*THE HONOURABLE SRI JUSTICE N.R.L.NAGESWARA RAO + C.C.C.A.17 OF 2000 AND Transfer C.C.C.A.NO.303 OF 2007 % 27-10-2011 # M.Jaya Rao Son of M.Ramachander Rao ….Appellant in both cases Vs. $ Maganti Krishna Rao(died per L.Rs) …. Respondent in both cases ! Counsel for the Appellant : Sri P.Girish Kumar Counsel for the Respondent: Sri E.Phani Kumar <Gist : >Head Note: ? Cases referred: 1. 1996(1) SCC 639 THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO C.C.C.A.17 OF 2000 AND Transfer C.C.C.A.NO.303 OF 2007 COMMON JUDGMENT:- Both appeals arise out of the two separate judgments and the subject matter of the appeals is a house property, which is first floor portion of the premises bearing No.209 of West Maredpalli, Secunderabad including the garage room with common rights. The plaintiff in O.S.No.280 of 1998 which relates to the Transfer C.C.C.A.No.303 of 2007 is the defendant is O.S.No.257 of 1990 relating to C.C.C.A.No.17 of 2000, is the appellant in both the appeals. The suit O.S.No.280 of 1998 was filed for specific performance of the agreement of sale dated 05-11-1978. According to the plaintiff, the value of the consideration was Rs.1,05,000/- and Rs.15,000/- was paid in advance on the date of agreement of sale and the balance was paid on 16-10-1986, 17-10-1986 as the 1/5th share of the plaintiff in the lands sold for a consideration of Rs.4,69,125/- was adjusted towards the sale consideration when the joint property was sold. In spite of repeated demands, the defendant did not execute the agreement of sale and consequently the present suit was filed. The first defendant died and the second defendant was brought on record as legal representative and he filed a written statement contending inter alia that the plaintiff is a lessee and he has occupied the schedule premises as a lessee. He also borrowed some amounts from the first defendant and his wife and suits were filed and decreed. The agreement of sale was also considered in those suits. Therefore, the suit is not maintainable. On the basis of the above pleadings, the following issues have been framed for trial:- 1. Whether the agreement of sale dated 15-11-1978 is true, valid and binding on the defendants? 2. Whether the plaintiff is entitled to the specific performance of the agreement of sale? 3. To What relief? On behalf of the plaintiff PW.1 was examined and marked Exs.A- 1 to A-5 and on behalf of the defendant DW.1 is examined and marked Exs.B-1 to B21. After considering the evidence on record, the suit was dismissed. The suit O.S.No.257 of 1990 was filed for recovery of possession of the property from the appellant herein and for damages claiming that the appellant herein was only a licensee. The defendant therein who is the appellant raised the same pleas as a purchaser of the property and on the basis of the above pleadings the following issues were framed for trial:- 1. Whether the first plaintiff purchased the suit property out of the funds from the joint business? 2. Whether the first plaintiff permitted the defendant to occupy the first floor of the premises and if so, the licence is revoked by the first plaintiff? 3. Whether the first plaintiff agreed to sell the suit property to the defendant? 4. Whether the defendant perfected his right of residence by adverse possession? 5. Whether the first plaintiff is entitled for vacant possession of the suit property? 6. Whether the plaintiff is entitled for mesne profits as prayed for? 7. To what relief? On behalf of the plaintiff PW.1 was examined and marked Exs. A- 1 to A-16 and Ex.C-1 and on behalf of the defendant DW.1 was examined and marked Exs.B-1 to B-5. After considering the evidence on record, the said suit was decreed. Aggrieved by the said judgment CCCA No.17 of 2000 was filed. Though the lower court should have tried the suits together in view of the contentions between the parties, however, the suits were tried separately and for the convenience and better disposal, both appeals were heard together and a common judgment is pronounced. Now the points that arise for consideration are:- 1. Whether the agreement of sale pleaded by the appellant is true and as to whether he is entitled for the specific performance of the contract of sale? 2. Whether the decree of eviction passed by the lower court is not enforceable? The parties are herein referred as arrayed in O.S.No.280 of 1998. POINTS:- Evidently, there is no dispute about the fact that the deceased-first defendant was the owner of the property. The agreement of sale is said to be dated 5-11-1978 and a sum of Rs.15,000/- was paid on that day and the balance of sale consideration was said to have been adjusted on 16-10-1986 and on 17-10-1986 when the joint property of the appellant, first defendant and others