IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.12.2010 CORAM: THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN SA.No.675/2001 T.Subbiah Vanniar Appellant/Plaintiff Vs 1.P.Vedarathinam 2.P.Apoorvathammal Respondents/ Defendants 1&2 Prayer:- This Second Appeal is filed under section 100 of CPC against the Judgement and Decree dated 1.3.1999 passed in AS.No.13/98 by the learned Principal Subordinate Judge, Nagapattinam, confirming the Judgement and Decree dated 15.7.1997 passed in OS.No.582/1994 by the learned District Munsif, Tiruvarur. For Appellant : Mr.P.Gopalan For Respondents : Mr.S.Sounthar-R1 JUDGEMENT The appellant herein/plaintiff has filed the suit in OS.No.582/1994 against the respondents herein/ defendants to pass a judgement and decree in favour of the plaintiff, (a) directing the defendants to put the plaintiff in possession of the suit property, (b) directing the defendants to pay costs of the suit and (c) directing the defendants to pay future mesne profits from the date of the suit to the date of delivery. 2. The case of the Plaintiff as set out in the plaint is as follows:- a. The plaintiff purchased an extent of 3032 sq.ft in TS.No.581 (Part) with a house bearing Door No.30C from one Dharmaraja Vanniar under the sale deed dated 28.3.1989 for a valid consideration. The 1st defendant is the brother's son of the plaintiff. The 2nd defendant being the 2nd wife of Packirisamy Vanniar is the step-mother of the 1st defendant. At the time when the suit property was purchased by the plaintiff, the 1st defendant was in occupation of Door No.30C and the house to an extent of about 300 sq.ft under some arrangement with Dharmaraja Vanniar. The remaining portion was put in possession of the plaintiff by Dharmaraja Vanniar. The portion in possession of the plaintiff in the property purchased from Dharmaraja Vanniar is used as Kitchen, bathroom, drainage and backyard by the plaintiff. There is also a small temple maintained by the plaintiff. https://hcservices.ecourts.gov.in/hcservices/ b. After purchase, the plaintiff requested the 1st defendant to vacate the house and hand over possession to the plaintiff. The 1st defendant agreed to vacate after finding an alternative accommodation. The 1st defendant colluding with his step-mother, the 2nd defendant issued a legal notice to the plaintiff and Dharmaraja Vanniar on 25.10.1989, setting up an agreement of sale dated 11.1.1975 entered into with the plaintiff's vendor Dharmaraja Vanniar by the 2nd defendant. The said notice alleged some payment alledgedly made by the 2nd defendant to Dharmaraja Vanniar. The plaintiff was never aware of the alleged agreement of sale, till he received the said notice. It is false to say that possession was delivered to the 2nd defendant by Dharmaraja Vanniar under the aforesaid agreement of sale. If it were true, Dharmaraja Vanniar could not have put the plaintiff in possession of the property after the plaintiff's purchase. The plaintiff is a bona fide purchaser for value without notice of the alleged sale agreement dated 11.1.75. The said agreement, assuming it is true, became time barred in the year 1978 itself and more so, when the 2nd defendant issued notice to the plaintiff on 25.10.1989. The alleged agreement has become unenforceable. The 2nd defendant cannot in law claim to be in possession of the suit property under the agreement and cannot therefore, avail the benefits of Section 53A of the Transfer of Property Act. The alleged possession of the 2nd defendant could in law be only permissive and never adverse to either Dharmaraja Vanniar or the plaintiff. c. The plaintiff issued a notice dated 19.7.1994 to the 1st defendant calling upon the 1st defendant to deliver possession. The 1st defendant has given a reply on 25.7.1994 alleging that he is enjoying the property under the 2nd defendant. The allegations in the 1st defendant's notice are false. The defendants are colluding together to defeat the rights of the plaintiff. The defendants are bound to deliver possession of the suit property to the plaintiff. The plaintiff is also entitled to the future mesne profits from the date of the suit to the date of delivery. Hence, the suit has been filed. 