1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.283 OF 1991 Narayansing S/o Govindsingh Age 68 years, Occ. Agril. R/o Devalgaon Raja, Tal. Develgaonraja, Dist. Buldhana ...APPELLANT VERSUS Raghunathsing S/o Govindsingh Thakur, Age Major, Occ. Agril. R/o Kumbhari, Tal Jafrabad, District Jalna. ...RESPONDENTS Shri S.V. Chandole, Adv. h/f V.G. Sakolkar, Advocate for the appellant. Sole Respondent served. CORAM : K.U. CHANDIWAL,J. DATE : 09/06/2009. ORAL JUDGMENT:- 1) Heard learned counsel for the appellant. The Respondent though served absent. 2) In a controversy between two brothers over agricultural field, the matter is dragged to the court. The parties are referred to by their original status as Plaintiff 2 and Defendant for convenience. The Plaintiff was in possession of the agricultural land on the basis of title asserting that in the month of February, 1970 the Defendant illegally and unauthorisely occupied suit land, the Plaintiff was dispossessed and Defendant is in possession without any right, title and interest. 3) Notice for restoration of possession was issued by the Plaintiff through his Advocate. It was replied by the Defendant denying the allegations. The defendants refused to comply the requisitions. 4) The defendant contends there was an agreement of sale of the property with his brother, the plaintiff. In pursuance thereof he paid Rs.2,000/- to plaintiff. The Defendant was put in possession of the suit property. There was sale deed (unregistered) dated 11/4/1967 executed by Plaintiff Narayan signed in presence of witness Bhagwan, Trimbak and Govind. The Defendant asserted that though the sale deed was to be registered with the Registrar, however, at the last moment, the plaintiff demanded Rs.100/- additionally, and on non-compliance thereof did not execute the sale deed though it was so agreed. 3 5) In suport of the contentions the plaintiff and the Defendant Raghunathsing entered into witness box. Defendant has produced the unregistered sale deed at Exh.22. The attesting witnesses Trimbak Daulat and Ambadas and Shivram are examined. D.W.3 was bond writer at Jalna who has scribed the disputed document. The plaintiff is examined at Exhibit 26. He has denied his signature on the stamp paper. 6) The learned counsel for the appellant/plaintiff asserts that the possession claimed by the Defendant being prior to the so called unregistered sale deed, has a colour of oral transaction. protection under Section 53-A of Transfer of Property Act cannot be generated. 7) So far as legal position is concerned there cannot be a controversy. However, the facts in the present case projects altogether different situation. The parties as stated earlier are inter-se brothers. There were negotions between them and pursuant to such negotiations in presence of witnesses the price of Rs.2,000/- was fixed and paid in presence of witness and plaintiff put the brother defendant in possession. It was on the next day 11/4/1967, the document of sale was to be registered at Registrar's Office at Jalna. Stamp Exh.22 has been purchased by the Plaintiff. Witnesses 4 have identified respective signatures and also Defendant has proved the contents therein. Since the unregistered sale deed portrays of possession also states of receiving the entire sale consideration and including parting of possession in favour of the plaintiff, it goes without saying that the Defendant cannot further shed tears that there was no such transaction of sale or purchase. 8) The position of law as indicated in the reported Judgment 2002(3) S.C.C. 676 Shrimant Shamrao Suryavanshi and anr. Vs. Pralhad Bhairoba Suryavanshi cannot be over looked. The prerequisite for a transaction under Section 53-A of T.P. Act if a transferee wants to defend or protect his possession under Section 53-A of the Act the necessary conditions are; (i) there must be a contract to transfer for consideration of any immovable property; (ii) the contract must be in writing, signed by the transferor, or by someone on his behalf. (iii) the writing must be in such words from which the terms necessary to construe the transfer can be ascertained. (iv) the transferee must in part-performance of the contract take possession of the property, or of any part 5 thereof. (v) the transferee must have performed or be willing to perform his part of the contract. 9) Now referring to this aspect there was a unregistered document Exh.22 which shows handing over the possession. Based on such agreement performance as was enumerated on the part of the Defendant is complied with. He has paid entire consideration. It was only registration and confirmation of the transaction left by the plaintiff. Had the plaintiff not abstained with oblique motive to deceive his own brother, it could have put in acceleration. Thus the Defendant is entitled in law to protect his possession since there is compliance of terms as set out in Section 53-A of Transfer of Property Act. The Defendant has in unequivocal words stated that he has always shown his willingness to get the sale deed registered but it was the plaintiff who has failed to comply by not visiting the office of Registrar. 10) Other aspect in the matter is 7x12 extract produced by the Defendant supports that he was put in possession in the year 1967. The plaintiff asserts having lost possession in February, 1970 and has initiated civil proceedings in the year 1980 obviously beyond the period of 12 years. Though, there 6 was no issue framed on this aspect, but one cannot ignore the situation. The other aspect in the matter is in the year 1970 the plaintiff sold half of the portion to his sister and in the said sale deed (Exh.27) while showing northern boundary this half portion is shown to be belonging to Defendant. Thus there was no dispute between the parties in the year 1970, the contentions raised by the Plaintiff during period 1980 of illegal possession or of no document of sale in favour of the Defendant is difficult to digest. The assertions are only figment. There is no force in the challenge of the plaintiff to genuineness of the unregistered sale deed Exh. 22. 11) The findings recorded by both the courts against plaintiff dismissing his suit and appeal cannot be said to be perverse. The substantial question of law as framed being ground No.7 to 11 i.e. VII) That, the lower Appellate Court erred in holding that the defendant to get the benefit of Section 53(A) of the Transfer of Property Act and he is entitled to get the protection to retain his possession. (VIII) Both the courts below have erred in holding that, the Defendant proved the sale in his favour. In fact, as the evidence shows nothing more than demand of the Plaintiff and refusal by the Defendant for the amount of Rs.100/- before execution of sale-deed in the office 7 of the Sub-Registrar is proved by the Defendant. The Courts below have read this evidence further for reaching a conclusion that, thereby the agreement of sale stands proved. It is submitted that the defendant readiness to perform his part of the contract is not a material issue in the matter of such readiness cannot confer or pass the title of the suit land on the defendant merely on the basis of agreement. (IX) The collateral purpose for which the agreement of Sale relied by the courts below is in fact not present in this case. The conclusion reach on that basis conferring title on the Defendant are therefore, illegal. (X) That, the judgments and order under appeal are otherwise false and bad in law and also are liable to be quashed and set aside. framed at the time of admitting the appeal on 30th August, 1991, will have to be answered against the appellant plaintiff. Hence order; Second appeal is dismissed with costs. ( K.U.CHANDIWAL ) JUDGE cmg/sa28391