2026 INSC 1137 Civil Appeal No. 7025 of 2012 Page 1 of 51

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7025 OF 2012

SMT. RANO SINGH AND OTHERS … APPELLANT(S)

VERSUS

SH. GURBAX SINGH (D) TH LRS

AND OTHERS … RESPONDENT (S)

J U D G M E N T

ARAVIND KUMAR, J.

1. Heard.

2. The instant appeal is filed by the Plaintiffs who are the legal

heirs of late Shri. Sohan Singh, challenging the Judgment and

order of the High Court of Delhi

1

passed in RFA No.377/2010

1

Hereinafter referred to as the “High Court”

Civil Appeal No. 7025 of 2012 Page 2 of 51

dated 02.02.2012 whereunder the Judgment and decree passed

by Additional District Judge, Tis Hazari, Delhi

2

dated

14.01.2010 in Case No. M-27/2009 (old Suit No.475/1975)

dismissing the suit for possession came to be affirmed.

3. For the sake of convenience, the parties herein shall be referred

in terms of their nomenclature, rank and status before the Trial

Court, i.e., Appellants as legal heirs of Sohan Singh or

Plaintiffs and the Respondent No. 1 as Defendant No. 1. As

Respondents No. 2 to 10 are also the legal heirs of Sohan Singh

and they are seeking identical relief to that of the Plaintiffs,

hence, their claims are not discussed separately.

4. Before we proceed to formulate the question of law for

adjudication of facts, we deem it necessary to first set out the

inter se relationship between the parties to the suit and their

respective legal heirs for better understanding. Accordingly,

genealogical chart depicting the relationship between the

parties to this lis and their rank as per the Trial Court and before

this Court is set out hereinbelow -

2

Hereinafter referred to as the “Trial Court”

Civil Appeal No. 7025 of 2012 Page 3 of 51

5. The dispute between the parties relate to Plot No.8, Friends

Colony, New Delhi admeasuring approximately 4,132 sq.yds.,

together with the super-structure constructed thereon, which,

for the ease of reference shall be referred to as “plot” or “suit

property” hereinafter.

Civil Appeal No. 7025 of 2012 Page 4 of 51

CASE AND ARGUMENTS ADVANCED BY THE

PLAINTIFFS

6. Sohan Singh is the father of Plaintiffs, S. Mukhinder Singh and

S. Sukhinder Singh. He became the member of Nathu Ram

Friends Colony Co-operative Housing Building Society

3

Ltd.

on 16.01.1950 and was allotted the suit property by way of an

Agreement to Sell dated 14.01.1952, with an express condition

that he has to raise construction over the plot within a stipulated

time-period of three years. In accordance with the said written

agreement, Sohan Singh paid the sale consideration of Rs.

11,824/- along with other charges.

7. Sohan Singh had close friendly/brotherly relations with Sobha

Singh and they also shared a commercial relationship as

partners in a firm. Thus, Sohan Singh entrusted all matters

relating to the suit property to Sobha Singh, who was acting as

his agent in respect thereof. Since Sohan Singh was at Shimla,

the construction of the house was assigned to Sobha Singh,

who carried out the same. After the completion of the

construction, Sohan Singh wrote a letter to the Society

evidencing the completion of construction and contends that

3

Hereinafter referred to as the “Society”

Civil Appeal No. 7025 of 2012 Page 5 of 51

the ownership of Sohan Singh was duly recorded in Resolution

No. 6 dated 30.08.1959.

8. The dispute, according to the Plaintiffs arose when the Society

decided to transfer the plot to Defendant No. 1 vide meeting

held on 13.12.1959, despite duly recording that Sohan Singh is

the owner of the plot. Although the sale consideration was paid

by Sohan Singh, the Society vide Sale Deed dated 03.12.1960

transferred the plot to Defendant No. 1, by way of a sham and

voidable document. The Plaintiffs further contended that the

plot exclusively belonged to Sohan Singh and that, aggrieved

by the execution of the Sale Deed in favour of Defendant No.

1, Sohan Singh approached the Society on 14.05.1963 seeking

execution of the Sale Deed in his favour upon completion of

the construction. However, by letter dated 23.05.1963, the

Society informed him that the plot originally allotted to him

had already been transferred in favour of Defendant No. 1 and

that the Sale Deed had been executed on 03.12.1960.

9. The Plaintiffs, alleging that the Society, in collusion with

Defendant No. 1, fraudulently transferred the plot in favour of

Defendant No. 1, approached the Registrar of Co-operative

Society for redressal of his grievance, through arbitration

proceedings. However, the Society thereafter approached the

Civil Appeal No. 7025 of 2012 Page 6 of 51

Registrar of Co-operative Societies, which permitted the

Society to institute a civil suit before the Competent Court. The

Society filed Suit No. 235 of 1966 seeking declaration that the

Sale Deed dated 03.12.1960 executed in favour of Defendant

No. 1 as valid and also sought perpetual injunction against the

Plaintiffs. Subsequently, the Plaintiffs instituted the Suit No.

475 of 1975 (subject suit) seeking of possession of the plot

along with mesne profits. In support of the contentions raised

Appellants have relied upon the following judgments.

i. Poona Ram vs. Moti Ram (Dead) Through Legal

Representatives and Others; (2019) 11 SCC 309.

ii. Narasamma and Others vs. A. Krishnappa (Dead)

Through Legal Representatives; (2020) 15 SCC 218.

iii. Umadevi Nambiar vs. Thamarasseri Roman Catholic

Doicese; (2022) 7 SCC 90.

CASE AND ARGUMENTS ADVANCED BY THE

DEFENDANT NO. 1

10. The Defendant No. 1, Gurbax Singh, son of Sobha Singh,

contended that the suit be dismissed on the following amongst

other contentions –

Civil Appeal No. 7025 of 2012 Page 7 of 51

11. Notwithstanding the initial allotment of the plot in favor of

Sohan Singh, the Defendant No. 1 categorically submitted that

Sohan Singh failed to satisfy an essential covenant of the

Agreement, which obligated him to raise construction on the

suit property within a stipulated timeframe. He asserted that

Sohan Singh lacked the financial means to undertake such

construction and, consequently, by way of a letter dated

04.10.1954, requested the Society to transfer the plot to

Defendant No. 1, whom he described therein as his “nephew”.

12. Acting upon the letter of Sohan Singh recommending the

transfer of the suit property in favour of Defendant No. 1, the

Society, by resolution dated 13.10.1954, resolved to transfer

the plot to Defendant No. 1. Thereafter, by letter dated

16.10.1954, the Society informed Defendant No. 1 of the

recommendation made by Sohan Singh and directed him to

clear all outstanding dues. Subsequently, by letter dated

22.11.1954, the Society informed Sohan Singh that the plot had

been allotted to Defendant No. 1.

13. Pursuant thereto, Defendant No. 1 took possession of the plot

in 1954, discharged all outstanding dues payable to the Society

entirely and, from his own funds, constructed a two-storeyed

residential house thereon, which was completed by 1959. Since

Civil Appeal No. 7025 of 2012 Page 8 of 51

then, Defendant No. 1 has remained in continuous and

uninterrupted possession and occupation of the suit property,

asserting and exercising rights of absolute ownership over the

property. They also denied the contention of the Plaintiffs that

Sobha Singh was acting as an agent of Sohan Singh.