3. In the Written Statement filed by the Defendants, it is averred as follows:- a. The suit has been filed based on the fraudulent document, namely, the sale deed dated 28.3.1989 said to have been executed by Dharmaraja Vanniar. The said Dharmaraja Vanniar was not in possession of the suit property on 28.3.1989. No possession of the suit property was given to the plaintiff at any time. The extent of the property is also false. Dharmaraja Vanniar owned an extent of 2098 sq.ft. in TS.No.581. The plaintiff was not in possession of any portion of the above said area at any time. The plaintiff's vendor was also not in possession of the said property after 11.1.1975. The allegation in the plaint that some portion of it has been used as kitchen, bathroom, drainage and backyard by the plaintiff is false. https://hcservices.ecourts.gov.in/hcservices/ b. The 2nd defendant entered into an agreement of sale with Dharmaraja Vanniar for a sum of Rs.3500/- and paid an advance of Rs.1000/- and took possession of the property in part performance of the contract of sale. After the purchase, she rented out the property to one M.Vembaiyan under the rent deed dated 12.1.1975. He has vacated the premises on 12.5.1984. Since then, the 1st defendant is in possession and enjoyment of the property. He was permitted to live in the suit property by the 2nd defendant. The allegation that the 1st defendant agreed to vacate and deliver vacant possession after the alleged purchase is false. The sale agreement dated 11.1.75 is true. The plaintiff was aware of the sale transaction and he is not a bona fide purchaser for value without notice of the sale agreement. c. The 2nd defendant has always been ready and willing to perform her part of the contract. The defendants are in possession and enjoyment of the property covered by the agreement openly, exclusively and to the knowledge of all. The defendants have perfected title to the property by adverse possession. The allegation that the agreement has become time barred is false. The plaintiff and his vendor were never in possession of the suit property within twelve years prior to the suit. In such circumstances, the suit is liable to be dismissed. 4. Before the Trial Court, on the side of the Plaintiff, Ex.A1 to A22 were marked and the Plaintiff examined himself as PW.1 and one Hariharan as PW.2. On behalf of the Defendants, Ex.B1 to B10 were marked and the 2nd defendant was examined as DW.1 and one Rangasamy Bathar as DW.2. The report and the plan of the Advocate Commissioner were marked as Ex.C1 and C2. 5. On consideration of the oral as well as the documentary evidence, the Trial Court dismissed the suit and the appeal filed as against the same filed by the Plaintiff was also dismissed, confirming the Judgement and Decree of the Trial Court. As against the same, this Second Appeal has been filed. 6. This Second Appeal has been entertained on the following substantial questions of law:- (a)Whether the learned Judge is right in holding that Ex.A1 sale deed in favour of the plaintiff is not valid, when admittedly consideration has been passed on to the vendor and the original sale deed has been filed? (b)Whether the learned judge is right in holding that the second respondent/second defendant has been put into possession in furtherance of Ex.B2, when admittedly Ex.B2 agreement of sale deed dated 11.1.1975 is silent about the possession? (c)Whether the learned Judge is right in applying the law laid down by the Honourable Supreme Court https://hcservices.ecourts.gov.in/hcservices/ reported in 1993-1-LW-424 wherein, it was held that in order to apply the doctrine of part performance as contained in Section 53A of the Transfer of Property Act, it is necessary that the act of part performance must be such as not only to be referable to the contract of which part performance is alleged, but to be referable to no other title? (d)Whether the learned Judge is right in holding that the second respondent/second defendant has perfected title by adverse possession, when she herself has set up her claim on the basis of an agreement of sale under Ex.B2 dated 11.1.1975? 7. This court heard the submissions of the learned counsel on either side and also perused the materials on record and the impugned judgements of the courts below. 8. The case of the appellant is that he had purchased an extent of 3032 sq.ft. in TS.No.581 (Part) with a house bearing Door No.30C from one Dharmaraja Vanniar under a registered sale deed dated 28.3.1989 for a valid consideration under Ex.A1. At the time of purchase, the 1st defendant was in occupation of the house, the extent of which is 300 sq.ft. under some arrangement with the said Dharmaraja Vanniar. The remaining portion is in possession of the plaintiff and he is using it as kitchen, bathroom, drainage and backyard. There is a small temple. The 1st defendant colluding with his step-mother the 2nd defendant herein issued a notice through his lawyer on 28.10.1989 to the plaintiff and his vendor Dharmaraja Vanniar claiming that the 2nd defendant has entered into a sale agreement Ex.B2 with Dharmaraja Vanniar even on 11.1.1975 and pursuant to the said agreement, he was put in possession. The plaintiff was not aware of any such agreement. Even assuming that there was an agreement of sale between the 2nd defendant and Dharmaraja Vanniar, since the 2nd defendant has not taken any action to enforce the said contract, the agreement became time barred and it became unenforceable. The defendants are not entitled to claim any protection under Section 53A of the Transfer of Property Act. Since the 1st defendant failed to vacate and hand over possession, the plaintiff issued a notice under Ex.A2 on 19.7.1994, for which the 1st defendant sent a reply stating that he is in possession and enjoyment under the 2nd defendant and he is entitled to the benefits of Section 53A of the Transfer of Property Act. Hence, the plaintiff filed the suit for recovery of possession. 