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2024 0 Supreme(AP) 284

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

The main legal point established in the judgment is the requirement of necessary
pleadings and the production of the agreement for sale to claim the benefit under
Section 53A of the Transfer of Property Act. The court also clarified that the failure
to prove the alleged tenancy did not disentitle the plaintiff from claiming possession
based on her general title.

Subject: Property Law - Real Property Disputes

Act Referred :CIVIL PROCEDURE CODE : S.96

Section 53A Transfer of Property Act - Property Dispute - Summary of Acts and Sections: Section
53A Transfer of Property Act - The court discussed the applicability of Section 53A of the Transfer
of Property Act, 1882, which deals with part performance of a contract for the transfer of
immovable property. The court analyzed the requirements for invoking Section 53A and
emphasized the necessity of necessary pleadings and the production of the agreement for sale to
claim the benefit under this provision. The court referred to relevant legal precedents to support its
decision.

Fact of the Case:

The dispute involved a claim for title over immovable properties and the recovery of possession. The
plaintiff claimed ownership of the properties and sought eviction of the defendant, who alleged title
for himself based on an agreement for sale. The plaintiff also claimed arrear rents and damages for
use and occupation.

Finding of the Court:

The court found that the plaintiff had established title over certain properties and that the defendant
did not hold title over any of the disputed properties. The court rejected the defendant's claim of an
agreement for sale, emphasizing the lack of evidence and necessary pleadings to support the claim.
The court also held that the failure to prove the alleged tenancy did not disentitle the plaintiff from
claiming possession based on her general title.

Issues: The main issues revolved around the applicability of Section 53A of the Transfer of Property
Act and the effect of the plaintiff's failure to prove the alleged tenancy on the suit for declaration of
title and recovery of possession.

Ratio Decidendi: The court emphasized the necessity of necessary pleadings and the production of
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the agreement for sale to claim the benefit under Section 53A of the Transfer of Property Act. The
court also held that the failure to prove the alleged tenancy did not disentitle the plaintiff from
claiming possession based on her general title.

Final Decision: The appeal was dismissed, and the judgment of the trial court was confirmed. The
defendant was directed to deliver possession of the properties to the plaintiff.

Cases Referred:
Ammer Minhaj V. Dierdre Elizabeth (Wright) Issar, , (2018) 7 SCC 639 - Referred
Biswanath Agarwalla V. Sabitri Bera, , (2009) 15 SCC 693 - Referred
Shrimant Shamrao Suryavanshi V. Pralhad Bhairoba Suryavanshi, , (2002) 3 SCC 676 - Referred
Shyam Narayan Prasad V. Krishna Prasad, , (2018) 7 SCC 646 - Referred
V.R.Sudhakara Rao V. T.V.Kameswari, , (2007) 6 SCC 650 - Referred

Advocates appeared:
C Ramachandra Raju , Advocate, for the Appellant; N Ashwani Kumar , Advocate, for the
Respondent.

JUDGMENT

1. This appeal under section 96 CPC is from defendant No.1 in the suit. He assails the judgment
dated 20.01.2010 of learned III Additional District Judge, Fast Track Court, Bhimavaram in
O.S.No.80 of 1999.

2. 1st respondent herein was the sole plaintiff in the said suit. 2nd and 3rd respondents were the 2
and 3rd defendants in the suit.

3. The dispute is about four items of immovable properties situate in Kalla Village. They are
described in the plaint as A schedule properties. In the suit, the plaintiff claimed title over these
schedule properties. Plaint contains detailed averments as to the source of title claimed by the
plaintiff. Item Nos.1, 2 and 3 of plaint - A schedule are stated to be exclusively owned by the
plaintiff. Item No.4 of the plaint - A schedule is also claimed to be the exclusive property of the sole
plaintiff. Defendant Nos.2 and 3 in the suit were originally not parties to the suit. They are very
children of the sole plaintiff. After they came on record with a claim that item No.4 of the plaint - A
schedule belonged to their father and therefore their mother alone could not be the sole owner of it
and they also hold share over that property. It is only with reference to item No.4, the defendant
Nos.2 and 3 laid their claim. During the course of trial, plaintiff admitted the plea of her children/
defendant Nos.2 and 3. On rest of the contentions, they sailed with the plaintiff.

