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CASE NO.:

Appeal (civil) 1527 of 2000

PETITIONER:

D.S. Parvathamma

RESPONDENT:

A. Srinivasan

DATE OF JUDGMENT: 31/03/2003

BENCH:

R.C. LAHOTI & BRIJESH KUMAR

JUDGMENT:

J U D G M E N T

R.C. Lahoti, J.

The suit premises forming part of the building No.25, 5th Cross,

Annamma Temple Extension, Ramakrishnapuram, Bangalore,

measuring 8x20 sq. ft. are the subject matter of these proceedings

initiated under the provisions of the Karnataka Rent Control Act, 1961,

(hereinafter 'the Act', for short) by the respondent claiming himself to

be owner-landlord and seeking eviction of the appellant alleging him to

be tenant in the suit premises. Eviction has been ordered under

Clauses (a) and (h) of sub-Section (1) of Section 21 of the Act by the

Rent Controller and upheld by the High Court in exercise of revisional

jurisdiction under Section 50(1) of the Act.

The singular issue surviving for decision at this stage and

around which the learned counsel for the parties have centered their

submissions is: whether the appellant is entitled to protect his

possession under Section 53A of the Transfer of Property Act, 1882

and hence not liable to suffer eviction based on landlord-tenant

relationship which has ceased to exist on account of subsequent

events.

The plea arises for determination in the background of the facts

briefly stated hereinafter. The suit premises were initially owned by

one N. Shamanna. The appellant was inducted in the suit premises as

a tenant w.e.f. 1.11.1967. According to the appellant, he entered into

an agreement to purchase the suit property from the original owner in

the year 1970, whereafter he has been holding the suit premises as a

prospective vendor and in part performance of agreement to purchase

the property, which relationship has superseded the erstwhile tenancy

relationship and altered the nature and character of appellant's

possession over the suit premises from that of tenant to that of a

purchaser in possession in part performance of agreement to sell the

property within the meaning of Section 53A of T.P. Act. The factum of

there being any agreement to sell the property entered into by the

original landlord with the appellant has been denied and has been a

subject matter of controversy in these proceedings. What is not

disputed is that under a deed of sale dated 18.4.1983 the original

owner N. Shamanna and his wife Smt. Nanjamma have transferred

their right, title and interest in the property, including the suit

premises, to the respondent herein. These proceedings were initiated

by the respondent herein after serving a notice on the appellant.

The controversy centering around the principal issue arising for

decision in this appeal stands mellowed down to the extent of the

findings arrived at in the judgment dated 1.9.1999 passed by VII Addl.

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City Civil Judge, Bangalore. It was a suit instituted by the appellant

herein against N. Shamanna __ the original owner, Nanjamma __ wife

of the original owner and A. Sreenivasan, the present owner and the

respondent herein (respectively impleaded as defendant nos. 1, 2 and

3 in the suit) seeking specific performance of the alleged agreement to

sell of the year 1970 in his favour. The respondent herein was

impleaded as subsequent transferee. The Trial Court held that though

there was an agreement to sell in favour of the appellant, however,

the suit filed by him was barred by limitation and also suffered from

gross delay and laches. The respondent was held to be a transferee

without notice of agreement in favour of the appellant, having

purchased the property bona fide and for consideration. It was held

that the appellant was not entitled to a decree of specific performance

of the agreement to sell in his favour nor, looking to his conduct, was

he entitled to the alternative relief of refund of consideration with or

without damages. One of the findings arrived at is that in spite of the

alleged agreement to sell of the year 1970, the appellant had not

disowned his character as tenant in the suit premises. There is no

finding arrived at in the judgment that the appellant was in possession

of the suit premises in part performance of the agreement of the year

1970. The suit was held liable to be dismissed and was dismissed.

The judgment and decree have achieved a finality as the appellant

herein did not pursue the matter further.

