K.A. Swami, J.
1. At the stage of admission, the respondent is notified. Accordingly, he has put in appearance through Counsel. Records of the suit are also received.
2. As the Appeal lies in a narrow compass, it is admitted. Paper books are also filed. Hence it is heard for final disposal.
3. This Appeal by the plaintiff is preferred against the Judgment and decree dated 10-9-1990 passed by the learned XVII Additional City Civil Judge, Bangalore City CCH. No. 14, in O.S. No. 372 of 1981. The respondent is the Defendant.
4. The suit was filed for possession of the suit schedule premises and also for a declaration that the occupation of suit schedule premises by the defendant is unlawful and further to direct him to vacate the suit schedule premises and deliver vacant possession of the same and pay damages.
5. The suit schedule property is a house bearing No. 388, A Cross, 9th Block, Jayanagar, Bangalore-11 measuring 40x31 ft. and bounded on the East by: Vacant site of CITB; West by: House No. 380; North by: M.H.B. House; and South by: Road.
6. The appellant - Plaintiff filed the suit for the aforesaid relief on2-2-1981. An application for amendment was made on 18-10-1982; itwas allowed on 10-12-1982 and the plaint came to be amended on10-12-1982.
In the plaint, as filed on 2-2-1981, the plaintiff averred that he is the owner of the suit schedule house; that he was put in possession of the suit schedule house by the Karnataka Housing Board; that since he was transferred form Bangalore to Mysore, the defendant, who was in good terms with him, was permitted to reside in the suit schedule premises; that he agreed to pay Rs. 10,000/- for a period of three years towards the occupation of the suit house; that the Agreement was effected on 17-4-1973; that as per the terms of the Agreement, the sum of Rs. 10,000/- was not to carry any interest and that the defendant was not to pay any rent for his occupation of the premises for a period of three years. It was also further averred by the plaintiff that defendant was to vacate and deliver vacant possession of the suit schedule premises on 17-4-1976; that surprisingly, defendant exhibited his hostile attitude towards the plaintiff and refused to vacate and deliver vacant possession of the premises; that a letter dated 27-7-1977 was sent to the defendant informing him that he was in unlawful possession of the suit schedule premises and that the defendant though acknowledged the letter, did not respond and did not deliver vacant possession of the suit schedule premises. Plaintiff further averred that he also sent another letter to the defendant. Even then, he did not hand over possession. Therefore, he pleaded that the possession of the defendant was illegal and unlawful. Though he quantified the damages at the rate of Rs. 300/- per month in the plaint, he reserved his right to file a separate suit for recovery of damages or mesne profits and prayed for only possession and declaration that the possession of the defendant is unlawful.
7. In the written statement, defendant denied the Agreement dated 17-4-1973 pleaded by the plaintiff but set up another Agreement dated 16-12-1972 under which, according to the defendant, plaintiff agreed to sell the suit schedule property and put him in possession of the suit schedule property pursuant to that Agreement. He also further pleaded that pursuant to the Agreement of sale, he paid a sum of Rs. 12,000/- through a cheque dated 13-12-1972; that possession of the defendant was not unlawful because he was in possession of the suit schedule premises pursuant to the Agreement of Sale dated 16-12-1972; that the Mysore Housing Board put the plaintiff in possession of the suit schedule property on 24-1-1973 and on the same day the plaintiff put the defendant in possession of the same; that the defendant called upon the plaintiff to execute a regular sale deed; but the plaintiff replied that as per Lease cum-Sale Agreement dated 24-1-1973 executed by him in favour of the Mysore Housing Board, he had no right to alienate the suit schedule property for a period of ten years. Therefore, according to the defendant, plaintiff assured him that after the expiry of ten years he would obtain necessary permission from the Karnataka Housing Board and execute a regular sale deed in favour of the defendant and that as the defendant was in possession of the suit property pursuant to the Agreement of Sale, he was not liable to vacate and deliver vacant possession of the suit schedule property. He also denied the plaint allegations contained in paras 4, 5 and 6. He also further pleaded that he had paid a sum of Rs. 24,000/-; in addition, he had also paid Rs. 12,000/- on 16-12-1972. Thus, it is the case of the defendant that he has paid in all a sum of Rs. 36,000/- to the defendant; unless that amount was refunded and he was reimbursed in a sum of Rs. 10,000/- for the improvement made to the house by him, the plaintiff is not entitled to a decree for possession.