14. In response to the submissions advanced by the Plaintiffs,

Defendant No. 1 contended that Sohan Singh had forfeited all

rights that he previously held in respect of the suit property. On

14.08.1959, Defendant No. 1 informed the Society that the

construction had been completed without any financial

assistance or contribution from Sohan Singh or the Plaintiffs.

15. Alternatively, the Defendant No. 1 also took the contention of

adverse possession on the ground that he has been in

continuous possession of the plot since 1954. In support of their

contentions, they have relied upon following judgments.

i. Ningawwa vs. Byrappa Shiddappa Hireknrabar and

Others; (1968) SCC OnLine SC 206.

ii. Hussain Ahmed Choudhury and Others vs. Habibur

Rahman (Dead) through Lrs. And Others; (2025) SCC

OnLine SC 892.

iii. Anathula Sudhakar vs. P. Buchi Reddy (Dead) by Lrs.

And Others; (2008) 4 SCC 594.

Civil Appeal No. 7025 of 2012 Page 9 of 51

iv. Nikhila Divyang Mehta and Another vs. Hitesh P.

Sanghvi and Others; (2025) SCC OnLine SC 779.

v. Prem Singh and Others vs. Birbal and Others; (2006) 5

SCC 353.

vi. Dhurandhar Prasad Singh vs. Jai Prakash University and

Others; (2001) 6 SCC 534.

CASE AND ARGUMENTS ADVANCED BY DEFENDANTS

NO. 2 TO 5 (RESPONDENT NOS. 2 TO 10) IN THIS APPEAL

16. The Respondent Nos. 2 to 10 in the present appeal had filed

their written statements before the Trial Court supporting the

plaintiffs and in the present appeal they have reiterated their

stand and sought for the appeal being allowed.

TRIAL COURT AND ITS DECISION

17. Owing to the commonality of issues involved, the suit

instituted by the Society and the suit filed by the Plaintiffs were

consolidated to be tried together and disposed of jointly and the

evidence recorded in the suit preferred by the Society was

ordered to be treated as evidence in the subject suit. However,

the suit of the Society came to be dismissed for default, but the

Civil Appeal No. 7025 of 2012 Page 10 of 51

evidence recorded was preserved for the adjudication of the

Plaintiffs suit.

18. The Court initially framed fourteen issues inter alia, question

of limitation, estoppel and on ownership and possession of the

suit property. Further, three additional issues were framed with

regard to the amount involved in construction and payment of

the sale consideration by Sohan Singh. Since we are dealing

with the most significant questions of law, we confine

ourselves to those questions specifically challenged before us.

19. Defendant No. 1 argued that the suit is not maintainable as the

Plaintiffs have sought for possession without seeking any relief

of specific performance or cancellation of the Sale Deed dated

03.12.1960. On evaluation, the Trial Court observed that the

issue of the validity of the Sale Deed was already framed as an

issue and since damages were not claimed by the Plaintiffs, the

only relief left was of possession. Thus, on the said score, Trial

Court admitted the suit.

20. The Trial Court, on the aspect of limitation, held in favour of

the Plaintiffs. It came to be held that dispute arose in 1963

when the Plaintiffs came to know of the alleged sale deed

executed in favour of Defendant No. 1. The Plaintiffs raised

the dissonance before the Society and the matter was referred

Civil Appeal No. 7025 of 2012 Page 11 of 51

to Arbitration. The Learned Arbitrator was of the opinion that

issue “involved a complicated question of law and fact” and

relegated the parties to approach the Civil Court for proper

adjudication. As a result, the Society filed Civil Suit No.

235/1966 wherein Sohan Singh and the Defendant No. 1 were

arrayed as parties. Realising that the Society had transferred the

plot to the Defendant No. 1, the Plaintiffs filed Civil Suit No.

475/1975 renumbered as Suit No. M-27 of 2009 seeking

possession. Thus, the Trial Court concluded that for the

purpose of limitation, the facts right from 1963 till the filing of

the suit in 1975 are to be considered as the dispute was raised

before other forums before the suit was finally filed in 1975.

21. Nonetheless, on merits, the Trial Court recognised that the

Plaintiffs were estopped from contending that transfer of the

plot to the Defendant No.1 was without consent. This was for

the reason that firstly, Sohan Singh had never given any letter

to Sobha Singh or to Defendant No. 1 derecognising their rights

over the plot, which resultantly, gave Sobha Singh and

Defendant No.1 permissible possession of the suit property.

Secondly, the Society has transferred the plot to the Defendant

No. 1 on the strength of the letter dated 04.10.1954 by Sohan

Singh and no efforts were made to raise any objection to the

Civil Appeal No. 7025 of 2012 Page 12 of 51

possession of the Defendant No. 1 over the property till 1975.

Sohan Singh or anyone claiming through him has not

financially contributed for raising the construction or complied

with the conditions stipulated under the agreement dated

14.01.1952 by which the Suit Schedule property was allotted

to Sohan Singh.

HIGH COURT - THE REGULAR FIRST APPEAL AND ITS

JUDGMENT

22. Before the High Court, the parties made submissions on four

issues as enumerated under the impugned order -

a. Application of Section 53A of the Transfer of Property

Act, 1882 to ascertain whether Sohan Singh had become

the owner of the suit property by virtue of part

performance?

b. Whether the sale deed dated 03.12.1960 executed in

favour of the Defendant No. 1 is on account of fraud and

collusion and its effect thereto?

c. Whether the suit filed by the Plaintiffs is barred by

limitation by the operation of Article 59 of the Limitation

Act, 1963?

Civil Appeal No. 7025 of 2012 Page 13 of 51

d. Whether the Defendant No. 1 was the owner of the suit

property by virtue of estoppel or by adverse possession?

23. The first aspect dealt with by the High Court was the argument

raised by the Plaintiffs under Section 53A of the Transfer of

Property Act, to the effect that the buyer, and in the instant

case, Sohan Singh, acquired rights over the suit property

pursuant to an agreement entered into between Sohan Singh

and the Society, upon payment of the agreed sale consideration.

The High Court rejected this argument on the premise that the

written agreement dated 14.01.1952, under which the property

was agreed to be sold to Sohan Singh, contained an express

clause obligating him to raise construction on the said plot

within a specified time. To establish readiness and willingness

under Section 53A, Sohan Singh was required to demonstrate

performance of this condition. Instead, being unable to carry

out the construction, Sohan Singh had addressed a letter dated

04.10.1954 to the Society requesting the transfer of the plot in

favor of Sobha Singh.

24. In furtherance, the Court pointed out another critical

observation - Sohan Singh had voluntarily abjured his rights

under the agreement dated 14.01.1952 vide letter dated

Civil Appeal No. 7025 of 2012 Page 14 of 51

04.10.1954. Once a person willingly puts an end to the

performance of continuous obligations set out in the

agreement, he cannot thereafter raise a claim under Section

53A of Transfer of Property Act. Thus, the undisputed factual

position as discerned by the High Court was that there was no

transaction between Sohan Singh and Sobha Singh or with

anybody else for the purpose of construction over the said

plot/suit property.

