JUDGMENT
D. Appa Rao, J.
1. The unsuccessful plaintiffs preferred this appeal against the decree and judgment in O.S. No. 80 of 1989 of the learned Subordinate Judge, Mahboobnagar dismissing the suit filed for recovery of possession of house bearing Door No. 3-3-83 situated at Mahabubnagar.
2. The case of the plaintiffs, in brief, is that the 1st plaintiff Syed Burhan, since died, was the absolute owner of the plaint schedule house bearing Door No. 3-3-83, Madina, Masjid Road, Mahbubnagar. He executed an agreement of sale dated 28-6-1977 in favour of defendant. One of the stipulations is that the first plaintiff had to evict the tenant who was in occupation of the house and deliver vacant possession before registration. Accordingly, he got him evicted and delivered possession to the defendant on 8-9-1977. The date of registration was fixed to 9-9-1987. Since the defendant did not come, he cancelled the agreement, and called upon the defendant to vacate the premises. When he did not comply with his request, he filed suit O.S. No. 43 of 1978 for possession and on its dismissal, he preferred A.S. No. 565 of 1980. During pendency of the appeal, the defendant filed suit for specific performance in O.S. No. 105 of 1982. In the mean time A.S. No. 565 of 1980 was disposed off by the High Court directing the trial Court to examine the matter in O.S. No. 105 of 1982 afresh without influenced by the observations. After trial, O.S. No. 105 of 1982 was dismissed on 30-11-1988. In spite of the dismissal, he did not handover possession. Therefore, the plaintiff filed the present suit for possession of the plaint schedule house and for damages.
3. During pendency of the suit, plaintiff died and his Legal Representatives-plaintiffs 2 to 8 were added as parties.
4. The defendant filed written statement resisting the suit. However, he admitted the agreement of sale in his favour and delivery of possession on 8-9-1977. He denied that the date of registration was fixed as 9-7-1977. He denied the cancellation of agreement on 22-3-1978. When he found that the suit house stands in the name of the mother of the plaintiff, he requested him to obtain permission of his other brothers and sisters for executing the registration of sale deed as his mother was no more. He got paper publication in Siasat on 22-9-1977. The plaintiff promised to bring consent of his brothers and sisters. However, he did not turn upto execute sale deed as agreed orally on 5-10-1977. Having waited for five months, he got issued a legal notice asking him to execute a sale deed and receive balance of sale consideration. Contrarily the plaintiff filed O.S. No. 43 of 1978 and on its dismissal, preferred appeal A.S. No. 565 of 1980. He contended that he was entitled to retain possession by virtue of provisions of Section 53-A of the Transfer of Property Act (for short ‘the Act’) and that the agreement was in subsistence. He filed O.S. No. 105 of 1982 for specific performance. Since A.S. No. 565 of 1980 was pending by the date of his suit, the High Court while disposing of the appeal, observed that granting of decree for specific performance will be considered by lower Court, taking all the objections raised by both the parties. In fact, the said finding is an obiter dicta and not a binding on him. The cancellation of agreement is not correct. On dismissal of his suit, he preferred A.S. No. 1624 of 1989. He was entitled to remain in possession of the suit house by virtue of Section 53-A of the Act. This suit is liable to be dismissed as barred by limitation. It is also barred by res judicata. The plaintiff is equally not entitled to any damages. Therefore, he prayed for dismissal of the suit with costs.
5. Upon the pleadings, the trial Court framed the following issues:
1. Whether the plaintiff is entitled to receive the possession of the suit house ?
2. Whether the possession of the defendant is wrongful and the occupation is also wrongful ?
3. Whether the plaintiff is entitled for the damages in total of Rs. 40,858/- as prayed for by him ?
4. Whether the defendant is entitled to remain in possession by virtue of Section 53-A of Transfer of Property Act as contended by the defendant ?
5. Whether the plaintiff has no locus standi to file the suit ?
6. Whether the suit is barred by res judicata ?
7. Whether the claim for damages from 22-3-1978 to 31-5-1986 is clearly time barred and liable to be rejected as contended by the defendant ?
8. Whether the Court fee paid is not correct as contended by the defendant ?
9. To what relief ?
6. The third plaintiff was examined as P.W.1 and filed Exs.A-1 to A-5. Ex.A-1 and A-3 to A-5 are the Certified Copies of judgments in O.S. No. 105 of 1982, A.S. No. 565 of 1980, 1624 of 1984 and L.P.A. No. 241 of 1993 and Ex.A-2 is the Certified Copy of decree in O.S. No. 105 of 1982. Refuting his evidence, the defendant examined himself as D.W.1 and filed Exs.B-1 to B-9.