8. After the written statement was filed, plaintiff sought for amendment of the plaint on 18-10-1982 after the issues were framed. That application was allowed on 10-12-1982. By way of amendment, plaintiff pleaded that the Agreement dated 16-12-1972 set up by the defendant was superseded by the Agreement dated 17-4-1973. Therefore, the defendant was not entitled to claim any right under the Agreement dated 16-12-1972.
The defendant filed additional written statement on 10-3-1983. He denied the Agreement dated 17-4-1973 and contended that there was no such Agreement entered into between the plaintiff and defendant. He further denied that the plaintiff was ready and willing to pay a sum of Rs. 10,000/- and the defendant failed to hand over vacant possession of the suit schedule premises. He pleaded that no such letter was received by him and that the allegation made in that regard was devoid of truth.
9. On the basis of the amended pleadings of the parties, issues were also recast. Recast issues are as follows:
1. Whether the defendant is in possession of the suit house as licensee of plaintiff under agreement dated 17-4-1973 ?
2. Whether the defendant is in possession of suit house in part performance of agreement of sale dated 16-12-1972 ?
2(a). Whether the plaintiff proves that the agreement is cancelled by fresh agreement ?
3. Whether the plaintiff is entitled for possession on termination of license ?
Additional issues:
2(b). Whether the suit is properly valued ?
10. In support of the case of the plaintiff he examined himself as Pw-1 and also examined two witnesses as Pws 2 and 3 and produced seven documents marked as Exs. P1 to P 7. Defendant examined himself as DW 1 and one more witness as DW 2 and produced nine documents, which were marked as Exs. D1 to D-9.
11. The trial Court on considering the evidence on record, has answered Issues 1, 2(a) and 3 in the negative and Issue No. 2 in the affirmative. It has further held that issue No. 2 does not arise for consideration. Accordingly, it has dismissed the suit. Hence the plaintiff has come up in Appeal.
12. Before we refer to the contentions urged on both sides, we may refer to the nature of the documents produced by both sides.
Ex P-1 is the letter dated 27-7-1977 written by the plaintiff to the defendant stating that as per the Agreement entered into between them, the plaintiff was to pay the amount in the month of July and as it was not possible to do so and hence he would pay the amount next month. Therefore, the defendant should arrange for delivery of possession of the suit property. Ex P-2 is the certificate of posting under which Ex P-1 was sent. Ex P-3 is another letter dated 16-11-1980 written by the plaintiff to the defendant stating that he had asked the defendant to vacate the house as per Agreement dated 17-4-1973. Even though the plaintiff asked for possession of the house, the defendant refused to deliver the possession. Therefore, he further stated that he would take action against the defendant for possession of the suit schedule premises in accordance with law. Ex P-4 is the certificate of posting under which Ex P-3 was sent. Ex P-5 is the Lease-cum-Sale Agreement dated 4-1-1973 executed by the Chairman, Karnataka Housing Board in favour of the plaintiff. We will refer to the relevant portions of this Agreement at a later stage. Ex P-6 is the vakalath executed by the plaintiff in favour of Sri S.V. Srinath. This has been marked only to compare his admitted signature with the signature found on the disputed document.