25. The Original purchaser or allottee from the Society of the suit

property was Sohan Singh. The suit was filed by the legal heirs

of Sohan Singh. The Court noticed that during his life time,

Sohan Singh neither revoked his letter nor questioned the sale

deed. In addition to the above, the Court further noted that there

was an intention to transfer the plot and the membership to the

Defendant No. 1 and this intention overrides the nature of

relationship shared between Sohan Singh and Sobha Singh.

26. Discussing the Rules of the Society, the High Court relied on

the Resolution dated 28.11.1954, passed much prior to the sale

deed dated 03.12.1960, which provided that transfer can take

place not only to a close blood relation but also to a friend of

the member of the society. The Court clarified that Sobha

Singh was a close friend of Sohan Singh, but vide letter dated

Civil Appeal No. 7025 of 2012 Page 15 of 51

04.10.1954, Sohan Singh refers to Defendant No. 1 as

“nephew” evidencing their close bond and by operation of the

resolution expanding the transfer to non-blood relatives, the

sale in favour of Sobha Singh was validly executed.

27. On limitation, the High Court held that Plaintiffs and their

predecessor in interest, Sohan Singh, had knowledge of the

Sale Deed since 1960 itself which forms an actual and factual

knowledge. This was corroborated by the admission of

Plaintiff No. 1 who specifically admitted that they came to

know of the fraud of execution of the Sale Deed in the year

1960. In any event, registration of the sale deed constituted

deemed notice under Section 3 of the Transfer of Property Act.

Ergo, the Plaintiffs are said to have notice of the sale deed once

it was duly registered. As per Article 59 of the Limitation Act,

1963, a suit to cancel or set aside an instrument has to be filed

within three years from the date when the facts entitling the

plaintiff to have the instrument cancelled or set aside becomes

known to him. The High Court therefore was of the view that

even if the limitation is computed from the date as stated by the

Plaintiffs, i.e., 1963, the suit is patently barred by limitation as

the challenge to the sale deed ends in the year 1966 and the suit

Civil Appeal No. 7025 of 2012 Page 16 of 51

was filed in the year 1975, without challenge to the sale deed

dated 03.12.1960.

28. On the issue of estoppel and the ownership of the Defendant

No. 1, the reasoning of the High Court was based on the law

laid down under Section 115 of the Indian Evidence Act, which

estops an owner from asserting title after intentionally inducing

another to believe and act upon the representation of

ownership. Applying this principle, the Court observed that

Defendant No. 1 acted as the owner of the suit property as per

the letter dated 04.10.1954 by Sohan Singh to the Society as

the Society transferred the plot and the membership to

Defendant No.1. High Court further observed that no amount

was paid or contributed by the Plaintiffs in lieu of the

construction undertaken by the Defendant No. 1.

29. Based on the said reasonings, the High Court while upholding

the Judgement of the Trial Court dismissed the First Appeal of

the Plaintiffs, prompting them to approach this Court by way

of the present Appeal.

30. We have had the opportunity to go through all the documents

placed on record and have given our anxious consideration to

the rival contentions raised by the Learned Counsels appearing

Civil Appeal No. 7025 of 2012 Page 17 of 51

for the parties. In our considered opinion, the following point

would arise for our consideration:

“Whether the Judgment of the High Court, which confirmed

the dismissal of the suit for possession passed by the Trial

Court requires interference?”

ANALYSIS, DISCUSSION AND CONCLUSION

In Re: On Limitation

31. Undisputed facts -

Date of Agreement to Sell in favour

of the Plaintiff executed by Society

14.01.1952

Time period given to complete

construction and for execution of

Sale Deed (3 years)

14.01.1955

Date of Letter submitted by Sohan

Singh to the Society to transfer the

Suit Schedule property in favour of

Gurbax Singh

04.10.1954

Date of Sale Deed registered &

executed in favour of Defendant

No.1 by the Society

03.12.1960 (construction

was completed in 1959)

Date of institution of the suit 1975

Civil Appeal No. 7025 of 2012 Page 18 of 51

32. On the issue of limitation, the High Court and the Trial Court

have taken divergent views, while the Trial Court observed that

the suit is maintainable, the High Court rules that the suit is

barred by limitation. The stand of the parties and the Courts

being completely divergent would compel us to discuss each

of their stands independently.

33. The Plaintiffs advanced arguments to the effect that suit had

been instituted within the prescribed period of limitation. Their

specific case was that the Sale Deed dated 03.12.1960 was

executed by playing fraud, pursuant to which the Plaintiffs

raised claims by letter dated 25.04.1964 against the Society by

raising a dispute before the Registrar of Co-operative Societies

resulting in Arbitral Proceedings. However, upon an

application made by the Society, the Registrar, vide order dated

22.01.1966, directed the Society to institute a civil suit before

the competent Court within a period of six months. Hence, the

Society filed a Civil Suit No. 235/1966 against Sohan Singh

seeking declaration that the sale deed registered in favour of

Gurbax Singh was valid along with a prayer for perpetual

injunction. In the said suit, Gurbax Singh was also impleaded

as a party and he filed the Written statement on 21.08.1971

Civil Appeal No. 7025 of 2012 Page 19 of 51

claiming title by virtue of sale deed executed by the Society in

his favour on 03.12.1960. Thereafter, the Plaintiffs filed Civil

Suit No.475/1975 for possession on 22.05.1975. Both Suits

were consolidated and ordered that evidence recorded in Civil

Suit No.235/1966 be treated as evidence in Civil Suit

No.475/1975.

34. Defendant No. 1 contended that Plaintiffs had full knowledge

of execution of the Sale Deed dated 03.12.1960 since the very

year of its execution. As recorded by the High Court, Plaintiff

No. 1 too, in his deposition before the Trial Court categorically

admitted that he became aware of the fraud played upon him in

1960. Hence, 1

st

Defendant advanced submissions to the effect

that suit filed by the Plaintiffs is barred by limitation, inter alia,

all reliefs that have been sought or could be sought by the

Plaintiffs are hopelessly barred by limitation. It is in this

background Trial Court framed Issue No.7 to the following

effect:

“7. Whether the Suit is within Limitation”

35. Three limbs of arguments were presented by the Defendant

No.1 to non-suit the Plaintiffs on the issue of Limitation -

a. Article 54 of the Limitation Act, 1963: Although the

Plaintiffs have not sought specific performance,

Civil Appeal No. 7025 of 2012 Page 20 of 51

arguendo, even if such a relief were to have been sought,

the suit would be barred by limitation. Under Article 54,

a suit for specific performance must be instituted within

three years from the date fixed for performance or, where

no such date is fixed, from the date when the Plaintiff has

notice of the refusal to perform. In the present case, the

limitation period expired in 1963.

b. Article 59 of the Limitation Act, 1963: If the Plaintiffs

intended to seek a declaration for cancellation of the Sale

Deed dated 03.12.1960, such a suit ought to have been

instituted within three years from the date of execution of

the Sale Deed, as prescribed under Article 59 of the

Limitation Act. However, it was not done so.

c. Article 64 of the Limitation Act, 1963: The Plaintiffs

have sought the relief of possession which must be

instituted within twelve years from the date of

dispossession. In the present case, the period of limitation

expired in 1972, whereas the suit was instituted only in

1975 and was thus barred by limitation.

