Regular Second Appeal No. 720 of 2020 (R.S.A. No. 720 of 2020)

## _`IN THE HIGH COURT OF KERALA AT ERNAKULAM`_ ## _`PRESENT`_ ## _`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`_ ``` MONDAY, THE 13[TH] DAY OF NOVEMBER 2023 / 22ND KARTHIKA, 1945 ``` ## _`RSA NO. 720 OF 2020`_ ``` AGAINST THE JUDGMENT AND DECREE DATED 22.05.2020 IN AS 71/2010 OF PRINCIPAL SUB COURT, THRISSUR CONFIRMING THE JUDGMENT AND DECREE DATED 05.01.2008 IN OS 16/2007 OF PRINCIPAL ``` ## _`MUNSIFF COURT,THRISSUR`_ ## _`APPELLANT/APPELLANT/IInd DEFENDANT:`_ ``` 1RATNAM AGED 81 YEARS W/O.PUTHENVEETTIL RAGHAVAN, H.NO.1/301, VELAPPAYA ROAD, CANALPALAM, KILLANNUR VILLAGE, THRISSUR TALUK. (DIED. LEGAL HEIRS IMPLEADED) 2ADDL. SHEEJA P.R. ALIAS RUGMINI, AGED 50 YEARS, D/O LATE RAGHAVADAS PUTHENVEETTIL HOUSE, KODUVELI LANE, VELAPPAYA, M G KAVU P.O, THRISSUR DISTRICT, PIN 680581 3ADDL. RAVIKUMAR P.R. AGED 45 YEARS, D/O LATE RAGHAVADAS PUTHENVEETTIL HOUSE, KODUVELI LANE, VELAPPAYA, M G KAVU P.O, THRISSUR DISTRICT, PIN 680581 ``` ``` BY ADV JOSEPH SEBASTIAN PURAYIDAM ``` ## _`RESPONDENTS/RESPONDENTS/PLAINTIFF & 1ST DEFENDANT:`_ |_`1`_|_`ALICE`_| |---|---| ||_`AGED 53 YEARS`_| ||_`W/O.KIZHAKOODANVEETTIL RAJU, VELAPPAYA VILLAGE, CHINA BAZAR, THRISSUR`_| ||_`TALUK, THRISSUR DISTRICT, PIN - 680 596.`_| |_`2`_|_`SANTHOSH`_| ||_`AGED 47 YEARS, S/O.KARUMATHIL VEETTIL RAGHAVAN, H.NO.1/301, VELAPPAYA`_| ||_`ROAD, CANALPALAM, KILLANNUR VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT,`_| ||_`PIN-680 581.`_| |_`3`_|_`ADDL. MOHANDAS P.R.`_| ||_`AGED 58 YEARS`_| ||_`S/O LATE RAGHAVADAS, PUTHENVEETTIL HOUSE, ELTHURUTH P O, LALOOR, NEAR`_| ||_`PONTHAKKAN LANE, PIN 680611`_| |_`4`_|_`ADDL. UNNIKRISHNAN P.R.`_| ||_`AGED 54 YEARS, S/O LATE RAGHAVADAS, PUTHENVEETTIL HOUSE, ELTHURUTH P O,`_| ||_`LALOOR, NEAR PONTHAKKAN LANE, PIN 680611`_| ||_`BY ADVS.`_| ||_`SMT.DEEPA K.RADHAKRISHNAN`_| ||_`SRI.K.R.ARUN KRISHNAN`_| ||_`FOR R1`_| ||_`RAJIKA P.`_| ||_`RASMI NAIR T. T`_| ||_`FOR ADDL R3 & R4`_| ``` THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 13.11.2023, THE COURT ON THE ``` ``` SAME DAY DELIVERED THE FOLLOWING: ``` ``` R.S.A. No. 720 of 2020 ``` ``` ..2.. ``` ## _**CR**_ ## _**J U D G M E N T**_ ## **Dated this the 13[th] day of November, 2023** This Regular Second Appeal has been filed under Order XLII, Rule 1 r/w Section 100 of the Civil Procedure Code, 1908 (hereinafter referred to as ‘CPC’ for short). The 2[nd] defendant in O.S. No. 16/2004 on the files of the Principal Munsiff’s Court, Thrissur is the appellant in this appeal. Respondents herein are the 1[st] defendant as well as the plaintiff in this suit. The appellant impugns decree and judgment in A.S. No.71/2010 dated 22.05.2020 on the files of the Principal Sub Judge, Thrissur and the decree and judgment in O.S. No. 16/2004 dated 05.01.2008 on the files of the Principal Munsiff’s Court, Thrissur. On notice, the 1[st] respondent/plaintiff appeared. The 2[nd] respondent, who is the 1[st] defendant in this suit, did not appear. 2. Heard the learned counsel appearing for the appellant as well as the 1[st] respondent on admission. Perused the verdicts ``` R.S.A. No. 720 of 2020 ``` ``` ..3.. ``` under challenge. 3. I shall refer the parties in this Regular Second Appeal as ‘ _plaintiff’,_ ‘1[st] _defendant’_ and ‘2[nd] _defendant_ ’ for convenience, referring their status before the trial court. 