9. On the other hand, the defendants resisted the suit contending that the sale deed is not valid and the plaintiff is not a bona fide purchaser for value. Ex.A1 sale deed is a sham and nominal document and no possession was given to the plaintiff and was never in possession at any point of time. The extent mentioned in the plaint is not correct and it is only 2098 sq.ft. The 2nd defendant entered into an agreement of sale Ex.B2 dated 11.1.75 with Dharmaraja Vanniar and pursuant to the said agreement, the 2nd https://hcservices.ecourts.gov.in/hcservices/ defendant was put in possession. The 2nd defendant leased out the property to one Vembaiyan and Ex.B10 is the rent deed dated 12.1.75. The said Vembaiyan vacated the property on 12.5.1984 and from the said date onwards, the 1st defendant is in possession on permission given by the 2nd defendant. Further, as per the terms of the agreement Ex.B2, the 2nd defendant has discharged the debt of one Rangasamy Bather and the same is endorsed by Ex.B4 receipt dated 15.1.1989 and the same is known to the plaintiff. The 2nd defendant was always ready and willing to perform her part of the contract and she has conveyed the same to Dharmaraja Vanniar by notice through lawyer dated 28.10.1989 in Ex.B3. The defendants have perfected title to the property by adverse possession. As the plaintiff has not filed this suit within 12 years from the date of possession of the defendants, the suit is barred by limitation. 10. Mr.P.Gopalan, the learned counsel for the appellant strenuously contended that when Ex.B2 agreement of sale is silent about the 2nd Defendant being put into possession, it cannot be said that the 2nd respondent/2nd defendant was put into possession in furtherance of the agreement of sale. He would submit that even assuming that the 2nd respondent/2nd defendant was put into possession, the same would be only a permissive occupation in respect of the portion of the property referred to under Ex.B2. He would contend that the agreement holder who got into possession under an executory contract of sale in a permissible character cannot be heard to contend that her possession was adverse to that of the agreement vendor. The learned counsel would further submit that the 2nd respondent/2nd defendant having not enforced the contract, cannot be allowed to raise her defence beyond her possession as only a permissive occupant. 11. The learned counsel for the appellant referred to a decision of the Honourable Supreme Court reported in AIR-1990-SC- 553 [Achal Reddi Vs. Ramakrishna Reddiar and others] in support of his contention that in a case where there is a mere executory agreement of transfer and both parties contemplate a deed of transfer to be executed at a later point of time, the principle of estoppel applies estopping the transferee contending that his possession was in his own right while the contract itself remained executory in stage and adversely against the transferor. It is held as follows:- “8. .... The well settled rule of law is that if a person is in actual possession and has a right to possession under a title involving a due recognition of the owner's title his possession will not be regarded as adverse in law, even though he claims under another title having regard to the well recognised policy of law that possession is never considered adverse if it is referable to a lawful title. The purchaser who got into possession under an executory contract of sale in a permissible character cannot be heard to contend that his possession was adverse. In the conception of https://hcservices.ecourts.gov.in/hcservices/ adverse possession there is an essential and basis difference between a case in which the other party is put in possession of property by an outright transfer, both parties stipulating for a total divestiture of all the rights of the transferor in the property, and in case in which there is a mere executory agreement of transfer both parties contemplating a deed of transfer to be executed at a later point of time. In the latter case the principle of estoppel applies estopping the transferee from contending that his possession, while the contract remaining executory in stage, was in his own right and adversely against the transferor. Adverse possession implies that it commenced in wrong and is maintained against right. When the commencement and continuance of possession is legal and proper referable to a contract, it cannot be adverse.