HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RFA No. 58 of 2001. Reserved on: 20.6.2011. Decided on: 28.7.2011 Rajender Singh and others ………Appellants. Versus Dhian Singh ………Respondent. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? Yes. For the appellants: Mr.Sukrit Raj Sharma and Mr.Sumit Raj Sharma, Advocates. For the respondent: Mr.Bhupender Gupta, Senior Advocate, with Mr.Janinder Mittal, Advocate. V.K. Ahuja, J.: This is a regular first appeal filed by the appellants against the judgment and decree of the court of learned District Jude, Kinnaur, Civil Division at Rampur Bushahr, vide which he dismissed the suit for possession of the land and for recovery of Rs.1.5 lac filed by the appellants as against the respondent. 2. Briefly stated, the facts of the case are that the appellants, hereinafter also referred to as the plaintiffs, filed a suit for possession and for recovery of Rs.1.5 lac, as against the respondent, hereinafter also referred to as the defendant. It was alleged by the plaintiffs that they are absolute owners of the property comprised in Khasra Nos.573, 581, 582 and 583, as detailed - 2 - in the plaint, measuring 0-86-60 hectares situated at Mauja Addu. It was alleged that the plaintiffs had inherited this property from their predecessor-in-interest late Shri Raj Kumar Rajinder Singh, being his sons, daughters and widow. It was alleged that the suit property consists of land and a single storeyed house built upon Khasra No.582, which property is in possession of the defendant. It was further alleged that the defendant entered into an agreement of sale with respect to the suit property and some other land, in all measuring about 20 bighas, belonging to late predecessor-in-interest of the plaintiffs for a consideration of Rs.30,000/- in the year 1978, as per agreement of sale dated 18.1.1978. It was also alleged that the defendant could not perform his part of the said agreement, which compelled the predecessor-in-interest of the plaintiffs to file a suit for declaration and mandatory injunction. In the said suit, a compromise was arrived at in between the defendant and the predecessor-in-interest of the plaintiffs, whereby the defendant agreed to make payment of the sale consideration as per the agreement. However, the defendant failed to pay the balance amount as agreed by him. 4. It was further alleged that thereafter, the parties entered into another agreement in between late Raj Kumar Rajinder Singh through his attorney Shri S.R. Jhingta and the defendant for sale of land comprised in Khara numbers mentioned above measuring 1-54-38 hectares for a total consideration of Rs.80,000/-, which was to be paid by the defendant on or before 15.11.1989. It was alleged that - 3 - again the defendant failed to perform his part of the agreement and did not pay the sale consideration within the stipulated time. It was further alleged that the possession of the land, which is forest, was never handed over to the defendant in the year 1978 nor the defendant ever remained in possession of this land and the possession of the said land remained with predecessor-in-interest of the plaintiffs who had also sold timber from the said land to the H.P. State Forest Corporation. Thus, it was alleged that the defendant is presently in possession of the land and single storyed building apart from an apple orchard. It was further alleged that the defendant has failed to perform his part of contract and has not paid the sale consideration of Rs.80,000/- as per the agreement of sale dated 22.5.1989. It was also alleged that the defendant is enjoying the income and fruits from the said property and is also occupying the house. Thus, it was alleged that the defendant is liable to pay a sum of Rs.1.50 lacs on account of damages/profits for the last three years preceding the filing of the suit as well as he is liable to pay future mesne profits and damages at the rate of Rs.50,000/- per annum till the suit property is delivered to the plaintiffs. The plaintiffs also prayed that the defendant is also liable to hand over the possession of the suit property to the plaintiffs since he failed to perform his part of the contract, hence the suit filed by the plaintiffs. 5. Defendant, in his written statement, took up preliminary objections in regard to maintainability, - 4 - limitation, valuation etc. On merits, the defendant pleaded that he is in possession of the land as per the agreement. He also pleaded that he was already given possession in the year 1978, when the previous agreement was executed. He also pleaded that he was ready and willing to perform his part of the contract, but the attorney of the plaintiff started demanding more money. Defendant after taking possession started residing in the house and also planted apple plants. The defendant was ready and willing to perform his part of the contract, but the attorney demanded more money and had agreed to pay the amount as per the fresh agreement of sale. The defendant was ready and willing to perform his part of contract, but late Rajinder Singh refused to perform his part of the contract and there are also letters in this regard. Thus, the plaintiffs are not entitled to the relief of possession or mesne profits as claimed by them. 6. Replication was filed by the plaintiffs. On the pleadings of the parties, the following issues were settled by the learned trial Court: “(1) Whether the plaintiffs are entitled to recover Rs.1,50,000/- as mesne profit/damages? OPP (2) Whether the suit is not maintainable in the present form, as alleged? OPD (3) Whether the suit is time barred? OPD (4) Whether the plaintiffs are not entitled to the relief claimed by them, as alleged? OPD (5) Whether the suit is not properly valued for the purpose of Court fee and jurisdiction? OPD (5-A) Whether the plaintiffs are entitled to get possession of the land in suit? OPP (6) Relief.” - 5 - 7. Parties led their evidence and the learned trial Court vide its impugned judgment decided Issues No.1, 2, 4 & 5-A as against the plaintiffs and in favour of the defendant and consequently dismissed the suit of the plaintiffs. 