*HON’BLE SRI JUSTICE R. KANTHA RAO + S.A.NO.368 OF 2006 AND +S.A.NO.369 OF 2006 %Dated: 29.03.2011 BETWEEN: # Kuruvakotapaty Chinna Linganna .. Appellant And $ Alla Mallikarjuna Reddy and others Respondents !Counsel for the Appellant: Sri K.Rathanga Pani Reddy ^ Counsel for the Respondent : Sri G.Ramachandra Reddy <GIST: Ø HEAD NOTE: ? Cases HON’BLE SRI JUSTICE R.KANTHA RAO S.A.NO.368 OF 2006 AND S.A.NO.369 OF 2006 DATED: 29.03.2011 BETWEEN: Kuruvakotapaty Chinna Linganna .. Appellant And Alla Mallikarjuna Reddy and others Respondents HON’BLE SRI JUSTICE R.KANTHA RAO S.A.NO.368 OF 2006 AND S.A.NO.369 OF 2006 COMMON JUDGMENT: S.A.No.368 of 2006 is filed against the decree and judgment dated 02.01.2006 passed in A.S.No.7 of 2004 by the V Additional District Judge, (Fast Tract Court), Kurnool at Nandyal whereby and whereunder the learned V Additional District Judge reversed the decree and judgment dated 26.12.2003 passed by the Principal Junior Civil Judge, Nandyal in O.S.No.154 of 1998. S.A.No.369 of 2006 is filed against the decree and judgment dated 02.01.2006 passed in A.S.No.6 of 2004 by the V Additional District Judge, (Fast Tract Court), Kurnool at Nandyal whereby and whereunder the learned V Additional District Judge reversed the decree and judgment dated 26.12.2003 passed by the Principal Junior Civil Judge, Nandyal in O.S.No.136 of 1998. These two appeals are between the same parties. The subject matter of dispute being the same and the substantial questions of law that arise for consideration in these second appeals being the same, both these appeals are disposed of by the following common judgment. I have heard Sri K.Rathangapani Reddy, learned counsel appearing for the appellants in both the appeals and Sri G.Ramachandra Reddy, learned counsel appearing for the respondents in both the appeals. O.S.No.136 of 1998 is filed for the relief of permanent injunction in respect of the land of an extent of Ac.1.52 cents in Survey No.195 of Peda Davalam Village, Bandi Atmakur Mandal, locally known as Vegula chenu, hereinafter will be referred to as ‘the schedule mentioned land’, against the defendants 1, 2 and 4 and subsequently, he filed O.S.No.154 of 1998 seeking the relief of specific performance of agreement to sell dated 30.07.1985 against the defendants 1 to 4. The learned trial Court tried both the suits jointly, recorded evidence in O.S.No.136 of 1998 and delivered common judgment referring the parties as plaintiff and defendants, as arrayed in O.S.No.154 of 1998. For the sake of convenience, I would like to refer the parties in the same fashion. The brief facts relevant for considering the substantial questions of law involved in these second appeals are stated as follows: The plaintiff purchased the schedule mentioned land under an agreement to sell dated 30.07.1985 from the defendants 1 and 2, who executed the agreement to sell in his favour by receiving the entire sale consideration on the same day. The plaintiff was put in possession of the schedule mentioned land under Ex.A.1-agreement to sell dated 30.07.1985. According to the plaintiff, Sri Karimaddela Sivalingam, 4th defendant, having colluded with the defendants 1 and 2 tried to trespass in to the schedule mentioned land, then he filed O.S.No.136 of 1998 seeking the relief of permanent injunction against the defendants 1, 2 and 4. Subsequently, he also filed O.S.No.154 of 1998 seeking specific performance of contract in terms of Ex.A.1- agreement to sell, dated 30.07.1985 against the defendants 1 to 4. Both the suits are based on Ex.A.1-agreement to sell, dated 30.07.1985 said to have been executed by the defendants 1 and 2. Before the trial Court, PWs.1 to 3 were examined and Exs.A.1 to 15 were marked on behalf of the plaintiff. Whereas, DWs.1 to 4 were examined and Exs.B.1 to 19 were marked on behalf of the defendants. The learned Principal Junior Civil Judge, Nandyal, decreed both the suits granting relief of specific performance in O.S.No.154 of 1998 and also granting the relief of permanent injunction in O.S.No.136 of 1998 against the defendants. In both the suits, the first defendant remained ex parte. The learned trial Court basing on the evidence of PW.1- plaintiff, PW.2-scribe of Ex.A.1-agreement to sell, dated 30.07.1985, PW.3-attestor of Ex.A.1 held that Ex.A.1-agreement to sell, dated 30.07.1985 is proved by the plaintiff and that the plaintiff was put in possession of the schedule mentioned land under the said agreement by the defendants 1 and 2 after receiving entire sale consideration. The learned trial Court as well as the first appellate Court, concurrently held that Ex.A.1-agreement to sell, dated 30.07.1985 is true and valid. The theory put-forth by the second defendant