D.P Mohapatra, J.:— Defendant No. 3 in the suit has filed this second appeal against the judgment and decree of the lower appellate court reversing the decision of the trial court and decreeing the suit for specific performance of contract of sale of the suit land. The suit land, as described in the schedule to the plaint is: —
“District Cuttack, S.R Tirtol, Touzi No. 2484 mouza-Raypurpatna, Sthitiban khata No. 134/13 (sabak) plot No. 20, A. 0. 21 dec. and plot No. 21, A. 0. 20 dec. total A. 0. 41 dec. out of A. 1. 18 dec. towards east, bounded by — N. Bira Sethi & Babaji Sethi,. S. River, E. Dhaneswar Behera, W. Keshab Rout.”
2. Plaintiff-respondent No. 1 Duryodhan Mohapatra filed Title Suit No. 68 of 1979 against Gopinath Satapathy (since deceased and substituted by defendants 1, 1.a and 1.b). Laxmidhar Satapathy and Ramachandra Swain, respondents 1, 2 and 3 respectively, with the prayers that defendants 1 and 2 be directed for executing and registering the sale deed with respect to the suit land in favour of the plaintiff after receipt of the balance consideration of Rs. 500/- within a time fixed by the court, otherwise the sale deed may be executed by the court after depositing the balance consideration of Rs. 500/-, and that defendant, No. 3, his men and agents be permanently restrained from interfering with the peaceful possession of the plaintiff and from coming upon the suit land.
3. The case of the plaintiff, shorn of unnecessary details, is that defendants 1 and 2 were the original owners of the land described in the schedule to the plaint. The plaintiff was the Bhag tenant of the suit land under them since the last 18 years. On 15-8-1978, the plaintiff entered into an agreement with defendants 1 and 2 to purchase the suit land for a consideration of Rs. 1,500/-. A deed of agreement was executed on the very day and the plaintiff paid Rs. 1,000/- as advance consideration to defendants 1 and 2 whereafter the latter delivered possession of the land to the former as the owner thereof. The plaintiff is in possession of the suit land as owner since 15-8-1978. The plaintiff was always ready and willing to perform his part of the contract and approached defendants 1 and 2 several times to execute and register the sale deed on receipt of the balance consideration amount of Rs. 500/-, but they deferred the matter on some plea or the other and lastly paid no heed to the request of the plaintiff. Ramachandra Swain (defendant No. 3) disturbed the possession of the plaintiff over the suit land on 24-5-1979 and did not allow him to cultivate the land giving out that he has purchased the land from defendants 1 and 2 by a registered sale deed executed on 1-12-1978 (Ext-A). The plaintiff alleged that defendant No. 3 intentionally and fraudulently and with a view to harass him purchased the suit land with the prior knowledge and notice of the deed of agreement executed by the vendors (defendants 1 and 2) in favour of the plaintiff on 15-8-1978 and, therefore, he (defendant No. 3) has not acquired any right, title or interest over the suit land. The lawyer's notice sent by the plaintiff to defendants 1 and 2, the owners of the land, evoked no response. Defendant No. 3 took the false plea that since no specific land was mentioned in the notice, he was not in a position to know which land the plaintiff was referring to. In such circumstances, the plaintiff filed the suit with the prayers noticed earlier.
4. Defendants 1 and 2 in their written statement totally disowned the claim of the plaintiff. They controverted the relevant averments in the plaint. They denied that the plaintiff was the Bhag tenant under them in respect of the suit land; that he was in possession of the suit land at any point of time; that they had entered into any agreement with him for sale of the suit land; and that they had received any money from him as advance consideration amount with a promise to execute and register the sale deed on receipt of the balance consideration money. They asserted that as real owners of the suit land, they have sold the same in favour of defendant No. 3 and have received the proper consideration money. The so-called agreement alleged to have been entered into by them with the plaintiff is a manufactured and fabricated document. Their case was that the suit has been falsely filed due to inter se rivalry between the plaintiff and defendant No. 3.
5. Defendant No. 3 in a separate written statement reiterated the case pleaded by defendants 1 and 2. He denied that there was any prior agreement between the plaintiff and defendants 1 and 2 for sale of the suit land. The alleged agreement produced by the plaintiff is a forged and fabricated document, He also denied that the plaintiff was in possession of the suit land either as a Bhag tenant or as the owner thereof. Defendant No. 3 asserted that he purchased the suit land from defendants 1 and 2 on payment of proper consideration by means of the registered sale deed dated 1-12-1978 and from the date of execution of the sale deed, he has remained in khas possession of the suit land. He took the plea that being a bona fide purchaser and without having prior notice of the alleged agreement, his right title and possession over the suit land is not affected by the alleged agreement.
6. On the pleadings of the parties, the learned Munsif framed ‘six issues, of which the following are relevant for the present purpose: —
“3. Is the deed of agreement dated 15-8-78 valid, genuine and binding on the defendants?