were sold under Exs.A-5 to A-7 and, therefore, according to the case of the plaintiff he being in possession and enjoyment of the property and as the entire consideration was paid, he is entitled for specific performance of the contract of sale. There cannot be any dispute about the fact that it is the burden of the plaintiff to prove the payment of consideration and the genuineness and enforceability of the contract of the sale. Except the evidence of the plaintiff, there is no other evidence adduced by the plaintiff. The lower court disbelieved the contract of sale as the agreement was not confronted with the original owner when he was examined in O.S.No.257 of 1990 and if really the agreements are in existence they would have been confronted with him. The attester is said to be no other than the wife of the defendant and she is also no more. Therefore, the court felt that mere assertion of appellant cannot be accepted. The suit for specific performance was filed after the suit for eviction was filed. It was also felt by the court that the agreement of sale was said to be on 05-11-1978; whereas it was said to have been executed on 07-11-1978 and, therefore, there is a dispute. In fact, the suit itself was filed alleging that the agreement was entered on 5-11- 1978 and the relief of specific performance was also of such an agreement. But a reading of the agreement, which is marked as Ex.B-4 in the other suit and also as an Ex.A-1 in the suit for specific performance shows that in the transaction terms were talked on 05-11- 1978 and Rs.15,000/- was paid and in confirmation of it, the agreement of was executed on 07-11-1978. This the lower court has found that it is suspicious circumstance about the genuine nature of the transaction. Further more, there is no endorsement on the agreement about the payment of the consideration of Rs.1,05,000/- after the sale of the plots under Exs.A-5 to A-7. When the evidence of defendant in O.S.No.257 of 1990 is taken into consideration, it shows that he sold the land at Rasoolpura the sale consideration was with him. He did not even say or even it was not suggested that the sale consideration was adjusted towards agreement of sale. In the entire cross examination does not show the date of sale agreement and consideration. Therefore, it cannot be said that the defendant admitted the receipt of balance sale consideration. Plaintiff claims to be in possession and enjoyment of the suit premises since June 1978 in pursuance of the agreement of sale in part performance. He admits that in the notice Ex.B-1 dated 20-06-1990 the payment of balance consideration and the date of payment was not mentioned. He also admits that date of sale agreement was not mentioned in Ex.B-1. The legal notice dated 20-06-1990 which is marked as Ex.B-1 consequently destroys the case of the appellant. It does not show the date of agreement and the consideration agreed to be sold and the time fixed. Added to that, in stead of taking shelter under agreement of sale, the plaintiff claims that he has perfected his title of ownership by being in possession for more than 12 years. This plea of the appellant clearly goes to show that he was not ready and wiling to perform the contract and his claim is only setting up a title himself. The reply notice refers to the denial of the above agreement and also amounts due under the pronotes from the appellant. If the agreement of sale is of the year 1978 and Rs.15,000/- was paid and the agreement of sale does not show that the balance of consideration shall be adjusted by the sale of the Rasoolpura lands and the time for payment of the balance is not mentioned, it is difficult to believe that when a property said to have been sold there would not have been any stipulation for payment of the balance of money. But, the plea of the appellant and his evidence does not show that after the alleged agreement of sale, he was ready and willing to perform the contract of sale at all times by rendering the balance of consideration for a period nearly 8 years when the alleged sales under Exs.A-5 to A-7 have taken place. There is no action and if this balance of sale was adjusted there is no reason as to why immediately the registered sale deed was not taken and it was only in 1990 under the legal notice without mentioning all the above facts and also setting up title by adverse possession, the suit was filed. It is needless to say that setting up of title by adverse possession and readiness and willing to perform the contract under an agreement of sale are two different and opposite stands, which a party cannot be permitted to take. Further, it is to be noted that as rightly found by the lower court Exs.A-1 and A-2 were not confronted with the defendant