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PETITIONER: MOHAN LAL (DECEASED) THROUGHHIS LRS. KACHRU & ORS.

       Vs.

RESPONDENT: MIRZA ABDUL GAFFAR & ANR.

DATE OF JUDGMENT12/12/1995

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. HANSARIA B.L. (J)

CITATION:  1996 AIR  910            1996 SCC  (1) 639  JT 1995 (9)   436        1996 SCALE  (1)5

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      This appeal  by special  leave arises from the judgment and decree of the Madhya Pradesh High Court in Second Appeal No.460/75 made on 30,1986.      It is  not necessary  to elaborate  all  the  facts  in detail. Suffice it to state that the appellant had come into possession of  the suit-lands  pursuant to  an agreement  of sale dated  March 8, 1956. He paid part consideration of Rs. 500/- and  obtained possession  of the  lands. Subsequently, the respondent  purchased the lands by sale deed dated March 23,  1960.  In  the  meanwhile,  the  appellant’s  suit  for specific performance  of the contract for sale was dismissed and  became   final.  The  respondent  filed  the  suit  for possession which  has given  rise to  this appeal. The trial Court decreed  the suit.  On appeal,  it  was  reversed  and dismissed. In  second appeal,  the High  Court set aside the judgment and  decree of the appellate Court and restored the decree of  the trial  Court. Thus  this  appeal  by  special leave.      The only  question is whether the appellant is entitled to retain  possession of  the suit  property. Two pleas have been raised  by the appellant in defence. One is that having remained in  possession from March 8, 1956, he has perfected his title  by prescription.  Secondly, he pleaded that he is entitled to  retain his  possession by  operation of Section 53-A of  the Transfer of Property Act, 1882 (for short, ’the Act’).      As regards  the first plea, it is inconsistent with the second  plea.   Having  come   into  possession   under  the agreement, he  must disclaim  his right thereunder and plead and prove  assertion  of  his  independent  hostile  adverse possession  to  the  knowledge  of  the  transferor  or  his successor in  title or  interest and  that  the  latter  had acquiesced to  his  illegal  possession  during  the  entire period of  12 years, i.e., upto completing the period of his

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title by  prescription nec  vi nec  clam nec precario. Since the appellant’s  claim is  founded on  Section 53-A, it goes without saying  that he  admits by  implication that he came into possession of the land lawfully under the agreement and continued to  remain in  possession till  date of  the suit. Thereby the  plea of  adverse possession is not available to the appellant.      The question  then is  whether he is entitled to retain possession under  Section 53-A.  It is an admitted fact that suit for  specific performance had been dismissed and became final. Then the question is whether he is entitled to retain possession under the agreement. Once he lost his right under the  agreement  by  dismissal  of  the  suit,  it  would  be inconsistent and  incompatible with  his right  to remain in possession under the agreement. Even otherwise, a transferee can avail  of Section  53-A only  as a  shield but  not as a sword. It  contemplates that  where any  person contracts to transfer for consideration any immovable property by writing signed by  him  or  on  his  behalf  from  which  the  terms necessary to constitute the transfer can be ascertained with reasonable certainty  and the transferee has performed or is willing to  perform his  part of  the contract, he should be entitled to  retain possession and to continue in possession which he has already received from the transferor so long as he is  willing to  perform his  part of  contract. Agreement does not create title or interest in the property. Since the agreement had met with dismissal of the suit his willingness to perform his part of the contract does not arise.      Even otherwise,  in a  suit for possession filed by the respondent, successor-in-interest  of the  transferor  as  a subsequent purchaser,  the earlier transferee must plead and prove that  he is  ready and  willing to perform his part of the contract so as to enable him to retain his possession of the immovable  property held  under the  agreement. The High Court has pointed out that he has not expressly pleaded this in the  written statement.  We have gone through the written statement. The High Court is right in its conclusion. Except vaguely denying  that he is not ready and willing to perform his part, he did not specifically plead it. Under Section 16 (c) of  Specific Relief  Act, 1963, the plaintiff must plead in the  plaint, his  readiness and willingness from the date of the  contract till  date of the decree. The plaintiff who seeks enforcement  of the agreement is enjoined to establish the same. Equally, when transferee seeks to avail of Section 53-A to retain possession of the property which he had under the contract, it would also be incumbent upon the transferee to plead  and prove his readiness and willingness to perform his part  of the  contract. He  who comes  to equity must do equity. The  doctrine of  readiness and  willingness  is  an emphatic way  of expression to establish that the transferee always abides  by the  terms of the agreement and is willing to perform  his part  of the  contract. Part performance, as statutory  right   is  conditioned   upon  the  transferee’s continuous willingness  to perform  his part of the contract in terms convenanted thereunder.      In the  earlier proceedings  before  Taluk  Board,  the appellant had  admitted  that  he  paid  only  Rs.500/-.  He pleaded in  the  written  statement  that  consideration  is Rs.1,000/-. In other words, he did not discharge his part of the contract  to the  owner, i.e.,  did not  pay  Rs.1,000/- before the  land was  sold to  the  respondent  nor  did  he deposit the  amount when the suit was filed nor did he offer payment.      We are,  therefore, of  the view that the High Court is right in  its conclusion  that appellant  is not entitled to

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retain possession. However, since the appellant has remained in possession under the agreement of sale, the respondent is not entitled to claim any damages from him.      The appeal  is accordingly  dismissed but  in the facts and circumstances of the case without costs.