4. Was the plaintiff a Bhag tenant in respect of the suit Sand till 15-8-78 and has he been possessing the suit land thereafter as the owner thereof?
5. Is the defendant No. 3 a bona fide purchaser for valid consideration without previous notice of the agreement Both parties led oral and documentary evinence in supoort of their respective cases. On assessment of the evidence on record, the learned Munsif disbelieved the plaintiff's case that he was a Bhag tenant in respect of the suit land for 17-18 years and thereafter has been possessing the same as its owner for the last five years (issue No. 4). He held that the deed of agreement dated 15-8-1978 (Ext. 3) is neither a valid nor a genuine document and as such is not binding on the defendants (issue No. 3) and that defendant No. 3 bad no knowledge of any previous agreement at the time of his purchase of the suit land from the real owners and as such he is a bona fide purchaser for valid consideration (issue No. 5). The learned Munsif was also of the view that defendant No. 3 has satisfied all the ingredients for getting the protection of section 19(b) oi the Specific Relief Act and that : here is nothing to show that the plaintiff has done some act in urtherence of the contract, as requited under section 53-A of he Transfer of Property Act. On the above findings, the learned funsif dismissed the suit. On appeal being filed by the plaintiff (Title Appeal No. 20 f 1983), the learned Subordinate Judge, Jagatsinghpur set aside the decision of the learned Munsif, decreed the suit and directed defendants 1 and 2 to execute and register a sale deed in favour of the plaintiff on accepting the balance consideration money of Rs. 500/- within two months. As the discussion in the judgment (paragraph 5) shows, the only questions raised for determination in the appeal were whether the plaintiff has discharged bis initial onus under section 53-A of the Transfer of Property Act, and whether defendant No. 3 has proved his case of being a bona fide purchaser for value without notice. The lower appellate court believed the case of the plaintiff that he was in possession of the suit land prior to the agreement as a Bhag tenant and after the agreement as the owner. He did not believe the evidence of defendant No. 2, who was examined as d.w 3. Relying on the statement of this witness that five to six days after the suit he for the first time identified the suit land to defendant No. 3, the court below disbelieved the plea of defendant No. 3 that he was in possession of the suit land. The court below rejected the plea taken by defendant No. 3 that he was a bona fide purchaser for value without notice. On these findings, the learned Subordinate Judge decreed the suit on setting aside the decision of the learned Munsif. Therefore, defendant No. 3 has filed this second appeal challenging the decision of the lower appellate court.
7. Shri B. Routray appearing for the appellant contended that the plaintiff cannot avail of section 53-A of the Transfer of Property Act in a suit for specific performance of contract of sale and the requirement of the said section is not satisfied in the case since there is neither any pleading nor any evidence to show that the plaintiff had done anything in furtherance of the contract. He submitted that even accepting the finding of possession in favour of the plaintiff recorded by the lower appellate court, mere continuance of possession cannot be said to be an act in furtherance of the contract of sale. He cited several decisions in support of his contention. I may notice a few of them here.
8. The Allahabad High Court in the case of Kasi Nath Tewari v. Makchhed Tewari (A.I.R 1939 Allahabad 504) held that section 53-A of the Transfer of Property Act can be used only as a shield and not as a sword and it is not possible for a person who is entitled to the benefits of that action to bring a suit as plaintiff for the purpose of enforcing right under that section. The Court placed reliance on the ? cision of the Privy Council in Currimbhoy & Co. Ltd. v. Crest, A.I.R 1933 P.C 29).
9. In the case of Prabodh Kumar Das v. Dentmara ea Co. Ltd. (A.I.R 1940 P.C 1), it was observed—
“The amendment of the law effected by the enactment of S. 53-A conferred no right of action on a transferee in possession under an unregistered contract of sale. The right conferred by S. 53-A is a right available only to the defendant to protect his possession. The section is so framed as to impose a statutory bar on the transferor; it confers no active title on the transferee. “ lying on the above decision of the Privy Council, the Supreme court in the case of Delhi Motor Co. v. U.A Basrurkar tad) by his legal representatives (A.I.R 1968 S.C 4) took the view that section 53-A of the Transfer of Property : t is only available as a defence to a lessee and not as conferr- a right on the basis of which the lessee can claim rights against a lessor.
The Calcutta High Court also followed the said decision the Privy Council in the case of Sm. Parul Bala Ghosh v. Saroj amar Goswami (A.I.R 1948 Calcutta 147) and held it the right conferred by S. 53-A is a right available only to a defendant to protect his possession. It confers no active on the transferee. Thus a transferee in possession under a tract of sale cannot avail himself of the provisions of S. 53-A a suit by him for specific performance of the contract.
A similar view was also taken by the Patna High Court the case of Garaj Narain Singh… v. Babulal Khemka…. (A.I.R 5 Patna 58).