7. The trial Court after considering the evidence placed on record, opined that the suit was barred under the provisions of Order II Rule 2 of the Code of Civil Procedure and hit by principles of res judicata. The plaintiff was not entitled for possession in view of protection provided under Section 53-A of the Act. The suit was barred by limitation. Therefore, he cannot be evicted. Equally, he was not liable to pay any damages. Accordingly, he dismissed the suit.
8. Aggrieved by the said decision, the plaintiffs preferred this appeal contending that the trial Court did not appreciate the facts or law in correct perspective. The trial Court did not appreciate the fact that the suit O.S. No. 105 of 1982 filed by the defendant for specific performance was dismissed, and the same was confirmed in appeal 1624 of 1989 and further appeal in L.P.A. No. 241 of 1993. When the defendant failed in his attempt to get the relief of specific performance, he had no right of protection under Section 53-A of the Act. The trial Court ought to have awarded damages as the defendant continues to remain in possession without paying any amount whatsoever, for more than 30 years. Therefore, he prayed that the appeal be allowed.
9. In the light of the contentions, the following points arise for consideration:
1. Whether the plaintiff is entitled for possession of the suit house in view of the dismissal of the suit for specific performance filed by the defendant ?
2. Whether the suit is barred under Order 11 Rule 2 CPC and also hit by principles of res judicata?
3. Whether the plaintiffs are entitled for damages ?
10. It is an undisputed fact that the first plaintiff, the father of the plaintiffs 2 to 8, Syed Burhan, executed Ex.B-1, agreement of sale, dated 28-6-1977 in favour of the defendant for sale of the plaint schedule house. He also delivered possession to him on 8-9-1977. On the premise that the defendant did not comply the terms and conditions of the agreement Ex.B-1, he cancelled the agreement of sale and filed O.S. No. 43 of 1978 for possession. The said suit was dismissed vide judgment, Ex.B-5, dated 24-11-1978, on the ground that there was an agreement in favour of the defendant and he was entitled to protection under Section 53-A of the Act. An appeal A.S. No. 565 of 1980 was filed.
11. During pendency of the above appeal, the defendant came up with suit O.S. No. 105 of 1982 for specific performance of contract. During pendency of the above suit, A.S. No. 565 of 1980 came up for consideration before the High Court {vide Certified Copy of the judgment marked as Ex.A-3). The High Court while dismissing the said appeal, observed:
That is a matter which the lower Court will consider at the trial of the suit filed by the Vendee for specific performance of the agreement. The lower Court will, no doubt, examine the matter afresh and consider all the pleas available and put forth by the parties without being influenced with what has been said in this judgment or what has been said by the lower Court in O.S. No. 43 of 1978 on the file of the Subordinate Judge, Mahboobnagar. This appeal fails with costs.
12. Undisputably when an agreement of sale was in existence between the parties and pursuant to the said agreement, possession was given, the agreement holder could resist the suit for possession by virtue of provision under Section 53-A of the Act, more so, when the very suit filed by the defendant for specific performance was pending.
13. Subsequently, O.S. No. 105 of 1982 filed by the defendant for specific performance was dismissed on 30-11-1988 evidenced under copies of judgment and decree in Exs.A-1 and A-2, respectively. An appeal A.S. No. 1624 of 1989 and further appeal L.P.A. No. 241 of 1993 filed by the defendant were dismissed confirming the judgment in O.S. No. 105 of 1982 vide Exs.A-4 and A-5.
14. Since the Court denied specific performance and as the defendant was in possession of the property by virtue of the agreement, the plaintiff has come up with the present suit for possession.
15. Section 53-A of the Act stipulates conditions when the transferee could defend his possession, when the transferor seeks to enforce his rights against the property.
16. The moot question therefore arises whether the plaintiff is entitled to possession when the defendant fails in his effort to get specific performance of the agreement.
