JUDGMENT
Subhash Samvatsar, J.
1. This appeal is filed by the plaintiff challenging judgment and decree dated 23-12-85 passed by 5th Addl. District Judge, Indore in Civil Appeal No. 251/84 which was preferred by the appellant plaintiff challenging judgment and decree dated 14-3-84 passed by 7th Civil Judge, Class I, Indore in Civil Suit No. 124-A/81.
2. Brief facts of the case are that the appellant plaintiff has filed the present suit for possession and damages against the respondent alleging that the plaintiff is owner of agricultural land situated at Village Chitwana having an area of 22 acres and 68 decimal. He has entered into an agreement to sale the said land with the respondents for Rs. 40,000/- vide agreement Ex. P-1, dated 7-6-76. Out of the said amount, an amount of Rs. 21,000/- was paid at the time of agreement and it was agreed that the balance amount of Rs. 19,000/- shall be paid at the time of execution of registered document. The possession of the land was also handed over to the defendants. As per the plaintiff it was agreed that registered sale deed shall be executed only after vacation of stay order passed by 6th Civil Judge Class II, Indore in Civil Suit No. 277-A/72 in which an injunction was passed against the plaintiff from restraining him from transferring the property. As per the plaint allegations the injunction was vacated on 27-9-76 and this fact was informed to the defendants but the defendants did not take any steps for execution of the sale deed. Plaintiff served a registered notice dated 8-11-78 to the defendants cancelling the agreement and demanding possession. As the said notice was not complied with the present suit was filed.
3. Case of the defendants is that the property is recorded in the name of Kunwarbai, mother of the plaintiff and so long as property is not mutated in the name of the plaintiff, the plaintiff has no right to transfer the property or to execute the sale deed.
4. Both the Courts below dismissed the suit by holding that since the property is not mutated in the name of present plaintiff, he is not a Bhumiswami and, therefore, has no right to execute the sale deed.
5. This appeal is admitted by this Court on following substantial question of law:–
“Whether the Courts below were justified in holding that without mutation the appellants were not competent to sell the suit lands ?”
6. Shri M.L. Agarwal, learned Counsel for the appellant submitted that the Courts below have erred in dismissing the plaintiff’s suit on the ground that the land is not recorded in the name of plaintiff. Kunwarbai is the mother of the plaintiff and after her death the property has devolved on the plaintiff as per the provisions of Section 164 of the M.P. Land Revenue Code (herein after referred to as the ‘Code’) and, therefore, even in absence of mutation in the name of plaintiff, it can not be said that the plaintiff has no right to sale the property. For this purpose Shri Agarwal, relied on the judgment of Apex Court in the case of Smt. Sawarni v. Smt. Inder Kaur and Ors., (1996) 6 SCC 223, in which the Apex Court has held that the mutation does not create or extinguish the title nor has any presumptive value on title. The mutation of property is only for the purpose of paying the land revenue. Shri Agarwal, also relied on the judgment of this Court in the case of Asha Lamba (Smt.) and Ors. v. Board of Revenue and Ors., 1999 Revenue Nirnaya 401, in which it is held that mutation in favour of a person does not affect the rights of the true owner. The mutation is only for a fiscal purpose.
7. Thus, according to him the absence of mutation in the name of plaintiff is not sufficient to hold that the plaintiff has no right to sale the property. In reply to these arguments, Shri B.A. Nigam, learned Counsel for the respondent has invited my attention to various provisions of M.P. Land Revenue Code including Sections 2 (i), 2 (z), Section 57, Sections 110, 157, 158, 159 and 165 of the Code. According to him as the plaintiff has not acquired the status of Bhumiswami he is not competent to execute any sale deed. According to him the defendants were always ready and willing to perform their part of the contract but in absence of mutation in the name of plaintiff, no registered sale deed can be executed. According to him Section 165 of the Act creates a bar of execution of a registered document. According to him under the said section only a Bhumiswami is competent to execute the sale deed.
8. In view of the judgments referred above I find that the arguments advanced by Shri Nigam have no force. Plaintiff has acquired title to the suit property under Section 164 of the Code and mere absence of mutation will not extinguish his rights accrued to him under Section 164 of the Code as the property has devolved in the plaintiff after the death of Kunwarbai who was the Bhumiswami.
