Ali, C.J:— The question that arises for determination in this case is as to whether or not the possession of a proposed vendee under an agreement to sell becomes adverse from the date of the execution of the agreement in the event of a sale deed not being executed and the remedy of specific performance becoming time-barred. The question posed above is undoubtedly a substantial question of law and is indeed a vexed one and there does not appear to be any authority directly in point which has discussed all the aspects at issue. The facts giving rise to this revision may be summarized as follows.

2. The plaintiff's father, Ganga Bishno, is said to have executed a contract for sale in favour of Mst. Narain Devi wife of the defendant on 26th Har 2009 (Bikrami) = 17-7-1952. The agreement was in respect of 7 marlas of land comprised in khasra No. 1716 min situate in Nagar. District Bhadrawah whose possession was delivered to the prospective vendee under the agreement. It was stipulated in the agreement that Ganga Bishno would execute a proper sale deed in favour of Mst. Narain Devi within three years of the execution of the agreement failing which it will be open to the proposed vendees to file a suit for specific performance, it was also the admitted case of the parties that the entire consideration money of Rs. 250/- was received by the proposed vendor in two instalments: Rs. 150/- at the time of the execution of the agreement and the balance of Rs. 100 on 20th Bhadon 2009 = 14-9-1952. Thereafter no sale deed was executed by the plaintiff's father nor did the defendant file any suit for specific performance and allowed the suit to become time-barred. The defendants started constructing some sort of a structure on the land in dispute which was resisted by the plaintiffs who filed the present suit for possession on the ground that the land was the ancestral property and had been sold by the plaintiffs' father during their minority without any legal necessity and by perpetrating fraud. The suit was resisted by the defendants mainly on the ground that the defendants having been in possession of the property for more than 12 years since the execution of the agreement to sell, they acquired title by adverse possession and any right which the plaintiffs had was extinguished. In view of the pleadings of the parties the trial Court of the Sub-Judge Bhadrawaih framed a preliminary issue which was as follows:

“Whether the suit was within time”.

3. The learned judge, after taking evidence of the parties, came to the conclusion that as the possession of the defendants was purely permissive, the question of adverse possession did not arise and the suit was therefore within time. He directed the other issues to be struck in this case. This order was passed on 24-6-1968. It is against this order that the defendants-petitioners came up to this-Court in revision on the ground that the preliminary issue was wrongly decided, by the Sub-Judge. The learned Sub-Judge based his decision mainly on an unreported Division Bench decision of this Court in Civil Second Appeal No. 49 of 2005 Sohnun v. Raman decided on 23-3-1949 (J & K) by Wazir, C.J and Masud Hasan, J. The matter was heard by Jaswant Singh, J. sitting singly who was of the view that as there was a serious conflict of authority on the question of law involved, the case be referred to a Full Bench.

4. Mr. Kotwal appearing for the petitioners submitted that the view of the learned Sub-Judge was legally erroneous and was contrary to the weight of authorities and should therefore be set aside. He relied on a Division Bench decision of the Calcutta High Court in ‘Sm. Birajmohini Dassi…Defendant v. Sm. Sarala Devi Chowdhurani…Plaintiff ., AIR 1937 Cal 88. We have gone through this case and we find that though presumably it supports the contention of the petitioners, yet it is clearly distinguishable on two grounds. In the first place their Lordships found as a fact that no agreement to sell was proved to have been executed in that case; therefore the question of adverse possession did not fall for decision. In this connection their Lordships, after discussing the evidence, clearly observed as follows:—

‘Tor these reasons, we are of opinion that the plaintiff has by production of books established the case that the defence set up by Benode is not a true defence”.

5. Referring to the point of law their Lordships observed as follows:—

“In other words it is said that if in pursuance of the sale the defendant is actually put in possession, and a case of continued possession for more than 12 years is made since then, the defendant's plea of adverse possession must succeed. Mr. Bose who appears for the respondent has not contested this position in law”.

6. Later on their Lordships observed as follows:—

“It is conceded that if this case of sale was not made out the case of adverse possession must fail”.

7. A close analysis of these observations would clearly reveal that to begin with their Lordships did not discuss this question of law because the agreement to sell was not proved. Secondly Mr. Bose who appeared for the respondents conceded the proposition and therefore the case was decided on the basis of Page: 127concession. It is true that their Lordships referred to Venkatesh Damodar v. Mallappa Bhimappa, ILR 46 Bom 722 : (AIR 1922 Bom 9 (2)) which was itself based on an earlier decision of the Court in Bapu Apaji v. Kashinath, ILR 41 Bom 438 : (AIR 1916 Bom 1) (FB), but these cases do not lay down the proposition that was being adumberated before us. These cases merely held that the plaintiff would be estopped from recovering possession by taking advantage of his own fraud or by violating the fiduciary relationship created under the agreement. The crucial point to be seen is as to what is the nature of possession of a proposed vendee under an agreement to sell. A contract of sale has been specifically defined thus:—

‘A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties.