13. Ex D-1 is the Agreement dated 16-12-1972 set up by the defendant under which the plaintiff has agreed to sell the suit schedule property. At this stage, we may mention that this Agreement does not contain the consideration amount to which the plaintiff agreed to sell. However, it contains a recital as to the payment of Rs. 12,000/- through cheque made to the plaintiff. The other clauses of the Agreement will be referred to a little later. Ex D-2 is a receipt dated 3-1 -1973 executed by the plaintiff in favour of the defendant for having received a sum of Rs. 1,000/- through two cheques of Rs. 500-00 each, for the purpose of purchasing the suit schedule property. Ex D-3 is dated 24-1 -1973 - Possession Certificate issued by the Executive Engineer, Mysore Housing Board for having put the plaintiff in possession of the suit schedule property, pursuant to the Lease-cum-Sale Agreement. Ex D-4 is a receipt for a sum of Rs. 18,000-00 executed by the plaintiff in favour of the defendant. It is stated that the amount was received towards the cost of the suit schedule property. Ex D-5 is a tax receipt dated 4-2-1983. It states that the defendant paid a sum of Rs. 142-00 to the Bangalore City Corporation, towards building tax and land tax of the suit schedule property. Ex D-6 is also a similar receipt dated 30-6-1982 evidencing the fact that a sum of Rs. 142/- was received from the plaintiff towards the building tax and land tax of the suit schedule property. Ex D-7 is another receipt dated 23-1 -1981 evidencing the fact of payment of Rs. 141-00 by the defendant towards the tax of the suit schedule premises to the Municipal Corporation, Bangalore City. Ex D-8 is also another receipt evidencing the fact of payment of Rs. 75/- by the defendant to the Bangalore City Corporation towards the property tax and other cesses of the suit schedule premises. Ex D-9 is the receipt dated 26-12-1979 for having received a sum of Rs. 5,000/- by the Chairman, Karnataka Housing Board, towards repayment of the loan pertaining to the suit schedule property, by the defendant on behalf of the plaintiff.
14. In the light of the contentions urged on both sides, the following points arise for consideration:
1. Whether the plaintiff is entitled to possession in view of the Agreement of Sale dated 16-12-1972 Ex D.1 executed by him in favour of the defendant ?
2. Whether the defendant was put in possession of the suit schedule property pursuant to the Agreement of Sate dated 16-12-1972?
3. Whether the defendant has failed to enforce the Agreement of Sale dated 16-12-1972 within the period allowed by law If yes, whether he could resist the suit for possession filed by the owner who had executed the agreement of sale ?
15. We take up for consideration al! the three points together. Though several contentions have been urged on both sides with reference to the Agreement dated 17-4-1973, it appears to us that in view of the amendment effected by the plaintiff, the Agreement dated 16-12-1972 has not been disputed; whereas the Agreement dated 17-4-1973 has not been proved and it has not been marked as one of the documents in the suit. Therefore, in the light of the pleadings of the parties and the evidence of the plaintiff, it shall have to be held that there was an Agreement of Sale entered into between the plaintiff and the defendant on 16-12-1972 as per Ex. D.1. The evidence on record also further establishes that pursuant to that Agreement, on 16-12-1972 the defendant paid a sum of Rs. 12,000/- to the plaintiff by cheque. Therefore, without much discussion on the point, it can safely be held that the defendant has proved that the Agreement dated 16-12-1972 was executed by the plaintiff in favour of the defendant.
16. The next question for consideration is as to whether the plaintiff can seek possession of the suit schedule property, having agreed to sell the same to the defendant. The answer to this question depends upon the determination of the question as to whether the defendant was put in possession of the suit schedule property pursuant to the Agreement of Sale dated 16.12,1972, As per Ex.P.5, the plaintiff was put in possession of the suit schedule property by the Housing Board on 4.1.1973. It is the case of the defendant that he was put in possession of the suit property pursuant to the Agreement of Sale Ex.D.1 on 24.1.1973 the date on which the Possession Certificate Ex.D.3 was delivered to him; whereas it is the case of the plaintiff that the defendant was put in possession of the suit schedule property pursuant to the Agreement dated 17.4.1973 under which he received a sum of Rs 10,000 and agreed to allow the defendant to be in possession of the suit property as a licensee and that there was no Agreement of Sale dated 16.12.1972. This case of the plaintiff cannot at all be accepted because firstly he has not proved the Agreement dated 17.4.1973 and it has not been marked in the evidence. The trial Court also has held that the Agreement dated 17.4.1973 has not been proved. On the basis of the evidence on record, the trial Court has held that the defendant was put in possession of the suit schedule property pursuant to the Agreement of Sale dated 16.12.1972. In the absence of proof of the Agreement dated 17.4.1973 and in the presence of the proof of the Agreement dated 16.12.1972 and the Possession Certificate (Ex. D3) having been produced by the defendant, we have no hesitation in holding that pursuant to the Agreement of Sale dated 16.12.1972 Ex.D.1, the defendant was put in possession of the suit schedule property,
17. The next question for consideration is as to whether the plaintiff is entitled to seek for possession of the suit schedule property he, having put the defendant in possession of the same pursuant to the Agreement of Sale dated 16.12.1972 and received certain sum in part payment of the consideration. The answer to this question would depend upon the answer to the question as to, whether in the defendant there existed a right to enforce the Agreement of Sale, so as to resist the suit for possession filed by the plaintiff.
