TMI Blog1989 (2) TMI 413X X X X Extracts X X X X X X X X Extracts X X X X ..... creed. LA. 225 of 1980 was filed under Order 9, Rule 13, C.P.C. to set aside the ex parte order. That petition was rejected on 27-3-1980 by the Court below holding that the disposal of the case was on merits and so the petition under Order 9, Rule 13 is not maintainable. The appeal is filed against the judgment and decree of the trial Court. 3. Learned counsel for the defendants (appellants) submitted that an opportunity may be afforded to the defendants to substantiate their contentions by remanding the case to the trial Court. Learned counsel for the plaintiff submitted that no purpose will be served by remanding the case to the trial Court in view of the lack of pleadings in the case. 4. Plaintiff filed the suit for rendition of ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le was executed on 30-1-1974 in confirmation of the earlier agreement in her individual capacity and also as the guardian of her minor daughter. First defendant contended that he had paid the entire consideration and there fore he is entitled to protection under Section 53A, of the Transfer of Property Act. First defendant also contended that the property is now in the possession of the second defendant and that the plaintiff had relinquished all her claim with regard to the above property. 6. Second defendant filed written statement reiterating the contentions of the first defendant. He further stated that he got possession of the property from the first defendant with the knowledge and consent of the plaintiff and that the plaintiff is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... harge on the property, English equitable doctrise that a contract for sale of immovable property makes the purchaser the owner in equity of the estate is not applicable in India. Before the insertion of Section 53-A any assertion by the defendant of an agreement for sale and his consequent possession of the property would not have been a relevant defence to an action in ejectment suit by the plaintiff. The position is now different in view of Section 53A, The section gives a statutory right on account of part performance. In England it gives right only to an equity. But in India the right is more restricted than the English equity in two respects. Firstly, there must be a written contract and secondly, it is only available as a defence, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plaintiff and it was thereafter that he obtained the agreement in his favour from the plaintiff. The absence of such a pleading is sufficient to discard the contention based on agreements for sale set up by the first defendant. 9. One of the essential conditions to be pleaded under Section 53 A of the Transfer of Property Act is that the transferee has performed or is willing to perform his part of the contract. There is no pleading as could be discerned from the written statement of the first defendant that he has done anything persuant to the agreement calling upon the plaintiff to execute the sale deed. Nor he had sent any notice to the plaintiff demanding execution of the sale deed. As held in Chander Kali v. J.S. Thakur (1978) 1 SC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it of part performance evidence that he was inducted into possession for the first time subsequent to the contract would be a strong piece of evidence regarding the contract and possession changing hands pursuant to the contract. As the first defendant has admitted Ext. A-1 power of attorney executed in his favour by the plaintiff and as his possession can be traced to Ext. A-l and that too for and on behalf of the plaintiff his contention that he obtained possession pursuant to the agreement in his favour can never be accepted. Plaintiff's evidence would definitely show that the plaintiff did not agree to transfer the property as per any agreement to the first defendant. 11. As the first defendant has admitted that he had handed ove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration and he (second defendant) obtained possession from the first defendant and he became full owner of the property. Though the second defendant pleaded that the plaintiff consented to the transfer of the property in his favour, the first defendant has no such case in his written statement. In the written statements of both the defendants they have no case that the agreements in favour of the first defendant were ever assigned in favour of the second defendant. Without such an assignment the second defendant cannot claim benefit under Section 53-A of the Transfer of Property Act. 13. Section 53-A enacts that the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming und ..... X X X X Extracts X X X X X X X X Extracts X X X X
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