R.S.A. No. 3898 of 2010 (O&M) [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No. 3898 of 2010 (O&M) Date of Decision: June 1, 2011 Ghulla Singh …..Appellant. Vs. Jagangir and another …..Respondents CORAM: HON’BLE MR. JUSTICE M.M.S. BEDI. -.- Present:- Mr.Gurnam Singh, Advocate for the appellant. Mr. Abhinav Oberoi, Advocate for the respondents. -.- M.M.S. BEDI, J. (ORAL) Suit of the plaintiff- respondent for possession has been decreed by the Courts below. Counsel for the defendant- appellant submits that the defendant has been in possession of the property in dispute pursuant to an agreement of sale dated July 13, 1987 by virtue of which the plaintiff- respondents had received a sum of ` 4200/- as part of the sale consideration at the time of the R.S.A. No. 3898 of 2010 (O&M) [2] execution of the agreement of sale. In view of said circumstances, the possession can not be taken from the defendant-appellant. In support of his contention, counsel for the appellant has relied upon Shrimant Shamrao Suryavanshi and another Vs. Pralhad Bhairoba Suryavanshi (dead) by LRs and others, AIR 2002 SC 960. Protection of Section 53 of the Transfer of Property Act has been claimed by the defendant- appellant by placing reliance on the said judgment. The Apex Court interpreting the provisions of Section 53 A of the Act has laid down certain conditions which are required to be fulfilled if a transferee wants to defend or protect his possession under Section 53A of the Act. The said necessary conditions are:- “1) there must be a contract of transfer for consideration any immoveable property; 2) the contract must be in writing, signed by the transferor, or by someone on his behalf; 3) the writing must be in such word from which the terms necessary to construe the transfer can be ascertained; 4) the transferee must in part performance of the contract take possession of the property, or of any part thereof; 5) the transferee must have done some act in furtherance of the contract; and R.S.A. No. 3898 of 2010 (O&M) [3] 6) the transferee must have performed or be willing to perform his part of the contract.” After enumerating the abovesaid conditions, it was observed by the Apex Court that the limitation Act does not extinguish a defence, but only bars the remedy. Since the period of limitation bars a suit for specific performance of a contract, if brought after the period of limitation, it is open to a defendant in a suit for recovery of possession brought by a transferor to take a plea in defence of part performance of the contract to protect his possession, though he may not able to enforce that right through a suit or action. As the High Court in the said case had allowed the appeal on the ground that the remedy for bringing a suit for specific performance was lost, the defendant was held not entitled to protect his possession under Section 53A of the Act A perusal of the said judgment does not indicate that the Apex Court has laid down a law to the effect that a person who enters into possession of a property pursuant to an agreement of sale is entitled to retain the possession for all times to come and that he achieves immunity in all legal proceedings against him for recovering the possession back. In the present case the defendant-appellant claims that on payment of a sum of ` 4200/- as earnest money, on the basis of an agreement of sale dated July 13, 1987, the defendant entered into the possession. Whether the defendant having enjoyed possession for a period R.S.A. No. 3898 of 2010 (O&M) [4] of 11 years at the time of filing of the suit and for a period of 20 years till date, he cannot be dispossessed on the basis of decree for possession. Counsel for the appellant has submitted that the appellant has remained always ready to pay the balance of the sale consideration to get the sale deed executed in his favour as he was always and willing to perform his part of the contract as per the agreement of sale. I have heard counsel for the defendant- appellant and plaintiff- respondent. It is an admitted fact that the defendant has not till date expressed his desire to get the sale deed executed by paying the earnest money. He has enjoyed possession for a pretty long time. After even having known the intention of the plaintiff- respondent to recover back the possession through the instant suit, he did not bring any evidence on the record and also did not take any steps to seek the specific performance of the agreement of sale which appears to have become unenforceable on account of limitation. Presuming that the limitation is saved by the judgment cited by the counsel for the defendant, still the rights of an owner to recover the possession of his property on the basis of title cannot be snatched in the garb of Section 53A of the Act by the defendant- appellant. Dismissed. June 1, 2011 (M.M.S.BEDI) sanjay JUDGE