P.S. Narayana, J.
1. Heard Sri H. Venugopal, the learned Counsel representing the appellant and Sri Viswanath Reddy, the learned Counsel representing the respondent.
2. This Court ordered notice before admission on 27-11-2006. Both the Counsel made certain submissions and placed reliance on certain decisions.
3. The following substantial questions of law were pointed out in this second appeal:
1. Whether the Courts below are right in refusing to grant injunction in favour of plaintiff holding that she had not established her title over the suit schedule property?
2. Whether the plaintiff is entitled for perpetual injunction in the absence of a valid and legal title to protect her possession?
3. Whether the plaintiff and her husband are protected under Section 53A of the Transfer of Property Act?
4. The unsuccessful plaintiff in both the Courts below is the appellant in the present second appeal. For the purpose of convenience the parties hereinafter would be referred to as 'plaintiff' and 'defendant' as arrayed in O.S. No. 162/2002 on the file of Principal Junior Civil Judge, Warangal. The plaintiff filed the suit for perpetual injunction pleading that she is the absolute owner and possessor of the open plot admeasuring 270 Sq. yards in S. No. 240/B, 241 and 243 within the Lashkar Singaram Village within the Municipal Corporation limits. It is her case that her husband purchased the schedule property from S.R. Murthy in the year 1985 under an agreement of sale and her husband executed a gift deed dated 26-11-2001 in her favour out of love and affection and thus she has been enjoying the said property and prior thereto her husband had been in possession and enjoyment of the said property. It is also pleaded that she had collected the construction material in the schedule property in the first week of February 2002 and inasmuch as the defendant began interfering, the suit was filed.
5. A written statement and an additional written statement were filed and substantially the allegations were denied. Specific stand had been taken that the father of the defendant is the owner and possessor of the property and he never sold any property to the husband of the plaintiff under notarized agreement of sale dated 25-2-2005. Further specific stand is taken that the plaintiff and her husband are strangers to the property. The defendant further pleaded that her father purchased 233 Sq. yards of land from Smt. Shyamalamba in Sy. No. 240/B under a registered sale deed bearing document No. 418 dated 16-8-1982 for a valuable consideration of Rs. 3,400/- and he was in possession of the schedule property till his death on 5-12-1997 and during his lifetime he settled the said property in her favour by gift settlement deed dated 16-7-1992 and the same was accepted by her. The defendant also pleaded about the giving of the adjacent property to her by way of pasupukumkuma.
6. Before the Court of first instance the following issues were settled:
1. Whether the plaintiff is in possession and enjoyment of the suit property?
2. Whether the plaintiff is entitled to permanent injunction as prayed for?
3. To what relief?
On behalf of the plaintiff the plaintiff examined herself as PW. 1 and her husband was examined as PW. 2 and the Advocate-Notary was examined as PW. 3 and Exs. A. 1 to A. 3 and Ex. X1 and X2 were marked. On behalf of the defendant apart from DW. 1, DW. 2 and DW. 3 were examined and Exs. B1 to B5 were marked. The Court of first instance marked the agreement of sale Ex.A2 dated 22-5-1985 subject to objection and came to the conclusion that except Ex.A2 and Ex. A1 the registered gift settlement deed, there is no other acceptable evidence placed before the Court in relation to possession. Exs. C1, C2 and C3 and Ex. X1, X2 and also Exs. B1 to B5 had been discussed at length apart from the evidence of DW. 1 to DW. 3 and recorded all positive findings that the plaintiff was unable to establish possession over the property and incidentally the plaintiff is not the owner of the property also and ultimately negatived the relief of perpetual injunction. Aggrieved by the same, the matter was carried by way of appeal AS No. 62/ 2006 on the file of IV Additional District Judge, Warangal and the appellate Court framed the following points for consideration at Para 8:
1. Whether the appellant is entitled for the relief of perpetual injunction as prayed for?
2. To what relief?
The appellate Court discussed all the factual aspects at Paras 9, 10, 11 and 12 and ultimately dismissed the appeal and aggrieved by the same the present second appeal is preferred.