and the suit for eviction was filed in 1990 and, therefore, the appellant herein is conscious of the denial of the agreement of sale and even if no date is fixed for performance of the contract from the date of denial or refusal, the period of limitation starts. The written statement appears to have been filed on 17-09-1992 by the appellant herein in O.S.257 of 1990 setting up the agreement of sale. But the suit was filed only in the year 1992. Suit O.S.No.257 of 1990 was decreed on 17-11-1999. Therefore, all the circumstances create any amount of cloud over the genuineness of the agreement of sale set up by the plaintiff. The agreement is said to be in the year 1978, legal notice was given in 1990 and the suit was filed in 1993, which is nearly 20 years after the alleged agreement, in spite of the fact that the appellant is aware of the assertion of title and the claim for possession set up by the original owner of the property. Therefore, for all the above reasons it has to be held that the suit of the appellant for specific performance has been rightly rejected. When once the suit for specific performance is rightly rejected and the owner of the property is entitled for recovery of possession of the property, but, however, a feeble attempt was made by the learned counsel for the appellant contending that even if the suit for specific performance is dismissed, the appellant will be entitled for protection under Section 53-A of the Transfer of Property Act. This contention is not well founded. The contract itself was not believed and the relief of specific performance was denied and on the other hand in the legal notice the appellant has set up title by adverse possession and the above circumstances disentitles a plea under Section 53-A of the Act. It is necessary for a protection under Section 53-A of the Act that the contract must be found to be true and the purchaser shall always be ready and willing to perform the contract. When false pleas are raised by the purchaser, neither Section 53-A of Transfer of Property Act nor the rights of enforcement of the contract arises. The plea of adverse possession is also not open since the suit was filed in 1998 for specific performance still treating the defendant as the owner of the property. In this connection, the above two contentions are considered in a decision reported in Mohan Lal Vs. Mirza Abdul Gaffar([1]) wherein it was held in paras 3 to 5 of the judgment as under:- (3) The only question is whether the appellant is entitled to retain possession of the suit property. Two pleas have been raised by the appellant in defence. One is that having remained in possession from 8/03/1956, he has perfected his title by prescription. Secondly, he pleaded that he is entitled to retain his possession by operation of Section 53-A of the Transfer of Property Act, 1882 (for short, 'the Act') (4) As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e., upto completing the period of his title by prescription 'nec vi nec clam nec precario'. Since the appellant's claims is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of the land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant. (5) The question then is whether he is entitled to retain possession under Section 53-A. It is an admitted fact that suit for specific performance had been dismissed and became final. Then the question is whether he is entitled to retain possession under the agreement. Once he lost his right under the agreement by dismissal of the suit, it would be inconsistent and incompatible with his right to remain in possession under the agreement. Even otherwise, a transferee can avail of Section 53-A only as a shield but not as a sword. It contemplates that 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 performed or is willing to perform his part of the contract, he would be entitled to retain possession and to continue in possession which he has already received from the transferor so long as he is willing to perform his part of contract. Agreement does not create title on interest in the property. Since the agreement had met with dismissal of the suit his willingness to perform his part of the contract does not arise.” Therefore, in this case also, since the contract of sale is found to be not enforceable and as the relief of specific performance of the contract for the appellant being refused, the defendant is not entitled to canvas the above contentions. Hence, for all the above reasons, there are absolutely no merits in both the appeals and the appeals are liable to be dismissed with costs. Accordingly, both Appeals are dismissed with costs. _______________________ N.R.L. NĀGESWARA RĀO,J 27-10-2011 L.R. Copy to be marked: YES (B/O) TSNR [1] 1996(1) SCC 639