1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 454 OF 2007 WITH SECOND APPEAL NO. 455 OF 2007 WITH SECOND APPEAL NO. 456 OF 2007 SECOND APPEAL NO. 454 OF 2007 1) Mahadeo Bhau Salunkhe, Age 55, Occupation: Agriculturist & Service, Bus Driver No.3001, Ghatkopar Bus Depot, Bombay-75. 2) Nivrutti Bhau Salunkhe, Age 54, Occupation: Agriculturist of Avalai, Taluka Atpadi, District Sangli. 3) Tukaram Bhau Salunkhe, Age 51, Occupation: Agriculturist & Service Resident of Avalai, Taluka Atpadi. 4) Maruti Bhau Salunkhe, Age 48, Occupation: Agriculturist of Avalai, Taluka Atpadi, District Sangli. 5) Dattatraya Bhau Salunkhe, (deceased through L.Rs.) 5(1) Smt. Keshar Dattatraya Salunkhe Age 51 years, Occupation: Agricultuist. 5(2) Sau.Sadhana Namdev mane, Age 32 years, occupation: Household. 2 5(3) Sachin Dattatraya Salunkhe, Age 26 years, occupation: Agriculturist 5(4) Nitin Dattatraya Salunkhe, Age 24 years, occupation: Agriculturist. Nos. 1, 3 & 4 Residents of At Post Awalai, Taluka Atpadi, District Sangli. No. 2 Resident of C/o Namdev Shrimant mane Adarsh Nagar, Old Hill Quarters, R.A. Milk Colony, Goregaon, Mumbai 400 065. ..Appellants (Org.Defendants Nos. 1 to 5). Versus Shri Krishna Rangu Lokhande (Deceased through Legal representatives): 1A) Smt. Rakhmabai Krishna Lokhande Age 60, Occupation: Household work. 1B) Shri Madhukar Krishna Lokhande, Age 40, occupation:Agriculturist. 1C) Smt Vithabai D/o. Krishna Lokhande, Age 44, Occu: Household work. 1D) Smt. Muktabai Hanmant shinde, Age 42, Occu: Household work At & Post Mhasvad,Taluka Man, Dist. Satara. 1E) Smt. Janabai Shantaram Shinde, Age 38, Occu: Household work. 1F) Mangal Krishna Lokhande, 3 Age 36, Occu: Household work. 1G) Sou. Jayashri Sudam Burande, Age 34, Occu: Household work. Ns. 1 to 3 and 5 to 7 all residents of Nimbavade, Taluka Atpadi, District Sangli. 2. Shri Kundlika Narayan Hol, Age 61, occupation: Agriculturist. Both residents of Nimbavade,Taluka Atpadi, District Sangli. ..Respondents (Org.Plff. & Deft.No.6) WITH SECOND APPEAL NO. 455 OF 2007 1) Mahadeo Bhau Salunkhe, Age 56, Occupation: Agriculturist & Service, Bus Driver No.3001, Ghatkopar Bus Depot, Bombay-75. 2) Nivrutti Bhau Salunkhe, Age 54, Occupation: Agriculturist of Avalai, Taluka Atpadi, District Sangli. 3) Tukaram Bhau Salunkhe, Age 51, Occupation: Agriculturist & Service Resident of Avalai, Taluka Atpadi. 4) Maruti Bhau Salunkhe, Age 48, Occupation: Agriculturist of Avalai, Taluka Atpadi, District Sangli. 5) Dattatraya Bhau Salunkhe, (deceased through L.Rs.) 4 5(1) Smt. Keshar Dattatraya Salunkhe Age 51 years, Occupation: Agricultuist. 5(2) Sau.Sadhana Namdev mane, Age 32 years, occupation: Household. 5(3) Sachin Dattatraya Salunkhe, Age 26 years, occupation: Agriculturist 5(4) Nitin Dattatraya Salunkhe, Age 24 years, occupation: Agriculturist. Nos. 1, 3 & 4 Residents of At Post Awalai, Taluka Atpadi, District Sangli. No. 2 Resident of C/o Namdev Shrimant mane Adarsh Nagar, Old Hill Quarters, R.A. Milk Colony, Goregaon, Mumbai 400 065. ..Appellants (Org.Defendants Nos. 1 to 5). Versus 1. Shri Kundlika Narayan Hol, Age 61, Occupation: Agriculturist. 2. Shri Krishna Rangu Lokhande (Deceased through Legal representatives): 2A) Smt. Rakhmabai Krishna Lokhande Age 60, Occupation: Household work. 2B) Shri Madhukar Krishna Lokhande, Age 40, occupation:Agriculturist. 2C) Smt Vithabai D/o. Krishna Lokhande, Age 44, Occu: Household work. 5 2D) Smt. Muktabai Hanmant shinde, Age 42, Occu: Household work At & Post Mhasvad,Taluka Man, Dist. Satara. 2E) Smt. Janabai Shantaram Shinde, Age 38, Occu: Household work. 2F) Mangal Krishna Lokhande, Age 36, Occu: Household work. 2G) Sou. Jayashri Sudam Burande, Age 34, Occu: Household work. Ns. 1 to 3 and 5 to 7 all residents of Nimbavade, Taluka Atpadi, District Sangli. 2. Shri Kundlika Narayan Hol, Age 61, occupation: Agriculturist. Both residents of Nimbavade,Taluka Atpadi, District Sangli. ..Respondents (Org.Plff. & Heirs of orig.Deft.No. 6) Vs. WITH SECOND APPEAL NO. 456 OF 2007 1) Mahadeo Bhau Salunkhe, Age 56, Occupation: Agriculturist & Service, Bus Driver No.3001, Ghatkopar Bus Depot, Bombay-75. 2) Nivrutti Bhau Salunkhe, 6 Age 54, Occupation: Agriculturist of Avalai, Taluka Atpadi, District Sangli. 3) Tukaram Bhau Salunkhe, Age 51, Occupation: Agriculturist & Service Resident of Avalai, Taluka Atpadi. 4) Maruti Bhau Salunkhe, Age 48, Occupation: Agriculturist of Avalai, Taluka Atpadi, District Sangli. 5) Dattatraya Bhau Salunkhe, (deceased through L.Rs.) 5(1) Smt. Keshar Dattatraya Salunkhe Age 51 years, Occupation: Agricultuist. 5(2) Sau.Sadhana Namdev mane, Age 32 years, occupation: Household. 