R.S.A. No. 122 of 1986 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No. 122 of 1986 Date of Decision: November 10, 2009 Tara Singh and another …..Appellants Vs. Harbans Lal …..Respondent CORAM: HON’BLE MR. JUSTICE M.M.S. BEDI. -.- Present:- Mr. Gur Rattan Pal Singh, Advocate for the appellants. Ms.Shilpa Malhotra, Advocate and Mr.Hemender Singh, Advocate for the respondent. -.- M.M.S. BEDI, J. (ORAL) Defendants have filed this second appeal against the judgment and decree passed by the trial Court dated May 3, 1984 affirmed by lower Appellate Court vide judgment dated October 7, 1985 by virtue of which suit of the plaintiff- respondent for possession of property in dispute which consists of two rooms, stair case and a courtyard of house bearing No. B-I.I- R.S.A. No. 122 of 1986 [2] 117 situated in Gali Harbans Snigh Kumar, Basti Mamnian Wali, Basti Bhatian Wali, now known as Bharat Nagar, Ferozepur City, as described in heading of the plaint was decreed. Briefly stated the case of the plaintiff- respondent as per the plaint is that the house in dispute was purchased by the plaintiff for a consideration of Rs.2351/- from Rehabilitation Department vide conveyance deed dated April 7, 1973. The father of defendant- appellants, namely, Hardit Singh, also purchased a part of the property in dispute for a consideration of Rs.400/- in auction on April 1, 1957. He preferred an appeal under Section 22 of the Displaced (Compensation and Rehabilitation) Act, 1954 before Settlement Commissioner, Jalandhar. The appeal was rejected by the Settlement Commissioner, Jalandhar, on March 24, 1970 and the whole of the property in dispute was given to the plaintiff- respondent, till Hardit Singh occupied a room which was part of the property in dispute. Later on , plaintiff agreed to sell the room in dispute on March 17, 1973. It was stipulated in the agreement that after one month from the date of issuance of conveyance deed in favour of the plaintiff- respondent, he will get the sale deed registered. It was also agreed that in case Hardit Singh did not perform his part of the contract, the amount of Rs.1300/- paid by him shall stand forfeited. Said Hardit Singh, father of defendant- appellant did not come forward to get the sale deed executed in his favour from the plaintiff, within the stipulated period, therefore, the earnest money of Rs.1300/- stood forfeited. Hardit Singh was served a notice on March 11, 1974 by the plaintiff regarding the forfeiture of the R.S.A. No. 122 of 1986 [3] earnest money and was asked to handover the possession of the house in dispute to the plaintiff- respondent but to no effect. Thereafter said Hardit Singh died and the defendant- appellants being legal heirs of Hardit Singh have been in illegal possession of the house of the plaintiff. The plaintiff – respondent claimed a sum of Rs.1440/- as damages for use and occupation of the portion of the property in dispute. The defendant- appellants contested this suit admitting that father of the defendant-appellants purchased part of the property in auction. It was also admitted that an agreement of sale was executed but it was pleaded that the father of defendant- appellants was always ready and willing to perform his part of the contract. It was pleaded in the written statement that the plaintiff- respondent was required to inform them after obtaining P rights but he committed breach of term of contract. Hardit Singh, father of the defendant- appellant became owner in part performance of the agreement of sale and after his death, the defendants being in possession of the property as owner had a right to retain the possession. It was pleaded by the defendant- appellants that Hardit Singh had served a notice on the plaintiff- respondent on March 1, 1974 asking the plaintiff to get the sale deed executed and registered but the respondent- plaintiff did not pay any heed. It was pleaded that the defendant- appellants have always been ready and willing to perform their part of the contract. The plaintiff filed replication reiterating the pleas taken in the plaint. The trial Court framed the following issues:- R.S.A. No. 122 of 1986 [4] “1. Whether the plaintiff is the owner of the property in dispute? OPP 2. Whether the defendants are in possession of the property as owners in part performance of agreement dated 17.3.73, if so its effect? OPP. 3. Relief.” Under issue No.1, the trial Court on the basis of document Ex.PW5/1, a letter dated October 22, 1959 issued by District Rent and Managing Officer, Ferozepur and Ex.P-2 conveyance deed dated April 7, 1973, held that the plaintiff- respondent was owner of the house in dispute. While deciding issue No.2, whether the defendant- appellants can be said to be owner in possession in part performance of agreement dated March 7, 1973 held that the provisions of Section 53A of the Transfer of Property Act, 1882, (hereinafter referred to as ‘the Act’) are not applicable to Punjab. Reliance was placed on Shamsher Chand Vs. Bakshi Mehar Chand and others, AIR 1947 Lahore 1 and Sardar Singh and another Vs. Harbhajan Singh and others, 1974 PLJ page 341. On the basis of the finding on issue No.1, the suit of the plaintiff- respondent for possession was decreed, however, the claim of the plaintiff- respondent for recovery of Rs.1440/- as damages was dismissed. The defendant - appellants aggrieved by the judgment and