17. In the suit filed by defendant in O.S. No. 105 of 1982 for specific performance, the trial Court on the evidence adduced, opined that the defendant never entertained any doubt about the title of the plaintiffs, though belatedly a plea was token that the property belongs to his mother. It was further opined that the defendant herein was not entitled to a decree for specific performance. It was also held that the said relief was barred by limitation. Confirming these findings, this Court in appeal A.S. No. 1624 of 1989 held that the appellant herein has committed breach of contact by not paying the balance of amount though he was put in possession. It was also held that non-payment of balance of sale consideration by due date amounts failure to comply the terms of agreement. It was also held that the suit was barred by limitation. Against the said judgment, the defendant preferred L.P.A. No. 241 of 1993. The High Court considering on this aspect, opined:
Ex.A-4 dated 2-3-1989 is the notice issued by the plaintiff-appellant calling upon the defendant-respondent to execute the sale deed and register the same in his favour. There is no mention in Ex.A-4 about the willingness on the part of the plaintiff to perform his part of the contract. Ex.A-7 is the reply issued by the defendant-respondent in which it was categorically mentioned that the plaintiff had not for a long time paid the balance of sale consideration of Rs. 21,500/- in spite of several reminders even though the defendant was willing to perform his part of the contract. In Para 2 of Ex.A-7, it was specifically mentioned that the agreement was cancelled as the plaintiff “has not paid the balance amount”. It is, therefore, clear from the recitals of Ex.A-7 that the repudiation was on 22-3-1978 and so the prescribed period of limitation under Article 54 runs from the date of repudiation of Ex.A-7. Admittedly, as the suit was filed in 1982, it is clearly barred by time.
Finally it held:
As it was clearly mentioned that all the aspects have to be examined afresh in the suit from out of which the present appeal has arisen, whatever observations were made by the trial Judge who decided O.S. No. 43 of 1978 have no application at all. We, therefore, are not inclined to agree with the submission of Sri G. Srirama Rao that the finding of the learned trial Judge in O.S. No. 43 of 1978 that the appellant-plaintiff therein is ready and willing to perform his part of the contract binds the opposite party.
(emphasis supplied).
18. Therefore, consistently the Courts have observed that the appellant, defendant in the suit, was not ready and willing to perform his part of contract. This judgment has become final. No appeal was preferred to the Supreme Court.
19. The learned Counsel for the respondent also relied Shrimant Shamrao Suryavanshi and Anr. v. Pralhad Bhairoba Suryavanshi (dead) by LRs. and Ors. , where in Supreme Court opined that when a party was debarred from seeking specific performance in view of the fact that it was barred by limitation, still he was entitled to protect his possession under Section 53-A of the Act. The Supreme Court observed that if the conditions enumerated under Section 53-A of the Act are complied with, the law of intimation does not come in the way of a defendant taking plea under Section 53-A of the Act to protect his possession of the suit property even though a suit for specific performance of a contract is barred by limitation. The Supreme Court also opined that certain conditions are required to be fulfilled if a transferee wants to defend or protect his possession under Section 53-A of the Act. The necessary conditions are:
1. there must be a contract to transfer for consideration of any immovable property;
2. the contract must be in writing, signed by the transferor, or by someone on his behalf;
3. the writing must be in such words from which the terms necessary to construe the transfer can be ascertained;
4. the transferee must in part-performance of the contract take possession of the property, or of any part thereof;
5. the transferee must have done some act in furtherance of the contract and
6. the transferee must have performed or be willing to perform his part of the contract.
If the conditions enumerated above are complied with, the law of limitation does not come in the way of a defendant taking plea under Section 53-A of the Act to protect his possession of the suit property even though a suit for specific performance of a contract is barred by limitation.
(emphasis mine).
20. The learned Counsel for the respondent contended that in view of the fact that in the suit filed by him for recovery of possession, the relief was negatived solely on the ground that it was barred by limitation, therefore, they are entitled to protect their possession under the agreement. No question of limitation arises under Section 53-A. The right of defence is not lost even if the person claiming such right has no present right to enforce the contract by way of specific performance. In support of his contention, he relied Somireddy Veeraiah v. Nagabandi Ranganaikulu and Ors. 1967-II An.W.R.2.
21. That was a case where the simple mortgage filed the suit for possession of the land and redemption of usufructuary mortgage. In spite of mortgage being satisfied, the possession was not given and therefore, they sought for recovery of possession. The defendants pleaded that there was an agreement of sale in their favour. On that it was observed:
The possession of the mortgagee subsequent to the discharge of the mortgage cannot be attributed to the mortgage. It is referable only to the agreement of sale. From the terms of the agreement as well as from the evidence and circumstances of the case, it is clear that the possession of the mortgagee subsequent to the execution of the agreement continued as possession of a purchaser. Section 53-A does not require any concurrent act or any specific consent on the part of the transfer or to the continuance of possession by the transferee in pursuance of the contract.
The acts of the vendors and the vendee when they applied to seek permission for executing a sale deed and the appropriation of the amount previously paid towards part-payment of consideration of the agreement to sell constitute acts in furtherance of a contract for sale.
