Person In Possession Who Loses His Right To Remain In Possession Cannot Resist Suit Of True Owner For Possession: Karnataka HC

The Karnataka High Court held that under the Transfer of Property Act, when the person in possession of a suit property loses his right to remain in possession, he cannot resist the suit of the true owner for possession.

In that context, the Bench of Justice HP Sandesh observed that, "Section 53A also incorporates doctrine of equity therefore in order to invoke the protection under the doctrine of part-performance and the said possession must be valid and when he lost his right and if the right under the agreement is lost by law of limitation, even if it is lost during the pendency of the suit, it is open to the party to take advantage of the same and the Court to take note of it."

In light of the same, it was held that, "When the person is in possession of the suit schedule property, loses his right to remain in possession, he cannot resist the suit of the true owner for possession. It is also important to note that once he lost his right under the agreement by dismissal of the suit, it would be inconsistent and incompatible with his right to remain in possession under the agreement. Even otherwise, a transferee can avail of Section 53A only as a shield but not as a sword."

Counsel PM Siddamallappa appeared for the appellants, while Counsel Shreeram T Nayak appeared for the respondents.

The plaintiff claimed that the defendants, a husband and wife, had executed an unregistered agreement of sale on 18.07.1977 for a property in Chiradoni village. The sale consideration was paid, and a condition of non-alienation for 15 years was imposed. After the period lapsed, the plaintiff filed a suit for specific performance, which was dismissed by the Trial Court.

The plaintiff asserted that the defendants, under a government grant, agreed to sell land on 08.03.1979. The plaintiff paid the entire consideration, but the sale deed was not executed. The Trial Court dismissed the suit, and the First Appellate Court confirmed the decision.

The substantial question of law revolved around whether the lower appellate Court was justified in granting a decree for possession on the ground that the purchaser who was put in part performance of the agreement of sale lost his right to sue for specific performance when his suit came to be dismissed as barred by time.

The High Court held that when the plaintiffs themselves are not entitled for the relief of specific performance, the question of continuing with the possession does not arise.

Subsequently, it was observed that, "the First Appellate Court was justified in granting a decree for possession on the ground that the purchasers though put in possession in part performance of the agreement, they lost their right to sue for specific performance on the ground of limitation and they cannot be remain in possession when they lost their valuable right of specific performance."

In light of the same, the appeals were dismissed.

Appearances:

Appellants: Counsel PM Siddamallappa

Respondents: Counsel Shreeram T Nayak

Cause Title: MK Shivaji Rao (Through LRs) vs RV Shet (Through LRs)

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