4. In the plaint, it is stated that the plaint schedule lands have been used as fish and prawn tanks.
Plaintiff had allegedly leased them out to defendant No.1 on an annual rent of Rs.1,69,000/-.
Defendant No.1 fell in arrears. Plaintiff sent a lawyer's notice to defendant No.1 terminating the
lease and demanding eviction. In the reply given by defendant No.1, he alleged title for himself over
plaint - A schedule properties. It was in such circumstances, the plaintiff sued for declaration of her
title over the plaint schedule properties with a direction to the defendant No.1 to deliver vacant
possession of these properties to the plaintiff and further for Rs.5,07,000/- towards arrear rents or
damages for use and occupation and for future profits and for costs and such other reliefs.

5. Defendant No.1 filed a detailed written statement. The contentions raised by defendant No.1 are
manifold. It is stated that the general power of attorney holder of plaintiff and her husband
approached defendant No.1 to sell the properties and defendant No.1 agreed to purchase plaint - A
schedule properties for a total consideration of Rs. 2,45,410/- and to that affect an agreement for
sale was entered into between them on 04.03.1992. On the date of agreement for sale, defendant
No.1 paid Rs.45,410 and thereafter on 28.03.1992, he paid Rs.80,000/- and on 14.04.1992, he paid

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Rs.60,000/- and on 22.05.1992, he paid balance sale consideration of Rs.60,000/-to this general
power of attorney holder. On 22.05.1992, defendant No.1 obtained possession over the plaint
schedule properties and since then he has been in enjoyment of these properties. Defendant No.1
denied the allegations about tenancy pleaded in the plaint. It is then stated that this defendant had
come to know about plaintiff cancelling general power of attorney given to her agent and thereafter
defendant No.1 enquired about nature of the properties and came to realise that the plaintiff had no
title over the lands and he was deceived. That the plaint - A schedule lands are Revenue waste lands.
It is further pleaded by defendant No.1 that he himself is in possession and enjoyment of the plaint
schedule lands and his name is mutated in the Revenue records. It is specifically pleaded that the
plaintiff has no right in the schedule properties and this defendant alone had got right title and
possession over the plaint schedule properties. He finally sought dismissal of the suit. Defendant
No.2 and 3 filed their written statements concerning item No.4 of the plaint - A schedule as referred
already. The learned trial court settled the following issues and additional issues for trial:

Issues: -

1. Whether the plaintiff is entitled for declaration that the plaint schedule property belonged to
her and is entitled for recovery of possession after evicting there from?

2. Whether the defendant is liable to pay Rs.5,07,000/-towards past rentals and damages for
use and occupation?

3. Whether the defendant is liable to pay future profits as prayed for?

4. Whether the defendant alone got right over the plaint schedule land as contended by the
defendant?

5. Whether there is no cause of action to file the suit?

6. To what relief?

Additional Issues: -

1. Whether the plaintiff is the absolute owner of item Nos.1 to 3 of plaint - A schedule?

2. Whether the plaintiff purchased the item No.4 of the plaint - A schedule with her stridhana
properties and obtained sale deed dated 14.05.1991 in favour of her husband, Sri Rajeeva
Raju?

3. Whether plaintiff is having absolute rights in item No.4 of plaint - A schedule?

4. Whether defendant Nos.2 and 3 are having any rights in item No.4 of plaint - A schedule is
so, to what extent?

6. At the trial, plaintiff testified as PW.1 and got examined PWs.2 to 8 and got marked Exs.A1 to
A15. Defendant No.1 testified as DW.1 and got examined two other witnesses as DWs.2 and 3.
Defendant No.1 did not adduce any documentary evidence. Defendant Nos.2 and 3 also did not
adduce any evidence on their behalf.