We deem it apt and appropriate to extract aforesaid Articles of

Limitation Act, 1963 for analysis of the arguments advanced

on this aspect and same is extracted hereinbelow.

Civil Appeal No. 7025 of 2012 Page 21 of 51

Description of Suit Period of

Limitation

Time from which period

begins to run

Article 54

For specific

performance of a

contract

Three years The date fixed for the

performance, or, if no

such date is fixed, when

the plaintiff has notice

that the performance is

refused.

Article 59

To cancel or set aside

an instrument or decree

or for the rescission of

a contract

Three years When the facts entitling

the plaintiff to have the

instrument or decree

cancelled or set aside or

the contract rescinded

first become known to

him.

Article 64

For possession of

immovable property

based on previous

possession and not on

title, when the plaintiff

while in possession of

the property has been

dispossessed

Twelve years The date of dispossession.

Civil Appeal No. 7025 of 2012 Page 22 of 51

36. Before we embark upon our discussion and reasoning, we

deem it appropriate to analyse the law on limitation application

to the instant case.

37. The law of limitation, as a procedural law, finds its roots in the

maxims “interest reipublicae ut sit finis litium” which means

that it is in the interest of the State that there should be a limit

to litigation and “vigilantibus non dormientibus jura

subveniunt” - the law assists the vigilant and not those who

sleep over their rights. It specifies that a litigant ought to be

diligent, careful and proactive in enforcing and protecting his

rights for a purpose that the litigation ought to be raised before

the cause expires and also to prevent the litigation from being

dragged for a prolonged period of time. It cannot be construed

that the period of limitation bars the court from enforcing

substantive justice. As the scope of the Act specifies, it is to

make sure that the parties knock the doors of the court within

a time bound manner so as to not render their cause otiose. A

substantial cause seeking justice has a lifespan and once the

cause dies, it cannot be revived by dilatory tactics by clinging

to another cause. Thus, the period of limitation cannot be

extended by any party to make it naturally convenient to bring

the cause within the period of limitation.

Civil Appeal No. 7025 of 2012 Page 23 of 51

38. In State of Kerala and Others v. V.R. Kalliyanikutty and

Another

4

, referring to Halsbury’s Laws of England, 4th Edn.,

this Court has supported the existence of statutes of limitation

holding that a dormant claim can be more cruel than bring

justice; the Defendant might not have or would have lost the

requisite evidence needed to prove the case; and a good cause

should be perused with reasonable diligence. What needs to be

seen is that an existing cause is redressed and not the

resurrection of a stale one. Keeping these legal principles in

mind, we shall now advance to the adjudication of the rival

claims. We clarify that the suit filed by the Plaintiffs is one for

possession. However, we also deem it appropriate to discuss

other points for the specific contentions raised by the

Defendant No. 1 and to lay to rest all contentions in that regard.

39. The claim of the Plaintiffs being barred under Article 54 of the

Limitation Act, 1963 -

a. Article 54 primarily provides the limitation period to file

a suit for specific performance. The Plaintiffs, in the

present matter have not sought for specific performance,

but even assuming they had, the suit would be barred by

limitation. As per the Article, a suit for specific

4

(1999) 3 SCC 657

Civil Appeal No. 7025 of 2012 Page 24 of 51

performance has to be filed within a period of three years

from the “date fixed for performance or if no such date is

fixed, when the plaintiff has notice that the performance

is refused”. For clear understanding we refer to the case

of Ahmadsahab Abdul Mulla (2) Dead by proposed LRs

v. Bibijan & Others

5

, which clarified that, when there is a

date for performance of the contract, there is a definite

date for doing that particular act. The second date runs

from the time the plaintiff notices the refusal. Thus, both

dates are definitive and refers to a date from the calendar.

b. First instance - date fixed for performance: The

Agreement to Sell dated 14.01.1952 stipulated a period of

three years within which Sohan Singh was required to

raise construction on the plot. Accordingly, the date fixed

for performance fell due on 14.01.1955. Under Article 54

of the Limitation Act, the period of limitation would

commence from the date so fixed and expire three years

thereafter, i.e., on 14.01.1958. Any suit for specific

performance instituted thereafter would be barred by

limitation.

5

(2009) 5 SCC 462

Civil Appeal No. 7025 of 2012 Page 25 of 51

c. Second instance - date of notice of refusal: The period of

limitation would begin from the date on which the

Plaintiffs had notice of refusal to perform. The execution

of the Sale Deed dated 03.12.1960, at the very least,

constituted such refusal. The Plaintiffs contended before

the High Court that they came to know of the Sale Deed

only on 14.05.1963, when they approached the Society for

execution of a Sale Deed in their favour. The Society, vide

letter dated 23.05.1963, informed Sohan Singh that a Sale

Deed had already been executed in favour of Defendant

No. 1. Even reckoning limitation from the date of such

knowledge, the period of three years would have expired

in 1966. The present suit, having been instituted only in

1975, is ex facie barred by limitation.

40. The claim of the Plaintiffs being barred under Article 59 of the

Limitation Act-

a. Article 59 of the Limitation Act applies to all suits seeking

to cancel or set aside an instrument or decree, or to rescind

a contract. For present purposes, we are concerned with

the cancellation or setting aside of an instrument. An

instrument is a written document, which may include a

contract, agreement or deed, etc., which is not void ab

Civil Appeal No. 7025 of 2012 Page 26 of 51

initio. The limitation under this Article begins three years

from “when the fact entitling the plaintiff to have the

instrument or decree cancelled or set aside or the contract

rescinded first become known to him”.

b. A suit for cancellation of a Sale Deed is to be filed within

3 years from the date of sale or from when the party comes

to know of it. Accordingly, a suit seeking cancellation or

setting aside of the Sale Deed dated 03.12.1960 ought to

have been instituted by Sohan Singh within three years

from the date on which the Plaintiffs acquired knowledge

of the facts entitling them to seek such relief. Even

assuming that the Plaintiffs acquired knowledge of the

Sale Deed only on 23.05.1963, when the Society informed

them that the Sale Deed had already been executed in

favour of Defendant No. 1, the period of limitation would

expire in 1966. On the other hand, if limitation is

calculated from the date of execution of the Sale Deed, the

period would have expired in 1963. In either event, the

suit was instituted only in 1975 and was barred by

limitation.

