Mallamkondu Venkata Ramana Vs. Banakathi Obulamma and ors. - Court Judgment

G. Yethirajulu, J.

1. This appeal is preferred by the defendant in O.S. No. 106 of 1995 on the file of the District Munsif at Guntakal. The respondents are the plaintiffs in the said suit.

2. The plaintiffs filed the suit for declaration of title and recovery of possession of the suit schedule property. The plaintiffs averred that the first plaintiff is the absolute owner of the suit schedule property having purchased the same from the rightful owner under a registered sale deed, dated 19-5-1988. Ever since the plaintiffs are in possession and enjoyment of the property. The name of the first plaintiff is mutated in the revenue records by deleting the name of the vendor B. Pedda Linga Reddy. The defendant has no manner of right in the suit property and he is trying to trespass and disturb the possession of the first plaintiff. After the first plaintiff, plaintiffs 2 to 5 are in possession and enjoyment of the property. As the injunction petition was dismissed during the pendency of the suit, the suit was converted into one of the recovery of possession and declaration of title.

3. The defendants filed a written statement contending that the alleged sale deed is a nominal one and is not binding on the defendant. The suit land originally belonged to two brothers namely, A.S. Pedda Khasim Sab and A.S. Hazeepeera Sab of Tadipathri. The sons of those persons agreed to sell their joint half share to the defendant under an agreement of sale dated 16-11-1974. On the date of agreement of sale itself, they delivered possession of the property in the suit survey number. The defendant, being the agreement holder, is in possession and enjoyment of the property as absolute owner. The defendant perfected his title to the property by adverse possession. The sons of A.S. Hazeepeera Sab also agreed to convey their joint half share to the defendant and executed an agreement of sale deed, dated 24-12-1981. It was specifically agreed upon to execute a registered sale deed. The defendant raised lime garden after agreement of sale, dated 24-12-1981 in the southern portion of the land.

4. The trial Court, after considering the oral and documentary evidence adduced by both parties, decreed the suit by granting the declaration of title and delivery of possession in favour of the plaintiffs. The defendant being aggrieved by the judgment of the trial Court, dated 22-3-1995, preferred A.S.No. 12 of 1996 on the file of the Subordinate Judge, Gooty and the learned Subordinate Judge, after considering the material available on record, dismissed the appeal by confirming the judgment of the trial Court in all respects. Being aggrieved by the said judgment of the appellate Court, the defendant preferred the present second appeal on various grounds.

5. At the time of admission, the following points were framed as substantial questions of law from the grounds of appeal for consideration by this Court:

1. Whether an agreement of sale executed by more than one person becomes invalid and unenforceable in toto if one of them does not sign the agreement and whether such an agreement is not enforceable even against the executants who have signed the same, so far as their shares are concerned ?

2. Whether the lower Court ought to have held that the defendant was entitled to protection under the doctrine of part performance embodied in Section 53-A of the Transfer of Property Act insofar as the shares of the actual executants of the agreements Exs.B-1, B-2 and B-3 are concerned and who have not denied execution of the agreements, receipt of consideration and delivery of possession as recited therein and which are further proved by examining the attestors and scribe of the same?

6. There is concurrent finding of fact by the Courts below, therefore, it is not desirable for this Court to interfere with the concurrent finding of fact.

7. Regarding the first point, the learned Counsel for the appellant submitted that even if some of the sharers do not sign the agreement, it can be enforced insofar as the shares of the executants are concerned. The trial Court held that the agreements of sale covered by Exs.B-2 and B-3 are not enforceable documents, as they were not signed by the third defendant. The trial Court further held that necessary conditions required to invoke Section 53-A of the Transfer of Property Act (for short 'the Act') are not satisfied insofar as Exs.B-2 and B-3 are concerned and the defendants are not entitled for the benefit of Section 53-A of the Act. The Appellate Court observed that a local inspection made at the instance of the defendant by the Advocate Commissioner discloses that the first plaintiffs son has been cultivating the land, therefore, it is very clear that the plaintiffs were in possession and enjoyment of the suit schedule property earlier to the disposal of the injunction petition. It is the consistent version of the plaintiffs that taking advantage of the dismissal order in temporary injunction petition, the defendants highhandedly trespassed into the land and the possession of the defendants is not lawful one and if we correlate the evidence of PW-1 and DW-1 coupled with Ex.B-7, it would clearly goes to show that the defendant trespassed into the suit schedule property only after dismissal of the injunction application. As he trespassed into the land subsequent to the dismissal of the injunction petition, the question of the defendant perfecting the title by adverse possession does not arise. The plaintiffs proved title in their favour, therefore, they are entitled for declaration of title and for recovery of possession as prayed for.

8. The learned Counsel for the appellant submitted that the defendant is entitled to get the right over the property to the extent of the shares of the persons who executed the agreements of sale. Though the agreements of sale alleged to be executed in 1974, the defendant did not take any steps to get the land registered in his name to the extent of the shares of the executants for more than 20 years till the date of filing of the suit and he kept quiet without any action against the plaintiffs, though the sale deed was obtained by the first plaintiff on 19-5-1988. The defendant also did not establish that the vendors of the defendant under Exs.B-2 and B-3 are the exclusive owners of the property and the vendor of the plaintiffs has no undivided interest over the property.

9. The learned Counsel for the appellant relied on the judgments of the Supreme Court in support of his contention that the agreements of sale are enforceable to the extent of the shares of the executants:

In Surindersingh v. Kapoor Singh : (2005)5SCC142 , the Supreme Court held:

Section 12(3) of the Specific Relief Act is a beneficial provision so far as the purchasers are concerned. In the instant case, in view of the findings of fact arrived at by the High Court, the decree for specific performance of contract in respect of the entire suit land could not have been granted as the appellant herein was not authorized by his sister to enter into the agreement of sale. The agreement of sale was entered into in respect of the entire suit land and having regard to the fact that the sister of the appellant did not authorize him to enter into the said agreement Section 12(3) would be attracted.

In Sardar Singh v. Krishna Devi : [1994]3SCR717 , the appellant and his brother have half share each in the suit property. The agreement of sale was executed by the brother of the appellant and as the appellant being not a consenting party to the contract, equity and justice demand partial enforcement of the contract, instead of refusing specific performance in its entirety, which would meet the ends of justice. The agreement must be referable only in respect of half of the right, title and interest held by his brother.

10. In the present case, two out of three owners executed Exs.B-1 to B-3 agreements of sale. But the mother of the third defendant did not sign the agreement of sale. The defendant is entitled to enforce the agreement of sale to the extent of the executant's share, but he cannot resist the suit filed by the plaintiffs on the ground that he purchased a share in the property. The remedy, if any, available to the defendant is only to file a suit for specific performance of the agreements of sale in respect of the shares of the executants and later file a suit for partition for getting the land divided into three shares and to get two such shares. But as the factual position discloses that the plaintiffs were in possession of the property till the dismissal of the injunction application and as the defendant did not get the possession of the property under Exs.B-2 and B-3 agreements of sale, he is not entitled for protection under Section 53-A of the Act, therefore, the plaintiffs are entitled for declaration of title and recovery of possession as prayed for. If the defendant has any right to be pursued under the agreements of sale, he can workout the rights only after obtaining the decree and the person who did not enter the property by agreement of sale is not entitled for protection under Section 53-A of the Act simply on the ground that he obtained an agreement of sale from the vendors. In the light of the above circumstances, I do not find any merits in the appeal.

11. The second appeal is, accordingly, dismissed. No costs.