4. Plaintiff filed this suit seeking arrears of licence fee and eviction. According to the plaintiff, there was an agreement in between the plaintiff and the 2[nd] defendant executed on 12.04.2006 to sell the plaint schedule property for a total consideration of Rs.3,05,000/- (Rupees three lakh five thousand only). Accordingly, Rs.10,000/- (Rupees ten thousand only) initially paid as advance. Thereafter, Rs.2,00,000/- (Rupees two lakh only) more was given as advance in order to clear the liability of the plaintiff with Viyoor Service Co-operative Bank and it was agreed in between them to clear the same and execute the sale deed on or before 11.10.2006. The further case of the plaintiff was that, thereafter, as per a licence deed executed in between the plaintiff and the 1[st] defendant, who is the son-in-law ``` R.S.A. No. 720 of 2020 ``` **==> picture [37 x 7] intentionally omitted <==** of the 2[nd] defendant, the occupation of the building in the plaint schedule property was given to the 1[st] defendant as a licensee, for a monthly licence fee of Rs. 500/- (Rupees five hundred). Since the 1[st] defendant, as a licensee, had been continuing possession, the 2[nd] defendant, who is the mother-in-law of the 1[st] defendant also had been residing along with the 1[st] defendant. On these facts, the present suit was filed for getting eviction of the licensee as well as for realization of the licence fee in arrears. 5. The 1[st] defendant filed written statement contending that the property was given in possession of the 2[nd] defendant, in view of an agreement in between the plaintiff and the 2[nd] defendant, therefore, the 1[st] defendant was not bound to pay licence fee, as contended. The 1[st] defendant had been residing in the property as the son-in-law of the 2[nd] defendant, where 2[nd] defendant got possession in view of a sale agreement, in part performance of the same. 6. The 2[nd] defendant filed written statement mainly ``` R.S.A. No. 720 of 2020 ``` **==> picture [37 x 7] intentionally omitted <==** contending that he is an unnecessary party in this suit and also reiterating the contentions raised by the 1[st] defendant. It was contented that there was an agreement between the plaintiff and the 2[nd] defendant to sell the plaint schedule property for a total consideration of Rs.3,05,000/- and accordingly, the 1[st] defendant was put in possession of the plaint schedule property in part performance of the sale agreement. 7. The trial court tried the matter. During trial, PW1 was examined and Exts. A1 to A9 documents were marked on the side of the plaintiff. DWs. 1 and 2 were examined and Ext.B1 was marked on the side of the defendants. 8. The learned counsel for the 2[nd] defendant, who pressed for admission of this matter, mainly argued that the plaint schedule property is in possession of the 2[nd] defendant pursuant to execution of Ext.B1 agreement, in between the plaintiff and the 2[nd] defendant. It is argued that, at the time of execution of Ext.B1, the possession of the plaint schedule property was parted ``` R.S.A. No. 720 of 2020 ``` **==> picture [37 x 7] intentionally omitted <==** with the 2[nd] defendant and the 2[nd] defendant has been continuing the said possession and as such possession of the plaint schedule property by the 2[nd] defendant is protected under Section 53A of the Transfer of Property Act (hereinafter referred to as TP Act” for short). He also would submit that another suit was filed by the 2[nd] defendant for getting performance of the sale agreement, but the trial court disallowed the prayer for specific performance while granting return of advance consideration along with the interest. According to him, against the said verdict, R.F.A. No. 814/2012 has been pending before this court. It is submitted by the learned counsel appearing for the 2[nd] defendant that since the 2[nd] defendant paid a major portion of the sale consideration, there is likelihood of allowing R.F.A. No. 814/2012 granting decree for performance of the contract of sale. But, the learned counsel for the 1[st] respondent/plaintiff submitted that in obedience to the decree passed by the trial court in the other suit, the plaintiff deposited the entire amount along with the interest before the ``` R.S.A. No. 720 of 2020 ``` **==> picture [37 x 7] intentionally omitted <==** trial court, and also he conceded the pendency of R.F.A. No. 814/2012. 