41. The claim of the Plaintiff being barred under Section 27 read

with Article 64 of the Limitation Act -

Civil Appeal No. 7025 of 2012 Page 27 of 51

a. Section 27 of the Limitation Act provides for

extinguishment of the right on the lapse of the period of

limitation fixed to institute a suit for possession of any

property. In essence, the right of a person to institute a suit

extinguishes if it is not brought within the prescribed time

period. The right to sue that accrues in a person has to be

enforced within the time prescribed under law.

b. When possession is the moot question, Article 64 also

comes into play. Possession is not based on title and

anyone who claims lawful possession can invoke this

Article within twelve years from the date of

dispossession. It is founded on the principle of prior

possession and subsequent dispossession. The possession

of the Plaintiff can be of any form and dispossession for

the purpose of this Article means taking possession

without the consent of the person who was already in

lawful possession. It involves some active element in the

mind of the person dispossessing a person against his will

with the intention of taking absolute and exclusive control

over the property.

c. Absence of Dispossession - To maintain a suit under

Article 64, the Plaintiffs were required to prove previous

Civil Appeal No. 7025 of 2012 Page 28 of 51

possession which was demonstrated by the Agreement to

Sell under which handed over possession of the plot to

Sohan Singh to raise construction. The second covenant

of dispossession is not established by the Plaintiffs.

Pertinently, Sohan Singh was not dispossessed by any act

attributable to either the Society or Defendant No. 1. The

words “I am requesting the Society through you to kindly

sanction the transfer of the plot to my nephew Col.

Gurbax Singh” used in the letter dated 04.10.1954, shows

the intention of Sohan Singh to part with possession of the

plot to Defendant No. 1, pursuant to which Defendant No.

1 was legally put in possession by the Society acting upon

the communication dated 04.10.1954, the working

committee of the society in its meeting held on

13.10.1953 by Resolution No. 3 (c) resolved to transfer

the suit schedule plot to the name of the Col. Gurbax

Singh. This Resolution as well as accepting his prayer

made in the letter dated 04.10.1954 was communicated to

Sohan Singh by the Society, by communication dated

16.10.1954 and Sohan Singh was also called upon to clear

the arrears of Rs.1180/- against development charges.

This amount was paid by Gurbax Singh on 20.10.1954.

Civil Appeal No. 7025 of 2012 Page 29 of 51

Therefore, in the instant case, there is no element of

dispossession.

d. Suit filed after the expiry of 12 years - Article 64 can be

invoked before the expiry of 12 years from the date of

dispossession. From the facts borne from the records,

Defendant No. 1 was put in possession of the plot in 1954

and completed construction by 1959. Thus, for all

purposes, the Plaintiffs had lost possession over the plot

in the year 1954 and the period of twelve years would

extinguish in 1966.

e. Alternative plea of adverse possession - Defendant No. 1

also raised a plea of adverse possession, contending that

even if it were assumed that he had dispossessed the

Plaintiffs, their claim for recovery of possession was

required to be instituted within twelve years of such

dispossession. The execution of the Sale Deed dated

03.12.1960, at the latest, marked the point from which the

Plaintiffs claim to possession stood excluded.

Accordingly, the period of twelve years would expire in

1972, rendering the suit instituted in 1975 barred by

limitation.

Civil Appeal No. 7025 of 2012 Page 30 of 51

42. Though the Plaintiffs are liable to be non-suited on the ground

of limitation alone, we deem it appropriate to examine the

matter on merits as well.

In Re: Nature of Agreement dated 14.01.1952 and Letter dated

04.10.1954

43. The Plaintiffs place substantial reliance upon Agreement dated

14.01.1952, by which the plot was transferred in favour of

Sohan Singh. This Agreement is in the nature of an Agreement

to Sell and also bears the same title. Pertinently, Clause 7 of

the said Agreement stipulated that the buyer/Vendee, i.e.,

Sohan Singh, has to complete construction of the house within

three years. Clause 7 expressly provided that in the event of

failure to complete construction within the stipulated

timeframe, the vendee shall “loose the right to obtain a sale of

the plot agreed to be sold”. We are of the opinion that this was

a mandatory condition to be fulfilled by the vendee. While

Sohan Singh had time until January 1955 to raise the

superstructure, he addressed a communication dated

04.10.1954, much prior to the expiry of the three-year period,

expressing his inability to build. Stating that he had no other

option, Sohan Singh requested the Society to transfer the plot

Civil Appeal No. 7025 of 2012 Page 31 of 51

to Defendant No. 1, Col. Gurbax Singh, whom he described as

his 'nephew'.

44. It is trite law that an Agreement to Sell does not transfer title

or create any right over the property intended to be sold therein.

Section 54 of the Transfer of Property Act, squarely provides

that a Contract for Sale is only a document which provides that

Sale shall take place as per the terms and conditions agreed by

the parties. It is further explicitly mentioned that a Contract of

Sale does not itself, create any interest or charge on such

property. These principles have been time and again laid down

and enunciated by this Court. We have, in the case of Rambhau

Namdeo Gajre v. Narayan Bapuji Dhotra (Dead) through

LRs. & Anr

6

, subsequently affirmed in the case of Suraj Lamp

and Industries Private Limited(2) through Director v. State

of Haryana and Another

7

, categorically observed that only a

valid, registered Sale Deed is capable of conveying the

property. Mere existence of an Agreement to Sell does not, in

any manner confer title or ownership rights over the property

in the absence of a registered Sale Deed.

6

(2004) 8 SCC 614

7

(2012) 1 SCC 656

Civil Appeal No. 7025 of 2012 Page 32 of 51

45. In Rambhau Namdeo Gajre v. Narayan Bapuji Dhotra

(Dead) through LRs. & Anr (supra), this Court stated:

“ 13. The agreement to sell does not create an interest of the

proposed vendee in the suit property. As per Section 54 of

the Act, the title in immovable property valued at more than

Rs 100 can be conveyed only by executing a registered sale

deed. Section 54 specifically provides that a contract for

sale of immovable property is a contract evidencing the fact

that the sale of such property shall take place on the terms

settled between the parties, but does not, of itself, create any

interest in or charge on such property. It is not disputed

before us that the suit land sought to be conveyed is of the

value of more than Rs 100. Therefore, unless there was a

registered document of sale in favour of Pishorrilal (the

proposed transferee) the title of the suit land continued to

vest in Narayan Bapuji Dhotra (original plaintiff) and

remain in his ownership. This point was examined in detail

by this Court in State of U.P. v. District Judge [(1997) 1

SCC 496] and it was held thus: (SCC pp. 499-500, para 7)

“7. Having given our anxious consideration to the rival

contentions we find that the High Court with respect had

patently erred in taking the view that because of Section 53-

A of the Transfer of Property Act the proposed transferees

of the land had acquired an interest in the lands which

would result in exclusion of these lands from the

computation of the holding of the tenure-holder transferor

on the appointed day. It is obvious that an agreement to sell

creates no interest in land. As per Section 54 of the Transfer

of Property Act, the property in the land gets conveyed only

by registered sale deed. It is not in dispute that the lands

sought to be covered were having value of more than Rs

Civil Appeal No. 7025 of 2012 Page 33 of 51

100. Therefore, unless there was a registered document of

sale in favour of the proposed transferee agreement-

holders, the title of the lands would not get divested from

the vendor and would remain in his ownership. There is no

dispute on this aspect. However, strong reliance was placed

by learned counsel for Respondent 3 on Section 53-A of the

Transfer of Property Act. We fail to appreciate how that

section can at all be relevant against the third party like the

appellant State. That section provides for a shield of

protection to the proposed transferee to remain in

possession against the original owner who has agreed to

sell these lands to the transferee if the proposed transferee

satisfies other conditions of Section 53-A. That protection

is available as a shield only against the transferor, the

proposed vendor, and would disentitle him from disturbing

the possession of the proposed transferees who are put in

possession pursuant to such an agreement. But that has

nothing to do with the ownership of the proposed transferor

who remains full owner of the said lands till they are legally

conveyed by sale deed to the proposed transferees. Such a

right to protect possession against the proposed vendor

cannot be pressed in service against a third party like the

appellant State when it seeks to enforce the provisions of

the Act against the tenure-holder, proposed transferor of

these lands.”