7. On considering the entire evidence on record and the contentions raised on both sides, the learned
trial court stated that the evidence on record established title of the plaintiff over item Nos.1, 2 and
3 of plaint - A schedule properties. It recorded a finding that item No.4 of plaint - A schedule is
jointly owned by plaintiff and her two daughters who are defendant Nos.2 and 3. It observed that
Ex.A1 certified copy of registered sale deed dated 30.05.1991 is the one under which plaintiff
purchased item Nos.1 and 2 of the plaint - A schedule. Ex.A2 certified copy of registered sale deed
dated 01.06.1991 is one under which plaintiff purchased item No.3 of plaint - A schedule property. It
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observed that Ex.A3 certified copy of registered sale deed dated 14.05.1991 is one under which the
husband of the plaintiff purchased item No.4 of the plaint - A schedule property. That on his death,
it devolved upon plaintiff and her two daughters/ defendant Nos.2 and 3. It further said that in a suit
for declaration of title, the plaintiff had to prove the title of her vendor and in that regard, plaintiff
not only produced documentary evidence showing the link documents but also examined relevant
witnesses in proof of those documents. It stated that Ex.A4 certified copy of registered sale deed
dated 11.09.1960 is the link document for Ex.A1 covering item Nos.1 and 2. Ex.A5 registration
extract of sale deed dated 03.04.1990 is the link document to Ex.A2 concerning item No.3. Ex.A6
registration extract of sale deed dated 29.03.1990 is the link document to Ex.A3 concerning item
No.4 of plaint - A schedule property. It further observed that Ex.A7 registration extract of sale deed
dated 26.08.1982 is the link document for Exs.A2 and A5. Ex.A8 registration extract of sale deed
dated 07.11.1983 is the link document for Exs.A3 and A6. It considered the evidence of PW.2 who
was the wife of the executant of Ex.A1. The evidence of PW.3 who attested Exs.A1 and A3 and the
evidence of PW.4 who attested Ex.A4. Based on such evidence, it recorded that defendant No.1 does
not hold title over any of these items of plaint - A schedule. It disbelieved the contention of plaintiff
about the tenancy and therefore according to it, defendant No.1 though in possession of the plaint
schedule properties, he is not a tenant of the plaintiff. It considered the contentions of defendant
No.1 about agreement for sale and held that the said agreement for sale was not filed and none
testified about such agreement for sale. However, it drew an inference that plaintiff did not
specifically deny her GPA holder executing any such agreement for sale and it was in that view of
the matter, it stated that defendant No.1 was holding possession accordingly. It stated that
defendant No.1 did not sue for specific performance of his agreement for sale and defendant No.1
failed to prove that the land was Government land. It then stated that even if there is an agreement
for sale that is in existence in favour of defendant No.1 that did not confer any title on him. It is for
these reasons, it held that defendant No.1 ought to deliver possession of these properties to plaintiff.
The operative portion of its judgment reads as mentioned below:

'In the result, the suit is decreed for declaration of the plaintiffs right over the plaint schedule
property that the plaintiff has got title to the schedule properties for item Nos.1 to 4 of 'A'
schedule property along with 2nd and 3rd defendants for item No.4 of schedule property and
plaintiff is entitled for possession of the same from the 1st defendant. Therefore 1st defendant
is directed to deliver the possession of the plaint schedule property of item No.1 to 3 to the
plaintiff and item No.4 of the schedule property to the plaintiff and 2nd and 3rd defendants
and directed to deliver the same within two months from the date of this judgment. It is further
decreed that the plaintiff to make a separate application for ascertaining past and future
profits, since it is held that 1st defendant is in possession of the schedule property not as lessee
and not as owner thereof to the schedule property. Accordingly, the suit is decreed with costs
against the 1st defendant. The plaintiff is directed to pay the court fee.'

8. Aggrieved by it, defendant No.1 preferred this first appeal. Sri C. Ramachandra Raju, the learned
counsel for appellant and Sri N. Ashwani Kumar, the learned counsel for respondent No.1
submitted arguments. Legal authorities are cited at the bar.

9. Learned counsel for appellant argued that the learned trial court having found defendant No.1
not a tenant of the plaintiff and having found the plea of tenancy raised in the plaint as false and not
proved, it ought to have dismissed the suit but it erroneously decreed the suit. Learned counsel
further argued that agreement for sale pleaded by defendant No.1 is admitted by plaintiff also and in
such an event in terms of Section 53A Transfer of Property Act, 1882 (herein after referred as Act,
1882), the possession of defendant No.1 could not be disturbed and the learned trial court
committed grave error in decreeing the suit in favour of the plaintiff. As against it, learned counsel
for respondents contended that agreement for sale pleaded by defendant No.1 was never proved and
at any rate such agreement for sale has never seen the light of the day and it is an un-registered
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agreement for sale even according to averments in the written statement and in such an event,
protection under Section 53A Act, 1882 is not available and therefore there was no error on part of
the trial court in decreeing the suit. It is further argued that the title of the plaintiff having been fully
established by virtue of Ex.A series documents and defendant No.1 having no title has to yield to the
demand of the plaintiff and deliver the property. That the failure of the plaintiff in proving the
tenancy pleaded is by no means an obstacle to grant delivery of possession as a consequence of
declaration of title of plaintiff. Learned counsel submits that judgment of the trial court is right on
facts and law and does not require any interference.