18. According to the case of the plaintiff, filing of the suit for possession and seeking a declaration that the possession of the defendant is illegal and to award damages is sufficient indication of the denial of the Agreement. Therefore, the limitation commenced from the date of the suit viz., 22.1,1981; whereas it is contended by Sri Ranganna, learned Counsel for the defendant-respondent that as per the Agreement Ex.D.1, the cause of action has not yet arisen to the defendant to file a suit for specific performance because the plaintiff has not perfected his title by obtaining permission. Learned Counsel placed reliance on Clause 2 and 4 of the Agreement of Sale dated 16.12.1972 which are as follows:
' 2. The purchaser herein has agreed to pay the balance of the sale consideration amount to the vendor herein on the day on which the vendor herein has handed over the possession of the house allotted to him by the Housing Board to the purchaser after obtaining the required permission from the office of the Chairman, Housing Board, Bangalore.
4. The vendor herein agrees to execute a regular sale deed in this behalf in favour of the said purchaser immediately on receipt of the permission from the Housing Board in this behalf and to get it registered.'
As per the terms of the Lease-cum-Sale Agreement Ex.P.5, the plaintiff is not entitled to transfer the suit property until the expiry of the period of 10 years from the date he is put in possession and until all the instalments are paid. Section 25 of the Karnataka Housing Board Act also prohibits alienation of the properties allotted by the Housing Board until the expiry of the Lease-cum-Sale Agreement. Therefore, it is contended on behalf of the defendant that until the plaintiff obtained title to the suit schedule property, the defendant could not have filed any suit, therefore, even though on the filing of the suit for possession the plaintiff can be held to have denied the Agreement, it did not in any way affect the right of the defendant to file a suit for specific performance nor did it furnish a cause of action for the commencement of the period of limitation; as such it is contended that it is open to the defendant to protect his possession under Section 53-A of the Transfer of Property Act.
Article 54 of the Limitation Act, 1963 reads thus:
Description of the suit
Period of limitation
Time from which period beginsto run
54.
For specific performance of acontract
Three Years
The date fixed for theperformance, or, if no such date is fixed, when the plaintiff has notice thatperformance is refused.
According to the learned Council for the defendant, the date fixed for performance of the Agreement if the date on which the plaintiff perfects his title and as that has not yet happened, the period of limitation cannot he held to have commenced, It is not possible to accept this contention. The contention of learned Council for the respondent-defendant would have been accepted if the Agreement had not been denied by the plaintiff. The averments made in this plaint and also the evidence given by the plaintiff clearly establishes that the Agreement of Sale was denied by the plaintiff. In case where the agreement fixes the date for performance of the agreement, whether that date has expired or not, if the very agreement is denied, the person in whose favour the agreement is executed is required to exercise his right within a period of three year's from the date of knowledge or notice of the fact that the agreement denied. Therefore, filing of suit by the plaintiff seeking possession of the suit schedule property from the defendant who was in possession of it pursuant to the Agreement of Sale and the possession was sought on the basis that it was an illegal possession, amounted to repudiating the Agreement of Sale. Therefore, the defendant was required to enforce the Agreement within a period of three years from the date of knowledge of the denial of the agreement, in our view, the plaint averments and relief sought in the suit did clearly and unequivocally amount to denial of the Agreement dated 16.12.1972. Therefore, the defendant was required to exercise his right under the Agreement by filing a suit for specific performance within three years from the date he was served with the suit summons. Section 53-A incorporates doctrine of equity. Therefore, in order to invoke the protection under the doctrine of part-performance, the person invoking, must possess the right to enforce the agreement of sale, if the right under the agreement is lost in Law of Limitation, even if it is lost during the pendency of the suit, it open to the party to take advantage of the same and the Court to take note of it. The delay defeats equity. When the person in possession of the suit property loses his right to remain in possession, he cannot resist the suit of the true owner for possession of the same.