was rejected by both the Courts below. Subsequently, the defendants 1 and 2 executed Ex.B.19-registered sale deed, dated 30.03.1998 in favour of the 4th defendant in respect of the suit land. It was contended by the defendants before the trial Court that Ex.B.3-legal notice dated 13.12.1993 sent by the defendants was received by the plaintiff which is evident from Ex.B.5-acknowledgment and the plaintiff filed the suit seeking the relief of specific performance i.e. O.S.No.154 of 1998 on 09.04.1998 i.e. after a period of 8 years and therefore, the suit is barred by limitation by virtue of Article 54 of the Limitation Act. It was contended inter alia before the trial Court by the defendants that in view of Ex.B.3-legal notice, dated 13.12.1993 issued by the second defendant to the first defendant (brother of the second defendant), third defendant (mother of the second defendant), Sugali Narayana and the plaintiff stating that the first defendant having colluded with the plaintiff obtained the signatures of the defendants on some blank papers on the pretext of executing lease deeds in respect of their landlords, created some documents and alienated the property to the plaintiff and therefore, the plaintiff had not obtained any sale deed from the defendants 1 and 3 in respect of the schedule mentioned land. According to Article 54 of the Limitation Act, the suit for specific performance of contract of sale has to be filed within three years from the date fixed for performance of contract and if no such date is fixed, it shall be filed within three years from the date when the plaintiff refused notice of specific performance. The learned trial Court, however, took the view that there is no reference in Ex.B.3-registered legal notice, dated 13.12.1993 about the Ex.A.1-agreement to sell, dated 30.07.1985, the plaintiff came to know about the refusal of performance only on 09.04.1998, when the written statement was filed by the defendants 2 and 3 in O.S.No.136 of 1998 mentioning that they executed Ex.B.19-sale deed in favour of the 4th defendant. Limitation according to the learned trial Court commences from 09.04.1998, but not from 15.12.1993 the date on which Ex.B.3 – notice, dated 13.12.1993 was served on the plaintiff. As to this, it may be stated that though there is no reference to Ex.A.1-agreement to sell, dated 30.07.1985 in Ex.B.3-legal notice sent by the second defendant, he made his intention clear therein by stating that the plaintiff has not obtained any registered sale deed from defendants 1 and 3 and they were trying to make such alienation jeopardizing rights of the second defendant in the schedule mentioned land. From the contents of Ex.B.3-legal notice, therefore, it is obvious that the second defendant communicated to the plaintiff in vivid terms that he is not going to join defendants 1 and 3 in executing registered sale deed in favour of the plaintiff. From this, the plaintiff, who was in possession of Ex.A.1-agreement to sell, must have understood that the specific performance of contract contained in the said agreement was refused by the second defendant. The trial Court, therefore, went wrong in arriving at the finding that the limitation for specific performance of contract under Ex.A.1-agreement to sell commences from 09.04.1998 when the plaintiff had knowledge about execution of Ex.B.19-sale deed by the defendants 2 and 3 in favour of the 4th defendant and not from 15.12.1993, the date on which Ex.B.3 legal notice dated 13.12.1993 was received by the plaintiff. One of the substantial questions of law raised by the plaintiff in these appeals is the decision of the first appellate court that the cause of action in the suit for perpetual injunction as well as in the suit for specific performance of agreement to sell is one and the same and on failure by the plaintiff to include the relief of specific performance in the first suit for perpetual injunction filed by him debars him from filing the subsequent suit for specific performance is contrary to the settled principles of law and the same is liable to be set aside in these second appeals. As to this contention, I would like to emphasize that the suit for perpetual injunction was filed when there was an attempt by the defendants to trespass in to the schedule mentioned land, whereas the suit for specific performance was filed by the plaintiff to get a regular sale deed executed by the defendants in terms of Ex.A.1-agreement to sell dated 30.07.1985. The cause of actions in both the suits is different for which separate suits may be brought by the plaintiff. The learned trial Court was right in holding that since both the suits are based on different causes of action, the suit for