“ 12. In yet another decision reported in 2000-3-SCC-708, [Roop Singh (Dead) by LRs Vs. Ram Singh (Dead) through LRs], the Honourable Supreme Court held that pleas of adverse possession and retaining the possession by operation of Section 53A of the Transfer of Property Act are inconsistent with each other. It further held that once it is admitted by implication that the plaintiff came into possession of the land lawfully under the agreement and continued to remain in possession till the date of the suit, the plea of adverse possession would not be available to the defendants. 13. There cannot be any quarrel over the preposition of law that possession under an agreement of sale can never be adverse, since such possession is in acknowledgement and recognition of the title of the vendor. Possession under an agreement of sale is permissive in nature and hence, the starting point of limitation will not coincide with the date of agreement. In such case, the animus of the purchaser throughout is that he is in possession of the property belonging to the vendor and that the former's title has to be perfected by a duly executed registered deed of sale under which the vendor has to pass on and convey his title. The purchaser's possession in such case is of a derivative character and in clear recognition of and in acknowledgement of the title of the vendor. 14. In the present case, the transaction between Dharmaraja Vanniar and the 2nd defendant was an agreement of sale and therefore, the possession of the 2nd Defendant in pursuance of such an agreement of sale can never be regarded as adverse in law, as it is referable to a lawful title. Hence, the plea of adverse possession is not available to the defendants. Therefore, the findings of the lower court that the 2nd respondent/2nd defendant has perfected title by adverse possession is not correct. https://hcservices.ecourts.gov.in/hcservices/ 15. But, however, the fact remains that the 1st respondent is in possession of the suit property. The appellant/plaintiff has admitted that even at the time of purchase, the 1st defendant was in possession of the property and according to them, it is an extent of 300 sq.ft. In the sale deed Ex.A1, the recital made is that the plaintiff was put in possession of entire extent which admittedly is not correct, as even according to the Plaintiff, the 1st Defendant is in possession of a portion of the suit property. Pursuant to the agreement, the 2nd defendant has rented out to Vembaiyan which is evident from Ex.B10 rent deed. It is the case of the defendants that the 1st defendant was permitted to reside after the said Vembaiyan vacated. Ex.B10 has been attested by DW.2. As per the terms of the agreement of sale Ex.B2, the 2nd Defendant has discharged the loan. The 2nd defendant has discharged the mortgage payable by Dharmaraja Vanniar and Ex.B4 receipt evidences the said discharge. The mortgagee Rangasamy Bather has been examined as DW.2 and his evidence discloses that the mortgage has been discharged by the 2nd defendant. Therefore, it is established that the 2nd respondent has complied with the terms of the agreement of sale and has done all acts in furtherance of the contract of sale. 16. The argument of the learned counsel for the appellant is that the protection as regards possession is not available to the respondents, as the suit for specific performance of agreement for sale is barred by limitation and it becomes unenforceable. The question that arises for consideration is whether the respondents are entitled to protect their possession of the suit property obtained in pursuance of part performance of agreement for sale, even after the suit for specific performance of contract for sale is barred by limitation. 17. The learned counsel for the respondents contended that even though the suit for specific performance of the agreement for sale is barred by limitation, still a transferee in a suit for recovery of possession by the vendor, can defend his possession under Section 53A of the Transfer of Property Act, so long as they are willing and ready to perform their part of the contract. Whereas the contention raised by the learned counsel for the appellant is that once a remedy for specific performance of an agreement for sale is lost by limitation, the equitable relief of protection of possession of the suit property under the agreement for sale also comes to an end and is lost. In other words, the contention is that the right to defend possession to a vendee is available, so long as the period of limitation prescribed by law for its enforcement continues and it comes to an end, as soon as the period of limitation expires. 