5(3) Sachin Dattatraya Salunkhe, Age 26 years, occupation: Agriculturist 5(4) Nitin Dattatraya Salunkhe, Age 24 years, occupation: Agriculturist. Nos. 1, 3 & 4 Residents of At Post Awalai, Taluka Atpadi, District Sangli. No. 2 Resident of C/o Namdev Shrimant mane Adarsh Nagar, Old Hill Quarters, R.A. Milk Colony, Goregaon, Mumbai 400 065. ..Appellants (Org.Defendants Nos. 1 to 5). Versus Vs. 7 Shri Shankar Narayan Hol (Deceased through Legal Representatives): 1A) Shri Hemant @ Hanmant Narayan Hol, Age 20, Occupation: Service. R/o. Bhagirathi Chawl, Opposite China Mill T.J.Shivadi, Mumbai 400 015. 1B) Sou. Ranjana Vinayak Borkar Age 30,Ocu: Household work C/o. Vinayak Krishna Borkar,. 3/1, Raigadnagar, Acharya Donde Marg, Parel Village, Mumbai 400 012. 1C) Sou. Ratan Tanaji Kudale Age 35, Occupation: Service, C/o. Tanaji R. Kudale, Jhakari Bandar,B.P.T. Colony, Rajesh Nagar, C-104, Shivadi, Mumbai 400 015. ..Respondents (Heirs of Org.Plaintiff) Mr. S.M.Railkar,Advocate, for the appellants. Mr. Umesh Mankapure, Advocate, for the respondents Nos. 1 to 3. CORAM: J.H.BHATIA,J. DATE : 31st August, 2009. JUDGMENT 1. By order dated 12.2.2008, these Appeals were directed to be heard finally at the admission stage. All these three Appeals are being finally disposed of by common 8 Judgment as they arise out of the common Judgment in Regular Civil Appeal Nos. 204 of 1990, 205 of 1990 and 206 of 1990. 2. Following substantial question of law is involved in each of these Appeals. “Whether the defendants/appellants are entitled to protect their possession of the suit lands under Section 53A of the Transfer of Property Act as per the doctrine of part performance of the contract”? 3. Heard the learned Counsel for the parties. Perused the impugned judgments and the relevant evidence led by the parties. 4. Regular Civil Suit Nos. 64/1984, 65/1984 and 66/1984 were filed by the plaintiffs for recovery of possession of the agricultural lands on the basis of their title on the same. In RCS No.64/1984, the lands involved are New Gat No. 326 admeasuring 5 H 55 Ares to the extent of 6 Anna 10 pai share in common and New Gat No.327 admeasuring 20 Ares to the extent of 3 anna 10 pai share in common. In RCS N.65/1984 New Gat No.328 admeasurig 47 Ares and in RCS 9 No.66/1984, New Gat No.326 admeasuring 5 H & 55 Ares to the extent of 9 annas 3 Pai share in common, New Gat No.327 admeasuring 20 Ares 5 Anna 1 pai share in common are suit lands. The plaintiffs are related to each other and, according to them, the said plaintiffs had purchased respective suit lands in the year 1966, 1959 and 1966 under three separate registered sale deeds and they were cultivating the said lands. It was further contended that because of the drought of 1972, the plaintiffs were in financial difficulties and they had taken some loans from the defendant Nos. 1 to 5 and for security of the loan, they had executed the documents termed as “agreements for sale”, but the said agreements were never to be acted upon. It was further contended that the value of the land was Rs.20,000/- per acre, while these agreements were for very small amounts and therefore, they were unconscionable transactions. According to them, even after the said agreements which showed that possession of the suit land was given to the defendants, the plaintiffs continued to be in possession and cultivation of the same. For the first time, in summer season of 1982, the defendants forcibly took possession of the suit lands from the plaintiffs. Therefore, they claimed possession over the suit lands. 5. The defendants contested the suit by filing written statement. They denied that the plaintiffs had taken loan from them and that as security of the 10 loan, agreements for sale were executed. According to them, in Suit no.64 of 1984, the plaintiffs had agreed to sell the suit land for consideration of Rs.9,000/- and initially amount of Rs.500/- was paid and then amount of Rs.2,000/- was paid in presence of the Sub-Registrar and the agreement for sale was executed on 28.11.1975. On the same day, possession was also handed over to the defendants and since then the defendants are in possession of the land. According to them, balance amount of Rs.7,000/- was paid by the defendants to the plaintiffs on 10.1.1977 and the plaintiffs had executed a sale deed on a stamp paper. They also contended that in respect of Suit No.65 of 1984, the plaintiffs had agreed to sell the suit land for consideration of Rs.1500/- and at the time of agreement on 17.5.1976, he had received amount of Rs.500/- and possession was handed over to the defendants. That agreement was also executed and registered before the Sub-Registrar. Balance amount of Rs.1,000/- was paid on 23.12.1976 and on that day, the plaintiff had executed a sale deed on a stamp paper. Similarly, in Regular Civil Suit No.66 of 1984, the plaintiff had agreed to sell the suit land for consideration of Rs.8,500/-, out of which he received amount of Rs.3,500/- and