2005 (6) TMI 567 - HC - Indian Laws

Summary

Issues Involved:
1. Whether Exs.A-1 to A-3 are true and genuine?
2. Whether the suit is barred by limitation?
3. Whether the plaintiff is entitled to the benefit of Section 53-A of the Transfer of Property Act?

Issue-wise Detailed Analysis:

1. Whether Exs.A-1 to A-3 are true and genuine?

The plaintiff filed the suit for specific performance of an agreement of sale dated 15-1-1985 (Ex.A-1) and claimed that part payments were made under endorsements Exs.A-2 and A-3. The 1st defendant denied executing Ex.A-1 or receiving any payments. The Trial Court found inconsistencies in the plaintiff's evidence, such as the purchase of stamp paper from Penugonda despite the availability at Narsapur and discrepancies in the register of stamp sales. Witnesses to the documents were not credible, and the plaintiff could not explain his acquaintance with the 1st defendant or the source of funds for the consideration. The court concluded that the plaintiff failed to prove the execution of Exs.A-1 to A-3.

2. Whether the suit is barred by limitation?

The suit was filed on 23-5-1995, ten years after the agreement date. The limitation period for specific performance is three years from the date fixed for performance or from the date the plaintiff has notice of refusal. The plaintiff did not establish any notice of refusal or any specific date for performance. The court noted that even if Exs.A-2 and A-3 were considered acknowledgments under Section 18 of the Limitation Act, the suit was still filed beyond the permissible period. The Trial Court should have rejected the plaint under Order 7 C.P.C. for being time-barred.

3. Whether the plaintiff is entitled to the benefit of Section 53-A of the Transfer of Property Act?

Section 53-A requires the transferee to be in possession of the property. The plaintiff claimed symbolical possession but failed to prove it. The property was under lease, and the plaintiff did not collect rents or take steps to attorn the lease. The court noted that possession, especially symbolical, must be clearly established, which the plaintiff failed to do. The principle that a transferee from a co-owner of an undivided property only gets a right to enforce partition, not possession, was reiterated. Thus, the plaintiff could not claim the benefit of Section 53-A.

Conclusion:

The appeal was dismissed, affirming the Trial Court's judgment that the plaintiff failed to prove the execution of Exs.A-1 to A-3, the suit was barred by limitation, and the plaintiff was not entitled to the benefit of Section 53-A of the Transfer of Property Act. The court found no basis to interfere with the Trial Court's decision.