Section 53A of the Transfer of Property Act reads as under:-

"53A. Part Performance.__ Where any

person contracts to transfer for consideration any

immovable property by writing signed by him or on

his behalf from which the terms necessary to

constitute the transfer can be ascertained with

reasonable certainty,

and the transferee has, in part performance

of the contract, taken possession of the property or

any part thereof, or the transferee, being already in

possession, continues in possession in part

performance of the contract and has done some act

in furtherance of the contract,

and the transferee has performed or is

willing to perform his part of the contract,

then, notwithstanding that where there is an

instrument of transfer, that the transfer has not

been completed in the manner prescribed therefore

by the law for the time being in force, the

transferor or any person claiming under him shall

be debarred from enforcing against the transferee

and persons claiming under him any right in

respect of the property of which the transferee has

taken or continued in possession, other than a right

expressly provided by the terms of the contract:

Provided that nothing in this section shall

affect the rights of a transferee for consideration

who has no notice of the contract or of the part

performance thereof."

The essential features of the equitable doctrine of part

performance as statutorily modified and incorporated in Section 53A

abovesaid, to the extent relevant for the purposes of this case, are: (i)

that the transferee has, in part performance of the contract, taken

possession of the property or any part thereof, or the transferee, being

already in possession, continues in possession in part performance of

the contract and has done some act in furtherance of the contract, (ii)

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that the transferee has performed or is willing to perform his part of

the contract, and (iii) that the plea of part performance is not available

to be raised against a transferee for consideration who has no notice of

the contract or of the part performance thereof.

In G.H.C. Ariff Vs. Jadunath Majumdar Bahadur, AIR 1931

PC 79, their Lordships held that a prospective vendee already in

possession of the property as lessee since before having allowed his

right to enforce his contract to become barred can resist the claim to

possession by seeking to establish a title, the acquisition of which is

forbidden by the statute he being a lessee. Though Ariff's case deals

with English equitable doctrine and not with Section 53A of the

Transfer of Property Act, 1882 yet the basic principle remains the

same. The transferee must have performed or be willing to perform

his part of the contract. If a suit for specific performance of the

contract filed by the transferee has been dismissed on merits and his

disentitlement to seek enforcement of the contract has been

adjudicated upon by a judicial verdict it cannot be said that the

transferee has performed or is willing to perform his part of the

contract. It would be a contradiction in terms. On the suit for specific

performance of contract having been dismissed, such a plea is not

available to raise.

There are reasons more than one why the appellant cannot be

permitted to raise the plea of part performance and seek shelter

thereunder. The civil suit which was filed by the appellant was initially

filed in the year 1989 as a suit for injunction seeking to protect his

possession. After about four years from the date of institution of the

suit the relief of specific performance was also added by way of

amendments in the year 1993. On 1.9.1999, the suit was dismissed in

its entirety. Not only was the plaintiff's claim for specific performance

and monetary relief in the alternative denied, but even the relief of

injunction was not allowed to him.

Secondly, the appellant has failed to allege and prove that he

was delivered possession in part performance of the contract or he,

being already in possession as lessee, continued in possession in part

performance of the agreement to purchase, i.e. by mutual agreement

between the parties his possession as lessee ceased and commenced

as that of a transferee under the contract. On the contrary, there is a

finding recorded in the earlier suit that in spite of his having entered

into a contract to purchase the property he had not disowned his

character as lessee and he was treated as such by the parties. The

judgment dated 1.9.1999 in the Civil Suit notes the conduct of the

plaintiff inconsistent with his conduct as vendee in possession. When

a person already in possession of the property in some other capacity

enters into a contract to purchase the property, to confer the benefit

of protecting possession under the plea of part performance his act

effective from that day must be consistent with the contract alleged

and also such as cannot be referred to the preceding title. The High

Court of Madhya Pradesh had an occasion to deal with the facts very

near to the facts before us in Bhagwandas Parsadilal Vs. Surajmal

& Anr., AIR 1961 M.P. 237. A tenant in possession entered into an

agreement to purchase the house forming subject matter of tenancy.

