http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3  

CASE NO.: Appeal (civil)  5066 of 2007

PETITIONER: A. Lewis & Anr. etc

RESPONDENT: M.T. Ramamurthy & Ors

DATE OF JUDGMENT: 31/10/2007

BENCH: Tarun Chatterjee & P. Sathasivam

JUDGMENT: JUDGMENT (Arising out of SLP (C) No. 19240 OF 2006) P. Sathasivam, J.

1)              Leave granted.  2)              This appeal is directed against the final judgment  dated 13.07.2006 passed by the High Court of Karnataka at  Bangalore in R.F.A. Nos. 827 and  718 of 2000 whereby the  High Court dismissed the appeals preferred by the  appellants. BRIEF FACTS: 3)              The appellants filed the above appeal seeking  declaration of ownership over the suit property with  recovery of possession and mesne profits.  The suit property  in question is in respect of two different portions of  premises bearing No. 26, Nissan Huts, Austin Town,  Bangalore which originally belonged to Muniyappa,  respondent No.3 herein (since deceased).  On 23.12.1982, a  registered sale deed was executed by respondent No.3  herein in favour of respondent No.1.  Respondent No.1  issued a notice to respondent No.3 and the other occupants  of the suit property for handing over possession of the suit  property.  A reply was sent by counsel on behalf of  Defendant No.1 in each suit claiming that the sale deed  pleaded by respondent No. 1 was not genuine and  contending that respondent No.3 had entered into an  agreement of sale on 04.10.1982 in respect of the said suit  property in favour of the appellants herein for a sale  consideration of Rs.14,000/-.  It was also stated that an  amount of Rs.10,000/- had already been paid as part of  sale consideration and actual possession was also delivered  to the said purchasers in part performance of the agreement  to sell.   Therefore, Respondent No.1 herein filed two suits  bearing O.S. No. 10607 of 1985 and O.S. No. 10609 of 1985  on the file of the XXVIII Additional City Civil and Sessions  Judge, Mayo Hall at Bangalore claiming that he is the  absolute owner of the suit schedule property and for  possession from first defendant, respondent No.2 herein,  along with mesne profits.  By common judgment, the  learned trial Judge decreed the suits declaring respondent  No.1 herein, as the owner of the suit schedule property and  directed the appellants herein to deliver possession of the  suit property to the plaintiff within six months from the  date of the receipt of the order and also directed that the  plaintiff is entitled to mesne profits from 10.7.1985 and a  further direction was also given to initiate an enquiry  for  determination of mesne profits under Order XX Rule 12  C.P.C.  Challenging the said judgment, defendant Nos. 3 &  4, appellants herein, filed R.F.A. Nos. 827 and 718 of 2000

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3  

and defendant No.2, respondent No.3 herein, filed R.F.A.  Nos. 730 and 830 of 2000 before the High Court.  The High  Court dismissed all the four appeals with costs and directed  defendant Nos. 1, 3 and 4 to hand over vacant possession of  the suit property within six months.  Aggrieved by the  judgment in R.F.A. Nos. 827 and 718 of 2000, this appeal  has been preferred by way of special leave before this Court.    4)              We heard Mr. S. Balaji, learned counsel for the  appellants and Mr. K.K. Mani, learned counsel for the  respondents and perused all the relevant materials and  records filed in this Court.   5)              Learned counsel for the appellants mainly  contended that the High Court committed an error in  dismissing their appeals on the ground that Ex.D-1  Agreement to sell dated 04.10.1982 is antedated.  According  to him, in view of the fact that it was not the case of the  contesting respondents herein, the High Court ought not to  have reversed the finding of the fact in the appeal.  On the  other hand, learned counsel appearing for the contesting  respondents, after taking us through the entire materials  including the pleadings of both the parties, conclusion of  the trial Judge and the decision arrived at by the High  Court, submitted that there is no valid ground for  interference.  In view of the assertion of the counsel for the  appellants, we have carefully perused the judgment of the  High Court as well as the other materials.  It is true that the  High Court in para 21 of its judgment has concluded  \023considering these factors, I am of the opinion that this  document, Ex.D-1 must have come into existence subsequent  to the sale deed to defeat the rights of the plaintiff and,  therefore, Additional issue No.5 in each case has to be  answered in the negative.\024  First of all, there is no specific  finding either by the trial Court or by the High Court to the  effect that Ex.D-1 Agreement to sell is antedated.  On the  other hand, the trial Court as well as the High Court  considered the claim of the plaintiffs based on Ex.P-1 dated  23.12.1982 as well as the defence of the contesting  defendants based on agreement of sale dated 04.10.1982.   6)              As rightly pointed out by the High Court, the  existence of right to claim protection under Section 53-A of  the Transfer of Property Act would not be available if the  transferee just kept quiet and remained passive without  taking effective steps.  Further, he must also perform his  part of the contract and convey his willingness.  On the  other hand, the factual finding is that there was no  intimation by defendant Nos. 3 and 4 to perform their part  of contract to claim protection of Section 53-A of the  Transfer of Property Act.  Likewise, as rightly concluded by  the courts below, there is no material to show that the  plaintiff had notice of agreement of sale Ex.D-1 in favour of  defendant Nos. 3 and 4.  The conclusion of the High Court  that defendant Nos. 3 and 4 or even defendant No.1 who  claims through them are not entitled to protection of  Section 53-A of the Transfer of Property Act is acceptable  and the argument contrary to the said conclusion is liable  to be rejected.   7)              As rightly pointed out, the sale deed executed by the  second defendant in favour of the plaintiff is not only a  registered document but the plaintiff apart from offering his  evidence, has also examined the scribe of the document and  both the courts below rightly found that Ex.P-1 has been  proved in accordance with law.  It is not in dispute that  Ex.D-1 is an unregistered document.  It is also not in  dispute that the said document has not been produced until  defendant Nos. 3 and 4 were impleaded.  Considering the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3  

evidence and of the claim that second defendant was in  need of money for discharging his antecedent debts and for  family maintenance etc., both the Courts disbelieved his  version and rightly concluded it was highly doubtful that  the agreement of sale had been executed by him prior to the  sale deed.  Only after analyzing all the above-mentioned  material aspects, the High Court has rightly concluded that  Ex.D-1 must have come into existence subsequent to the  sale deed in order to defeat the rights of the plaintiff.  If the  High Court dismissed the appeal based on the only reason  as argued by learned counsel for the appellants, it would be  appropriate to remit it to the High Court for fresh disposal  on all aspects.  However, as observed earlier, the High Court  as the first appellate court analyzed the entire evidence and  concluded that the plaintiff had proved that the sale deed  had been executed in his favour by Defendant No.2 under  Ex.P-1, consequently confirmed the decision of the trial  Court in decreeing the suits as prayed for.  We are in entire  agreement with the said conclusion and unable to accept  the argument of learned counsel for the appellants.  8)              In the light of the above discussion, the appeal fails  and is dismissed.  No costs.