executed the agreement for sale which was duly registered. Possession of the suit property was handed over to the defendants at the time of the agreement. Balance amount of Rs.5,000/- was paid by the defendants to the plaintiff on 24.4.1979 and on that day, the plaintiff had executed a sale deed in favour of the 11 defendants on a stamp paper. According to the defendants, they are in possession of the respective suit lands from the dates of agreements and from the dates of execution of sale deeds they have become absolute owners of the same. It is also contended that at the time of consolidation of the lands, these lands were recorded in the names of the defendants and thus in the revenue records they are shown to be owners of the same. The trial Court framed several issues and common evidence was recorded for all the three suits. The trial Court came to conclusion that the agreements for sale were sham documents and were not to be acted upon and they were executed only for the purpose of securing the loan taken by the plaintiffs. The trial Court also rejected the contention of the defendants that they had taken possession of the property on the respective dates of agreements. The trial Court also rejected their contention that the sale deeds were executed in their favour and they have become owners of the same. The trial Court passed the decree for possession in favour of the plaintiffs on the basis of their title over the land. 6. Being aggrieved by the judgment and decree passed by the trial Court, the defendants filed Regular Civil Appeal No.304 of 1990, 305 of 2009 and 306 of 1990. It was contended that even though the defendants could not prove the sale deeds, they were entitled to protect their possession under Section 12 53A of Transfer of Property Act. The appellate Court differed from the trial Court in respect of the original agreements. The first appellate Court came to conclusion that the said agreements were in fact for sale of the land and the plaintiff had received the earnest money and had put the defendants in possession of the suit lands and the defendants were in possession of the same on the basis of the said agreements for sale. However, the appellate court did not accept the contention of the defendants that they have become owners of the property on the basis of the alleged sale deeds on payment of the balance amount. The appellate court came to conclusion that the said sale deeds of the immovable property for consideration of more than Rs.100/-, were compulsorily required to be registered and as the alleged sale deeds were not registered documents, they could not be admitted in evidence and could not be relied upon. The appellate court also rejected the contention of the defendants that they had performed their part of the contract entirely and therefore they were entitled to protect the possession under Section 53A of the Transfer of Property Act even though the sale deeds are not proved to have been executed. At the outset, it may be stated that no appeal has been preferred by the original plaintiffs against the findings of the first appellate court nor they have filed any cross objection in the present appeals. Therefore, these findings of fact, which have not been challenged by the plaintiffs have to be accepted as they stand. 13 7. Section 17(1)(b) of the Registration Act mandates that non- testamentary instruments, which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right,title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property shall be compulsorily required to be registered. In the present case, each of the sale transaction was immovable property and the consideration was more than Rs.100/- and therefore under the provisions of section 17(1)(b), the sale deeds were compulsorily required to be registered. In the present case, the agreements for sale were executed and registered before the Sub-Registrar. However, the so called sale deeds executed on 7.1.1977, 23.12.1976 and 24.4.1979 in Regular Civil Suit Nos. 64/84, 65/84 and 66/84 respectively were not registered. They were not even sufficiently stamped. Each of the documents was prepared on a stamp paper of Rs.5/-. It is material to note that each of the plaintiffs denied to have received the balance amount of consideration and to have executed the sale deed. According to them, their signatures or thumb marks were taken on the blank stamp papers and the alleged sale deeds were falsely and fraudulently prepared. 