9. Now the next question is whether the decree for possession can be passed in the present case or the defendants are entitled to the protection under Section 53A of the Transfer of Property Act (hereinafter referred to as ‘the Act’). In the present case the agreement between the parties have taken place in the year 1976. Till today the defendants have not filed any suit for specific performance nor even served a notice asking the plaintiff to execute the sale deed. On the contrary they have not even replied to the notice served by the plaintiff and have avoided the execution of the sale deed merely on the ground that there is no mutation in the name of the plaintiff. ,As per the agreement the registered document was to be executed after vacation of the stay order. Stay order was vacated on 27-9-76 vide order Ex. P-5. This fact was informed to the defendants vide notice Ex. P-2. Said notice was not replied. Moreover, there is no condition or a term in the agreement (Ex. P-1) to the effect that the sale deed will be executed only after mutation of the land in the name of the plaintiff. Thus, the defendants are relying on a condition which does not find place in the agreement (Ex. P-1).
10. The Courts below have held that there is an implied condition in the agreement but in my opinion the said view is not sustainable in view of the judgments in the cases of Smt. Sawarni (supra) and Smt. Asha Lamba (supra) and in view of the provisions of Section 164 of the Code.
11. Shri Agarwal, Counsel for the appellant has also relied on the judgment in case of Mohanlal v. Mira Abdul Gaffar and Anr., AIR 1996 SC 910, in which the Apex Court has held that a party who is in possession of the suit property in pursuance of an agreement to sale is entitled to the protection under Section 53A of the Act only if he is willing to perform his part of the contract. Similar view is taken by the Apex Court in the case of Ram Kumar Agarwal and Anr. v. Thawar Das, AIR 1999 SC 3248. In that case the purchaser had filed the suit for specific performance which was dismissed on the ground that the same is filed after 9 years of the execution of the agreement and the Apex Court has held that this show that the purchaser was not ready and willing to perform his part of the contract and, therefore, he is not entitled to protection of his possession under Section 53A of the Act. Another judgment cited by Counsel for appellant is in the case of Sunder Bai (Smt.) and Ors. v. Mohit Ram, 2002(2) Vidhi Bhasvar 277. In that case this Court has held that defence under Section 53A of the Act is not available to the intending purchaser who is neither performing his part of the contract nor even replying the notices served by the seller. In that case this Court has held that the intending purchaser has not taken any steps for execution of the registered sale deed nor has paid the balance amount of the price, hence it can not be said that the intending purchaser is entitled to protection under Section 53A of the Act and a decree for possession can be passed against such intending purchaser. The next case relied by Counsel for appellant is in the case of Guruvachan Singh v. Manjit Singh, 2000(2) MPLJ 140. In that case the defendant was put in possession on payment of Rs. 5,000/- as advance. He has not taken any steps for specific performance of the contract. This Court in that case passed a decree for possession by holding that he is not entitled to protection under Section 53A of the Act and also passed a decree for forfeiting the amount of Rs. 5,000/- paid in advance.
12. In the present case also the defendants have paid only an amount of Rs. 21,000/- out of Rs. 40,000/-. He is enjoying the possession for more than 30 years without paying the balance amount of price. He has not filed any suit for specific performance nor even replied to the notice addressed by the plaintiff. He has not taken any steps for ‘execution of registered’ sale deed and is avoiding the registry merely on the false pretext that there is no mutation in the name of the plaintiff particularly when there is no such term in the agreement. Thus, mere statement of the defendants that they are always ready and willing to perform their part of the contract provided that the plaintiff gets the land mutated in his name is not sufficient to prove their readiness and willingness to perform the contract.
13. In such circumstances in my opinion he is not entitled to retain the possession of the property. As regard question of refund of Rs. 21,000/-, First Appellate Court has found that the defendants have spent nearly Rs. 60,000/- on construction of a well and rooms on the suit premises. He has also enjoyed the property for more than 30 years by paying nearly 50% of the amount of the said price. Considering all these circumstances I deem it fit that the decree for possession shall be executed only after deposit of Rs. 21,000/-with interest at the rate of 6% from the date of this judgment. Thus, this appeal succeeds and is allowed. Judgment and decree passed by two Courts below is set aside and the suit filed by the appellant is decreed with costs.