(emphasis supplied)

There was no agreement between the appellant and the

respondent in connection with the suit land. The doctrine of

part-performance could have been availed of by Pishorrilal

against his proposed vendor subject, of course, to the

fulfilment of the conditions mentioned above. It could not

be availed of by the appellant against the respondent with

Civil Appeal No. 7025 of 2012 Page 34 of 51

whom he has no privity of contract. The appellant has been

put in possession of the suit land on the basis of an

agreement of sale not by the respondent but by Pishorrilal,

therefore, the privity of contract is between Pishorrilal and

the appellant and not between the appellant and the

respondent. The doctrine of part-performance as

contemplated in Section 53-A can be availed of by the

proposed transferee against his transferor or any person

claiming under him and not against a third person with

whom he does not have a privity of contract.”

46. Apropos to the citations discussed, ownership rights in respect

of the suit plot could crystallize in favor of Sohan Singh, or his

legal heirs, only upon due fulfillment of the condition

precedent stipulated under the Agreement which would have

obligated the Society to execute a Sale Deed in favour of Sohan

Singh. Admittedly, Sohan Singh was unable to fulfil the

condition and as a result, he was never conferred with the title

of ownership. The Plaintiffs also directed our attention to

Resolution of the Society dated 30.08.1959 which they

contend, recognises their ownership since the construction of

the house was complete. The right of ownership cannot be

acquired merely by way of a recital or statement in the

Resolution of the Society. It is pertinent to note that no Sale

Deed was executed or registered in favour of Sohan Singh

legally conveying ownership of the suit plot and as such, the

Civil Appeal No. 7025 of 2012 Page 35 of 51

Plaintiffs cannot derive their rights from an Agreement to Sell

which was never completed by their predecessor-in-interest,

Sohan Singh.

47. The Society merely acted upon Sohan Singh’s letter dated

04.10.1954, wherein he unequivocally expressed his inability

to comply with the mandatory construction covenant, thereby

consciously abandoning his rights under the Agreement to Sell,

which admittedly never culminated in a registered Sale Deed.

We are therefore of the considered view that neither Sohan

Singh nor anyone claiming through or under him retained any

subsisting right, title, or interest in the suit plot, as no title ever

came to vest in Sohan Singh. No right could possibly survive

or accrue in his favor after he expressly admitted his inability

to fulfill the fundamental condition stipulated under the

Agreement to Sell. We cannot lose sight of the categorical

submission of Defendant No. 1 that he had been in possession

of the suit property since 1954, when he took over the plot for

the purpose of raising construction thereon. This assertion is

further borne out by the fact that, during the period from 1960

to 1964, the suit property was let out to officers of the New

Zealand High Commission, and the rent of Rs. 1,500 arising

therefrom was collected by Defendant No. 1. There is clinching

Civil Appeal No. 7025 of 2012 Page 36 of 51

evidence in favour of the Defendant No. 1 and against the

Plaintiff to sufficiently establish that Defendant No. 1 had

acquired ownership over the plot and the Agreement to Sell

dated 14.01.1952 was rendered redundant.

In Re: Nature and Reliefs sought for in the Suit filed by the

Plaintiffs

48. We are unable to subscribe to the reasoning of the Trial Court

ruling that the Plaintiffs’ suit for possession was maintainable.

In our opinion, a suit for possession simpliciter is not

maintainable where there is serious, concrete dispute casting a

cloud over the plaintiff's title, necessitating a substantive

prayer for declaration.

49. We may note with benefit the principles enunciated in the case

of Anathula Sudhakar v. P Buchi Reddy (Dead) by LRs. and

Others

8

wherein this Court examined various circumstances

and the maintainability of suits and held as follows:

“14. We may however clarify that a prayer for

declaration will be necessary only if the denial of title by

the defendant or challenge to plaintiff's title raises a

cloud on the title of plaintiff to the property. A cloud is

said to raise over a person's title, when some apparent

defect in his title to a property, or when some prima

facie right of a third party over it, is made out or shown.

8

(2008) 4 SCC 594

Civil Appeal No. 7025 of 2012 Page 37 of 51

An action for declaration, is the remedy to remove the

cloud on the title to the property. On the other hand,

where the plaintiff has clear title supported by documents,

if a trespasser without any claim to title or an interloper

without any apparent title, merely denies the plaintiff's title,

it does not amount to raising a cloud over the title of the

plaintiff and it will not be necessary for the plaintiff to sue

for declaration. ...."

(emphasis supplied)

50. This Court has delineated that under normal circumstances, it

is not necessary for the Plaintiff, deeming to be the owner, to

seek declaration, and mere prayer for possession is permissible

if the Plaintiff has clear title and ownership over the property.

The hitch, however, arises when the Defendant or any other

third party raises a plea of ownership which is substantiated by

cognizant defect in the title of the Plaintiff. An exemplification

of one such illustration is demonstrated in the case of Kurella

Naga Druva Vudaya Bhaskara Rao v. Galla Jani Kamma

Alias Nacharamma

9

wherein the Court, while relying upon the

the case of Anathula Sudhakara, remarked:

“16. The plaintiff had purchased the suit land under

registered sale deed dated 10.4.1957. Defendant did not

claim title with reference to any document but claimed to

have perfected title by adverse possession. A mere claim

by the defendant that he had perfected his title by

9

(2008) 15 SCC 150

Civil Appeal No. 7025 of 2012 Page 38 of 51

adverse possession, does not mean that a cloud is raised

over plaintiff's title and that the plaintiff who is the

owner, should file a suit for declaration of title. Unless

the defendant raises a serious cloud over the title of the

plaintiff, there is no need to file a suit for declaration.

The plaintiff had title and she only wanted possession and

therefore a suit for possession was maintainable. We are

fortified in this view by the following observations of this

Court in Anathula Sudhakar v. P. Buchi Reddy (2008) 4

SCC 594…”

(emphasis supplied)

51. The aforesaid precedents lays down that if the title of the

Plaintiff is not under risk, a prayer for possession is sufficient.

But if the title of the Plaintiff is rebutted by the Defendant by

cogent evidence, a mere prayer seeking possession of the

property would not suffice. This is for the simple reason that a

person, whose title is disputed, cannot lay a challenge to the

true owners’ right title and ownership as the same becomes a

disputed question of fact for the Court to adjudicate upon.