9. To be on the crux of this matter, Ext.A7 is the licence agreement in between the plaintiff and the 1[st] defendant. Court below found that Ext.A7 is proved to hold that the plaintiff is the owner/licensor of the plaint schedule items and the 1[st] defendant is in occupation of the same as a licensee. Accordingly, decree for eviction was granted along with direction to pay Rs.21,005/(Rupees twenty one thousand five only) with 6% interest for the principal sum of of Rs.18,000/- (Rupees eighteen thousand only) as licence fee. 10. Even though appeal has been preferred challenging the above decree and judgment, the learned appellate court also concurred the finding and dismissed the appeal. 11. In view of the rival submissions, the following substantial questions of law formulated and this second appeal stands admitted. ``` R.S.A. No. 720 of 2020 ``` ``` ..8.. ``` i. What are the essentials to be satisfied to claim protection under Section 53A of the TP Act? ii. Whether the plaint schedule property was given in possession of the 2[nd] defendant in part performance of Ext. B1 agreement? If so, how far the said possession is liable to be protected under Section 53A of the TP Act? At the outset, in case where, possession of the immovable property/building was given to the vendee by the vendor, in part performance of a contract of sale, the essential ingredients to get protection under Section 53A of the TP Act must be satisfied. Section 53A provides as under:- “53A. Part performance.—Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in ``` R.S.A. No. 720 of 2020 ``` ``` ..9.. ``` possession in part performance of the contract, and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that 2[***] where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract: Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.” 12. In the decision reported in [AIR 2012 SC 1440], **Raheja Universal Limited v. NRC Limited** , the Apex court held that the provisions of Section 53A of the TP act recognize the right of a transferee, where a transfer has been given and the transferee has taken possession of the property or any part thereof. Even this provision does not create title of the transferee in the property in question, but gives him a very limited right, that too, subject to the satisfaction of the conditions as stated in Section 53A of the ``` R.S.A. No. 720 of 2020 ``` ``` ..10.. ``` TP Act. 13. Indubitably, as per the mandate of Section 53A of the TP Act, the transferee/vendee is entitled to resist any attempt on the part of the transferor/vendor to disturb transferee’s lawful possession under the contract of sale subject to conditions stipulated in Section 53A of the TP Act. Although, one view is precinct that the said resistance could be used as shield, affirming such a view, would have far reaching ramifications. Therefore, while enforcing the said resistance the position of the transferee/vendee either as a plaintiff or as a defendant would make no difference. Contra view holding that the resistance shall not be used as a sword, would be detrimental to the legislative intend behind Section 53A of the TP Act, as the same would frogmarch the transferor/vendor to forcibly dispossess the transferee/vendee even against the covenants in the contract without a legal remedy to the transferee/vendee. 14. In this connection, it is relevant to refer Section 17 (1A) ``` R.S.A. No. 720 of 2020 ``` **==> picture [43 x 7] intentionally omitted <==** of the Registration Act introduced with effect from 2001. It is provided therein that the documents containing contracts to transfer for consideration, any immovable property for the purpose of Section 53A of the Transfer of Property Act, 1882 (4 of 1882), shall be registered if they have executed on or after the commencement of the Registration Act other related laws (Amendment) Act 2001, and if such documents are not registered on or after such commencement, then they shall have no effect for the purposes of the said Section 53A. (2) Nothing in Clauses (b) and (c) of sub-section (1) applies to- (i) any composition deed; or (ii) any instrument relating to shares in a Joint Stock Company, notwithstanding that the asserts of such company consist in whole or in part of immovable property; xxxx (iii) to (viii) xxxxx omitted. 