8. The defendants have examined three witnesses in support of their 14 claim. They included defendant Tukaram Salunkhe and Shamrao Patil. Tukaram deposed about payment of the balance amount on the respective dates and also preparation of the sale deeds on the stamp paper of Rs.5/- each and according to him, the plaintiff had executed the same by putting the thumb mark or signature. The witness Shamrao Patil supported them in respect of the two sale deeds, one in Regular Civil Suit No.64 of 2005 and another in Regular Civil Suit No.66 of 2007. There was no witness on the alleged sale deed in Regular Civil Suit no.64/1984. Thus, in that suit, except the deposition of Tukaram about the payment of the amount of Rs.1,000/- and execution of the sale deed by the plaintiff, there is no other evidence. The trial Court did not believe the evidence of Tukaram and Shamrao, about payment of the balance consideration and execution of the sale deeds. The trial Court noted that in his deposition , defendant Tukaram had deposed that amount of Rs.7,000/- was paid to the plaintiff on 7.1.1977 in the evening to the plaintiff in Suit no.64 of 1984. The trial Court noted that the defendants had produced the extract of the Bank Account No.761 of the plaintiff with Vithal Merchant Co-op. Bank to prove that the amount was deposited in the said account. However, the said account reveals that an amount of Rs.8,000/- was deposited by the plaintiff in the said account on 10.1.1977. The trial Court observed that the normal Banking hours for money transactions are upto 3 p.m. and no amounts are accepted or paid by the Bank 15 after 3 p.m. In the present case, according to the defendants, the payment of Rs. 7,000/- was paid on 10.1.1977 in the evening. If the amount was paid by the defendants to the plaintiff in the evening, the amount could not have been deposited in the account on that day. Therefore, it was held that defendants had failed to prove the payment of the balance amount of consideration as alleged by them. The Courts below noted that D.W. Shamrao is a close relative of the defendants and in view of the nature of evidence and circumstances, his evidence was not reliable. 9. It is material to note that when the agreements for sale were executed on 28.11.1975 and 17.5.1976, only earnest money was paid, but at that time, the defendants had taken care to get the agreements registered before the Sub-Registrar. However, when the major amount of consideration was paid at the time of execution of the sale deeds, the alleged sale deeds were got executed on a stamp paper of Rs.5/-. The defendants did not bother to purchase the proper stamp papers for execution of the sale deeds nor they took care to get the sale deeds executed. This conduct of the defendants creates serious doubt about the payment of the balance amount by them. 10. The defendants also placed heavy reliance on the entry of their 16 names in the Record of Rights as owners of the property. They examined the Consolidation Officer in support of their claim. The evidence reveals that the Consolidation Scheme had come into force on 24.5.1976 and on the very day, the names of the defendants were recorded as owners of the land by completing the consolidation procedure. The learned trial Court noted that at the time of land consolidation on 24.5.1976, the defendants did not have any sale deed in their favour. At the most, they could rely upon the agreements for sale. On the basis of the agreement for sale, title over the land could never pass to the defendants. In view of this, the Consolidation Officer could not record the names of the defendants as owners of those properties on 24.5.1976. At the most, the Consolidation Officer could take an entry in the column of “Other Rights” that there were agreements for sale in favour of the defendants and on that basis they were in possession. In fact, even for that purpose, it was necessary for the Consolidation Officer to issue notices to the recorded owners i.e. Plaintiffs and only after giving an opportunity to them, the entry in favour of the defendants could be taken, but the Consolidation Officer,without issuing any notice to the plaintiffs, completed the procedure of consolidation and also recorded the names of the defendants as owners of the suit property on 24.5.1976 itself. That indicates that the consolidation procedure was not completed after following due procedure of law. It can also be held that without giving any notice to the 17 plaintiff, the names of the defendants were wrongly recorded as owners when they were not in fact owners of the property at that time even according to their own case. Therefore, no importance can be given to the entries pertaining to the consolidation of the land and entries in the record of rights taken on that basis. 