THE HON’BLE SRI JUSTICE G.CHANDRAIAH A.S.NO.1045 OF 1994 JUDGMENT Aggrieved by he judgment and decree dated 26.4.1994 passed by the court of District Judge, Rangareddy District at Saroornagar in O.S.No.58/1993, in decreeing the suit filed for declaration of title and for recovery of possession and for mesne profits, the defendants in the suit, filed the present appeal. 2. For the sake of convenience, the parties will be referred to as per their array in the original suit. 3. The plaint averments are that the plaintiff is the owner of the suit property i.e., house property bearing old Nos.16-18 to 16-12, corresponding to new nos.23-1 to 23-4 of Venkatapuram village, Alwal Grampanchayat, and that he inherited the same from his father after his death on 25.4.1974. The first defendant is in possession of a portion of the suit property bearing Nos.23- 1 to 23-1 and the said property was taken on lease on a monthly rent of Rs.10/- and the second defendant was in occupation of the suit property bearing no.23-2 taken on a monthly rent of Rs.5/- and a person by name Perumal was in occupation of a portion bearing no.23-4, taken on a monthly rent of Rs.5/-. They were irregular in payment of rents. Either the plaintiff or his mother, were collecting the rents. As the defendants fell in arrears, the plaintiff got issued legal notice, terminating the tenancy and seeking for delivery of possession. The 1st defendant sent reply stating that he entered into agreement of sale on 15.5.1975, to purchase the property for an amount of Rs.3,000/- and that he paid Rs.2,000/- and hence is not the tenant pursuant to the agreement of sale dated 15.5.1975. The second defendant did not send any reply. The plaintiff filed suit in O.S.No.247/979 on the file of Munisf Magistrate Court, Hyderabad East and North against the first and second defendants, seeking possession of the suit property. The said suit was dismissed holing that the defendants 1 and 2 are not the tenants. Since, the defendants are not paying the rents and denying the title, he filed the present suit for declaration of title and for recovery of possession. 4. During the pendency of suit, the 1st defendant died and his legal representatives were added as defendants 3 and 4. The second defendant filed written statement and when the 1st defendant was alive, he filed memo, adopting the written statement filed by second defendant. 5. The case of the defendants while denying that the plaintiff is the owner of the property, is that they were in occupation of the suit property for more than 39 to 40 years prior to the date of filing of the suit. The defendants 1 and 2 purchased the portion of the property in their occupation as per the agreement of sale dated 15.5.1975 and so they ceased to be the tenants. As the earlier suit filed for possession was dismissed, the present suit is hit by res judicata. It is also alleged that the suit is not properly valued and the court has no jurisdiction to try the suit. With these averments, the suit was sought to be dismissed. 6. Based on the above contentions, the trial court framed the following issues for trial: 1. Whether the plaintiff is entitled for declaration of his title in respect of the portion under the occupation of the defendants 1 and 2 in the plaint schedule property and directing the defendants to vacate the portion of the suit schedule property and to put him in possession thereof in respect of the property bearing H.No.16-18 to 16-20 old and new numbers 2301 to 23-4 situate at Venkatapuram village, Alwal Grampanchayt, Vallabhangar Tq. in Rangareddy District, as prayed for? 2. Whether the plaintiff is entitled for a decree for Rs.3,600/- towards mesne profits against defendants 1 and 3, as prayed for? 3. Whether the plaintiff is entitled for a decree for mesne profits against the defendants at the rate of Rs.100/- per month from the date of filing of the suit till the date of delivery of possession of the plaint schedule property to him as prayed for? 4. Whether the defendants are not the tenants in respect of the plaint schedule property, for the reasons urged in her written statement? 5. Whether the suit is not maintainable for the reasons urged by the second defendants in her written statement? 6. Whether the suit filed by the plaintiff is barred by limitation as contended by the defendants? 7. Whether the plaintiffs are not entitled for any mesne pofits as contended by the defendants.? 8. Whether this court has no jurisdiction to try this suit as contended by the defendants? 9. To what relief? 7. In support of the case of the plaintiff, he examined himself as P.W.1 and examined another witness as P.W.2 and got marked as Exs.A-1 to A-14. On behalf of the defendants, the third defendant was examined as D.W.1 and another witness was examined as D.W.2 and Exs.B-1 to B-7 were marked. Ex.A-10 is the same as Ex.B-3 and Ex.A-12 is same as Ex.B-2. 8. Appreciating the entire evidence, the trial court decreed the suit. Hence, the present first appeal by the defendants. 9. The case of the appellants as stated in the grounds of appeal is that the earlier suits filed by the plaintiff in O.S.Nos.33 and 34 of 1982 were dismissed holding that the defendants are not the tenants and hence the present suit is hit by the principles of res judicata. It is further contended that the appellants are entitled for protection under Section 53-A of the Transfer of the Property Act and therefore, the suit is liable to be dismissed. It is contended that the sale deed could not be executed because of the attitude of the father of the plaintiff. With these averments, the judgment and decree of the trial court was sought to be dismissed. 10. From the material on record, the case of the plaintiff is that he inherited the suit schedule property from his father and thus became owner of the same and as the plaintiff failed to pay the rent and refused to vacate, he earlier filed the suit for possession and the same was dismissed, holding that the defendants are not the tenants by virtue of the agreement dated 15.5.1975 and in the earlier suit as the title was not decided, he filed the present suit for declaration of title and for recovery of possession and for mesne profits. 