TaxTMI 
TaxTMI 
2003 (3) TMI 708
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.... entitled to protect his possession under Section 53A of the Transfer of Property Act, 1882 and hence not liable to suffer eviction based on landlord-tenant relationship which has ceased to exist on account of subsequent events. The plea arises for determination in the background of the facts briefly stated hereinafter. The suit premises were initially owned by one N. Shamanna. The appellant was inducted in the suit premises as a tenant w.e.f. 1.11.1967. According to the appellant, he entered into an agreement to purchase the suit property from the original owner in the year 1970, where after he has been holding the suit premises as a prospective vendor and in part performance of agreement to purchase the property, which relationship has superseded the erstwhile tenancy relationship and altered the nature and character of appellant's possession over the suit premises from that of tenant to that of a purchaser in possession in part performance of agreement to sell the property within the meaning of Section 53A of T.P. Act. The factum of there being any agreement to sell the property entered into by the original landlord with the appellant has been denied and has been a subjec....
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....he 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 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 where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefore 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." The essential features of the equitable doctrine of part performance as statutorily modified and incorporated in Section ....
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....e appellant has failed to allege and prove that he was delivered possession in part performance of the contract or he, being already in possession as lessee, continued in possession in part performance of the agreement to purchase, i.e. by mutual agreement between the parties his possession as lessee ceased and commenced as that of a transferee under the contract. On the contrary, there is a finding recorded in the earlier suit that in spite of his having entered into a contract to purchase the property he had not disowned his character as lessee and he was treated as such by the parties. The judgment dated 1.9.1999 in the Civil Suit notes the conduct of the plaintiff inconsistent with his conduct as vendee in possession. When a person already in possession of the property in some other capacity enters into a contract to purchase the property, to confer the benefit of protecting possession under the plea of part performance his act effective from that day must be consistent with the contract alleged and also such as cannot be referred to the preceding title. The High Court of Madhya Pradesh had an occasion to deal with the facts very near to the facts before us in Bhagwandas Parsad....
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....ract, the Court would expect something independent of the mere retention of possession to evidence part performance and some act done in furtherance of the contract and some act done in furtherance of the contract. Strong reliance was placed by the learned senior counsel for the appellant on a recent decision of this Court in Shrimant Shamrao Suryavanshi & Anr. Vs. Pralhad Bhairoba Suryavanshi (Dead) by Lrs. & Ors., (2002) 3 SCC 676, wherein this Court has held that a person obtaining possession of the property in part performance of an agreement of sale, can defend his possession in a suit for recovery of possession filed by the transferor or by subsequent transferee of the property claiming under him, even if a suit for specific performance of the agreement of sale has become barred by limitation. (emphasis supplied) Clearly it was a case where the person in possession was so inducted in part performance of the agreement of sale. Excepting that his suit had gone barred by limitation there was nothing else to deny the benefit of the plea to the person in possession. The court proceeded on the reasoning that the law of limitation barred the remedy but did not bar the defence. Th....