10. In the light of the rival contentions, the following points emerge for consideration in the appeal:

1. Whether pleadings and evidence on record attract Section 53A of Transfer of Property Act,
1882 and if so whether judgment of the trial court is incorrect?

2. In a suit for declaration of title and recovery of possession alleging defendant as a tenant, in
the event of plaintiff's failure to prove the pleaded case of tenancy, whether the suit
automatically fails and the learned trial court in not dismissing the suit committed an error?

POINT No. 1

Section 53A Transfer of Property Act reads as below: -

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.'

The specific case pleaded in the written statement and deposed in the evidence of defendant as DW.1
is that he obtained a written agreement for sale dated 04.03.1992. It is for him to produce the
document for verification at the trial before the court. He did not produce it. As per his oral
evidence and the averments in the written statement, the said agreement for sale is not a registered
instrument. According to him, the agreed total consideration was Rs. 2,45,410/- and he paid it in
multiple installments and by 22.05.1992, he paid the total sale consideration and obtained
possession of the plaint schedule property. He did not file any receipt showing his payments. He did
not examine any witness who saw execution of such agreement for sale or who witnessed any such
payments. Thus, with reference to agreement for sale except his oral evidence, there is nothing to
believe the contention. The contention, that the agreement for sale was admitted by plaintiff is
factually incorrect. Plaintiff as PW.1 in her examination - in - chief categorically stated that the
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alleged agreement for sale dated 04.03.1992 is a concocted document and was created in collusion
with her erstwhile GPA holder - P.V. Siva Rama Krishna. That the alleged agreement for sale was
brought into existence after issuance of notice by the plaintiff. That the alleged payments are all
created ones'. All that makes it clear that according to plaintiff there was no such agreement for sale
and if it was there, it was a fabricated document and not a document validly executed by her
attorney holder. Be that as it may. If the agreement for sale pleaded by defendant No.1 is not
brought to evidence, the protection claimed under section 53A Act, 1882 is not available to
defendant No.1.

11. A keen reading of all the averments in the written statement of defendant No.1 does not clearly
show that he has been claiming his possession of property in part performance of the contract. To
claim the benefit under section 53A Act, 1882 there shall be necessary pleadings. In the absence of
necessary pleadings, the benefit under this provision cannot be claimed. Law in this regard can be
seen in Shyam Narayan Prasad V. Krishna Prasad, (2018) 7 SCC 646. At para No.23, their
Lordships stated the ratio 'It is well settled that the defendant who intends to avail the benefit of
Section 53A Act, 1882 must plead that he has taken possession of the property in part performance
of the contract...... No relief can be granted to a party without the pleadings.' In the case at hand,
defendant No.1/ appellant herein claimed title in himself and also contended that the properties
belonged to the Government and not to the plaintiff. The thrust of his contentions in the written
statement in protecting his possession of the properties is not based on his alleged agreement for sale
but it is otherwise. Therefore, there is clear absence of requisite pleadings. Perhaps, it is for that
reason before the learned trial court no such contention was raised by defendant No.1 in terms of
Section 53A Act, 1882 as the judgment of the learned Additional District Judge is totally silent
about any such argument.

12. The agreement for sale pleaded by this appellant is not a registered instrument. In such an event,
the benefit of Section 53A Act, 1882 cannot be extended to him. In Ammer Minhaj V. Dierdre
Elizabeth (Wright) Issar, (2018) 7 SCC 639, their Lordships stated that an unregistered agreement
for sale shall not have any affect for purpose of Section 53A Act, 1882. If it is not a registered
document, the only consequence provided in this provision is to declare that such document shall
have no affect for the purpose of Section 53A Act, 1882.

