclusion of the trial, the suit was decreed. Aggrieved by the d ecree, the respondent preferred the first appeal, which succeeded. Aggrieved by the judgment and decree of the first appellate court, this second appeal is file d by the appellants. The controversy revolves round the true nature of the docum ent dated 2-3-2001 executed by the late Debojit Saikia in favor of the responden t, which was exhibited as Exbt. Ka, namely, whether the document is an agreement of sale or a deed of sale and assuming the same to be an agreement of sale, whe ther it can be used for invoking the doctrine of part performance provided for in Section 53-A of the Transfer of Property Act, 1882.. According to the appella te court, Exbt. Ka is an agreement of sale and not a deed of sale. On the basis of this finding, it then proceeded to hold as follows: 22. There is an ample evidence in this case to show that the appellant has b een in possession of the suit land for a long time. Ext. Kha is a certified copy of the order passed in Mutation Case No. 10/06-07. In this order dtd. 15-6-2007 , the Revenue Authority refused to mutate the respondent in respect of the suit land on the ground that they were not found in possession of the same. 23. The respondent Mridula claimed that immediately after here marriage in t he year 2001, she and her husband started to reside in the Assam Type of house s ituated over the suit land. I have found that there is no evidence to support th is fact. She admitted that the Assam Type house was built over the suit land bef ore her marriage. She even denied having any knowledge as to who built the house . On the other hand, all the witnesses of the appellant supported the case of th e appellant. There is sufficient evidence on record to prove that the appellant has been in possession of the suit land since the years 1996-97. 24. Although the learned counsel for the appellant never pleaded, in my co nsidered opinion, the case of the respondents is hit by the provisions of law la id down in Sec. 53-A of the Transfer of Property Act. It has been proved that th e agreement of sale was executed in the year 2001. It has also been proved that appellant has been in possession of the suit land since 1996-97. I have sufficie nt reason to hold that the appellant was put in possession of the suit land by v irtue of Exbt. Ka. Thus, late Debojit Saikia, his widow and children are debarre d from claiming right and title over the suit lanbd. By virtue of Exbt. Ka, Late Debojit had lost his title over the suit land. Thus, the respondents do not hav e any title over the suit land. • 5. Assailing the impugned decree, Mr. A. Thakuria, the learned counsel for the appellants, submits that the doctrine of part performance has never been the pleaded of the case of the respondent, and the appellate court has grossly erre d in applying this doctrine for decreeing the suit. He strenuously contends that even if it is assumed that this is a law point, which can be urged even at the appellate stage on the admitted position of the parties, still, the appellate co urt has completely misconceived the doctrine and has in the process wrongly appl ied the same to the facts of this case. It is his contention that the agreement of sale at Exbt. Ka was admittedly executed long after the respondent constructe d the Assam Type house on the suit land and if that is the admitted position of the parties, the doctrine of part performance cannot be applied on the facts of this case: Section 53-A of the Transfer of Property Act, 1882 can be invoked onl y if the contract precedes the taking of possession of the suit land by the cont ractee. Contending that the impugned judgment and decree is based on perverse fi ndings and illegality, the learned counsel urges this Court to reverse the same and restore the decree of the trial court. He relies on Sardar Govindrao Mahadik v. Devi Sahai, AIR 1982 SC 989 and the decision of this Court in Rameshwar Das and another v. Jogeshwar (Kalita) Das and others, 2007 (1) GLT 90 to fortify his contentions. Per contra, while supporting the impugned judgment and decree, Mr. N. Choudhury, the learned counsel for the respondent, maintains that the doctri ne of part performance being a question of law, it can be pleaded at any time pr ovided that the facts are undisputed, and the appellate court rightly applied th e doctrine as the instant case is one in which there is no dispute about the exe cution of the agreement at Exbt. Ka on 2-3-2001 and of the taking of possession by the respondent of the suit land and the house standing thereon in the years 1 996-97. As there is no perversity in the findings of the appellate court, no cas e has been made out by the appellant for the interference of this Court in exerc ise of its second appellate jurisdiction. 6. I have given my thoughtful consideration to the submissions advanced by the learned counsel appearing for the rival parties. I have also gone through bo th the judgments and the Courts below and other materials on record. The law is well-settled that in a second appeal, the findings of facts may raise substantia l questions of law under the following circumstances: • (1) Where there is no evidence at all on which a finding of fact can be base d, it raises a question of law; (2) The proper legal effect of a proved fact is essentially a question of la w; (3) If a finding of fact is arrived at ignoring important relevant evidence, the finding is one bad in law; (4) Construction of a document of title or a document which is the foundatio n of the rights of the parties necessarily raised a pure question of law; (5) The question of admissibility of evidence is a question of law; (6) Placing the onus on a wrong party by the first appellate court would be an error of law when its finding of fact is the result substantially of this wro ng placing of onus. 7. It is against the backdrop of the aforesaid principles that I propose t o examine the validity of the impugned judgment of the appellate court. Before p roceeding further, I may dispose of the objection of the learned counsel for the appellants against the decision of the appellate court to raise the doctrine of part performance when factual foundations to that effect were not pleaded by th e respondent. In my opinion, this objection need not detain us inasmuch as the e ssential facts for considering the application of this doctrine have been establ ished on the basis of the evidence adduced in the course of the trial, namely, t he taking of possession of the suit land by the respondent in 1996-97 and the ex ecution by the late Debojit Saikia of the agreement of sale in favor of the resp ondent. The only point for consideration is the proper legal effect of the afore said proved facts. This then leads me to refer to the Section 53-A of the Transf er of Property Act, 1882 ( the Act for short), which reads thus: 53-A. Part performance.? Where any person contract to transfer for consideratio n any immovable property by writing signed by him or on his behalf from which th e terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transfer has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in posses sion, continues in possession in part performance of the contract and has done s ome act in furtherance of