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CASE NO.: Appeal (civil)  5993 of 1998

PETITIONER: Mahadeva & Ors.

RESPONDENT: Tanabai

DATE OF JUDGMENT: 20/04/2004

BENCH: R.C. LAHOTI & ASHOK BHAN.

JUDGMENT: J U D G M E N T

R.C. Lahoti, J.   Tanabai, the respondent herein, is the daughter of late Nivriti  Vithoba Laad Laad.  Nivriti Vithoba Laad owned and possessed land  survey no.48/1 measuring 14 acres 15 guntas in the village  Ravatagaon.  It appears that Nivriti Vithoba Laad executed an  agreement to sell the said agricultural land in favour of the defendants  and also delivered possession thereof to the prospective vendees.   Nivriti Vithoba Laad died.  The plaintiff, Tanabai is the sole legal heir of  Nivriti Vithoba Laad.  On 22.11.1978 Tanabai filed a suit for declaring  the agreement dated 4.4.1967 as null and void and seeking recovery  of possession over the land from the defendants.  The suit was  contested by the defendants submitting that the agreement was valid  and binding on the plaintiff; that the defendants were in possession of  the property under the agreement and entitled to protect their  possession under Section 53-A of the Transfer of Property Act; and  that they had also perfected the title by adverse possession over the  land. The plea of the defendants claiming acquisition of title by  adverse possession has been negatived by all the three courts upto the  High Court. However, the plea under Section 53-A of TP Act found  favour with the Trial Court and the First Appellate Court resulting into  dismissal of the suit.  The agreement was held to be valid and binding  on the plaintiff.

The plaintiff preferred Second Appeal which was admitted for  hearing on following two questions of law framed by the High Court :-

"1.     Whether the courts below are justified  in dismissing the suit of the plaintiff- appellant inspite of clear evidence of  the defendant-respondent that he is  not ready to pay the remaining  consideration amount ?

2.      Whether it is open to the respondents  to plead in his defence under Section  53-A of the T.P. Act despite finding by  the courts below that the plaintiff’s  title is established."

However, at the time of hearing the High Court formed an  opinion that only one question really arose for consideration in the  Second Appeal and that was as under :-

"Whether the defendant can continue to be

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in possession not withstanding the facts that  they have not chosen to enforce the  agreement of sale till now ?" By a brief reasoning that the defendants who were claiming title  by adverse possession also, could not succeed by claiming protection  under Section 53-A of the T.P. Act and inasmuch as the plea of  acquisition of title by adverse possession was negatived,  their  possession must be held to be illegal, the High Court has allowed the  Second Appeal and directed the suit filed by the plaintiff to be decreed.   Aggrieved by the judgment of the High Court, the defendants have  filed this appeal by special leave.

During the course of hearing, at one stage, taking notice of the  fact that the defendant-appellants, agriculturists  by vocation, have  remained in possession of land ever since 1967, i.e., for about 37  years by this time this Court suggested the learned counsel for the  parties explore the possibility of mutual settlement.  The learned  counsel for the defendant-appellants made an offer under instructions  that the appellants were prepared to pay an amount of Rs.50,000/-  over and above what was already paid to the late father of the  plaintiff-respondent under the agreement and the plaintiff-respondent  should not insist on claiming possession but rather should execute a  deed of sale  at the cost and expenses of the defendant-appellants and  thus bring the whole dispute to an end.  The learned counsel for the  plaintiff-respondent took time for having instructions and after  adjournments told us that the plaintiff-respondent was not responding  to the communications made by the learned counsel to her.  In fact, a  demand draft drawn in the name of the plaintiff-respondent for a sum  of Rs.50,000/- on Vijaya Bank, Miraj, bearing no. 337791 dated  21.3.2004 was produced by the learned counsel for the defendant- appellants with readiness to tender the same to the plaintiff- respondent which tender the learned counsel for the plaintiff- respondent rightly regretted to accept as he was not having any  instructions in that regard from the plaintiff-respondent.  In such  circumstances, the DD has been returned to the learned counsel for  the defendant-appellants after being perused by the Court.

We have heard the learned counsel for the parties on the merits  of the appeal.  We are of the opinion that the Second Appeal has not   been satisfactorily disposed of by the High Court.

The judgment of the High Court is based on a question framed  during the course of writing of the judgment which is in departure  from the two questions of law on which the appeal   was admitted for  hearing.  The whole emphasis shifted from the core issues.  Then, the  High Court has not discussed any law and has also not assigned  reason, much less a satisfactory one, for taking a view different from  the one  concurrently taken by the two courts below.  The singular  reason assigned by the High Court for denying the benefit of Section  53-A of the TP Act is not a sound reason by itself in view of the  decision of this Court in  Shrimant Shamrao Suryavanshi and Anr.  Vs. Pralhad Bhairoba Suryavanshi (Dead) by Lrs. and Ors. -  (2002) 3 SCC 676.  This Court has held that merely because the suit  for specific performance at the instance of the vendee has become  barred by limitation that  by itself is not enough to deny the benefit of  the plea of part performance of agreement of sale to the person in  possession.

As the judgment of the High Court is one of reversal and that  too  bereft of any reason, the same cannot be sustained.  The appeal  is allowed. The judgment of the High Court is set aside.  Instead, the  Second Appeal is remanded to the High Court for hearing  and   decision afresh in accordance with law.  Before deciding the appeal on  merits, the High Court would do well to explore the possibility of  settlement between the parties in view of the proceedings which took

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place in this Court.  No order as to the costs.