8. I have hard the learned counsel for the parties and have gone through the record of the case. 9. The first question which stands established from the facts of the case are that the defendant is not in unauthorized possession of the suit property but is in possession of the suit property in pursuance to the agreements executed in the years 1978 and 1989. The plaintiffs themselves have alleged that the agreement was executed in the year 1978 and the defendant is in possession of the suit property in part performance of the agreement to sell. The plaintiffs have specifically pleaded that the defendant is presently in possession of the land and house after the agreement of sale dated 22.5.1989, but the evidence led rather suggests that the defendant was in possession since the time of the earlier agreement executed in the year 1978. 10. The main question which arises for consideration is as to whether the plaintiffs have been ready and willing to perform their part of the contract and whether the defendant was ready and willing to perform his part of the contract or not. My attention has been drawn to the statement of PW-4 Devi Singh, who had worked as a labourer in the apple orchard in the suit land. He has stated that he had planted about 300 apple plants. He also - 6 - stated that PW-2 S.R. Jhingta had asked for payment of sale consideration of the orchard and the house from he defendant, but the defendant had not paid the sale consideration, who had been saying that he would pay the sale consideration and had also been refusing to pay the sale consideration to PW-2 S.R. Jhingta. 11. PW-5 Goverdhan Dass had also stated that the defendant did not settle the matter with the plaintiffs. Defendant had demanded Rs.2.00 lacs from him and later on asked for Rs.20.00 lacs. In his presence PW-2 S.R. Jhingta had asked for funds from the defendant. However, the defendant had not paid any amount to PW-2 S.R. Jhingta in his presence. 12. The statements of these two witnesses were rightly not relied upon by the learned trial Court in view of the fact that PW-2 S.R. Jhingta was directed by the predecessor-in-interest of the plaintiffs not to go for the execution of the registered sale deed and that Raj Kumar Rajinder singh had not approved the agreement, as shall be referred below while discussing the evidence led by the parties. A reference can be made to the letter Ext.D-9 written to the defendant by PW-2 S.R. Jhingta that Shri Raj Kumar Rajinder Singh has considered this agreement against their interest. PW-2 had clearly stated that he had considered the agreement and that the agreement was not acceptable to Raj Kumar Rajinder Singh, who had passed order for canceling the agreement Ext.PW-2/A. In his statement, PW-2 S.R. Jhingta had admitted the correctness of the letter Ext.D-9 written by him to the defendant. The - 7 - correctness of the letter, dated 10.7.1989, Ext.D-9 was also admitted at the time of admission and denial of the documents. PW-2 had also posted notice dated 31.10.1989 Ext.D-2 through registered post that the agreement, dated 22.5.1989 is not acceptable to Raj Kumar Rajinder singh. Once the letters are being written by the predecessor-in- interest of the plaintiffs or his attorney that the agreement in question is not acceptable to them, where is the question of readiness and willingness on the part of the plaintiff to perform his part of the contract. 13. On the other hand, the defendant had stated that he was ready and willing to perform his part of the contract well before the date fixed i.e. 15.11.1989. The defendant had issued a notice Ext.D-3 to the predecessor- in-interest of the plaintiffs on 8.11.1989. The predecessor-in-interest of the plaintiffs had been asked to execute the sale deed in favour of the defendant on or before 15.11.1989, on receipt of the balance sale consideration. The learned counsel for the appellants has strenuously argued, which argument was also raised before the learned trial Court and was rightly rejected by observing that it was true that the defendant had not been able to produce postal receipt or AD in support of delivery of notice, Ext.D-3, to the predecessor-in-interest of the plaintiffs, which did not establish that the defendant had posted notice Ext.D-3 to the predecessor-in-interest of the plaintiffs so as to be received by the addressee after 15.11.1989. PW-2 S.R. Jhingta had admitted that the predecessor-in-interest of the plaintiff received the - 8 - notice, dated 8.11.1989 Ext.D-3 on 17.11.1989. The submission made by the learned counsel for the appellants was that since the postal receipt or the AD was not proved by the defendant, therefore, it cannot be inferred that the plaintiff was not ready and willing to perform his part of the contract prior to 15.11.1989. The registered letter is dated 8.11.1989 and in all probabilities, it was to be received within a period of 3-7 days and in case there has been