Transfer of property — Adverse possession — Transfer of Proper for Act section 53A

The plaintiff’s version was that he had been in continuous possession of the schedule lands having been put in possession of the same under the private sale deed and has been raising seasonal crops. Thus, he asserts that after his purchase, he has been in possession of the schedule lands and the said fact is known to each and every body in and around the village, including the defendants. He also pleaded that by continuously remaining in possession and upon asserting his title to the knowledge of the defendants he perfected the title to the schedule property by adverse possession.

The defendants No. 3 and 4 alleged that the sale deed are sham and bogus documents and the property was coparcenery property, therefore the defendant No. 1 could not have sold the same.

The issue that arose was whether the plaintiff was entitled to protect his possession under law on the ground that since he remained in possession of the property for more than the period of 12 years and that he had perfected his title by adverse possession.

The Court observed that person who obtained the possession of the property under executory terms of contract of sale, cannot ask for declaration of his title on the ground that he remained in possession of the property for more than 12 years period and contending that his possession is adverse to the real owner. The Apex Court in Achal Reddi v. Ramakrishna Reddiar & Ors., AIR 1990 SC 553 held that possession of a purchaser is under a contract of sale, his possession cannot be adverse and he cannot set up the plea of adverse possession. Therefore, the Trial Court erred in declaring the title of the plaintiff holding that he perfected his title to the schedule mentioned property by adverse possession against the defendants.

However, by virtue of the doctrine of part performance embodied in section 53A of the Transfer of Property Act, the plaintiff can protect his possession from defendants 1 and 2 who sold the property to him under the simple sale deed, so also he can protect his possession from defendants 3 and 4 who had the knowledge of the earlier sale transaction in his favour under a sale deed. Further it is true that section 53A only operates as a bar against the defendants in the present case from enforcing any rights against the plaintiff other than those which were provided under simple sale deed. Although the section does not confer title on the person who took possession of the property in part performance of the contract, the law is now well settled that when all conditions of the section are satisfied as in the present case, the possession of the person must be protected by the Court whether he comes as a plaintiff or defendant. The only embargo is that section 53A cannot be taken in aid by the transferee to establish his right as owner of the property. But the transferee can protect his possession having recourse to section 53A, either by instituting a suit for injunction as a plaintiff or by defending the suit filed by the transferor or subsequent purchasers as a defendant. It is also well settled that the transferee can very well file a suit for injunction to protect his possession even though his remedy to file a suit for specific performance of contract is barred by limitation.