18. A perusal of Section 53A of the Transfer of Property Act shows that it does not forbid a defendant transferee from taking a plea in his defence to protect his possession over the suit property obtained in part performance of a contract, even https://hcservices.ecourts.gov.in/hcservices/ though the period of limitation for bringing a suit for specific performance has expired. At this juncture, it is relevant to refer to the decision of this court reported in 2001-3-MLJ-257 [P.S.Sugumaran Vs. Ragini @ Usha and another] wherein a learned single judge of this court has held as hereunder:- “The failure on the part of the transferee to bring a suit for specific performance of the contract within the period of limitation prescribed therefore under the Limitation Act 1963 does not lead to extinction of his statutory right created by the legislature by incorporation Section 53A in the Act. It is well settled that the right and the remedy for enforcement therefore are mutually exclusive jurisprudential concepts. Remedies are availed for exercise or enforcement of legal rights. Even if a statutory remedy is lost because of limitation or some other procedural bar, the right subsists. Notwithstanding the fact that a transferee in possession pursuant to a contract of sale fails to file a suit for specific performance within the prescribed period of limitation, still in law, the contract remains valid and operative entitling him to exert his right to retain the possession over the property in exercise of his statutory right conferred by Section 53A of the Act by way of defence in a suit brought against him by his transferee for recovery of possession. The law of limitation does not apply to a defence raised under Section 53A of the Act since the Section does not provide for any limitation on expiry whereof the defence contemplated in the Section will be lost or will extinguish.” 19. In the case of Shrimant Shamrao Suryavanshi and another Vs. Pralhad Bhairoba Suryavanshi (Dead) by LRs and others [2002-3- SCC-676], the Honourable Supreme Court has categorically held that the agreement holder is entitled to protect his possession over the suit property obtained in part performance of a contract, despite the fact that the period of limitation for bringing the suit for specific performance had already expired. 20. The Honourable Supreme Court has enumerated six conditions to be satisfied by a transferee who wants to protect his possession invoking the provision under Section 53A of the Transfer of Property Act. They are:- 1. there must be a contract to transfer for consideration of any immovable property; https://hcservices.ecourts.gov.in/hcservices/ 2. the contract must be in writing, signed by the transferor or by someone on his behalf; 3. the writing must be in such words 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 6. the transferee must have performed or be willing to perform his part of the contract. 21. It is no doubt true that the transferee has not brought any suit for specific performance of the agreement to sell within the period of limitation. The 2nd respondent/2nd defendant has averred in the written statement that the 2nd defendant was always ready and willing to fulfill her part of the contract. She has also issued a notice in Ex.B3 conveying her readiness and willingness to perform her part of the contract and also calling upon Dharmaraja Vanniar to execute the sale deed. Ex.B2 agreement for sale has been executed by Dharmaraja Vanniar in favour of the 2nd defendant and the said agreement is in writing signed by the said Dharmaraja Vanniar. The defendants have obtained possession of the suit property by virtue of agreement of sale, in part performance of the agreement of the sale. It is in evidence that the 2nd defendant in terms of the agreement Ex.B2, paid the entire dues payable by Dharmaraja Vanniar. Thus, the 2nd defendant has done acts in furtherance of the contract. The evidence clearly indicated that the 2nd defendant was ready and willing to perform her part of the contract. 22. As already stated, it is for the agreement vendor Dharmaraja Vanniar to allege that the agreement Ex.B2 cannot be enforced and that the 2nd defendant failed to implement the terms of the contract. Only in case when Dharmaraja Vanniar had come forward with the suit repudiating the contract, then it is open to the 2nd defendant to raise a plea and prove that she was ready and willing to perform her part of the contract. Nevertheless, there are materials to show that in pursuance