19. Further, in the evidence also, the plaintiff specifically stated thus on 17.3.1986 in cross-examination as P.W1:
' 36. It is false to say that I had assured the defendant that after 10 years I would execute the sale deed in his favour. It is false to say that I had assured him that I would pay the installments to the Housing Board for 10 years. It is not correct to say that I have executed the agreement deed in that manner. It is false to say that the defendant used to ask me now and then and I used to tell him that he need not worry and that I would execute the sale deed after 10 years and since then he was in possession.'
Therefore, even if the contention of the defendant that the plaint averments did not clearly amount to repudiation of the Agreement is accepted for a while as correct, (though it is not correct as already pointed out above) the statement made by the plaintiff on 7.3.1986 in the witness box as extracted above, clearly amounted to denial of the Agreement. Therefore, at least from 7.3.1986 the defendant was required to enforce the Agreement within a period of three years. Even to this day the defendant has not filed any suit for specific performance of the Agreement in question.
20. A Division Bench of this Court in KAREEM BAIG v. Dr. MOHAMMAD KHIZAR HUSSAIN, : ILR1988KAR631 has considered this aspect of the matter and held as follows:
'11. Sri Bhujanga Rao, learned Counsel for defendants 3 and 4 made a strong plea that the trial Court committed an error in placing reliance on the provisions of Section 73 of the Evidence Act for coming to the conclusion that the agreement was not genuine. According to him, in the light of the evidence of defendant No. 3, the scribe and the attesting witness there was enough proof to show that the document was executed by the owner and therefore, the trial Court should not have doubted the genuineness of his signature and if it had any doubt, it should have referred the disputed signature of the owner to the handwriting expert for satisfying itself that the disputed signature in Ex.D.1 was the same as the admitted signature of the owner. In our view, the evidence of D.Ws. 1 to 3 was not seriously challenged in cross examination. However, we must take notice of the fact that this document was executed some time in the year 1968 and the disputed signatures of the owner were taken in the year 1974. Therefore, there is every possibility of some minor variations in the signature of the person over a number of years. It has come on record that Dr. Ali Hussain was not keeping good health, he being a heart patient. Therefore, we notice some minor variations in the configuration of words in the signature of the owner when we compare the disputed signature with his undisputed signature. There is also the possibility of the owner altering the style of his writing to deny the genuineness of his earlier signature.
11.1. But for the purpose of invoking the doctrine of equity of part-performance as embodied in Section 53A of the T.P. Act, defendants 3 and 4 apart from proving the agreement of sale Ex.D1 must also prove that defendant 4 (transferee) has, in part-performance of the contract, taken possession of the property or any part thereof or in the case of the transferee being already in possession, continue in possession in part-performance of the contract and has done some act in furtherance of the contract. In the instant case either of the two things is not established. Defendant No. 4 in whose favour the agreement of sale as per Ex. D.1 dated 15.12.1968 is executed, is no other than the wife of the defendant No. 3. In the earlier proceeding under the Act for eviction, it was the case of the owner that the defendant-1 was the tenant of the suit premises and he had sublet the suit premises to defendant-3. Thus defendant No. 4 being the wife of defendant No. 3 was residing in the suit premises along with defendant No. 3. No evidence is adduced to prove that the defendant No. 4 was continued in possession pursuant to Ex.D.1 and she has done some act in the furtherance of the agreement Ex.D.1. The agreement Ex.D.1 is silent. It does not state that pursuant to the agreement defendant No. 4 was put in possession of the suit premises. In the absence of specific evidence to satisfy the doctrine of part-performance, defendant-3 and 4 cannot successfully claim protection or defend their possession of the suit premises under Section 53A of the TP Act. It only follows that the defendant No,3 as claimed by Dr. Ali Hussain in the HRC No. 13/73 was in possession as sub-tenant under defendant No. 1 and defendant No. 4 being his wife was residing with him. They (defendants 3 and 4) had not taken possession of the suit premises in part-performance of the agreement Ex.D1. Further, they have also not proved that they have done any act in furtherance of the contract. Thus defendants 3 and 4 are not entitled to the benefit of Section 53A of the T.P. Act.
