The plaintiff is the appellant. The suit is for declaration of plaintiff's title to the suit house and for recovery of possession. The plaintiff's case is that the suit property fell to his share, that the defendant took it on lease orally from the plaintiff agreeing to pay rent of Re. 1 per mensem, that the defendant is residing in the suit house from 15th Chitral 1959 corresponding to 29th April, 1959 under that agreement, that the defendant has paid tent till 29th April, 1961 and failed to pay the balance. The plaintiff issued a notice to the defendant upon him to vacate to which the defendant sent a reply stating that he purchased the suit house from the plaintiff's father on 3rd April, 1956 and that there is no tenancy agreement between him and the plaintiff. The plaintiff therefore filed the present soil for declaration of title as also for possession. The defence to the suit is that he did not take the property on lease from the plaintiff on 29th April, 1959, that he purchased the suit noise from the plaintiff's father for Rs. 25 on 3rd April, 1956, that he has been residing in the and house since April, 1956 enjoying the same, paying taxes therefor and the plaintiff is not entitled to any right in the suit property. The defendant further contended that in view of the fact that he was in enjoyment of the property under an unregistered agreement dated 3rd April, 1956 he was entitled to rely on S. 53-A of the Transfer of Property Act and that the plaintiff is not entitled to the declaration prayed far or for possession. The trial court decreed the suit holding that the defendant is only a trespasser. On appeal by the defendant, the appellate court held that the defendant is act a trespasser, that the defendant purchased the suit property on 3rd April, 1956, that the defendant was given possession by the plaintiff's father in purchase of that sale deed, that the defendant can successfully resist eviction by virtue of the benefit conferred upon him by S. 53-A of the Transfer of Property Act; The learned Judge also recorded a finding that Ex. B-2 is a fraudulent or fabricated document. In the result the Subordinate Judge allowed the appeal and set aside the decree of the trial court.
The plaintiff filed this second appeal and his main contention is that the defendant has not established that he was pat in possession of the suit property in pursuance of Ex. B-2 and that the plea under S. 53-A of the Transfer of Property Act is act available to him. It is contended that there is documentary evidence to establish defendant's possession only from 1959 and not before and that it cannot therefore be said that the defendant was pat in possession of the suit property in pursuance of Ex. B-2 in April, 1956, in other words, in the gap between 1956 and 1959 the defendant has not established that he was in possession of the suit property. In order to make S. 53-A applicable, the defendant must establish some overt act in part performance of the contract of sale. Mere payment of sale consideration is not enough. Change in the possession of land from the vendor to the vendee is an act of part performance both of the person who gives and of the person who takes possession. It is therefore contended that unless it is established that the defendant was put in possession of the property in pursuance of the contract of sale, S. 53-A is inapplicable. In Morphett v. Jones,(1) Sir Thomas Piumer, M.R said that.—
“The acknowledged possession of a stranger in the lend of another is not explicable except on the supposition of an agreement and has therefore constantly been received as evidence of an antecedent contract, and as sufficient to authorise an enquiry into the terms the court regarding what has been done as a consequence of contract or tenure”.
In Broughton v. Snook(2) it was held by Farwell, J. that the expenditure on alterations and decorations was an act which was in the circumstances of the case referable only to the contract. In the present case, the appellate court has held that the defendant has been in possession of the property in pursuance of the contract of sale and that finding is supported by materials on record. The evidence of D.W 3 which has been accepted by the appellate court clearly shows that the defendant was pat in possession in pursuance of the contract and 10 or is days thereafter the suit house was constructed. I accept the finding of the learned Subordinate Judge. In the result the appeal fails and is dismissed. Where will be no order as to costs. No leave.
V.C.S