IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 12TH JANUARY 2010 / 22TH POUSHA 1931 RSA.No. 30 of 2010() -------------------- AS.1/2009 of DISTRICT COURT, KOTTAYAM OS.45/2008 of MUNSIFF COURT, ETTUMANOOR .................... APPELLANT/RESPONDENT/DEFENDANT -------------------------------------------------- JOSE THOMAS, S/O.THOMAS, THOPPURATHU HOUSE, ARPOOKKARA KARA, ARPOOKKARA VILLAGE, KOTTAYAM DISTRICT. BY ADV. SRI.N.SURESH RESPONDENT/APPELLANT/PLAINTIFF ---------------------------------- ARAVINDAKSHAN.K, S/O.KUTTAPPAN, PONNUJALIL, ARPOOKKARA VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 12/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.S.A.No.30 of 2010 --------------------------------------- Dated this 12th day of January, 2010 JUDGMENT The second appeal arises from judgment of learned District Judge, Kottayam in A.S.No.1 of 2009 granting decree for recovery of possession of the plaint schedule property and injunction reversing the judgment and decree of learned Munsiff, Ettumanoor in O.S.No.45 of 2008 dismissing the suit. It is not disputed that the suit property belonged to the respondent and while so, there was Ext.B4, agreement for sale between appellant and respondent. As per Ext.B4 the former agreed to purchase the suit property for a consideration of Rs.2,93,375/- and Rs.1,99,375/- was given to the respondent by way of advance. Appellant was put in possession of the suit property. Respondent claimed that since appellant had some financial difficulties he could not pay the balance amount and get the sale deed executed. Appellant has no right to continue in possession of the suit property. Respondent was always ready and willing to perform his part of the contract. Hence respondent sued for recovery of possession of the property. Appellant contended that pursuant to Ext.B4, agreement for sale dated 16-09-2002 he is in possession of the suit property, balance sale consideration payable to the respondent is only Rs.94,000/- which he was also always ready and willing to pay but, respondent failed to perform his part of the contract. It was revealed that the property was R.S.A.No.30 of 2010 2 subject to a mortgage to the District Co-operative Bank and that the original sale deed had been deposited with the bank. That fact was not revealed by the respondent at the time of agreement. The breach was on the part of the respondent. Appellant filed additional written statement contending that he has spending Rs.2,00,000/- for reclamation of the land. Learned Munsiff held that appellant is in possession of the suit property as per the agreement for sale. The breach was on the part of the respondent in that he did not disclose liability on the property nor produce the original title deed and executed the sale deed in favour of the appellant. It was also held that appellant was ready and willing to perform his part of the contract and hence the possession of the appellant is protected under Section 53A of the Transfer of Properties Act (for short, “the Act”). Accordingly the suit was dismissed. Respondent challenged the judgment and decree before learned District Judge. Learned District Judge held that based on Ext.B4 agreement for sale appellant cannot contend that he is entitled to be in possession of the property and that his possession is not protected under Section 53A of the Act since Ext.B4, agreement for sale was executed after Section 17(1-A) of the Indian Registration Act was incorporated by amendment in the year 2001. Ext.B4 being an unregistered agreement, appellant cannot claim protection of Section 53A of the Act. It was also held that the time for filing a suit for R.S.A.No.30 of 2010 3 specific performance had already expired. Respondent was found entitled to recover possession of the property he being the rightful owner. However invoking the equity jurisdiction, appellate court directed respondent to pay the amount received by way of advance to the appellant before recovering possession of the property. Appellant is aggrieved and has come up in second appeal urging by way of substantial question of law whether first appellate court was justified in ordering surrender of possession of property ignoring the terms and conditions of Ext.B4 and whether first appellate court was justified in accepting contention of respondent regarding willingness to fulfill the agreement. Both the courts found that the breach was on the part of the respondent but the first appellate court grantead recovery of possession since on the strength of Ext.B4, unregistered agreement for sale appellant cannot protect his possession invoking section 53A of the Act in view of section 17(1-A) of the Registration Act which I have stated above. Admittedly Ext.B4 was executed after section 17(1-A) of Registration Act was incorporated by amendment. Hence based on that unregistered agreement appellant cannot protect his possession against the rightful owner. The time fixed for execution of sale deed as per Ext.B4 was one year which expired on 15-09-2003. Article 54 of the Limitation Act provides the period of limitation for a suit for specific R.S.A.No.30 of 2010 4 performance as three years beginning from the date fixed for performance. That period expired in the year 2007 while suit for recovery of possession was filed in the year 2008. Concededly appellant has not filed any suit for specific performance. In the circumstance appellant cannot protect the possession as against the respondent. Appellate court invoking the equity jurisdiction has directed respondent to pay/deposit the advance money received pursuant to Ext.B4 before recovering possession of the suit property from the appellant. It is submitted by learned counsel for appellant that respondent has deposited the amount in the trial court. I do not find any substantial question of law involved requiring admission of second appeal. The second appeal is dismissed in limine. THOMAS P JOSEPH, JUDGE Sbna/