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Appeal from Appellate Decree No. 404 of 1959, decided on 21st August 1961.
S. 53‑A‑Embodies a passive right which is available to defendant to protect his possession‑Not subject to law of limitation ‑Section bars plaintiff from asserting title‑Limitation Act (IX of 1908), Art. 113.
Nokul Chandra Polley v. Kalipada Ghosal 46 C W N 630 rel.
Fazlul Karim for Appellant.
K. S. Huda with Azizul Islam for Respondents 1 & 2.
This appeal arises out of a suit for recovery of possession on declaration of plaintiff's right and title to the disputed land and hut.
2. It is admitted that the disputed land with the but standing on it formerly belonged to Yunus Munshi and that plaintiff purchased the disputed properties from him by a regis tered kabala dated 15th Agrahayan 1354 B. S. corresponding to 1‑12‑1947. The plaintiff's case is that defendant No.1 held the disputed but at the rent of Rs. 8 per month and that he entrusted defendant No. 2 with the task of realisation of rent but that defendant No. 2 instituted Money Suit No. 77 of 1957 against the defendant No. 1 claiming arrear rent, stating that he was the owner of the disputed land on which it stood, and suit was decreed on compromise. Hence, the present suit.
3. Both the defendants contested the suit. The defence is that plaintiff has no right and title in the disputed properties, as he transferred these by a kabala for Rs. 500 to defendant No.2 on 8‑10‑45 and as defendant No. 2 has been in possession since the kabala, though the kabala was not registered.
4. The learned Munsif on consideration of the evidence dismissed the suit holding that plaintiff contracted to sell the disputed properties to defendant No. 2, that in pursuance of the contract, he executed the kabala Exh. C and made over possession of the disputed properties to defendant No. 2 and that though the kabala was not registered, defendant No. 2 was entitled to protection under section 53‑A of the Transfer of Property Act. On appeal, the learned Subordinate Judge affirmed the decision of the trial Court. Hence this appeal at the instance of the plaintiff.
5. Mr. Fazlul Karim, the learned Advocate for the appellant, has advanced the following points in support of the appeal: --‑
(1) The lower appellate Court erred in law in holding that there was a contract for sale of the disputed properties although there was no evidence for such a finding;
(2) Section 53‑A of the Transfer of Property Act has no application to the facts of the present case.
6. The learned Subordinate Judge held that although the oral evidence was not sufficient to prove the contract, the cir cumstantial evidence proved that there was a contract for sale of the disputed properties by the plaintiff or defendant No. 2 for Rs. 500. In support of this view, the learned Subordinate Judge," referred to the facts that the original title deed, by which the plaintiff purchased the disputed properties from Yunus Munshi, came from the custody of defendant No. 2; that plaintiff could not give any satisfactory explanation as to why the document was coming from the custody of defendant No. 2; that defendant 2 paid rent from 1356 B. S. and that he also paid municipal taxes and was in possession of the disputed properties by realisation of rent from defendant No. 1. The learned Subordinate Judge also referred to the compromise decree obtained by defendant No. 2 against defendant No. 1 by which defendant No. 1 admitted defendant No. 2 to be the owner of the disputed land and hut. The learned Advocate for the appellant has contended that the original kabala was made over to defendant No. 2 for realisation of rent from defendant No. 1. The learned Subordinate Judge made the following observation in connection with this explana tion: --‑
"The plaintiff alleged that he entrusted defendant No. 2 with the realisation of rent from defendant No. 1 which has been stoutly denied by both the defendants. But that fact also could not explain the custody of the original kabala of the plaintiff by defendant No. 2 as the plaintiff need not have made over his kabala to the defendant No. 2 for the purpose of realisation of the rent from defendant No. 1."
The contention that the finding of the lower appellate Court is not based on evidence cannot be accepted.
7. The contention that the doctrine of part performance will not apply to the facts of the present case has also no substance. Mr. Karim has contended that the doctrine of part performance is applicable only in those cases where specific performance can be obtained, and that in the present case the remedy for specific performance of contract having been barred, as no suit was instituted by defendant No. 2 within 3 years from the date of the unregistered kabala, he cannot get protection under section 53‑A. In support of his contention, he has referred to the case of Kalipada Basu acrd others v. Fort Golster Jute Manufacturing Co. Ltd. (100 I C 866). But the facts of that case are distinguishable from the facts of the present case. That case was prior to the enactment of section 53‑A. Plaintiffs in that case claimed title and possession in some of the disputed properties on the basis of part performance of the contract. It was laid down in that case that doctrine of part performance was applicable in those cases, where specific performance could be obtained. The follow ing observation was made by his Lordship Mukherji, J., in that ease:‑
"The English authorities indicate that the doctrine is applic able only in those cases where specific performance can be obtained between the same parties in the same Court and at the same time as the subsequent legal question falls to be determined. Manchester Brewery Co. v. Coombs and Potter v. Potter which was relied upon by the Judicial Committee in Mohamed Musa v. Aghore Kumar. This limitation as to the applicability of the doctrine has been recognised in Bibi Jawahir Kumari v. Chatterput Singh, Singh heeram Poddar v. Bhagbat Chander Nandi, Secretary of State for India v. Forbes Bepin Bepari Mitter v. Tinkori Pathak, Khagendar Nagh v. Sonatan Guha, Syam Kishore De v. Umesh Chandra Bhattacharjee, Gajendra Nath Dsy v. Ashraf Hossain, Pitamber Gain v. Ram Charan Moral and was implicitly recog nised by Jenkins, C. J., in Puchha Lal v. Kunia Behari Lal. On the other hand, the doctrine has been applied without reference to the question whether the right to claim specific performance was or was not subsisting in the case of Meher Ali Khan v. Aroatannessa Bibi and Muhammed Shafikul Hug Chowdhury v. Krishna Gobinda Dutta. The former of these two decisions is that of a learned Judge sitting singly acid the exceptional circumstances of the latter case have been pointed out in the case of Pitambar Gain v. Ram Cnaran Moral and it has been explained in this case how that decision does not lay down any exception to the limitation as regards the applicabilty of the doctrint in case only where specific performance c‑:n be. obtained. The preponderance of authority, therefore, is in favour of the limited applicability of the doctrine."
