1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.144 OF 1996 Smt.Gangubai Shivram Borate .... Appellants & Ors. Vs. Mohamad Yusuf @ Dilip Kumar .... Respondent Sarvarkhan Mr.Amit Shirsath h/f Mr.Girish Agarwal, Advocate for appellants. Mr.Saeed Akhtar, Advocate for respondent. CORAM : Smt. R.P. SondurBaldota, J. Date : 16th July, 2009 P.C. : 1. This Second Appeal arises out of the judgment and order dated 8th December 1995 of III Additional District Judge, Nasik in Civil Appeal No.377 of 1987 dealing with the judgment and decree dated 29th April 1987 passed by the trial Court in Regular Civil Suit No.355 of 1975. The appellants are the original plaintiffs and respondents are original defendants. 2. One Taibai, predecessor of the appellants entered into the agreement dated 18th September 1964 to sell the land at gat No.71 admeasuring 7 H, 83 R. situate at village Dudhgaon, Nasik District to the respondent for the 2 total consideration of Rs.7,000/-. The appellants filed the suit herein for cancellation of that agreement and for possession of the suit land. The respondent filed his written statement and also counter claim for specific performance of the agreement. The trial court decreed the suit and dismissed the counter claim. In the appeal filed by respondent, the District Court reversed the order by dismissing the suit and allowing the counter claim. The present second appeal arising from the appellate order is admitted on following three questions of law: (i) Whether in the suit filed by the plaintiff seeking declaration and injunction, the defendant could have prayed for a decree of specific performance of the agreement by way of counter claim ? (ii) Whether the counter claim of the defendants was barred by law of limitation ? (iii) Whether in case it is held that the counter claim was within limitation and was maintainable, was defendant able to establish his readiness and willingness to perform his part of the contract and that decree for specific performance could be granted in the absence of document having been produced by the defendant? 3 3. It will be convenient at this stage to know common findings of fact arrived at by the two courts below before I touch upon the dispute between the parties. By the agreement dated 18th September 1964, Taibai agreed to sell the suit property to respondent for the total consideration of Rs.7,000/-. On that day, she received Rs. 3,000/- towards the earnest money and handed over possession of the suit land to the respondent. The claim made by the appellants in the plaint that Taibai was pressurized by some local influential persons to execute the agreement of sale at price of Rs.7,000/- though at the relevant time, the price of the suit land was Rs.40,000/-, has not been established by the appellants. Similarly the claim made by respondent that after execution of the agreement of sale, he has made additional payment of Rs. 3,000/- to the appellants is rejected. The courts have accepted further payment of only Rs.500/-. Thus when the parties went to trial, the part of consideration paid to the appellants was Rs.3,500/-. 4) It is the case of the appellants in the plaint that under the agreement of sale, the respondent was to secure permission under Section 63 of Bombay Tenancy and Agricultural Lands Act as he was not an agriculturist. 4 When he failed to obtain the permission and complete the transaction of sale, the appellants served notice dated 7th March 1966 calling upon him to complete the transaction of sale. As the respondent did not comply with the requisitions, the appellants issued a public notice in newspaper on 17th December 1966. Six years thereafter they sent two notices dated 7th April 1972 and 23rd July 1972 cancelling the suit agreement. With these allegations, the appellants sought cancellation of the agreement and possession of the suit land. 5. Respondent in his written statement contended that the condition of obtaining permission under Section 63 of Bombay Tenancy and Agricultural Lands Act was to be fulfilled by the appellants. He denied receipt of any of the notices from the appellants. He amended the written statement on 5th April 1982 to include counter claim therein seeking specific performance of the agreement of sale. In the written statement, he expressed his readiness and willingness to pay the balance price of the land. He also claimed subsequently that the condition as regards permission under Section 63 of Bombay Tenancy and Agricultural Lands Act had been satisfied. 5 6. The trial court framed as many as 18 issues, out of which 9 issues were sub issues to issue No.4. It held that respondent was not ready and willing to act his part of the agreement and the agreement had become void for default on the part of respondent in getting the permission under Section 63 of Bombay Tenancy and Agricultural Lands Act and decreed the suit. It also rejected the claim of respondent that he had spent about Rs.10,000/- for improvement of the suit land. It also held that the appellants’ suit was not barred by law of limitation. 7. When the above order was taken in appeal, the appellate court held that the permission under Section 63 of Bombay Tenancy and Agricultural Lands Act was not required for execution of the sale deed. It further held that respondent had not committed breach of the agreement or that he cannot be said to be not willing to perform his part of the contract. It further held that the respondent is entitled to the protection under Section 53A of the Transfer of Property Act and granted the decree of specific performance to the respondent. 6 8. As regards the first question framed for consideration of this court, the contention thereunder was not raised by the appellants at any time prior to the second appeal. When the respondent filed counter claim by amending written statement, it was open for the appellants to file an application under Order 8, Rule 6(C) Code of Civil Procedure for exclusion of the counter-claim on the ground that the relief of specific performance cannot be asked for by way of counter claim and that the respondent was required to file an independent suit. Since no such contention was set up by the appellants, it is not open for them now at the stage of the second appeal to challenge maintainability of the counter claim. Therefore this question must be answered in the negative. 