MOHAN LAL (DECEASED) THROUGH HIS LRS. KACHRU AND ORS. versus MIRZA ABDUL GAFFAR AND ANR.

Citation: [1995] SUPP. 6 S.C.R. 638 · Decided: 12-12-1995 · Supreme Court of India · Bench: K. RAMASWAMY, B.L. HANSARIA · Disposal: Dismissed

Judgment (excerpt)

A 
MOHAN LAL (DECEASED) THROUGH HIS LRS. 
KACHRU AND ORS. 
v. 
MIRZA ABDUL GAFFAR AND ANR. 
B 
DECEMBER 12, 1995 
[K. RAMASWAMY AND B.L. HANSARlA, JJ.] 
Tramfer of Property Act, 1882-Section SJ(A}-Agreement holder 
whose suit for specific peifonnance is dismissed-Not entitled to retain pos-
C session under the agreenienr:-Plea of adverse possession not maintainable. 
D 
Specific Relief Act, 1963-Section 16(C}-Transfer of Prope1ty Act, 
1882-Section 53(A}-Held, part performance-Conditioned upon the 
transferee's continuous willingness to peifonn his part of the contract-Trans-
feree to plea and prove the same. 
The Appellant was in possession of the suit-lands since 1956, pur-
suant to an agreement of sale and payment of part performance. The 
Appellant's suit for specific performance of the contract of sale was 
dismissed and it became final. Subsequently, the lands were purchased by 
the Respondent and he filed a suit for possession. The trial court decreed 
E the suit. On Appeal, it was reversed and suit was dismissed. The High 
Court on Second Appeal, set aside the judgment and decree of the appel· 
late court and restored the decree of the trial court. 
F 
In the Special leave Petition, the Appellant contended that having 
remained in possession from 1956, he has perfected his title by prescrip· 
tion and that he is entitled to retain his possession by operation of Section 
53-A of the Transfer of Property Act, 1882. 
Dismissing the appeals this Court 
G 
HELD : 1. Since the appellant's claim is founded on Section 53-A of 
the transfer of property Act, it is admitted that he came into possession 
of the land lawfully under the agreement and continued to remain in 
possession till date of the suit. Therefore the plea of adverse possession is 
not available to the appellant. [640-D] 
H 
2. A transferee can avail of Section 53-A only as a shield but not as 
638 
MOHAN LAL v. M.A GAFFAR 
639 
a sword. Agreement does not create title or interest in the property. 
A 
[640-E-G] 
3. When transferee seeks to avail of section 53-A to retain possession 
of the property which he had under the contract, it would also be incum-
bent upon the transferee to plead and prove his readiness and willingness 
to perform his part of the contract. Part performance is conditioned upon B 
the transferee's continuous willingness to perform his part of the contract 
in terms covenanted thereunder. [641-C-D] 
4. The High Court is right in holding that appellant is not entitled 
to retain possession. [641-F] 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4485 of 
1986. 
From the Judgment and Order dated 30.9.86 of the Madhya Pradesh 
High Court in Second Appeal No. 460/75. 
S.K. Gambhir for the Appellants. 
B.S. Banthia for the Respondents. 
The following Order of the Court was delivered : 
This appeal by special leave arises from the judgment and decree of 
the Madhya Pradesh High Court in Second Appeal No. 460/75 made on 
30-9-1986 . 
. . .' 
It is not necessary to elaborate all the facts in detail. Suffice it to state 
c 
D 
E 
that the appellant had come into possession of the suit-lands pursuant to F 
an agreement of sale dated March 8; 1956. He paid part consideration of 
Rs. 500 and obtained possession of the lands. Subsequently, the respondent 
purchased the lands by sale deed dated March 23, 1960. In the meanwhile, 
the appellant's suit for specific performance of the contract for sale was 
dismissed and became final. The respondent filed the suit for possession G 
which has given rise to this appeal. The trial Court decreed the suit. On 
appeal, it was reversed and dismissed. In second appeal. the High Court 
set aside the judgment and decree of the.appellate Court and. restored the 
decree of the trial Court. Thus this appeal by special leave. 
The only question is whether the appellant is entitled to retain H 
640 
SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R. 
A possession of the suit property. Two pleas have been raised by the appel-
lant in defence. One is that having remained in possession from March 8, 
1956, he has perfected his title by prescription. Secondly, he pleaded that 
he is entitled to retain his possession by operation of Section 53-A of the 
Transfer of Property Act, 1882 (for short, 'the Act'). 
B 
As regards the first plea, it is inconsistent with the second plea. 
Having come into possession under the agreement, he must disclaim his 
right thereunder and plead and prove assertion of his independent hostile 
adv

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