1980 PLP 1785 (CLC)

This is a second appeal which has arisen out of two suits for the land in dispute. The first suit was by Noor Din appellant for the possession of the land on tie basis of title whereas Amar Ali respondent brought a suit for specific perf-orr;_2.nce of the contract in the very Court of Sub Judge, Muzaffarabad WL0IP the suit for possession was instituted by the appellant. It was in the year 1957 that a contract of sale was made by the plaintiff for the land in suit the price of which, according to the contract, had already been received by the plaintiff -appellant vide agreement D. A. According to this contract, Arnar Ali respondent was already in possession of the land which was promised to be sold to him by the plaintiff in accordance with law, i.e. by executing a deed of conveyance for. registration of the land in suit and the pre-possession of the land in suit is the assertion of the respondent. The allegation of the plaintiff is that he simply made a promise to sell the land comprising Survey No. 414 measuring 17 marlas which was only owned by him and it was by fraud that the other Survey Nos. 413, 444, 462 and 509/1 were got entered in the contract which at that time even were not owned by him and it was afterwards that the'nwnership of these survey numbers was acquired by him from different persons. He is correct to say that these survey numbers did not belong to the promisee at the time of contract for sale but it was mentioned in the contract that these survey numbers were also owned by him and so a promise for their sale was also made by the appellant. Amar Ali in the written statement asserted his adverse possession for being more than 12 years over the land in dispute as it was only purchased by him prior to the contract for sale which was reduced into writing on 15-6-1957 A simple suit for specific performance of contract was also lodged with a prayer to force the promiser to get a deed of sale registered in pursuance of the contract D. A. This was lodged in the year 1969, i.e round about two years after the suit of the appellant. Both the suits were consolidated and as such were tried together and were also disposed of by a single judgment. The Courts below came to the conclusion that the suit for specific performance of contract for sale was time-barred but a decree on bass of adverse possession was passed in favour of Amar Ali plaintiff-respondent in his for specific performance by the Sub-Judge which finding of adverse possession was partially upheld by the Lower Appellate Court though the suit of the plaintiff-appellant was also dismissed as a whole by that Court taking a different ground into consideration as well. There was no alternative prayer in the suit for specific performance for a declaration to be granted on basis of adverse possession by way of prescription though in the suit for possession by the plaintiff it was averred by the defendant-respondent that he had acquired the right of ownership over the land in dispute on basis of adverse possession by way of prescription. The title of the land in suit, as per record, vests in the appellant. The two things are necessary here to be determined for disposal of the case. Firstly, the contract for sale of the land in, suit in light of the suit for specific performance, would be adjudicated upon. At the time the contract was made, the appellant did not have the title of the land in suit except survey No. 414 but it was made to understand that he was the owner of the entire land irt suit, so section 43 of the Transfer of Property Act comes into play in aid of the transferee to deem that the contract was validly entered into for the entire land as it was so represented by the appellant at the relevant time; if so proved to have been executed by the appel lant and it stands proved as such because there is no evidence worth mention ing adduced by the plaintiff in support of his allegation in respect of the impugned contract of sale though the contract for sale of the land in dispute stood proved yet it was held by both the Courts below that the suit for specific performance of contract was time-barred and consequently, no decree could be passed as such. Against this finding of the lower Court, there was no appeal preferred by the respondent and as such the logical conclusion is that he is debarred to secure a relief on the basis of a suit for specific performance of contract. I have also looked into the statement of the respondent and find that after the evasion of the contract of sale, he was inactive for action so much so that after the suit of the plaintiff, he filed his suit for specific performance of contract after the lapse of a period of two years and as such he was guilty of laches and the Courts below were not wrong in holding hi suit to be time-barred. Again, this contract is to be- looked into from another angle when it is set up as a defence to the suit of the plaintiff-appellant. The learned District Judge was of the view that under section 53(4) of the Transfer of Property Act the plaintiff was debarred from enforcing against the respondent any right in respect of the property in dispute which was in possession of the transferee in view of the contract of sale. Thus, the doctrine of the part performance was applied to the case by the learned District Judge. But while applying the doctrine of part performance; the learned District Judge overlooked an important facto with regard to the time of possession so as to see whether the possession was obtained by the defendant-respondent in pursuance of the contract for sale (D. A.) or he was already in possession of the land promised to be sold. The very deed of contract shows that Amar Ali was already in possession of the land in suit when the contract D. A. was brought into being on 15-6-1957 and this is the very stand of the respondent which, by the evidence on record, stands proved. That being so, the promisee should, in par performance of the contract, taken possession of the property in pursuance of the contract or if already in possession of the same, should continue in possession and in the latter case, should do something in furtherance of the contract, otherwise acts done before the contract cannot be taken to it as done is pursuance of it and so they cannot be treated as acts of the part perform ance under law. The very suit of specific performance reveals that no act, whatsoever, in furtherance if the contract was performed by the respondent and a such section 53(A) of the Transfer of Property Act could not be availed of by him to retain his possession. Moreover, it was against the terms of the contract that the adverse possession by way of prescription was also set up by the defendant-respondent and so also he is not, entitled to~ the benefit of section 53(A) of the Transfer of Property Act. The next point for determination is that of adverse possession. The trial Court gave a finding of adverse possession in favour of the respondent for the entire land in suit but the Lower Appellate Court partially upheld it in respect of the land comprising Survey Nos. 413, 414 and 444 but with regard to the remaining survey numbers in dispute it was up set. Again, there is no appeal against this finding of the lower Appellate Court. Nor any cross-objections were made to the partial finding of the lower Cow t against the respondent on point of adverse possession. Taking the evidence as appreciated by the learned District Judge order to reject the plea of adverse possession in respect of Survey Nos. 462 and 509/1; it has plainly lessened the period of adverse possession by way of prescription. Furthermore, keeping in view the contract for sale in dispute which came into existence on 15-6-1967, previous possession cannot be taken into account for determining the nature of the possession in relation to adverse possession. By this contract the possession of the promisee turns to be permissive till a refusal is made by the promiser to act in accordance with the terms of the contract agreed to by the parties. That would be a starting point for possession to be adverse to the owner of the property. Evidently, the suit for possession was made even within a period of 12 years from t% date of the contract and much less than that of the date of the refusal by the appellant to act upon the contract trade between the parties and as such the plea of adverse possession in this case if at all available becomes premature. Therefore, the finding of adverse possession was not rightly given by the Courts below The execution of contract for sale though stands proved, yet for the reasons above, it falls short of its operation under law and consequently the plaintiff-appellant in exercise of his right of ownership of the property in suit succeeds to obtain the possession for the land but with the condi tion that he is liable for the consideration received- to be repaid to the respondent. The respondent was not successful in proving the amount of consideration entered in the deed of contract. Therefore, whatever the amount is found to have been admitted by the appellant before the Court, shall be a charge on the property to be restored to the plaintiff-appellant. That amount comes to Rs. 1,000 and so much -amount seems on record to have been paid to the appellant by the respondent. Therefore, the suit for specific performance stands dismissed and the suit of the plaintiff-appellant for possession of the land in dispute stands accepted thereby setting aside the impugned judgments and decrees of the Courts below with the result that a decree for possession of the land in suit measuring 4 kanals 7 marlas is passed in favour of the plaintiff-appellant on the condition that a sum of Rs. 1,000 shall be payable to the respondent on his ejectment from the land in suit, In the circumstances of the case, the parties are left to bear their own costs throughout.. M. Y. M. Appeal dismissed.