any delay on the part of the defendant to scuttle the agreement, it was for the plaintiffs to have proved that they were ready and willing to perform his part of the contract. There is nothing on the record to show that the plaintiffs served any notice upon the defendant that since the letter has been received late and they had been ready and willing to perform their part of the contract, the registered deed cannot be executed since the dead line has expired. The dead line, in such circumstances, was not so material when the notice was issued to the predecessor-in- interest of the plaintiffs one week prior to the date fixed and according to the version of the predecessor-in-interest of the plaintiffs himself, in case it was received on 17.11.1989, if the time was not the essence of the contract, the predecessor-in-interest of the plaintiffs could have issued a notice to the defendant that he had received the notice late, which is not so. On the other hand, the act of the predecessor-in-interest of the plaintiffs and the Attorney, as per the letters referred to above, clearly suggests that they had not been ready and willing to perform their part of the contract. This fact - 9 - can be inferred from the facts on record that the original agreement was executed in the year 1978 for a sum of Rs.30,000/- and once the sale deed was not executed, it was enhanced to Rs.80,000/- and as the evidence suggests, the contract had not been approved by the owner Raj Kumar Rajinder Singh. The prices had gone up and may be that he had been demanding more money. The greed for more money appears to be there and if there is no such case, the plaintiffs could have submitted that they received the letter of the defendant only on 17.11.1989 after the date fixed i.e. 15.11.1989 and, therefore, they were not in a position to appear before the Sub Registrar. However, the plaintiffs could also appear before the Sub Registrar on a subsequent date after intimating the defendant through a letter that they were ready and willing to perform their part of the contract. Therefore, the non-production of the registered AD or the postal receipt in regard to Ext.D-3 is not sufficient to hold that the plaintiffs were ready and willing to perform their part of the contract and the defendant was not ready and willing to perform his part of the contract. The plaintiffs had to prove that they were always ready and willing to perform their part of the contract and then only they were entitled to the relief of possession in which they have failed. 14. In so far as the evidence is concerned that Raj Kumar had sold some produce to the Forest Corporation, he was the owner of the other part of the Khata and in case he had sold some land produce to the Forest Corporation, it does not lead to the inference that he was in possession - 10 - once there are specific pleadings of the plaintiffs that the defendant was in possession of the suit land and house in pursuance of the subsequent agreement, though the evidence led shows that the defendant was in possession since the date of the original agreement executed in the year 1978. Therefore, I do not refer to the evidence in this regard but the conclusion drawn by the learned trial court is correct in this regard. 15. In so far as the findings are concerned that the defendant is in possession of the suit property as part performance of the contract, the learned trial Court had referred to the decision in Nathulal vs. Phoolchand, AIR 1970 SC 546, wherein conditions necessary for making out the defence of part performance to an action in ejectment by the owner are discussed, which are as under: “(1) that the transferor has contracted to transfer for consideration any immoveable 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. (2) that 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; (3) that the transferee has done some act in furtherance of the contract; and (4) that the transferee has performed or is willing to perform his part of the contract.” 16. Learned counsel for the appellants, during the course of arguments, had also relied upon the decision in FGP Limited vs. Saleh Hooseini Doctor and another, (2009) 10 Supreme Court Cases 223, wherein their lordships had referred to the ingredients of Section 53-A of the - 11 - Transfer of Property Act in para 24 of the judgment, which are as under: “Section 53-A of the Transfer of Property Act has certain ingredients and, in our judgment, those are: (1) a contract to transfer immoveable property; (2) the transfer should be for consideration; (3) the contract must be in writing; (4) it should be signed by or on behalf of the transferor; (5) the terms of the contract can be ascertained with reasonable certainty from the writing; (6) the transferee takes possession of the whole or part of the property or if already in possession continues in possession; (7) such taking of or continuance in possession should be in part-performance of the contract; (8) the transferee should do some act in furtherance of the contract; and (9) he should have performed, or be willing to perform, his part of the contract.” 