specific performance is not barred under Order 2 Rule 2(3) of C.P.C. The finding, therefore recorded by the learned first appellate Court according to which it reversed the finding of the trial Court holding that the suit for specific performance is barred under Order 2 Rule 2 C.P.C. being contrary to the provisions of Order 2 Rule 2 C.P.C. is set aside in these second appeals. However, it does not change the result of the suit since this Court upheld the finding of the first appellate Court that the suit for specific performance of agreement to sell in terms of Ex.A.1 filed by the plaintiff is barred by limitation. Thus, the substantial question of law raised by the plaintiff in the appeals that the decision rendered by the first appellate Court reversing the finding of the trial Court and holding that the suit is barred by limitation is contrary to law and also to the material evidence on record has absolutely no foundation. This Court, therefore, affirms the finding of the first appellate Court that the suit for specific performance of agreement to sell filed by the plaintiff is barred by limitation and answers the said point against the plaintiff. Another substantial question of law which was raised by the plaintiff for consideration in the second appeals is that the first appellate Court having found that the plaintiff has been in possession of the schedule mentioned land ever since the date of Ex.A.1- agreement to sell having taken possession of the same under the said agreement, he is not entitled for the relief of permanent injunction since the suit for specific performance of contract is barred by limitation, is contrary to the provisions envisaged under Section 53-A of the Transfer of Property Act, the same being wholly erroneous, is liable to be set aside in these second appeals and O.S.No.136 of 1998 filed by the plaintiff for the relief of permanent injunction has to be decreed by setting aside the finding of the first appellate Court. A combined reading of Section 19 of the Specific Relief Act and Section 53-A of the Transfer of Property Act makes it clear that the rights of a subsequent transferee for consideration, who has no notice of the earlier contract are not affected in an action brought by a person, who was put possession of immoveable property under an earlier written contract. In the instant case, it is to be seen that whether the 4th defendant is a bona fide purchaser for value without notice of the earlier contract of sale i.e. Ex.A.1-agreement to sell, dated 30.07.1985. The parties to the suit i.e. plaintiff as well as the defendants are residents of one and the same village. From various documents filed by the plaintiff, such as, Exs.A2 to A.4-land revenue receipts, Exs.A.5 and A.6 pattedar passbook and the title deed, Exs.A.8 to A.14-certified copies of extracts of adangal clearly indicate that the plaintiff has been in possession of the schedule mentioned land. The learned first appellate Court also concurred with the findings of the learned trial Court on this aspect and held that the plaintiff having obtained the schedule mentioned land under Ex.A.1-agreement to sell has been in possession and enjoyment of the same and that there was no iota of documentary evidence adduced by the defendants to show that subsequent to Ex.A.1-agreement to sell either defendants 1 to 3 or defendant No.4 who is the subsequent purchaser are in possession of the schedule mentioned land. Considering the long uninterrupted possession of the plaintiff over the schedule mentioned land and the fact that the plaintiff as well as the 4th defendant are residents of one and the same village and also the fact that all the revenue records in respect of the schedule mentioned land are maintained in the name of the plaintiff, the learned first appellate Court recorded a positive finding that the 4th defendant must have been aware of Ex.A.1-agreement to sell and the possession of the plaintiff in pursuance thereof and that he cannot plead ignorance of the earlier transaction. The learned first appellate Court further emphasized that any little attempt on the part of the 4th defendant would have revealed about the earlier transaction and the maintenance of all relevant records in the name of the plaintiff in respect of the suit land. Therefore, the learned first appellate Court recorded categorical finding that the 4th defendant is not a bona fide purchaser for value without notice of the earlier Ex.A.1-agreement to sell executed by defendants 1 and 2 in favour of the plaintiff and putting him in possession of the schedule mentioned land under the said agreement. Having recorded a finding that the plaintiff is not a bona fide purchaser for value without notice