8. It was further added that‑---
" . . . . . estoppel arising out of the equitable doctrine of part performance will not create title in the plaintiffs if otherwise they had none."
But in the present case protection under section 53‑A of, the Transfer of Property Act has been sought by a defendant. Section 53‑A introduced in the Transfer of Property Act by Amending Act XX of 1929 has enabled the transferee to raise a defence, which was not available to him before the said amending Act was passed.
9. Section 53‑A of the Transfer of Property Act confers only passive right and is available to a defendant to protect his possession. Article 113 of the Limitation Act cannot apply to 4 such a right. Right under section 53‑A of the Transfer of Property Act is not equitable right in this country as in England. This is a right conferred by the statute Law of this country and there is nothing in section ‑53‑A of the Transfer of Property Act to indicate that the assertion in that right in defence is subject to any law of limitation. Limitation can bar vie remedy but not the right in possession. Limitation cannot generally apply to a plea in defence. I am supported in these views by the case of Nokul Chandra Polley v. Kalipada Ghosal and another (46 C W N 630).
10. The learned Advocate for the appellant has also referred to the cases reported in 45 C W N 132 and P L D 1960 (sic) in support of the contention that defendant No. 2 is not entitled to the protection under section 53‑A. But the facts of the above‑mentioned cases are different from the facts of the present case. In the case of Probodh Kumar Da,s v. Dantmara Tea Company, Ltd. (45 C W N 132) it has been held :‑
"Section 53‑A of the Transfer of Property Act gives the right to the transferee‑defendant to resist the transferor plaintiffs claim for possession only when he has himself performed his part of the contract, or if performance of his part is still due, when he has offered to perform what remained to be performed by him."
In that case it was held that defendant was not entitled to the protection under section 53‑A as he did not perform his part of the contract. In the present case, defendant No. 2 has per formed his part of the contract by full payment of the considera tion money of Rs. 500.
11. In the case of Enayet Hossain Chowdhury v. Member, Board of Revenue, East Pakistan (P L D 1960 Dacca 990), the question for consideration was whether a particular document was an out and out sale or a deed of agreement for sale. His Lordship Chowdhury, J., as he then was, made the following observation :‑
"In an agreement of sate followed up by possession to the purchaser, apart from the provisions of section 53‑A, T. P. Act, the document itself does not constitute a transfer of any interest in the property, as has been held by the Privy Council in the case of Pir Bakhsh v. Mohomed Taher."
It would not follow from this observation that defendant No. 2 would not be entitled to the protection on the basis of the doctrine of part performance under section 53‑A.
12. The learned Subordinate Judge has found that there was a contract for sale, that full consideration money for sale was paid e and that defendant No. 2 was put in possession after the execution of the kabala. In the circumstances defendant No. 2 is entitled to protection under section 53‑A and the plea is not barred by limitation.
13. The learned Advocate for the appellant has contended that under section 53‑A of the Transfer of Property Act, defendant can resist the claim for possession only and that as plaintiff's title is admitted, at least there should have been a decree declaring plaintiff's title in the disputed properties. Section 53yA of the Transfer of Property Act is as follows:‑
"53‑A‑Where any person contracts to transfer for considera tion any immovable property by writing signed by him or on his behalf from which the terms necessary tc constitute the transfer can be asertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part perfor mance of the contract and has done some act in furtherance of the contract and the transferee has performed or is willing to perform his part of the contract,
then notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefore by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract:
Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof."
14. The right conferred by this section is available for ale defendant to protect his possession. For the purpose of protecting his possession the section operates as a bar to the plaintiff) asserting his title. In the facts of the present case, the plaintiff is barred under section 53‑A from asserting his title and he is not entitled to get a declaration that he has his right and title in the disputed properties.
15. There is no ground to interfere with the decision of the learned Subordinate Judge. In the result, the appeal is dismissed with costs. The judgment and decree passed by the learned Subordinate Judge are affirmed.
16. Leave for appeal under Clause 15 of the Letters Patent as prayed for by Mr. Fazlul Karim, the learned Advocate for the appellant, is refused.
S. B./A. H.
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