52. Reverting to the case on hand, it is the specific contention of

the Defendant No. 1 that he acquired title and ownership rights

over the plot upon construction of the house which stood

completed in 1959, and conclusively, when the Sale Deed

dated 03.12.1960 was executed by the Society in his favour.

The Plaintiffs, on the other hand, asserted that since the

Civil Appeal No. 7025 of 2012 Page 39 of 51

payment of consideration was complete and the Agreement to

Sell dated 14.01.1952 was executed in favour of Sohan Singh,

they were the true owners of the plot being legal heirs of the

original allottees. Thus, this is a case whether there was clearly

a cloud over the title of the Plaintiffs due to the execution of

the Sale Deed dated 03.12.1960 in favour of Defendant No. 1.

Therefore, the proper relief that ought to have been sought by

the Plaintiffs is the relief of declaration for cancellation of the

Sale Deed dated 03.12.1960, inter alia, specific performance

and a relief of declaration of ownership.

53. After Defendant No. 1 asserted his title on the strength of a

registered Sale Deed, it was incumbent on the Plaintiffs to

institute a suit for declaration for cancellation of the Sale Deed

or in the alternative, the plaintiffs ought to have filed a suit for

specific performance of the Agreement to Sell which stood in

their favour. The Trial Court, although dismissed the suit,

overlooked that a proper prayer ought to have been sought by

the Plaintiffs when their title was challenged by compelling

evidence. A basic prayer for possession cannot survive when

the Defendant No.1 has a registered Sale Deed in his name

nullifying the title of the Plaintiffs.

Civil Appeal No. 7025 of 2012 Page 40 of 51

In Re: Doctrine of Estoppel and Acquiscence

54. As far as Estoppel is concerned, as discussed hereinabove, the

High Court was of the view that the Plaintiffs were estopped

from filing the suit as Sohan Singh ceased to act upon the

Agreement to Sell, he lost title over the plot.

55. We also deem it appropriate to analyse the point of estoppel

enshrined under S. 115 of the Evidence Act which provision is

extracted hereinbelow for immediate reference-

“115. Estoppel.––When one person has, by his declaration,

act or omission, intentionally caused or permitted another

person to believe a thing to be true and to act upon such

belief, neither he nor his representative shall be allowed, in

any suit or proceeding between himself and such person or

his representative, to deny the truth of that thing.

Illustration

A intentionally and falsely leads B to believe that certain

land belongs to A, and thereby induces B to buy and pay for

it. The land afterwards becomes the property of A, and A

seeks to set aside the sale on the ground that, at the time of

the sale, he had no title. He must not be allowed to prove

his want of title.”

56. This Court, in catena of judgments has expounded the meaning

of estoppel. We refer to the case of Pratima Chowdhury v.

Civil Appeal No. 7025 of 2012 Page 41 of 51

Kalpana Mukherjee and Another

10

, wherein this Court

observed:

“ 29.2. …. This is against the doctrine of fairness. Lord

Denning in his book, The Discipline of Law, 7th Reprint, p.

223, observed:

‘It is a principle of justice and of equality. It comes to this,

when a man by his words or conduct has led another to

believe that he may safely act on the faith of them—and the

other does act on when it would be unjust or inequitable for

him to do so.’

In the words of Dixon, J.:

‘The principle upon which estoppel in pais is founded is that

the law should not permit an unjust departure by a party

from an assumption of fact which he has caused another

party to adopt or accept for the purpose of their legal

relations.’

The said principle was further stretched to the following

extent:

‘At any rate, it applies to an assumption of ownership or

absence of ownership. This gives rise to what may be called

proprietary estoppel. There are many cases where he is not

the owner, or, at any rate, is not claiming an interest therein,

or that there is no objection to what the other is doing. In

such cases, it has been held repeatedly that the owner is not

to be allowed to go back on what he has led the other to

believe. So much so that his own title to the property, be it

land or goods, has been held to be limited or extinguished,

and new rights and interest have been created therein. And

10

(2014) 4 SCC 196

Civil Appeal No. 7025 of 2012 Page 42 of 51

this operates by reason of his conduct what he has led the

other to believe even though he never intended it.’

It may be said that even in absence of actual promise, if a

person by his words or conduct, so behaves as to lead

another to believe that he will not insist on his strict legal

rights, knowing or intending that the other will act on that

belief and he does so act, that again will raise an equity in

favour of the other, and it is for a court of equity to say in

what way the equity may be satisfied. An equity does not

necessarily depend on agreement but on words or conduct.

The Privy Council in Plimmer v. Wellington Corpn.[(1884)

LR 9 AC 699 : (1881-85) All ER Rep Ext 1320 (PC)]

observed that the Court must look at the circumstances in

each case to decide in what way the equity can be satisfied.”

57. Further, the four postulates of Section 115 were further

explicated which reads thus:

“35.…..

It needs to be understood that the rule of estoppel is a

doctrine based on fairness. It postulates the exclusion of the

truth of the matter. All for the sake of fairness. A perusal of

the above provision reveals four salient preconditions

before invoking the rule of estoppel.

(i) Firstly, one party should make a factual representation

to the other party.

(ii) Secondly, the other party should accept and rely upon

the aforesaid factual representation.

Civil Appeal No. 7025 of 2012 Page 43 of 51

(iii) Thirdly, having relied on the aforesaid factual

representation, the second party should alter his position.

(iv) Fourthly, the instant altering of position, should be

such, that it would be iniquitous to require him to revert

back to the original position.

Therefore, the doctrine of estoppel would apply only when,

based on a representation by the first party, the second party

alters his position, in such manner, that it would be unfair

to restore the initial position.”

58. The flow of events in the instant case, rightly fulfil all the

preconditions stipulated. While an Agreement to Sell was

executed in favour Sohan Singh, the first condition of making

factual representation, is Sohan Singh’s letter dated 04.10.1954

to the Society wherein he expressed his inability to construct

his house and requested the Society to transfer the plot to

Defendant No. 1. The second condition was fulfilled when the

Society, acting on the said representation/letter dated

04.10.1954, allowed Defendant No. 1 to construct a house on

the plot and executed the Sale Deed dated 03.12.1960 which

consequently altered the position of the Defendant No. 1 as the

owner of the plot, thus fulfilling the third condition. Lastly, the

fourth condition also stood satisfied, once the Sale Deed was

executed in favour of the Defendant No. 1. Hence, it was

Civil Appeal No. 7025 of 2012 Page 44 of 51

impossible for the Plaintiffs to contend that they were the

owners of the plot since they failed to raise any construction

thereon and also failed to initiate judicial proceedings well

within the period of limitation.

59. Needless to state, once Sohan Singh, by his letter dated

04.10.1954, intentionally caused the Society as well as the

Defendant No. 1 to believe that he could not raise any

construction, neither he, nor the Plaintiffs shall be allowed to

deny the contents of the letter.

60. The matter can also be looked in the lens of Doctrine of

Acquiescence which is a form of estoppel. It is clarified that

the invocation of acquiescence is independent of delay or

limitation as it is founded on one’s conduct of knowledge of a

fact or legal rights. There are two kinds of estoppel, direct and

indirect. Direct acquiescence constitutes a direct act of a person

done with full knowledge with the express acceptance or

approbation of the consequences of the act. It is propounded in

the case of Chairman, State Bank of India and Another v.

