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TMI Blog2005 (6) TMI 567X X X X Extracts X X X X X X X X Extracts X X X X ..... incurred huge expenditure in defending himself in a criminal case and for his treatment. To meet the same, he is said to have offered to sell his undivided 1/4th share in favour of the plaintiff. It was stated that an agreement of sale was executed on 15-1-1985, proposing to sell the undivided 1/4th share of the 1st defendant, for a consideration of ₹ 3 lakhs, marked as Ex.A1. He pleaded that a sum of ₹ 1,50,000/-was paid on the same day, and on two subsequent dates, viz., 10-1-1988 and 20-12-1990; and sum of ₹ 50,000/- each, was paid under endorsements, marked as Exs.A-2 and A-3, respectively. It was further averred that symbolical possession of the property was delivered to the plaintiff. He claimed that though he is ready and willing to pay the balance of consideration, the 1st defendant is not coming forward to execute the sale deed. He filed the suit for the relief of specific performance, or in the alternative for a decree for refund of a sum of ₹ 6,34,950/-. Defendants 4 and 5 came on record at subsequent stage. 3. The 1st defendant denied the contents of the plaint. In his written statement he sated that he never executed Ex.A-1, much less receiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be drawn against the 1st defendant, and consequently, the suit ought to have been decreed. He further contends that no issue was framed on the question of limitation, and it is not open to the defendants 4 and 5 to raise the same at this stage. 8. In this appeal defendants 4 and 5 alone responded to notices. Their Counsel Sri S.R. Sanku, submits that the 1st defendant was addicted to vices, and unable to bear the same, his wife committed to suicide. According to him, the suit schedule property was settled upon his clients, through various deeds, and the same is evident from the subsequent conduct of their having been arrayed as lessors, while leasing the rice mill. He further contends that the suit was filed in collusion with the 1st defendant, with a view to deny his clients of the benefits of settlement. Learned Counsel submits that even before a plea of limitation was raised, it was the obligation of the Trial Court, to examine whether the suit is filed with limitation, and in the instant case, such an exercise was not undertaken, particularly, even after the plea of limitation was specifically raised. 9. As observed earlier, the plaintiff filed the suit for the relief ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow the 1st defendant was stated to be during the visit of the former to Narsapur for cattle business. Admittedly, the 1st defendant did not undertake any business in cattle. 13. Be that as it may, it has come in evidence that Ex.A-1 was executed at Kotipally. As PW-1, the plaintiff stated that the bargain took place at Narsapur. He is a resident of Venkatayapalem village. The 1st defendant is a resident of Narsapur. The stamp paper was purchased from Penugonda, in the name of the 1st defendant. There is a Sub-Registrar's office as well as stamp vendor at Narsapur. No reasons were forthcoming for purchase of stamp paper at Penugonda and execution of the document at Kotipally. 14. On behalf of the contesting defendants, the Junior Assistant of the office of the Sub-Registrar, Penugonda, was examined as DW-4. He produced the register, which contains the particulars of the sale of stamp paper by the stamp vendors, within the jurisdiction of the Sub-Registrar. It was elicited through him that the endorsements on the stamp paper, on which Ex.A-1 was written namely, the serial number, date of sale, name of the stamp vendor, name of the person, in whose name it was purchased, do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k the lessee to join the execution of Ex.A-1, much less did he know the name of the lessee. 18. PW-2 is one of the witnesses to Ex.A-1. According to this witness, the bargain for purchase as well as the execution of Ex.A-1 took place at Kotipally; whereas the plaintiff pleaded that the bargain took place at Narsapur in a fancy shop by the side of rice mill. He stated that he did not attest any other document except Ex.A-1. This witness is a resident of Amalapuram. He did not explain as to how the occasion arose for him, to come to Kotipally. It is not known as to what made the plaintiff, PW-2, the scribe and the 1st defendant to go to a village in which none of them reside, to execute Ex.A-1, in relation to the properties situated at Narsapur. 19. PW-3 is a resident of yet another village, by name, Kunduru, but said to have been employed on a ferry at Kotipally. He is said to have scribed Ex.A-2. It was elicited through him that he did not ask the plaintiff or the 1st defendant as to the purpose properly in relation which, Ex.A-1 was executed and the amount of ₹ 50,000/-was paid. 20. PW-5 is another witness to Ex.A-1. The very circumstances under which Ex.A-1 came to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed for such a step, because of the reason that, the question of limitation, for the most part of it, can be decided on the averments, contained in the plaint itself. If it appears to the Court at the first blush, that the suit claim is barred by limitation, it can obviate the necessity of calling upon the defendant to deliver his defence. 27. In the instant case, Ex.A-1, the agreement of sale is dated 15-1-1985. The suit was filed on 23-5-1985. The limitation for filing of suit, for specific performance of contract, is three years, under Article 54 of the Limitation Act. The starting point is the date, fixed for performance. If no such date is fixed, the date on which the plaintiff has the notice of refusal by the defendant, to perform his part of the contract. The alternative relief claimed in the suit is for compensation for breach of the contract. For this relief also, the limitation is three years, under Article 55 of the Schedule to the Limitation. The limitation for this starts from the date on which the contract is broken and where the breaches are successive, the date on which, the one that gave rise to the institution of the suit had occurred. 28. The suit is obvious ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... depend upon the purpose, as well as the connection with which it arises. Shartel, in his Article Meanings of Possession [(1932) 16 Minnesota Law Review 611], observed as under: I want to make the point that there are many meanings of the word 'possession'; that possession can only be usefully defined with reference to the purpose in hand; and that possession may have one meaning in one connection and another meaning in another . 32. Jurists hailing from various legal systems have pointed out that possession, as a legal concept, has two components, viz., corpus possessions, physical possession of the property and animus possidendi, i.e. the intention to hold it as of right. Their difference of approach was only as to the emphasis on these ingredients, to constitute a position in law. In his treatise on the Common Law, O.W. Holmes [Holmes The Common Law Ch 6,], observed as under: To gain possession, then, a man must stand in a certain physical relation to the object and to the rest of the world, and must have a certain intent. These relations and this intent are the facts of which we are in search . 33. Opinions drastically varied, as to whether possession is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of the transfer, the share or interest so transferred. Where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house . It mandates that, what a transferee, from a co-owner of an undivided property, gets, is a right, to enforce a partition, that too, subject to conditions and liabilities, in relation to the property, by the date of transfer. 36. The phenomena of co-ownership of an undivided property, on the one hand, and delivering of physical or symbolical possession thereof do not co-exist. In fact, they are mutually exclusive. In Saleem, S/o. Yaseen v. I Additional Civil Judge, Senior Division, Saharanpur, AIR1996All342 , it was held that the right of a transferee under Section 53-A of the Act does not have the effect of superseding , or frustrating the provisions of Section 44 of the Act. To the same effect is the judgment of the Supreme Court in Dorab Cawasji Warden v. Coomi Sorab Warden, [1990]1SCR332 . Though they related to the second limb of Section 44, by and large, the principle remains ..... X X X X Extracts X X X X X X X X Extracts X X X X
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