of the earlier contract of sale and that the plaintiff is in possession of the schedule mentioned land having been put in possession of the same by the defendants 1 and 2 under Ex.A.1 agreement to sell misdirected itself in holding that since the suit for specific performance of contract of sale filed by the plaintiff is barred by limitation, he is not entitled for the decree of permanent injunction. The learned first appellate Court was also under the erroneous impression that a person in possession having obtained the same under a valid written contract of sale can protect his possession having recourse to the doctrine of part performance of contract embodied in Section 53-A of the Transfer of Property Act, but cannot, as the plaintiff file a suit for permanent injunction. The view taken by the learned first appellate Court is contrary to the settled legal position in relation to the doctrine of part performance under Section 53-A of the Transfer of Property Act. It has been laid down in large number of decisions that even if the plaintiff’s remedy for specific performance is barred by limitation, he can still has a right to invoke the doctrine of part performance envisaged under Section 53-A of the Transfer of Property Act and protect his possession even by instituting a suit seeking relief of perpetual injunction. It is true that the doctrine does not confer any title on the person who took possession of the property in part performance of a written contract of sale, but it affords protection to the person against the transferor or any person claiming under him. In the instant case, admittedly, the plaintiff obtained possession of the schedule mentioned land in part performance of Ex.A.1-agreement to sell, dated 30.7.1985. Merely because the suit for specific performance of contract is barred by limitation, it cannot be said that he has not been ready and willing to perform his part of contract. The very fact that he paid the entire sale consideration indicates that there was nothing remained to be performed on his part. The plaintiff has not only a right to defend his possession in an action brought by the transferor or any person claiming under him, he can also institute a suit for injunction for the purpose of protecting his possession. The trial court, therefore, obviously in error in holding that since the relief of specific performance of contract is not available to the plaintiff as it was barred by time, he is not entitled to protect his possession by filing a suit for permanent injunction against his transferors and the 4th defendant, who subsequently obtained ExB.19 sale deed from the defendants 2 and 3. Both the Courts have found concurrently that the 4th defendant is not a bona fide purchaser for value, without notice of Ex.A.1- agreement to sell. If that is so, the plaintiff can enforce his defence available to him under Section 53-A of the Transfer of Property Act against his transferors as well as against the defendant No.4, who obtained the registered sale deed -Ex.B.19 from the defendants 2 and 3 and claiming rights through them. The defendants, therefore, in the circumstances, indicated hereinabove cannot resist the suit of permanent injunction filed by the plaintiff and the plaintiff is certainly entitled for a decree of permanent injunction against the defendants, despite the fact that the suit for specific performance is dismissed being barred by limitation. The learned first appellate Court went wrong on this aspect in reversing the decree and judgment passed by the learned trial Court in favour of the plaintiff granting perpetual injunction against the defendants. This is a manifest error of law committed by the first appellate Court, which is in the nature of substantially affecting rights of the plaintiff to protect his possession and therefore, it raises a substantial question of law in the second appeal. For the foregoing reasons, the decree and judgment dated 02.01.2006 passed by the V Additional District Judge (Fast Tract Court) Kurnool at Nandyal in A.S.No.7 of 2004 is confirmed and the decree and judgment dated 02.01.2006 passed by the V Additional District Judge (Fast Tract Court) Kurnool at Nandyal in A.S.No.6 of 2004 is set aside affirming the decree and judgment dated 26.12.2003 passed by the Principal Junior Civil Judge, Nandyal granting perpetual injunction in favour of the plaintiff. S.A.No.368 of 2006 fails and the same is dismissed. S.A.No.369 of 2006, however, succeeds and the same is allowed. There shall be no order as to costs. Date: 29.03.2011 __________________ R.KANTHA RAO,J Note: L.R Copy to be marked b/o Kvrm HON’BLE SRI JUSTICE R.KANTHA RAO S.A.NO.368 OF 2006 AND S.A.NO.369 OF 2006 Date: 29-03-2011