10. Coining to the contention raised by Shri Routray th the lower appellate court also erred in law in holding that th criteria for application of section 53-A of the Transfer of Proper Act have been satisfied by the plaintiff merely on the grout that his possession has been found prior to the agreement (Ext. and subsequent to it, it will be helpful to notice the decision the Supreme Court in the case of Sardar Govindrao Mahadik v. Devi Sahai, ((1982) 1 SCC 237 : A.I.R 1982 S.C 989, which the Court ruled:—
“To qualify for the protection of the doctrine part-performance it must be shown that there is contract to transfer for consideration immovable pr party and the contract is evidenced by a writing sign by the person sought to be bound by it and from which the terms necessary to constitute the transfer can I ascertained with reasonable certainty. These are pr requisites to invoke the equitable doctrine of par performance. After establishing the afore mention circumstances it must be further shown that a transfer had in part performance of the contract either tab possession of the property or any part thereof or transferee being already in possession continues in possesion in part-performance of the contract and done some act in furtherance of the contract. The must be a teal nexus between the contract and the act done in pursuance of the contract or in furtherance the contract and must be unequivocally referable to contract.”
(Emphasis supplied).
11. Dealing with the case of continuance of possession, the Court observed: —
“There is an understandable and noteworth difference in the probative value of entering into poss ssion for the first time and continuing in possession with a claim of change in character. Where person claiming benefit of part performance of a contract was already in possession prior to the contract, the Court would expect something independent of the mere retention of possession to evidence part performance. Therefore, mere retention of possession, quite legal and valid, if mortgage with possession is not discharged. could hardly, be said to be an act in part performance unequivocally referable to the contract of sale.”
(Emphasis supplied).
12. The Court further observed: —
“Where, therefore, the mortgagee has failed to prove that be did any act in furtherance of the contract, continued retention of possession being a circumstance of neutral character in the facts and circumstances of the case and it being further established that the mortgagee was not willing to perform his part of the contract, it is clear that the mortgagee is not entitled to the benefit of the equitable doctrine of part performance”
13. From the conspicuous of the views taken in the aforementioned decided cases, the position of law is manifest that section 53-A of the Transfer of Property Act is not available to the plaintiff in a suit for specific performance of contract. Further, in order to avail of the benefit of the said statutory provision, the party concerned has to establish that he has done something in furtherance of the contract and is always ready and willing to perform bis part of the contract. In a case where the plea taken is one of continuing in possession with a change of character of possession, the party cannot succeed by establishing more continuance of possession of the property and he has to establish some other action taken in furtherance of the contract. Applying the aforesaid principle to the case in hand, the suit is bound to be dismissed. The lower appellate court committed an error of law in applying the provision of section 53-A of the Transfer of Property Act in favour of the plaintiff. He also committed an error of law in applying the said section in support of the plaintiff's case on the mere finding that he continued in possession after execution of the agreement for sale (Ext. 3), without recording any finding that the plaintiff has succeeded in establishing any independent act to show that he had done something in furtherance of the contract of sale. The decision of the Supreme Court in the case of Ram Bilns Ojha v. Biswa Muni, -((1979) 1 SCC 21 : A.I.R 1978 S.C 1094), on which the lower appellate court has placed reliance, is clearly distinguishable. That is not a decision on section 53-A of the Transfer of Property Act. There, the Court considered section 10 of the Specific Relief Act, 1963 in in relation to the plea of bona fide purchase without notice. The Court observed that in view of the false plea taken by the subsequent purchasers that they were in possession, it could not be said that they were bona fide purchasers without notice. Indeed, the Court has observed: —
“This defence would have had some substance if it was taken in the pleadings and spoken to in the evidence. His plea on the other hand was that the respondents 1 to 3 were not in possession. The usufructuary mortgage was not referred to in the sale deed in favour of the appellant. On the facts, therefore, we have no hesitation in coming to the conclusion that all the courts below were right in holding that the appellants were not bona fide purchasers without notice.”
14. In the present case, as discussed earlier, the most question is whether the plaintiff can claim the equitable relief of specific performance of contract of sale relying on section 53- A of the Transfer of Property Act. As I have already held, that question, in the facts and circumstances of the case, is to be answered in the negative. Therefore, it is not necessary to consider the further question whether defendant No. 3 was a bona fide purchaser for value without notice of the prior sale. I may observe here that even on this question, the finding of the lower appellate court is not satisfactory. He has not come into close quarters with the reasons stated in the judgment of the trial court. The trial court has discussed the evidence on record in great detail and has given cogent reasons for accepting the plea of the purchaser-defendant No. 3. However, it is not necessary for the purpose of disposal of this appeal to discuss that question in detail.
15. In the result, the second appeal is allowed. The judgment and decree passed by the lower appellate court are set aside and those of the trial court are confirmed. Parties will bear their respective cost of this Court.
Second appeal allowed.