11. The learned Counsel for the defendants/appellants vehemently contended that even on the basis of the agreement for sale, the defendants could protect their possession under section 53A of the Transfer of Property Act as they were put in possession in part performance of the contract. On the other hand, the learned Counsel for the plaintiffs/respondents contended that the defendants could get protection under Section 53A only if they proved that either they had performed their part of the contract entirely or that they had shown their willingness and readiness to perform their part of the contract. The learned Counsel contended that in the present case, the defendants have failed to prove that they had performed their part of the contract entirely. Not only this,even though the suits were filed in 1984 by the plaintiffs and the alleged agreement had taken place in the year 1975-76, the defendants had not filed any suit for specific performance of the contract showing their readiness and willingness to perform their part of the contract by paying balance amount of consideration. On the other hand, the defendants took a plea that the sale deeds were already 18 executed on 10.1.1977, 23.12.1976 and 14.4.1979 by the plaintiff by receiving balance amount of consideration. As pointed out earlier,the alleged sale deeds were not executed on sufficiently stamp paper and they were also not registered under law and therefore, these documents, being unregistered could not be accepted in evidence. The evidence about payment of the balance amount of consideration is also shaky and not reliable. 12. The learned Counsel for the defendants/appellants contended that merely because the period of limitation has lapsed or that the suit for specific performance of contract is not filed, the right to protect the possession under Section 53-A of the Transfer of Property Act is not lost. In support of this, he placed reliance upon Mahadeo Nathuji Patil vs. Surjabai Khushalchand Lakkad and others 1994 Mh.L.J.1145 and Shrimant Shamrao Suryavnshi and another vs. Pralhad Bhairoba Suryavanshi and Others (2002) 3 SCC 676. In Mahadeo vs. Surjabai, the Full Bench of this court had held that the statutory protection granted under section 53-A of the Transfer of Property act to a transferee in possession to continue in his possession under an unregistered contract or instrument of transfer is not lost by lapse of time to file suit for specific performance of contract for acquiring title if he satisfies the essential requirements of section 53-A of the Act. The essential requirements of Sec.53-A 19 before the protection can be claimed on the principle of part performance are (1) that there should have been a contract to transfer immovable property, (2) the contract is for consideration, (3) It should be in writing and it should be signed by or on behalf of the transferor, (4) its terms can be ascertained from writing, (5) the transferee should have taken possession of the property or any part there of in part performance of the contract, (6) he has done some act in furtherance of the contract and (7) the transferee has performed or is willing to perform his part of the contract. If these conditions are satisfied even if the instrument of transfer ha not been completed, the transferee can protect the possession and the transferor shall be debarred from enforcing against the transferee any right in respect of the property of which the transferee has taken possession. 13. In the present case, in view of the finding of the first appellate Court, it has been proved that there was written agreement for sale. The said agreement was signed by the defendants. The terms of the contract can be reasonably ascertained. The documents revealed that a part of consideration amount was paid at the time of execution of the said agreements and the possession of the suit land was given to the defendants at that time. However, it is also incumbent on the defendants to prove that they had either performed their part of the contract in entirety or they were ready and willing to perform their part of the 20 contract. In the present case, the defendants did not file any suit for specific performance of contract. Even though the plaintiffs had filed suit for possession, in the written statement, the defendants did not show their readiness and willingness to perform their part of the contract i.e. to pay the entire balance amount and to get sale deeds executed and registered. They took a plea that they had already paid the balance amount and had got the sale deeds executed. The said sale deeds could not be admitted in evidence and the evidence about payment is not reliable, as indicated above. In view of these circumstances, it must be held that even though the defendants were put in possession of the suit property on the basis of agreements for sale, after paying part of the consideration amount, they had failed to prove that they have been ready and willing to perform their part of he contract by paying the balance amount. When they were not ready and willing to perform their part of the contract, they could not get protection under