Case Note & Summary
The case involves a second appeal by the original defendant, Ajabrao Marotrao Radake, against the concurrent decisions of the trial court and the lower appellate court. The plaintiffs, Bhalchandra Vitthalrao Deshpande and others, were the owners of the suit property, a field measuring 3 acres and 18R in Survey No. 28. The defendant claimed possession based on an agreement to sell dated 22.12.1975 (Exh.39) and sought protection under Section 53A of the Transfer of Property Act, 1882. The trial court partly decreed Special Civil Suit No. 63 of 1988 on 30.06.1994, ordering possession and an inquiry into mesne profits. The lower appellate court dismissed Regular Civil Appeal No. 190 of 1994 on 07.12.2001. Both courts found that the defendant's possession was not in pursuance of the agreement but under orders dated 17.05.1978 and 31.08.1978 (Exh.45), and that he failed to establish readiness and willingness to pay the balance consideration of Rs.12,250/-. The High Court framed two substantial questions of law on 15.07.2005: whether the possession was in part performance of the agreement, and whether Section 53A was attracted. The appellant's counsel argued that the agreement contained a recital of possession being handed over. However, the High Court noted that the agreement itself did not specify the date of possession, and the defendant's own evidence showed possession was taken later under court orders. The court held that the concurrent findings of fact were based on evidence and did not give rise to any substantial question of law. The appeal was dismissed with no order as to costs.
Headnote
A) Property Law - Part Performance - Section 53A Transfer of Property Act, 1882 - Possession in Pursuance of Agreement - The appellant-defendant claimed protection of possession based on an agreement to sell dated 22.12.1975. The courts below concurrently held that the defendant failed to establish possession in part performance of the contract, as his possession was based on orders dated 17.05.1978 and 31.08.1978, not the agreement. The High Court upheld these findings, noting that the defendant also failed to prove readiness and willingness to pay the balance consideration of Rs.12,250/-. (Paras 2-5)
Issue of Consideration
Whether the possession of the appellant was in pursuance of the agreement for sale dated 22.12.1975 and therefore in part performance of the said agreement, and whether the provisions of Section 53A of the Transfer of Property Act, 1882 are attracted in such circumstances.
Final Decision
The second appeal is dismissed. The judgment and decree passed by the lower appellate court in Regular Civil Appeal No. 190 of 1994 dated 07.12.2001 are confirmed. No order as to costs.
Law Points
- Section 53A Transfer of Property Act
- 1882
- Part performance
- Possession in pursuance of agreement
- Readiness and willingness
- Concurrent findings of fact
- Substantial question of law
Case Details
2017 LawText (BOM) (03) 183
Second Appeal No. 110 of 2002
Shri R.L. Khapre for Appellant, Shri P.R. Agrawal for Respondent nos. 1 to 4
Bhalchandra Vitthalrao Deshpande, Smt. Vimal Prabhakar Bangale, Madhukar Vitthalrao Deshpande, Smt. Gayatra Kamlakar Nande
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Nature of Litigation
Second appeal against concurrent decrees for possession and mesne profits in a suit for possession of agricultural land.
Remedy Sought
The appellant (original defendant) sought to set aside the decrees for possession and mesne profits passed by the trial court and confirmed by the lower appellate court.
Filing Reason
The appellant claimed protection of possession under Section 53A of the Transfer of Property Act, 1882 based on an agreement to sell dated 22.12.1975.
Previous Decisions
The trial court partly decreed Special Civil Suit No. 63 of 1988 on 30.06.1994 for possession and inquiry into mesne profits. The lower appellate court dismissed Regular Civil Appeal No. 190 of 1994 on 07.12.2001.
Issues
Whether the possession of the appellant was in pursuance of the agreement for sale dated 22.12.1975 and therefore in part performance of the said agreement?
Whether the provisions of Section 53A of the Transfer of Property Act, 1882 are attracted in such circumstances?
Submissions/Arguments
The appellant's counsel argued that the agreement dated 22.12.1975 contained a recital that the defendant was put in possession of the suit property, and thus the possession was in part performance of the contract.
The respondents' counsel supported the concurrent findings that the defendant's possession was based on court orders dated 17.05.1978 and 31.08.1978, and that the defendant failed to prove readiness and willingness to pay the balance consideration.
Ratio Decidendi
The concurrent findings of fact by the courts below that the appellant's possession was not in pursuance of the agreement to sell but under court orders, and that the appellant failed to establish readiness and willingness to perform his part of the contract, do not give rise to any substantial question of law. The provisions of Section 53A of the Transfer of Property Act, 1882 are not attracted as the possession was not in part performance of the agreement.
Judgment Excerpts
Undisputedly, the plaintiffs were the owners of the suit property and the defendant claimed protection of possession on the basis of the agreement to sell dated 22.12.1975 at Exh.39.
The Courts below are concurrent in holding that the defendant has failed to establish the possession over the suit property by way of part performance of contract.
The Courts have held that the defendant has failed to establish readiness and willingness on his part to perform the contract by making payment of balance amount of consideration of Rs.12,250/ to get the sale deed executed.
Procedural History
The plaintiffs filed Special Civil Suit No. 63 of 1988 for possession and mesne profits. The trial court partly decreed the suit on 30.06.1994. The defendant appealed in Regular Civil Appeal No. 190 of 1994, which was dismissed on 07.12.2001. The defendant then filed Second Appeal No. 110 of 2002 in the Bombay High Court, which framed substantial questions of law on 15.07.2005 and dismissed the appeal on 15.03.2017.
Acts & Sections
- Transfer of Property Act, 1882: 53A