9. It has been contended on behalf of the appellants that the relief of specific performance sought by the respondent in the counter claim dated 5th April 1982 was barred by law of limitation. Mr.Agarwal, the learned counsel for the appellants submits that the agreement of sale was entered into on 18th September 1964. It required the parties to complete transaction of sale by executing the sale deed within 15 days from the date of the agreement. Therefore, the relief of specific performance 7 sought about 16 years after, the agreement of sale would be barred by law of limitation. Before embarking upon the discussion on rival contentions, it would be necessary to refer to one small issue raised by the parties. The original agreement of sale has not been produced before the court by either of the parties. According to the appellants, the original agreement of sale was handed over to the respondent, which fact has not disputed by him. He, however, claimed that the entire transaction was being looked after on his behalf by his brother Nasirkhan. Therefore, the original agreement of sale was lying in the custody of Nasirkhan. After the death of Nasirkhan in the year 1976, the dispute arose between the heirs of Nasirkhan and the respondent. As a consequence, they refused to hand over the agreement to him. As regards the appellants, they produced a document at Exhibit 77 purporting to be agreement of sale. According to them, this document was prepared by them on the basis of notes kept in a diary by appellant no.10. She has not been examined by the appellants, though available for giving evidence. On this background of evidence, the trial Court blamed the respondent for not producing the original agreement of sale and simply accepted the document at Exhibit 77 as the agreement reflecting the transaction of 8 sale entered into between Taibai and the respondent without any further application of mind. The appellate court, on the other hand after appreciating the reasons given by the respondent, considered the document at Exhibit 77 produced on behalf of the appellants as the agreement of sale. It took note of the fact that Exhibit 77 is not a carbon copy of the original agreement of sale. Admittedly this document was prepared by the appellants on the basis of the notes kept by appellant No.10 in her diary. Respondent no.10 has not been examined as witness in the trial and at the time appellant no.10 allegedly took notes in the diary, P.W.1 was not present. He was also not present when the discussions regarding transaction of sale had taken place. Therefore, whatever evidence given in respect of Exhibit 77 by him was hearsay and not on his personal knowledge. The court also found that Exhibit 77 was a completely mutilated and torn document. It consisted of only two pages when according to the appellants themselves the document of the agreement ran into four pages. The appellate Court further found that the conditions to which the agreement of sale was subjected were not intelligible from Exhibit 77. In these circumstances, the appeal Court concluded that what can be safely held on the material before it is that there was an 9 agreement between Taibai and the respondent of sale of the suit land for the consideration of Rs.7,000/-, out of which Rs.3,000/- was paid as an earnest money and Rs.500/- was paid subsequently making the total payment to be of Rs.3,500/-. Since the document did not specifically cast the responsibility of obtaining permission under Section 63 of Bombay Tenancy and Agricultural Lands Act, the appeal court considered the provision of Section 63 and held that this responsibility would be upon the vendor. In any case, it has further looked into the evidence led by the parties and observed that this condition has been fulfilled as can be seen from Exhibit 80, 82 and 83 which show that the respondent had become an agriculturist after the year 1964. In that circumstance, it further held that permission under Section 63 of Bombay Tenancy and Agricultural Lands Act was no longer required. 10. The appeal Court next took note of the fact that the trial court had completely overlooked the protection available to the respondent under Section 53(A) of the Transfer of Property Act to a purchaser of immovable property who has taken possession of the same by way of part performance. The provision of Section 53(A) reads as follows : 10 53A. Part performance.-Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract’ and the transferee has performed or is willing to perform his part of the contract, then notwithstanding that (***) where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract: Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.] 11. The appeal Court distinguished between the vendee in possession and vendee not in a possession. Relying upon decision of full bench of this Court in Mahadeo vs. Surjabai reported in Mh.L.J. 1994, page 1165 it held that the statutory protection granted to the vendee/purchaser under Section 53(A) of the Transfer of Property Act to continue with the possession under an unregistered 11 contract or instrument of transfer is not lost by lapse of time to file a suit for specific performance, if such person satisfies, the essential requirements of Section 53(a) of Transfer of Property Act. In such cases, specific performance of the agreement cannot be refused to the vendee. Things probably would have been different had the appellants not parted with the possession of the suit land. The respondent had been in possession for 23 long years after the agreement of sale and thus enjoyed protection under Section 53(A) of Transfer of Property Act. I am in agreement with the reasoning given by the lower appellate court as regards the question of limitation raised for seeking specific performance of the agreement. Therefore, question no.2 raised is answered in the negative. As regards the third question i.e. the readiness and willingness on the part of the respondent in performing his part of contract, it is nobody’s case that respondent was not ready and willing to pay the balance consideration. 12. Mr.Akhtar,learned counsel for respondent submits that the suit by the appellants for cancellation of document was barred by law of limitation. He points out that the appellants had been complaining since 7th March 1966 that 12 the respondent has not fulfilled his part of the contract by obtaining the permission required under Bombay Tenancy and Agricultural Lands Act. In that circumstance, they ought to have filed the suit for cancellation of the agreement within a period of 3 years from first notice i.e. 7th March 1966. The instant suit filed on 13th July 1975, about 9 years after the notice, would be barred by law of limitation. Thus the suit brought by the appellants themselves was barred by law of limitation and could not have been decreed by the trial court. In the above circumstances, the appeal fails. The appeal is hereby dismissed. In the facts of the case, parties to bear their own costs. (Smt.R.P. SondurBaldota,J.)