17. Reliance was also placed upon the decision in Mohan Lal (deceased) through his LRs. Kachru and others vs. Mirza Abdul Gaffar and another, (1996) 1 Supreme Court Cases 639. The observations made in paras 5 to 7 were relied upon. However, the observations made in para 5 are relevant and are being reproduced below: “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 immoveable property by writing, signed by him or on his behalf, from which the terms necessary to - 12 - 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 the contract. Agreement does not create title or 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.” A further perusal of para 6 of the judgment shows that it was pointed out by the High Court that the transferee has not expressly pleaded in his written statement that he was ready and willing to perform his part of the contract to enable him to retain his possession of the immoveable property. Therefore, the conclusion drawn by the High Court was held to be correct. It was observed that except vaguely denying that he is not ready and willing to perform his part, he did not specifically plead it. It was also observed that when the transferee seeks to avail of Section 53-A to retain possession of the property which he had under the contract, it would also be incumbent upon the transferee to lead and prove his readiness and willingness to perform his part of the contract. The doctrine of readiness and willingness is an emphatic way of expression to establish that the transferee always abides by the terms of the agreement and is willing to perform his part of the contract. 18. It is, therefore, clear from the above observations that the conclusion was drawn by the High Court on the basis of the evidence and the pleadings of the transferee in which he had specifically failed to prove - 13 - that he was ready and willing to perform his part of the contract. 19. On the other hand, the learned counsel for the respondent had relied upon the following decisions, in support of his submissions that the defendant was ready and willing to perform his part of the contract. The decision in Shrimant Shamrao Suryavanshi and another vs. Pralhad Bhairoba Suryavanshi (dead) by LRs and others, (2002) 3 Supreme Court Cases 676, was relied upon. The observations made in paras 15 to 17 are relevant, which are being reproduced below: “15. The Special Committee’s report which is reflected in the aims and objects of the amending Act, 1929 shows that one of the purposes of enacting Section 53-A was to provide protection to a transferee who in part-performance of the contract had taken possession of the property even if the limitation to bring a suit for specific performance has expired. In that view of the matter, Section 53-A is required to be interpreted in the light of the recommendation of the Special Committee’s report and aims, objects contained in the amending Act, 1929 of the Act and specially when Section 53-A itself does not put any restriction to plea taken in defence by a transferee to protect his possession under Section 53-A even if the period of limitation to bring a suit for specific performance has expired.” 16. But there are certain conditions which are required to be fulfilled if a transferee wants to defend or protect his possession under Section 53-A of the Act. The necessary conditions are: (1) there must be a contract to transfer for consideration of any immoveable property; - 14 - (2) there contract must be in writing, signed by the transferor, or by someone on his behalf; (3) the writing must be in such words form which the terms necessary to construe the transfer can be ascertained; (4) the transferee must in part- performance of the contract take possession of the property, or of any part thereof; (5) the transferee must have done some act in furtherance of the contract; and (6) the transferee must have performed or be willing to perform his part of the contract. 17. We are, therefore, of the opinion that if the conditions enumerated above are complied with, the law of limitation does not come in the way of a defendant taking plea under Section 53-A of the Act to protect his possession of the suit property even through a suit for specific performance of a contract is barred by limitation.” 20. Another decision relied upon was in Pushparani S. Sundaram and others vs. Pauline Manomani James (deceased) and others, (2002) 9 Supreme Court Cases 582, wherein it was observed in paras 5 to 7 that merely by filing a suit for specific performance and taking the plea that he was ready and willing by themselves are not sufficient to satisfy the requirements of Section 16(c) of the Specific Relief Act. On facts, it was held that where appellant had not sent any communication or notice regarding his readiness and willingness, had paid only an insignificant amount as advance, had not obtained permission from Ceiling Authorities, had not taken any - 15 - stamp toward ascertainment of valuation of superstructure on the suit land as required under agreement for sale, did not lead evidence regarding his readiness and did not enter the witness box, High Court rightly upheld dismissal of the appellant’s suit. It was also observed in paras 4 and 5 that readiness and willingness to perform essential terms of contract may be inferred from totality of circumstances or conduct of the plaintiff. However, mere filing of suit, without further proof as to readiness and willingness, is not such a circumstance. 21. Another decision relied upon was in Balasaheb Manikrao Deshmukh and another vs. Rama Lingoji Warthi, AIR 2000 Bombay 337. The observations made in paras 12 and 14 are relevant and are being reproduced below: “The protection under the doctrine of part performance is available to the purchaser even if the suit for specific performance of contract has become time-barred. In the instant case, there was agreement between the appellants and the respondent