7. It is needless to say that the finding recorded relating to the factum of possession being predominantly a question of fact when concurrent findings had been recorded by both the Courts below, the said finding normally cannot be disturbed in a second appeal. There appears to be some controversy whether Ex.A2 in fact is admissible in evidence or not and whether it is to be taken as an unregistered sale deed or an agreement of sale. Reliance was placed on Bangaru Ramathulasamma v. Yedem Musthan Reddy : 1998(5)ALD502 . The very case of the plaintiff is that her husband purchased the property by way of an agreement dated 22-5-1985 i.e., Ex.A2 and registered gift settlement deed was executed in her favour on 26-11-2001. Ex.A3 is the rectification deed dated 26-9-2005. The caveats Exs.C2 and C3 were marked and Ex. C1, the photographs of the Commissioner also had been marked. Ex. X1 is the Notary Register and Ex.X2 is the particulars of execution. The oral evidence of PW. 1, PW. 2 and PW. 3 and also DW. 1 to DW. 3 was well appreciated. The specific stand taken by the defendant is well established by Ex. B1 sale deed dated 4-7-1985, Ex.B2 sale deed dated 16-8-1982, another sale deed Ex.B3 dated 16-8-1982 and Ex.B4 gift settlement deed dated 16-7-1992. Ex.B5 is the Encumbrance Certificate for S. No. 240/B.
8. Reliance also was placed on M.K. Setty v. M.V.L. Rao : AIR1972SC2299 , wherein no doubt it was held that the plaintiff in possession of the suit property can on the strength of possession resist interference from the defendant who has no better title than himself and get injunction restraining the defendant from disturbing his possession. However, on appreciation of the oral and documentary evidence a clear picture emerges that the defendant is claiming title to the property by virtue of the gift settlement deed executed by her father in her favour. It is pertinent to note that the stand taken by the plaintiff also is that her husband purchased the property under an agreement of sale from the father of the defendant. So the original ownership of the father of the defendant is not in serious dispute. Both the parties are claiming under him, one by virtue of being the daughter and on the strength of gift settlement deed executed by the father and another claiming by virtue of a gift settlement deed said to have been executed by the husband who in turn is said to have purchased the property from the father of the defendant by virtue of an agreement of sale. Reliance also was placed on Rambhau Namdeo Gajre v. Narayan Bapuji Dhotra : AIR2004SC4342 , wherein while dealing with the equitable doctrine of part performance and entitlement thereof and whether the same can be availed of by a third party who had no privity of contract with the owner, the Apex Court observed:
Doctrine of part performance as stated in Section 53A of the Act is an equitable doctrine which creates a bar of estoppel in favour of the transferee against the transferor. It disentitles the transferor from disturbing the possession of the proposed transferee who is put in possession in pursuance to such an agreement. It has nothing to do with the ownership of the proposed transferor who remains full owner of the property till it is legally conveyed by executing a registered sale deed in favour of the transferee. Such a right to protect possession against the proposed vendor cannot be pressed in service against a third party.
It is an admitted case of the parties that the plaintiff/respondent had entered into an agreement of sale with 'P' and who had taken possession of the suit land in part performance thereof. Sale deed had not been executed and registered in his favour. 'P' did not take any steps for getting the agreement of sale specifically enforced and obtain a registered sale deed in respect of the suit land. Within a period of 2 months he executed a similar agreement of sale in favour of the appellant and put him in possession of the suit land. 'P' did not have any right to enter into an agreement of sale with the appellant as he was not the owner of the suit land. The appellant did not care to ascertain the title of 'P' to the suit land before entering into the transaction with him. There was no agreement between the respondent/owner and the appellant in connection with the suit land. The doctrine of part performance enshrined in Section 53A of the Act could not be availed of by the appellant against the respondent with whom he has no privity of contract. The doctrine of part performance as contemplated by Section 53A can be availed of only by the transferee or any person claiming under him. The appellant not being the transferee within the meaning of Section 53A of the Act could not invoke the equitable doctrine of part performance to protect his possession as against the respondent/owner.
9. In the light of the clear legal position especially in the light of the findings recorded by both the Courts below on the aspect of factum of possession on appreciation of Ex.A2 and Ex. A1 on one side and Exs.B4, B1, B2 and B3 on the other, this Court is of the considered opinion that the findings recorded by both the Courts below need no disturbance at the hands of this Court.
10. Accordingly the second appeal shall stand dismissed at the admission stage. In the light of the peculiar facts and circumstances, parties to bear their own costs.