However, he failed to show his nature of possession having altered

from that of a tenant into that of a transferee. In a suit of ejectment

based on landlord-tenant relationship, the tenant sought to protect his

possession by raising the plea of part performance as against

subsequent purchaser of the property. Referring to Section 91 of

Indian Trust Act, the High Court held that a subsequent purchaser of

the property with notice of an existing contract affecting that property

must hold the property for the benefit of the person in whose favour

the prior agreement to sell has been executed to the extent it is

necessary to give effect to that contract. But that does not mean that

till a final decision has been reached the contract creates a right in the

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person in possession, i.e. the tenant, to refuse to surrender possession

of the premises even if such possession was obtained by him not in

part performance of the contract but in his capacity as a tenant.

Having entered into possession as a tenant and having continued to

remain in possession in that capacity he cannot be heard to say that

by reason of the agreement to sell his possession was no longer that

of a tenant. (Also see Dakshinamurthi Mudaliar (Dead) & Ors. Vs.

Dhanakoti Ammal, AIR 1925 Madras 965 and A.M.A. Sultan

(deceased by LRs) & Ors. Vs. Seydu Zohra Beevi, AIR 1990

Kerala 186) In our opinion the law has been correctly stated by the

High Court of Madhya Pradesh in the abovesaid decision.

Thirdly, as already stated hereinabove, in view of his suit for

specific performance having been dismissed, it cannot be said that he

had performed or was willing to perform his part of contract.

Lastly, as held in the civil suit, the respondent is a transferee for

consideration who has no notice of the contract or of the part

performance thereof in favour of the appellant. In Sardar Govindrao

Mahadik & Anr. Vs. Devi Sahai & Ors., AIR 1982 SC 989, this Court

has held that there is a understandably and noteworthy difference in

the probative value of entering into possession for first time and

continuing in possession with a claim of change in character. Where a

person claiming benefit of part performance of a contract was already

in possession prior to the contract, the Court would expect something

independent of the mere retention of possession to evidence part

performance and some act done in furtherance of the contract and

some act done in furtherance of the contract.

Strong reliance was placed by the learned senior counsel for the

appellant on a recent decision of this Court in Shrimant Shamrao

Suryavanshi & Anr. Vs. Pralhad Bhairoba Suryavanshi (Dead)

by Lrs. & Ors., (2002) 3 SCC 676, wherein this Court has held that a

person obtaining possession of the property in part performance of an

agreement of sale, can defend his possession in a suit for recovery of

possession filed by the transferor or by subsequent transferee of the

property claiming under him, even if a suit for specific performance of

the agreement of sale has become barred by limitation. (emphasis

supplied) Clearly it was a case where the person in possession was so

inducted in part performance of the agreement of sale. Excepting that

his suit had gone barred by limitation there was nothing else to deny

the benefit of the plea to the person in possession. The court

proceeded on the reasoning that the law of limitation barred the

remedy but did not bar the defence. The distinguishing features of

that case are that: (i) it was admitted that the transferee had taken

possession over the property in part performance of the contract, (ii)

that the transferee had not brought any suit for specific performance

of the agreement to sell, and (iii) the transferee was always and still

ready and willing to perform his part of the contract. These three

significant factual features are missing in the case before us and

therefore the appellant's effort to find support from the authority of

Shrimant Shamrao Suryavanshi's case (supra) must fail. Bar of

limitation alone does not bar the plea of part performance being raised

if all other requisites of Section 53A of T.P. Act are available.

Though, the learned counsel for the appellant contended that

there is no registered sale deed in favour of the respondent and

therefore he cannot be held to be a transferee having acquired

ownership rights in the property, such a plea cannot be permitted to

be raised at this stage. The fact that the respondent is a transferee

under registered deed of sale having acquired ownership in the

property was not disputed upto the High Court. At no point of time

the appellant ever requested for the original sale deed being brought

on record before the Court. A new plea which is essentially a plea of

fact cannot be allowed to be urged for the first time at the hearing of

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appeal under Article 136 of the Constitution before this Court, more so

when it is contrary to the stand taken by the appellant himself in the

High Court and the Court below.

For the foregoing reasons the appeal is held liable to be

dismissed and is dismissed accordingly. The decision of the Rent

Controller, as upheld by the High Court, is maintained.