M.J. James

11

and an excerpt from the case is extracted below

-

11

(2022) 2 SCC 301

Civil Appeal No. 7025 of 2012 Page 45 of 51

“39. Before proceeding further, it is important to clarify

distinction between “acquiescence” and “delay and laches”.

Doctrine of acquiescence is an equitable doctrine which

applies when a party having a right stands by and sees

another dealing in a manner inconsistent with that right,

while the act is in progress and after violation is completed,

which conduct reflects his assent or accord. He cannot

afterwards complain. In literal sense, the term acquiescence

means silent assent, tacit consent, concurrence, or

acceptance, which denotes conduct that is evidence of an

intention of a party to abandon an equitable right and also

to denote conduct from which another party will be justified

in inferring such an intention. Acquiescence can be either

direct with full knowledge and express approbation, or

indirect where a person having the right to set aside the

action stands by and sees another dealing in a manner

inconsistent with that right and in spite of the infringement

takes no action mirroring acceptance. However,

acquiescence will not apply if lapse of time is of no

importance or consequence.”

61. The question that arises for consideration is whether Sohan

Singh, by his conduct, acquiesced or relinquished or forfeited

the mandatory obligations cast upon him under the Agreement

to Sell, so as to constitute direct acquiescence. A party who, of

his own volition, foregoes performance of a binding

contractual obligation cannot thereafter be permitted to resile

from such conduct and assert claims inconsistent to his actions.

Civil Appeal No. 7025 of 2012 Page 46 of 51

62. Sohan Singh admittedly submitted the letter dated 04.10.1954,

expressly stating his inability to raise construction on the plot

which violated the obligation contained in Clause 7 of the

Agreement to Sell. Significantly, he neither revoked nor

challenged the contents of the said letter, nor sought to rescind

or resile from the position expressed therein, during his

lifetime. His conduct is, therefore, a conscious and unequivocal

abandonment of his obligation to raise construction and an

acceptance of the consequent transfer of the plot in favour of

Defendant No. 1.

63. In these circumstances, we are of the view that the suit falls

flat, as Sohan Singh, by his conduct and by issuance of the

letter dated 04.10.1954, had unequivocally acquiesced and

relinquished the compulsory obligation to raise construction

under the Agreement to Sell. The said letter constituted a clear

and direct act of acquiescence, which precludes the Plaintiffs

from subsequently asserting a claim founded upon an

obligation which Sohan Singh himself had consciously

abandoned. We are not inclined to deal with the issue of fraud

as no cogent evidence was brought before the Courts below to

establish fraud in the execution of the Sale Deed dated

03.12.1960. Thus, we answer this point against the Plaintiffs.

Civil Appeal No. 7025 of 2012 Page 47 of 51

In Re: Invocation of Section 53A of the TP Act by the Plaintiffs

64. The Plaintiffs rely on Section 53A of the Transfer of Property

Act to contend that they had performed the contract in part. The

provision of Part-Performance is traceable to Section 53-A of

Transfer of Property Act and it reads:

“53-A. 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 therefor 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.”

Civil Appeal No. 7025 of 2012 Page 48 of 51

65. The essentials of part-performance has been expounded by this

Court in the case of Nathulal v. Phoolchand

12

, Shrimant

Shamrao Suryavanshi and Another v. Prahlad Bhairoba

Suryavanshi (dead) by LRs and Others,

13

and most recently

reiterated in the case of Giriyappa and Another v.

Kamalamma and Others

14

which spells -

“11. From the aforesaid, it is evident that the protection of

a prospective purchaser/transferee of his possession of the

property involved, is available subject to the following

prerequisites:

(a) There is a contract in writing by the transferor for

transfer for consideration of any immovable property

signed by him or on his behalf, from which the terms

necessary to constitute the transfer can be ascertained with

reasonable certainty;

(b) 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;

(c) The transferee has done some act in furtherance of the

contract and has performed or is willing to perform his part

of the contract.”

12

(1969) 3 SCC 120

13

(2002) 3 SCC 676

14

2024 SCC OnLine SC 3849

Civil Appeal No. 7025 of 2012 Page 49 of 51

66. Juxtaposing legal principles with the factual position before us,

we find that the most important essentials are not met for the

reason that -

a. A fundamental requirement of the doctrine of part-

performance is that the transferee must take possession of

the property, or a part thereof, and continue in possession.

In the present case, while Sohan Singh was initially

granted possession of the plot to construct a house, he

later unequivocally requested that the plot be transferred

to Defendant No. 1. Defendant No. 1 who subsequently

built the house and has remained in continuous possession

since then till date. Admittedly, the Plaintiffs were out of

possession at the time of filing the suit, a fact clearly

established by their prayer seeking a decree for

possession.

b. Another requirement to be fulfilled is that the transferee

is required to do some act in furtherance of the contract

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

contract. As candidly noticed by the High Court, Sohan

Singh was not ready and willing to perform his part of the

contract, i.e., carry out the imperative condition of

construction of the house within three years, as he had

Civil Appeal No. 7025 of 2012 Page 50 of 51

voluntarily tendered a letter dated 04.10.1954, giving up

his rights, thereby abandoning the Agreement to Sell.

Therefore, the Plaintiffs cannot take shelter of part-

performance when Sohan Singh, virtually quit from

performance of mandatory obligations.

67. Therefore, we settle this argument in the negative to hold that

the Plaintiffs have not made a case of part-performance.

CONCLUSION

68. Succinctly put, we are not convinced with the case of the

Plaintiffs as -

a. The suit for possession is hopelessly barred by limitation.

b. Agreement to Sell, without the execution of a registered

Sale Deed does not confer any right title or ownership

over the plot. Sohan Singh had an Agreement to Sell only

in his name but no registered Sale Deed was ever

executed. Therefore, he cannot seek possession without

any prayer for declaration for cancellation the Sale Deed

dated 03.12.1960 or seek specific performance of the

Agreement to Sell.

c. Sohan Singh, or any person claiming through or under

him, is estopped from asserting any right, title or

Civil Appeal No. 7025 of 2012 Page 51 of 51

ownership over the plot, in view of his acquiescence in

the non-fulfilment of the obligatory condition stipulated

in the Agreement to Sell and the subsequent transfer of

the plot in favour of Defendant No. 1.

d. The Plaintiffs have not fulfilled any of the essentials of

Section 53-A of Transfer of Property Act to demonstrate

part-performance.

69. In answer to the points formulated by us, we are of the

considered view that the judgment of the High Court affirming

the judgment and decree of the Trial Court dismissing the suit

warrants no interference and same is upheld.

70. For the foregoing reasons, the Appeal is dismissed. Pending

applications, if any, shall stand consigned to records. No order

as to costs.

………...........................................J.

[ARAVIND KUMAR]

.………...........................................J.

[VIPUL M. PANCHOLI]

NEW DELHI;

OCTOBER 16

th

, 2026.