22. It was contended that the agreement was barred by limitation. In that context, it was observed:
The law of limitation does not apply to defences set up by the defendant. Since the provisions of Section 53-A of the Transfer of Property Act confer a right which is available to a defendant to protect his possession on the foot of an agreement to sell, no question of limitation arises under Section 53-A. The right of defence is not lost even if the person claiming such right has no present right to enforce the contact by way of specific performance.
23. At the cost of repetition, I may state that the defendant having lost the suit filed for specific performance and when he could not prove that he was ready and willing to perform his part of contract, he was not entitled to retain possession by virtue of Section 53-A of the Act.
24. The learned Counsel for the appellants relied decisions in Sardar Govindrao Mahadik and Anr. v. Devi Sahai and Ors. , Dhanasekaran v. Manoranjithammal and Ors. and K. Venkata Rao and Ors. v. Sunkara Venkata Rao , for the proposition that the person claiming the benefit of part performance must always be shown to be ready and willing to perform his part of the contract. And if it is shown that he was not ready and willing to perform his part of the contract, he will not qualify for the protection of the doctrine of part performance.
25. Section 53-A requires that the person claiming the benefit of part performance must always be shown to be ready and willing to perform his part of contract. And if it is shown that he was not ready and willing to perform his part of the contract he will not qualify for the protection of the doctrine of part performance. I reiterate the essential condition necessary to debar the transferor from enforcing his right to the property against the transferee is the latter’s willingness to perform his part of the contract.
26. The subtle distinction is where the defendant raised a plea, as bar under Section 53-A of Transfer of Property Act, the Court has to consider whether he was ready and willing to perform his part of contract. However in the previous litigation when the Courts held that he was not ready and willing, the said finding is binding. The Court now cannot go into the said fact once again as they become final.
27. A judicial finding was given in the earlier suit filed by him that he was not entitled to the relief of specific performance. It was not only on the point of limitation but also on the ground that he was not willing to perform his part of contract within stipulated period. Therefore, he was not entitled to the benefit under Section 53-A of the Act.
28. The trial Court went wrong in stating that the suit was barred under Order II Rule 2 CPC in view of the fact that the plaintiffs have lost the suit earlier filed for possession. I may state that in the very appeal, the High Court in A.S. No. 565 of 1980 has categorically observed that the trial Court has to proceed with the suit without concern with the findings in O.S. No. 43 of 1978. No appeal was preferred against the said finding and it has become final. The cause of action for filling of the suit was on the ground that the appellants have refused to perform their part of contract and the said finding was confirmed by the Courts consistently. The cause of action in earlier suit was that he terminated the agreement. The cause of action pleaded in the suit is not available to the plaintiffs. They are different. Equally the judgment in A.S. No. 565 of 1980. No issue was held against the plaintiffs so that it can constitute res judicata. The party cannot cling on to possession without performing his part and resist the suits filed by the real owner for obtaining possession. Section 53-A of the Act will come to rescue for those persons, who are willing to perform their part of contract. It will not come to the rescue for those persons, against whom the Courts had opined that they were not entitled to the relief of specific performance.
29. The trial Court did not consider this aspect in correct perspective. Solely on the ground that there was an agreement in favour of the defendant, the trial Court thought that it would give him a right to defend his possession. It had ignored the decree and judgment in the suit filed by the defendant in O.S. No. 105 of 1982, confirmed in appeal A.S. No. 1624 of 1989 and further appeal L.P.A. No. 241 of 1993. Therefore, the judgment of the trial Court is liable to be set aside.
30. Since the suit was dismissed, the trial Court did not award any damages as claimed viz., at the rate of Rs. 200/- per month from 22-3-1978 to 31-12-1982 and from 1-1-1983 to 31-12-1986 at Rs. 300/- per month and at Rs. 500/- per month from 1-1-1987 to 30-6-1989 totalling an amount of Rs. 40,858/-. The agreement was executed on 28-6-1977. Ultimately, the defendant was held not entitled to specific performance. Naturally, he was liable to pay damages at least from the date of rejection of his plea for specific performance from 2-12-1993. Therefore, the plaintiffs are entitled to damages from the date of filing of the suit till he recovers possession. The plaintiff is directed to file an application for adjudication of this amount before the trial Court.
31. In the result, the appeal is allowed with costs, setting aside the decree and judgment in O.S. No. 80 of 1989. Consequently, the suit is decreed with costs. The defendant is directed to handover the possession of the plaint schedule property within two months from the date of this judgment. The plaintiffs are also entitled to the damages. However, in this regard, they can as well file an application before the trial Court for adjudicating the quantum of damages.