It does not, of itself, create any interest in or charge on such property”.

8. Thus the Act does not recognize the doctrine of a contract for sale creating an equitable estate in favour of a vendee and specifically provides that the contract would not itself create any interest in or charge on the property proposed to be sold.

9. It is, therefore, clear that even after the agreement to sell, title clearly, resides in the vendor and even though he may have parted with possession, the possession of the proposed vendee is under the agreement and not being a transfer of interest, it is at the utmost, that of a licensee and is therefore clearly permissive. Where, therefore, the origin of possession of the proposed vendee is proved to be permissive, it will be presumed to be so until and unless something occurred to make it adverse (Vide AIR 1954 SC 758; AIR 1928 Cal 582 & AIR 1954 Nag 319). In other words unless the proposed vendee asserts any hostile or overt act to show that he is disclaiming the title of the vendor or unless his possession becomes so under an invalid document, his possession would not be adverse. There must be an open and explicit disavowal and disclaimer brought to the knowledge of the owner which alone will give rise to adverse possession. The mere fact of long user by the permissive occupant is hardly sufficient to alter the character of permissive possession into an adverse one. Furthermore it seems to us that when the agreement itself clearly recited that the sale deed was to be executed within three years there could be no question of possession of the defendant becoming adverse unless his right to sue for specific performance became completely barred under Article 84 of the Limitation Act. The time to sue for specific performance in a contract to sell has to be calculated either from the date fixed for the performance or if no such date is fixed when the plaintiff has noticed that performance is refused. In the instant case under the terms and recitals of the document the date fixed for the performance of the contract was three years from date of its execution, that is to say upto 17th July 1955. Thus the defendants' right to sue for specific performance will become barred three years after 17-7-1955, that is to say 17-7-1958. The present suit was; filed on 19-10-1967, i.e, within 12 years of this date. In our opinion, therefore, the suit was clearly within time. At the most the possession of the defendant would become adverse from 17-7-1958 because the right of specific performance having been lost, his possession would be one under a transaction which was unenforceable at law-because after 17-7-1958 the agreement to sell could not be specifically enforced. Even if the position is conceded, in this case the suit was filed a little after 9 years, from the date when the possession of the proposed vendee became adverse and therefore was not barred by limitation. For these reasons we feel that the Division Bench decision of this Court is absolutely correct and the law laid down therein is the correct law subject to whatever is said here. Their Lordships in the Division Bench case observed as follows:—

“The plaintiffs did not get the sale deed executed in their favour after the decree for specific performance was passed in their favour. Their possession over the land was under the agreement to sell which was executed by the defendants in favour of the plaintiffs on 12th Kartik 1977. The nature of possession, therefore, was permissive and not adverse to-the defendants”.

10. We find ourselves in complete agreement, with this proposition of law subject however to the fact that where the time for specific performance of the agreement to sell runs out, the possession of the defendant becomes adverse and if the vendor allows 12 years to pass from this date then the possession of the defendant would ripen into title by prescription.

11. It was, however, submitted by Mr. Kotwal as a pure question of law that in the instant case there does not appear to be any equity in favour of the plaintiff vendor because he by his own free will executed the agreement to sell, delivered possession of the demised property to the proposed vendee and received the entire consideration money, agreed to be paid to him. In these circumstances the plaintiff cannot be allowed to take advantage of his own fraud by being Page: 128allowed to recover possession from the defendant.

12. It is true that Section 53-A of the Transfer of Property Act has not so far been incorporated in the State Transfer of Property Act and therefore neither this doctrine will apply nor can the principles underlying this section be made applicable. The fact, however, remains that the plaintiff cannot be allowed to take advantage of his own fraud, but as the trial Court has not framed any issue on the question of estoppel, we refrain from making any further observation on this point. We however direct that the trial Court should frame the following issue:—

‘Whether in the facts and circumstances of the present case the plaintiff is estopped from recovering possession from the defendants’.

13. We would, therefore, while agreeing with the view taken by the Sub-Judge on the preliminary issue decided by him remit this case to him for framing an additional issue as proposed above and for deciding it after taking evidence of the parties and hearing them.

14. This issue need not be decided as a preliminary issue but will be taken along with the other issues arising in this case.

15. With these observations the revision petition is disposed of Parties are directed to appear before the Sub-Judge on 8-3-1972.

16. J.N Bhat, J.:— I agree.

17. Jaswant Singh, J.:— I also agree.

18. Order accordingly.