decree dated May 3, 1984 preferred an appeal. The appeal was also dismissed on August 7, 1985 by the lower Appellate Court. R.S.A. No. 122 of 1986 [5] Counsel for the defendant- appellants Mr.Gur Rattan Pal Singh has contended that the defendants are entitled to the benefit of provisions of Section 53-A of the Act which provisions is applicable to Punjab and can be construed to the benefit of the appellants. He argued that the suit field by the plaintiff- respondent deserves to be dismissed as Hardit Singh was always ready and willing to perform his part of the agreement dated March 18, 1973 and even his heirs are also ready and willing to perform their part. Counsel for the respondent has contended that the provisions of Section 53-A of the Act are not applicable to the State of Punjab, as the said provisions have never been adopted by any notification by the State of Punjab. After hearing counsel for the parties, I am of the opinion that the provisions of Section 53-A of the Act have not been applied to the State of Punjab by any notification but at the same time it cannot be ignored that the broad principles of the provisions of the Act are applicable in the litigations pending in Punjab. Presuming that the principles of Section 53 of the Act are applicable, whether the defendant- appellants could get the benefit of the principle of the part performance of the agreement. There are five requirements of Section 53-A of the Act in layman’s language. These are:- i) existence of a contract for the transfer of immoveable property; R.S.A. No. 122 of 1986 [6] ii) the agreement should be in writing signed by the other party and the terms thereof should be ascertainable with reasonable certainty; iii) the transferee in part performance of the contract should have either taken possession or continued in possession or have done some other act in furtherance of the contract; iv) the transferee should perform or be willing to perform his part of the bargain set down in the writing, though; v) the doctrine would not be attracted against another transferee without notice of the contract or its part performance.” In the present case, the agreement of sale is admitted but the period of execution of the sale deed is not specifically mentioned in the agreement. The terms of the agreement are not ascertainable with reasonable certainty. The defendants’ father had not taken the possession of the property in part performance of the contract, rather he was in possession of the property in dispute during the pendency of an appeal which was pending before the Settlement Commissioner, as is apparent from the order Ex.P-5, passed by the Settlement Commissioner, Jalandhar on March 24, 1970. The agreement of sale is dated March 17, 1973. As per the stipulation of the agreement of sale Ex.D-1, the sale deed was to be executed after one month from the date of issuance of conveyance deed in favour of the plaintiff. A copy of the conveyance deed appears to be dated R.S.A. No. 122 of 1986 [7] April 7, 1973. In order to establish that the transferee has performed or was willing to perform his part of the contact, reliance has been placed on a notice Ex.D3 dated March 1, 1974 issued by Hardit Singh to the plaintiff that sale certificate has been issued to the plaintiff, therefore, he should execute a sale deed by April 4, 1974. Except for document Ex.D3, no other document has been placed on record indicating that Hardit Snigh was willing to perform his part of the contract. Neither a suit for specific performance was filed by Hardit Singh nor it was established that he was ready with the balance of sale consideration. The ready and willingness has to be established in case the benefit of doctrine of part performance under Section 53A of the Act is to be obtained by a party seeking the benefit for the said doctrine. In view of the fact that the terms of the agreement of sale were not ascertainable with reasonable certainty and that the predecessor-in- interest of the defendant- appellants was willing to perform his part of the bargain, the defendant-appellants cannot take the advantage of the principle of Section 53A of the Act. It is not established that Hardit Singh had taken any steps for performance of his part of the contract to establish his willingness to get the sale deed executed in his favour by offering the balance of sale consideration. The possession was being enjoyed by him as such it is not established that he was willing to perform his part of the contract. The approach of the Courts below in relying upon Sardar Singh’s case (supra) and Amar Singh Vs. Sarna, 1982 Simla Law Journal 96 holding that the provisions of the Act have not been made applicable to the State of Punjab and that only Sections 54, 107 and 123 of the Act have been R.S.A. No. 122 of 1986 [8] applied to the Punjab w.e.f. the year 1955. The ratio of the abovesaid rulings have been rightly followed by the Courts below. In view of the above circumstances, the question of law raised whether Section 53-A of the Act is applicable to the facts of the case, is answered against the defendant- appellants. Finding no ground to interfere in the decree of possession passed in favour of plaintiff- respondent, the appeal is dismissed. Taking into consideration the peculiar facts of the present case, parties will bear their own costs. November 10, 2009 (M.M.S.BEDI) sanjay JUDGE