the contract, and the transferee has performed or is w illing to perform his part of the contract, then, notwithstanding that where the re 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 transfe ror or any person claiming under him shall be debarred from enforcing against th e transferee and persons claiming under him any right in respect of the property of which the transfer 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 transfer ee for consideration who has no notice of the contract or of the part performanc e thereof. Thus, the following postulates are sine qua non for basing a claim on Se ction 53-A of the Act: (i) There must be a contract to transfer for consideration any immovable pro perty. (ii) The contract must be in writing, signed by the transferor, or by someone on his behalf. (iii) The writing must be in such words from which the terms necessary to cons true the transfer can be ascertained. (iv) The transfer must in part performance of the contract take possession of the property, or any part thereof. (v) The transferee must have done some act in furtherance of the contract. (vi) The transferee must have performed or be willing to perform his part of the contract. 8. On the admitted position of the parties, there can be no doubt that the transaction in question has fulfilled conditions (i), (ii) and (iii) above, but it is with respect to the remaining conditions that the matter requires deeper e xamination. It is the case of the respondent that he had taken possession of the suit land in the years 1996-97 and that it is in pursuance of the said agreemen t of sale that he had taken the possession. Now, if possession was taken by him from the late Debojit Saikia in the years 1996-97, it is incomprehensible as to how such possession could be taken by him in pursuance of the said agreement, wh ich was executed by and between them only in 2001 i.e. some five/six years after he had taken the possession. The finding of facts recorded by the appellate cou rt is also only to the effect that the respondent had been in possession of the suit land since 1996-97; that Exbt. Kha is the certified copy of the order passe d in Mutation Case No. 10/06-07; that the order dated 15-6-2007 showed that the Revenue Authority refused to mutate the respondent in respect of the suit land o n the ground that they were not found in possession of the same and that the res pondent had been put in possession of the suit land by virtue of Exbt. Ka (the agreement of sale). Thus, there is a reverse evidence that the respondent first took possession of the suit land with or without the knowledge of the late Deboj it Saikia in 1996-97 by constructing the Assam Type house thereon and that such possession was taken by him five/six years before the execution of the agreement of sale. The inference is, therefore, irresistible and the conclusion inescapab le that as the possession preceded the agreement of sale by about five years or so, there is no causal connection between the taking of possession by the respon dent of the suit land and the execution of the agreement of sale dated 2-3-2001. The law is that in a case where a person claims benefit of part performance, ev idence that he was inducted into possession for the first time subsequent to the contract, would be a strong piece of evidence regarding the contract, and of po ssession changing hands pursuant to the contract. The law in this behalf is succ inctly explained by the Apex Court in Sardar Govindarao Mahadik (supra) in the f ollowing manner: 31. & & & &. To qualify for the protection of the doctrine of part-performa e it must be shown that there is a contract to transfer for consideration immova ble property and the contract is evidence by a writing signed by the person soug ht to be bound by it and from which the term necessary to constitute the transfe r can be ascertained with reasonable certainty. These are prerequisites to invok e the equitable doctrine of part-performance. After establishing the afore-menti oned circumstances it must be further shown that a transferee had in part perfor mance of the contract either taken possession of the property or any part thereo f 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 acts claimed to be in part performance must be unequivocally referable to the pre-existing contract and the acts of part performance must unequivocally po int in the direction of the existence of contract and evidencing implementation or performance of contract. There must be a real nexus between the contract and the acts done in pursuance of the contract or in furtherance of the contract and must be unequivocally referable to the contract. & & & & &. 9. It is, however, contended by the learned counsel for the respondent that the respondent admittedly being in possession and continues to be in possession , once the factum of the execution of the agreement of sale is proved as is here , there is no earthly reason for not giving him the benefit of this doctrine. In my opinion, the learned counsel has completely misread and misconstrued the pro visions of Section 53-A of the Act. It has escaped his attention that the words already being in possession, continues in possession cannot be read in isolati on and must be with the words preceding them, namely, the transferee has, in pa rt performance of the contract and the words following them, namely, in part p erformance of the contract . In other words, the expressions in part performanc e of the contract qualify the words being already in possession, continues in possession . So read, it becomes clear that even if possession of the suit land was already taken by the respondent, it must have been done in part performance of the contract or in furtherance of the contract thereby postulating the prior existence of the agreement of sale. If the possession was taken before the execu tion, it cannot be said to be done in pursuance of or in furtherance of the agre ement of sale. Thus, in Sardar Gondarao Mahadiu (supra), it was held by the Apex Court that where a person claiming benefit of part performance of a contract wa s already in possession prior to the contract, the court would expect something independent of the mere retention of the possession to evidence part performance . No evidence independent of the mere retention of his possession is led by the respondent to prove that his retention of possession of the suit land was in par t performance or in furtherance of part performance. In this view of the matter, it is absolutely clear that the finding of the appellate court that the respond ent was put in possession of the suit land since 1996-97 by virtue of the agreem ent of sale at Exbt. Ka is based on no evidence and is, therefore, perverse. The impugned judgment and decree cannot be sustained in law. 10. For what has been stated above, this appeal is allowed. The judgment and decree dated 27-4-2009 passed by the learned Civil Judge, Jorhat is not sustain able in law and is, accordingly, set aside. The judgment and decree dated 7-11-2 008 passed by the learned Munsiff No. 1, Jorhat in T.S. No. 63 of 2007 is hereby restored. Let a fresh decree be prepared accordingly. The parties are, however, directed to bear their respective costs. Transmit the L.C. records forthwith.