The learned counsel further argued that the plaintiff has
failed to prove the execution of Ex-P/2 by the defendant by
which the possession of the disputed plot was given by the
plaintiff
to
the
defendant
as
per
plaintiff's
pleadings.
Consequently, the defendant has been provided protection
under Section 53-A of the Transfer of Property Act as the
possession was given to the defendant on 20.09.02 by receiving
a sum of Rs. 40,000/- as part payment of consideration as per
sale agreement. The said contention has also no relevance in
this case as the said contract is oral whereas for seeking
protection under section 53-A of the T.P. Act the contract to sell
must have been written one. Moreover, terms and conditions of
the contract ought to be complied with by the purchaser on his
part. In this case, both the conditions on the part of the
defendant have not been fulfilled. The judgment in the case of
Bhavuti vs. Alam (deceased) through Lrs. And anr. 2013 (4)
M.P.L.J. 39 has held that the transferee has to show that he
has done some act in furtherance of the contract and has
performed or is ready and willing to perform part of his contract.
In this case the defendant has not tried to get the sale
deed executed in his favour as per alleged oral contract to sell.
Thus, the inference is drawn that the defendant has not
complied with the requisite conditions for part performance of
the contract under Section 53-A of the T.P. Act. Hence, the
defendant is not entitled to get the permission of the Section 53-
A of the T.P.Act.
MADHYA PRADESH HIGH COURT
GWALIOR BENCH
S.A. No.383/2013
17/01/2014
Dhannalal ahirwar v Satyanarayan
Citation; AIR 2014(NOC) 497 MP
1.
The respondent/defendant has filed this appeal under
Section 100 of the Code of Civil Procedure being aggrieved
by the judgment and decree dated 12.8.2013 passed by the
Court of
IVth
Additional District Judge Vidisha in Civil
Appeal No.18-A of 2013 (Old No.8A of 2012) confirming the
judgment and decree dated 20.12.2012 passed by the court
of IVth Civil Judge Class II, Vidisha in Civil Suit No.105 A of
2011 whereby, the suit filed by the plaintiff was partly
decreed holding that the defendant would hand over vacant
possession of the disputed plot to the plaintiff and would not
interfere in his possession in future.
In this appeal, the
respondent is referred to as “plaintiff” and the appellants as
“defendants'.
2.
The admitted facts of the case are that the plaintiff has
purchased the disputed plot from Sant Kanwarram Grih
Nirman Sahkari Samiti Vidisha vide registered sale deed
dated 7.2.2004 and obtained possession thereof.
3. The facts in brief of the plaint are that after purchasing
the plot in dispute from the society mentioned above, the
plaintiff for the sake of it's security, handed it over to the
2
S.A. No.383/2013
defendant in liue of an affidavit sworn in by the defendant
that he would vacate the same on being demanded by the
plaintiff wherein, the defendant with the consent and
financial help of plaintiff also constructed a hut (Tapra) and
has been residing in its since then. Thereafter, when the
plaintiff came to know that the defendant and his wife were
not acting as per the terms agreed, he asked them to
vacate the plot but the defendant and his wife refused to do
so and lodged a false FIR against the plaintiff. Hence, the
plaintiff filed a suit for possession of the said plot,
compensation at the rate of 1000/- per month from the
defendant and for injunction against the defendants for
restraining them from doing illegal encroachment on the
said plot.
4.
Denying the plaint allegations, the defendants filed
written statement stating that he had contracted to
purchase the said plot from the plaintiff for consideration of
Rs.50,000/- on 20.09.2002 and obtained possession after
paying Rs.40,000/- at that time but since, he could not
arrange Rs.10,000/- the registry could not be executed. It
was further averred that no such alleged affidavit was
sworn in by him in favour of plaintiff. He had constructed
the hut (tapra) out of his own resources and the suit filed by
the plaintiff is based on false and fabricated grounds and is
liable to be dismissed.
3
5.
S.A. No.383/2013
After framing of the five issues, recording evidence of
both the parties and having considered the recorded
evidence, the learned trial Court partly decreed the suit in
favour of the plaintiff against the defendants as stated
above.
6.
Both the learned courts below having considered the
recorded evidence have decreed the plaintiff's suit for
possession. The story put forth by the defendant in his defence
has been discarded by both the courts below.
7.
The
learned
counsel
for
the
appellant/defendant
submitted that without seeking the relief for declaration of title
the suit for possession in favour of the plaintiff could not have
been decreed by the courts below so both the courts have
committed an error in decreeing the suit. The argument has no
substance in this case as the defendant has not denied the
ownership/title of the plaintiff in the disputed plot. Apart from it,
as per pleadings of the defendant he himself made a contract
with the plaintiff for purchasing it. Since there is no dispute
about the plaintiff's title, question of seeking relief for title does
not arise.
8.
The learned counsel further argued that the plaintiff has
failed to prove the execution of Ex-P/2 by the defendant by
which the possession of the disputed plot was given by the
plaintiff
to
the
defendant
as
per
plaintiff's
pleadings.
Consequently, the defendant has been provided protection
under Section 53-A of the Transfer of Property Act as the
possession was given to the defendant on 20.09.02 by receiving
a sum of Rs. 40,000/- as part payment of consideration as per
sale agreement. The said contention has also no relevance in
this case as the said contract is oral whereas for seeking
protection under section 53-A of the T.P. Act the contract to sell
must have been written one. Moreover, terms and conditions of
the contract ought to be complied with by the purchaser on his
part. In this case, both the conditions on the part of the
defendant have not been fulfilled. The judgment in the case of
Bhavuti vs. Alam (deceased) through Lrs. And anr. 2013 (4)
M.P.L.J. 39 has held that the transferee has to show that he
has done some act in furtherance of the contract and has
performed or is ready and willing to perform part of his contract.
9.
In this case the defendant has not tried to get the sale
deed executed in his favour as per alleged oral contract to sell.
Thus, the inference is drawn that the defendant has not
complied with the requisite conditions for part performance of
the contract under Section 53-A of the T.P. Act. Hence, the
defendant is not entitled to get the permission of the Section 53-
A of the T.P.Act.
10.
As per pleadings of the defendant, he got the possession
of the disputed plot on 20.09.2002, The defendant has not
acquired any title to the said property. The suit for possession
was filed by the plaintiff on 8.10.2010 within 12 years. The
plaintiffs being owner of the plot is entitled to get back the
possession of it from the defendant. Therefore, the courts below
have not made any mistake in decreeing the suit for possession
in favour of the plaintiff. The findings of both the courts are
concurrent. In view of the facts and evidence available on
record, no perversity in the findings has been found to interfere
with them. Besides, no substantial question of law has been
found for admission in this appeal. Therefore, the appeal being
meritless and insubstantial is hereby dismissed.
No order as to the cost.
Decree be drawn up accordingly.
(M.K. Mudgal)
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