IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 364 of 1998. Date of Decision: August 3, 2010 Kaku Din and others. .. Appellants. Versus Noor and others. .. Respondents. Coram The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 Yes. For the appellants : Shri Anuj Nag, Advocate. For the respondents: Sh. Anup Rattan, Advocate, vice Mr. P.C. Sharma, Advocate. Surinder Singh, J (oral): The appellants were plaintiffs before the learned trial Court. They have felt aggrieved and dissatisfied by the concurrent findings of the courts below, hence, this regular second appeal. Vide order dated 16.10.1998, this appeal was admitted on the following substantial questions of law: “1. Once when the plaintiffs have duly proved the execution of an agreement between the plaintiffs father and defendant No.3, was it not incumbent upon the learned Courts to have 1 Whether the reporters of Local Papers may be allowed to see the judgment? - 2 - decreed the suit on the basis of above mentioned agreement? 2. Once the agreement has been duly proved to be an executed document, are the plaintiffs not entitled to relief (s) under Section 53-A of the Transfer of Property Act?” 2. In nut-shell, the facts giving rise to the present case can be stated thus. Plaintiffs sought declaration claiming themselves to be the owners in possession of the suit land in joint khata No.44, to the extent of half share of total land measuring 16 kanals 16 marls, as mentioned in Misal Hakiat Bandobast Jadid Sani for the years 1981-82, besides 26 kanals of land owned and possessed by them over which they acquired the proprietory rights. According to them they were owners in possession of the total land measuring 42 kanals 16 marls in the said Khata and their shares mentioned therein were wrong. These were merely the paper entries and this land is not subject to the partition by the respondents, thus sought the consequential relief of permanent injunction. 3. The case of the plaintiffs had been that the suit land alongwith some other land was owned and possessed by the original owner. They sold it to one - 3 - Bhutoo by a registered sale deed. On this, respondent Nooraj Mal brought suit No.32/1968 for preemption against Bhutoo. To prosecute the suit Nooraj Mal had no money to spend on the litigation, thus approached the father of the plaintiffs Mehar Din to help him in meeting the litigation expenses. He agreed to support and paid money for litigation and respondent No.3 executed an agreement Ex.P1 on 27.4.1968, to the effect that in the event of success of the case, respondent No.3 shall transfer half of the land involved in preemption suit in favour of Mehar Din. Ultimately when the suit of the respondent No.3 was decreed in his favour, it is alleged that he parted with the possession of suit land measuring 16 kanals 8 marlas as part performance of the agreement. Since the father of the appellants was already in possession of 26 kanals of the land as tenant in the same joint khata, in this way he had become full owner in the total Khata after having acquired the proprietory rights. Although, it was a sale deed of the land, but deed could not be executed in favour of their father, who died about eight years back from the filing of the suit since respondent No.3 developed strained relations, thus according to the plaintiffs, the revenue entries could not - 4 - be changed, but taking advantage of the wrong entries, he executed a sale deed in favour of respondents No.1 and 2 on 28th May, 1986, which is stated to be wrong, illegal, null and void. Hence, the suit. 4. Respondents herein contested the claim of the appellants, questioning the maintainability of the suit and took up the point of estoppel, no cause of action and non-joinder of necessary parties. On merits, case of the plaintiff-appellants was totally denied including the execution of the agreement, as alleged. It was also contended that if the writing Ex.P1 is proved to have been executed, even then it is not enforceable in law nor the suit in the present form lies for its enforcement, thus no relief could be allowed to them. 5. The replication was also filed, wherein the preliminary objections were denied and even paras of the plaint were reiterated. 6. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiffs are joint owners in possession of 16 kanals of the suit land, as alleged? …OPP. 2. Whether the plaintiffs have acquired the ownership rights of 26 kanals of the suit land by virtue of being tenant of aforesaid land, as alleged …OPP. - 5 - 3. Whether Noorajmal had entered into an agreement dated 27.4.68 with the plaintiffs and delivered the possession of 16 kanals of suit land? …OPP. 4. Whether the agreement of sale dated 27.4.68 if any, is against the public policy and not enforceable by law? …OPD. 5. Whether the plaintiffs are estopped by their act and conduct to file the suit? …OPD. 6. Whether the suit is bad for non-joinder of necessary parties? …OPD. 7. Whether the sale deed dated 28.5.86 in the favour of defendants No.1 and 2 by defendant No.3 qua the 16 kanals of the suit land is illegal, null and void, as alleged in para No.8 of the plaint?..OPP. 8. Relief. 7. The learned trial Court dismissed the suit as the agreement was not proved even otherwise it was against the public policy and not enforceable in appeal and also the appellants failed to convince the Court, thus they were unsuccessful in the appeal before the first Appellate Court. 8. Shri Anuj Nag, learned counsel for the appellants vehemently argued that the execution of agreement stood fully proved and further that the appellants were in possession of the suit land as part - 6 - performance of the agreement and the Courts below committed error in dismissing the suit of the appellants. 9. Contra, Shri Anoop Rattan, learned counsel appeal for the respondents supported the impugned judgment and decree passed by the Courts below. 10. At the very outset, I would like to say that the impugned agreement is contrary to the public policy and is not enforceable in law, even if proved. Otherwise also, there is absolutely nothing on record to show that the appellants have performed their part of the agreement and were ready and willing to perform remaining part thereof. The pleadings and proofs to this effect are silent, therefore, the relief as prayed for can also not be granted to them. 11. The delivery of possession, as alleged as a part performance, can only be used as a defence. Section 53- A of the Transfer of Property Act says that the benefit of this section can only be derived if transferee is able to prove that he in part performance of the agreement has taken the possession of the property or any part thereof or the transferee already being in possession, continuous in possession in part performance of the agreement and has done some act in furtherance of the said - 7 - agreement/contract and further that he had performed or is willing to perform his part of the contract. The appellants failed to prove that they had taken the possession of the suit land pursuant to the agreement Ex.P1 and remained in possession thereof, therefore, the Courts below have rightly held that no benefit of Section 53-A of the Transfer of Property Act could be extended to the appellants to maintain the suit. 12. Since the appellants have failed to prove any right in the suit land, pursuant to the agreement aforesaid, the alleged sale of the suit land in favour of respondents No.1 and 2 cannot be held to be null and void. Therefore, in the instant case, the agreement in question does not stand fully proved and otherwise also it is not enforceable in law being opposed to the public policy. Therefore, the appellants were rightly held not entitled for any relief. There are concurrent findings of fact against the appellants on the above score and no question of law much less the substantial question of law has arisen in this appeal. Hence, the appeal is dismissed with costs throughout. Interim orders, if any, shall stand vacated. August 3, 2010. (Surinder Singh), (Pds) Judge.