13. In V.R.Sudhakara Rao V. T.V.Kameswari, (2007) 6 SCC 650, the Hon'ble Supreme Court of
India held that for oral agreement for sale, the benefit of Section 53A Act,1882 is not available.

14. Thus, viewed from any angle, the contention of appellant in claiming the benefit of Section 53A
Act, 1882 is totally mis - conceived. Thus, the trial court did not commit any error in this regard.
Therefore, the point is answered against the appellant.

POINT No.2: -

15. Before the trial court as well as here, the title claimed by the plaintiff over the plaint - A schedule
properties remained undisputed. Appellant/ defendant No.1 on his part though pleaded that the
property belonged to the Government did not produce any documents and did not examine any
Revenue authorities and did not show any Revenue entries to substantiate his contention. On his
own showing this appellant did not purchase these properties from anyone else under any registered
conveyances. He did not show how he could be called as title holder over these properties. Both
sides admit this appellant/ defendant No.1 has been in possession of the disputed properties. Thus,
appellant is one who has been in possession of the properties of plaintiff and when the title holder
demands possession back, he is obliged to give it. As pointed out by the trial court he is not a lessee.
According to plaintiff, he is not a trespasser. Then in whichever way he is in possession of these
properties, he is bound to give back the possession to the title holder as long as he is unable to show
a better title. The main concern in the plaint is to declare the title of the plaintiff with a direction to

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defendant No.1 to deliver possession of the property. Even if plaintiff alleged that the possession of
defendant No.1 is only as lessee and even if plaintiff failed to prove it that by itself does not
disentitle a title holder from claiming possession. In Biswanath Agarwalla V. Sabitri Bera, (2009) 15
SCC 693, the Hon'ble Supreme Court of India laid the law that in a case where the plaintiff sues for
declaration of title and for recovery of possession alleging that the person in possession is a tenant,
even if the plaintiff fails to prove such jural relationship of landlord and tenant he still is entitled for
a decree for recovery of possession on proof of his general title. Therefore, the contention of the
appellant that on failure to prove the lease alleged by plaintiff, the suit ought to have been dismissed
is a contention which lacks any legal basis. Therefore, point is answered against the appellant.

16. Learned counsel for appellant places strong reliance on Shrimant Shamrao Suryavanshi V.
Pralhad Bhairoba Suryavanshi, (2002) 3 SCC 676. In this case their Lordships held that person
obtaining possession of the property in part performance of an agreement for sale can defend his
possession of the property in a suit for recovery of possession filed by the transferor even if a suit for
specific performance of the agreement for sale has become barred by limitation. The necessary
conditions for invoking Section 53A Act, 1882 are given by their Lordships as mentioned below : -

1. there must be a contract to transfer for consideration of any immovable property;

2. the contract must be in writing, signed by the transferor, or by someone on his behalf;

3. the writing must be in such words from which the terms necessary to construe the transfer
can be ascertained;

4. the transferee must in part-performance of the contract take possession of the property, or
of any part thereof;

5. the transferee must have done some act in furtherance of the contract; and

6. the transferee must have performed or be willing to perform his part of the contract.

That was a case where there was a written agreement for sale and its existence was proved. That is
one marked difference that has to be kept in mind for the purpose of present case. As in the present
case, the alleged agreement for sale was never exhibited. Mere surmise that it could have been in
existence is of no consequence as long as the person claiming benefit under such agreement for sale
failed to produce the same before the court. The contents of a document are to be proved by
production of the document itself and not otherwise. Moreover, the averments in the written
statement are inadequate and insufficient to attract Section 53A Transfer of Property Act, 1882
since it does not contain the time within which the sale deed has to be executed, as to who has to
expend money towards stamp and registration and about the readiness and willingness on part of
the appellant/ defendant No.1 to obtain a sale deed and other such necessary particulars. Therefore,
appellant failed to achieve the standards laid down by their Lordships in the ruling cited for the
appellant. Hence, point is answered against the appellant.

17. In the result, this appeal is dismissed with costs. Consequently, judgment dated 20.01.2010 of
learned III Additional District judge, Fast Tract Court, Bhimavaram in O.S.No.80 of 1999 is
confirmed. Appellant shall deliver the possession of the properties on or before 03.04.2024.

As a sequel, miscellaneous applications pending, if any, shall stand closed.

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