11. On the other hand, the case of the defendants, is that the defendants 1 and 2 entered into agreement with the father of the plaintiff and as the sale deed was not executed and further, they are entitled for protection under Section 53-A of Transfer of Property Act and since in the earlier suits they were held to be not the tenants and the suits were dismissed, the present suit is not maintainable. 12. In view of the above rival contentions, the point that arises for my consideration is whether the impugned order warrants any interference? 13. The undisputed facts are the defendants 1 and 2 are the tenants of the suit schedule property and their case is that they entered into an agreement of sale, with the father of the plaintiff and are in possession of the same. It is well settled that the possession of the defendants in the suit schedule property, under agreement of sale, is the permissive possession and they cannot plead adverse possession against the plaintiff. Further, the plaintiff filed the suit within twelve years from the date of the agreement i.e., 15.5.1975 and, therefore, the suit cannot be said to be barred by limitation. 14. The defendants 1 and 2 entered into agreement on 15.5.1975 under Ex.B-1. It is well settled that if time is not made the essence of contract, the suit for specific performance of the agreement of sale has to be filed within three years from the date of refusal. In the present case, the plaintiff earlier filed the suits in O.S.Nos.33 and 34 of 1982 seeking recovery of possession, disowning Ex.B-1. Therefore, since the time is not made the essence of contract, the date of refusal of the agreement of sale, has to be taken, to count the period of limitation. Therefore, at least within three years therefrom, the suit for specific performance ought to have been filed. In the present case, no suit is filed within three years from the date of filing suits in O.S.Nos.33 and 34 of 1982. Hence, even assuming that Ex.B-1 it is true, became unenforceable through court, as it is barred by limitation. 15. Based on the material on record, the trial court found that the defendants did not even aver in the written statement that they are ready and willing to perform their part of the contract, as per the terms and conditions in Ex.B-1 and, therefore, for invoking the protection under Section 53-A of the Transfer of Property Act, the defendants should at least perform their part of the contract or should be willing to perform their part of the contract. In the present case, the defendants 1 and 2, neither performed their part of the contract, since as per Ex.B-1 they agreed for a consideration of Rs.3,000/- and paid only Rs.1,000/- and failed to pay the balance and further, as noted above, they did not aver in the written statement that they are ready and willing to perform their part of the contract. In the absence of such averment, evidence in that regard, cannot be looked into and the trial court has rightly refused to extent the benefit under Section 53-A of the Act and I do not find any reason to interfere with the same. 16. The contention of the defendants is that in view of the dismissal of the earlier suit, the present suit is barred by res judicata. The earlier suit is for possession and in the said suit, the title of the property has not been decided. Further, in the earlier suit, the court has categorically held that the plaintiff failed to establish the status of the defendants as tenants and that it is for the defendants to take appropriate steps to get Ex.B-1 specifically enforced or to get their title to the suit property declared and that he do not propose to adjudicate the matter relating to the transaction of sale allegedly entered into between the father of the plaintiff and the defendant no.1 under Ex.B-1. As already noted above, the defendants failed to take any steps to see that Ex.B-1 is specifically enforced or got their title declared by a court of law. In the earlier suit, the issue of title was left open and in such circumstances, the finding in the earlier suit, cannot be taken to say that the present suit is hit by the principles of res judicata. Therefore, the contention of the defendants in this regard, merits for rejection. 17. As per the admitted case on record, the defendants are the tenants over the suit scheduled property. This fact was even admitted by D.W.1 who stated that the defendants entered into the possession of the suit property as tenants. Hence, the defendants cannot dispute the title of the plaintiffs under Section 116 of the Evidence Act. Further, the defendants are claiming title from the father of the plaintiff i.e., Agaiah, who executed Ex.B-1. Therefore, when the defendants are admitting the title of the father of the plaintiff and they failed to take any steps to get Ex.B-1 enforced and further in the evidence of P.W.1, he categorically deposed that he inherited the suit property from the father and the same was not denied or disputed by the defendants, I am of the considered view, the court below rightly held that the plaintiff is the owner of the suit schedule property and entitled for recovery of possession. 18. Considering the evidence on record, the trial court granted Rs.900/- as damages for use and occupation and also directed to pay Rs.50/- per month towards future use and occupation by the defendants till the date of delivery of possession. I do not find any reason to interfere with the same. 19. For the foregoing reasons, I am of the considered view that the trial court rightly decreed the suit and I do not find any justification or any perversity in the impugned order and the issues framed in this regard, is answered in the negative. The appeal is liable to be dismissed and accordingly dismissed. No costs. AVS ------------------------------ ----- 11—11—2010