15. On a conjoint reading of Section 53A of the TP Act along with Section 17A of the Registration Amendment Act of 2001, the contrasting effect is that documents containing contracts ``` R.S.A. No. 720 of 2020 ``` **==> picture [43 x 7] intentionally omitted <==** to transfer for consideration of any immovable property for the purpose of Section 53A of the TP Act shall be registered. After the commencement of the amendment during 2001, such documents, if not registered thereafter, shall have no legal effect for the purpose of Section 53A of TP Act and therefore, the possession, if any, given pursuant to execution of an unregistered sale agreement/contract of sale in no way protected under Section 53A of the TP Act. 16. Reverting back, a bare perusal of Ext. B1 would go to show that the same is not a registered document, though executed on 12.04.2006 (after the commencement of 2001 amendment in the Registration Act). Therefore, the same has no legal effect for the purpose of protection of possession of the property under Section 53A of the TP Act. Most interestingly, in the case at hand, there is no express covenant in Ext.B1 to show that there was parting of possession of the plaint schedule property at the time of execution of Ext.B1. Such possession could not be ``` R.S.A. No. 720 of 2020 ``` **==> picture [43 x 7] intentionally omitted <==** gathered even impliedly or even remotely. Thus the 2[nd] defendant would not get any protection under Section 53A of the TP Act. 17. According to the learned counsel for the 2[nd] defendant, there is likelihood of allowing R.F.A. 814/2012 in favour of the 2[nd] defendant and if so, there is no necessity to vacate the building. In fact, the same alone is not a reason to non-suit the plaintiff, where the plaintiff, who sued for getting vacant possession of the licenced premises from the 1[st] defendant after legally revoking the licence. If at all RFA.No. 814/2012 happened to be allowed by this Court, no prejudice would be caused to the 2[nd] defendant in the matter of getting the entire property in her ownership and possession after executing the sale deed, as per law. In fact, the 1[st] defendant, who is the licensee of the premises, did not challenge the verdicts impugned herein in any manner and banking on this appeal filed by the 2[nd] defendant, who, in fact, never obtained possession of the plaint schedule property, the 1[st] defendant also has been avoiding eviction from ``` R.S.A. No. 720 of 2020 ``` ``` ..14.. ``` the plaint schedule building. 18. To sum up, it is held that the 1[st] defendant, who has been in occupation of the plaint schedule building as a licensee, as per Ext.A7 which stands proved by the evidence of PW1, otherwise, virtually admitted by the 1[st] defendant, is legally bound to vacate the same after termination of the licence in between the plaintiff and the 1[st] defendant, as per Ext.A7. In this context, it is relevant to note that Ext.A7 agreement was executed on 20.06.2000 and Ext.B1 was generated after six years thereafter. Thus, it appears that the trial court rightly granted decree in favour of the plaintiff and the appellate court also concurred the same. The said verdicts are perfectly in order and the same do not require any interference in any manner. Therefore, the Second Appeal must fail. In the result, this appeal stands dismissed without any order as to cost. All Interlocutory orders stand vacated and all interlocutory ``` R.S.A. No. 720 of 2020 ``` ``` ..15.. ``` applications pending in this matter stand dismissed. Registry shall inform this matter to the trial court as well as the appellate court forthwith. **Sd/-** **A. BADHARUDEEN JUDGE** RMV ``` TRUE COPY ``` ``` P.A.TO JUDGE ```