In the case at hand, the appellants have sought for
protection under Section 53A of the Transfer of Property Act and,
accordingly, substantial question of law to this effect has also
been framed. Protection contained under Section 53A of the
Transfer of Property Act deals with mixed question of facts as well
as law. So far 'fact' part is concerned, the appellants have clearly
pleaded that they have been enjoying peaceful possession over the
suit property after they acquired the same from the year 1975 i.e.
the date of execution of Sale Deed by Firangi Mahto in favour of
Chandrakant Singh (father of defendant no. 1). If possession of
the appellants is not considered from the year 1975, the admitted
facts available on record is that possession of defendants have
well been recognized since the year 1979 by Sitaram Agarwall and
Bajrang Agarwalla, the two brothers (both sons of Ram Kumar
Das Agarwalla). Acknowledging possession of defendants,
Agreement for Sale dated 13.02.1979 was executed by aforesaid
two brothers - Sitaram Agarwalla and Bajrang Agarwalla in
favour of defendant no. 1, it was contended by counsel for the
plaintiffs that aforesaid Agreement dated 13.02.1979 lost its legal
value when no suit for specific performance of contract was filed
within the period of limitation.
15. I have gone through the findings of Courts below and both
the Courts have considered the issue in favour of plaintiffs. It is
true that no suit for specific performance of contract to implement
Agreement dated 13.02.1979 was filed by the defendant but then
the document is the proof that they acquired possession by way of
part performance of the contract. In this context, Judgment in the
case of Shrimant Shamrao Suryavanshi V. Pralhad Bhairoba
Suryavanshi reported in (2002) 3 SCC 676 which has been
followed by the Apex Court in the Judgment in the case of
Mahadeva and others Vs. Tanabai reported in (2004) 5 SCC 88
is relevant and it is relevant to quote Para-8 of the Judgment in
the case of Mahadeva (Supra).
“8. The Judgment of the High Court is based on a
question framed during the course of writing of the
judgment which is in departure from the two questions
of law on which the appeal was admitted for hearing.
The whole emphasis shifted from the core issues. Then,
the High Court has not discussed any law and has also
not assigned any reason, much less a satisfactory one,
for taking a view different from the one concurrently
taken by the two courts below. The singular reason
assigned by the High Court for denying the benefit of
Section 53-A of the TP Act is not a sound reason by itself
in view of the decision of this Court in Shrimant
Shamrao Suryavanshi v. Pralhad Bhairoba
Suryavanshi. This Court has held that merely because
the suit for specific performance at the instance of the
vendee has become barred by limitation that by itself is
not enough to deny the benefit of the plea of partperformance
of agreement of sale to the person in
possession.”
The possession of the appellants over the suit property thus
stood admitted from the date of first agreement dated 13.02.1979.
The Courts below have disbelieved Exhibits – F and G only
because the same were issued and sworn prior to the date of
Agreement to Sale dated 03.11.1983. But it is clear that Sitaram
Agarwalla and his brothers had issued money receipt, sworn
affidavit acknowledging payment and sale on 12.09.1983 and
then executed General Power of Attorney in favour of defendant
no. 2 empowering him to do all acts regarding schedule property.
Thereafter, on the basis of Exhibit-H, the defendant no. 2 had
executed an Agreement for Sale in favour of defendant no. 1 with
respect to suit property on 03.11.1983 and further referred earlier
agreement dated 13.02.1979. Reference of earlier agreement in
the subsequent Agreement for Sale executed by the Attorney does
not mean that earlier agreement was renewed. Even assuming it
to be correct, the fresh Agreement was executed in favour of
defendant no. 1 on 03.11.1983. It is not an incriminating
circumstance to disbelieve Exhibits-H, F and G if the same were
issued and sworn on the date on which the four brothers –
Sitaram Agarwalla and defendant nos. 5 to 7 had executed Power
of Attorney with respect to suit property in favour of defendant no.
2.
16. In view of the discussions made above, on the one hand
possession of appellants/ defendants over the suit property stood
confirmed whereas Gajanand Agarwalla and subsequent
purchasers i.e. Gurmukh Singh and plaintiffs have never come in
possession over the suit property and that is also apparent from
the evidence of P.W.-4. Under such circumstances, the appellants
are entitled for the protection contained under Section 53A of the
Transfer of Property Act and they cannot be evicted therefrom. JHARKHAND HIGH COURT
SECOND APPEAL NO. 61 of 2004
Smt. Gita Devi
V
Mrs. Sobha Agarwalla,
PRESENT
MR. JUSTICE D.N. UPADHYAY
PRONOUNCED ON 05/08/2016.
Citation: AIR 2017 Jharkhand 24
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