12. One more fact which goes against defendants 3 and 4 is that the execution of the agreement of sale Ex.D.1 was repudiated by Dr. Ali Hussain in the year 1974 in H.R.C. 13/73 to which defendants 3 and 4 were parties. In that proceeding Dr. Ali Hussain filed his rejoinder as per Ex.P.3 dated 13.1.1974 denying execution of Ex.D.1 and further alleging that it was false, fabricated, concocted and forged. Defendants 3 and 4 did not take any step to enforce the agreement of sale Ex.D.1 against the owner i.e. Dr. Ali Hussain or his legal representatives within a period of three years from the date of knowledge of repudiation of the agreement. As a result thereof, defendant No. 4 has lost her right, if any, under Ex.D.1 and it cannot now be enforced. The doctrine of part-performance is a doctrine of equity. Delay defeats equity. Therefore, when the agreement Ex.D.1 has become enforceable by reason of the Law of Limitation, the defence of part-performance which is founded on Ex.D.1 cannot be permitted to be enforced as the agreement Ex.D.1 has lost all its efficacy inasmuch as the right of defendant-4 to enforce it is lost by the Law of Limitation, The doctrine of part-performance which is a doctrine of equity cannot be permitted to be invoked under these circumstances.'
Therefore, on the expiry of the period of three years, the defendant lost all his right under the Agreement. Consequently, he could not resist the suit for possession filed by the plaintiff because the defendant ceased to have any right to enforce the agreement as that right had become barred by time. The trial Court has not considered this aspect of the matter. It has only proceeded on the basis that the defendant was put in possession of the property pursuant to the Agreement, therefore, the plaintiff was not entitled to seek possession.
21. For the reasons stated above, the points raised for determination are answered as follows:
Point No. 1: The plaintiff is entitled to possession because the defendant has lost his right to enforce the Agreement. Therefore, he cannot continue to have the protection under Section 53A of the T.P. Act.
Point No. 2: In the affirmative.
Point No. 3: The first part in the affirmative and the second part in the negative.
22. We may at this stage record the Memo dated 25.11.1991 filed by the plaintiff. It reads:
'The appellant, without prejudice to his contentions raised in this appeal, he is ready to pay or deposit a sum of Rs 24,180/-(Rupees twenty four thousand and one hundred and eighty only)'
It would not have been necessary for us to go into this aspect of the matter but for the Memo filed by the learned Counsel for the plaintiff-appellant. Accordingly, we record the Memo, allow the Appeal, set aside the judgment and decree of the trial Court. The suit of the plaintiff is decreed. It is held and decreed that the plaintiff is entitled to possession of the suit schedule property and the defendant is not entitled to remain In possession of the same and shall deliver possession of the same to the plaintiff and the plaintiff shall pay to the defendant or deposit in the trial Court for payment to the defendant, before executing the decree, a sum of Rs 24,180/-. As the plaintiff in the plaint has reserved the right to claim mesne profits by a separate suit, that right is reserved to the plaintiff.
23. After the pronouncement of the judgment, Sri Ranganna, learned Counsel for the respondent-defendant made an oral application under Article 134A of the Constitution of India for grant of a certificate for Appeal to the Supreme Court. We are of the view that the case does not involve a substantial question of law of general importance which heeds to be decided by the Supreme Court. Hence the Certificate is refused.