The plaintiff has further averred that the defendant has denied the
tenancy and set up the plea of agreement of sale and in pursuance
thereof, his right to continue in possession on the alleged agreement of
sale and that therefore, the suit being the one filed for recovery of
possession of the plaint schedule property with past and future profits,
the plaintiff is entitled to interest on the arrears of maktha from the
respective due dates at 12% p.a.
Whether the oral agreement of sale pleaded by the
defendant is true ?
Whether the defendant is in possession of the plaint
schedule property in pursuance of the oral agreement
of sale ?
If so, whether the plaintiff is not entitled to the
possession of the plaint schedule property ?
On analysis of the oral and documentary evidence, the lower
Court has answered all the issues against the defendant except issue
No.5 in respect of which it has held that the same was infructuous. The
lower Court has, accordingly, decreed the suit.
The learned Senior Counsel submitted that no equities lie in
favour of the defendant for the reason that he is setting up an oral
agreement of sale, which by itself would not give him any right to
continue in possession without obtaining a decree for specific
performance of an agreement of sale and that in case of an oral
agreement of sale, his possession is not protected by Section 53-A of the
Transfer of Property Act, 1882. In support of his submission, he has
relied upon the judgment in Narasayya and others vs.
Ramachandrayya and others .
Termination of tenancy and eviction petition under
Section 13(e) are contemplated only where (a) the defendant is
the cultivating tenant; and (b) the defendant willfully denies the
landlords title to the land.
In this case the defendant denied that
he was the cultivating tenant of the suit land and plaintiff
claimed that defendant was a trespasser. Hence the first
requirement for application of Section 13(e) was not satisfied. If
the case of the plaintiff had been that the defendant was the
cultivating tenant under her and that defendant was claiming to
be the cultivating tenant under someone else by setting up title in
someone other than the plaintiff-landlord, Section 13(e) would
have certainly been attracted.
In this case, as noticed above, the plaintiff alleged she was the
owner and the defendant was a trespasser. The defendant
asserted that he was the owner by adverse possession and denied
that he was a cultivating tenant at any point of time. When
neither party to the suit claimed that defendant was the
cultivating tenant, and as the suit was not for eviction of a
cultivating tenant, the mere denial of the title of the plaintiff by
the defendant in respect of an agricultural land, would not mean
that only the authorities under the Act will have jurisdiction and
that plaintiff should sue for eviction under the Act by
approaching the Special Officer. Only a civil suit was the
remedy to obtain possession from a trespasser. Therefore the
contention that the suit was not maintainable, is liable to be
It is relevant to note the conduct of the appellant in this context.
He has set up an alleged oral agreement of sale said to have taken place
as far back as October 1979. He has not taken any steps by calling upon
the plaintiff during his life time or the respondents herein who are his
legal heirs thereafter calling upon them to execute the sale deed or filed a
specific performance suit for nearly six years after the so-called oral
agreement of sale. At least after the present suit was filed against him,
the appellant has failed to file the specific performance suit. The
agreement set up by the appellant being oral, he cannot even claim the
benefit of the doctrine of part performance under Section 53-A of the
Transfer of Property Act 1882 as held by the Supreme Court in Mool
Chand Bakhru and another Vs. Rohan and others and by this Court
in Narasayya (12-supra). The appellant has not even set up the plea of
adverse possession. On the one hand he is denying tenancy and on the
other hand he has failed to prove the plea of oral agreement of sale (The
finding rendered on this aspect by the trial court has not even been
contested in his appeal as no submissions in this regard are made by the
learned Counsel for the appellant). On these indisputable facts,
continued possession of the appellant is indenfensible irrespective of
which ever forum decides the case. In fact, the appellant is only seeking
to prolong the litigation by non-suiting the respondents on the plea of
lack of jurisdiction in the civil court. If his plea is accepted and the
respondents are relegated to the Tenancy Court, consistent with his stand
taken in the suit, the appellant will plead absence of tenancy and that
consequently the Tenancy Court has no jurisdiction to order his eviction
in the absence of landlord-tenant relationship. In other words, the
appellant is seeking to use the respondents who are admittedly the
owners of the property and who are denied possession as well as rents
for 35 years, as a foot ball. Even if the respondents have approached the
Tenancy court, its finding not being conclusive on the plea of agreement
of sale set up by the appellant, either party would have approached the
civil court by way of a civil suit. Therefore, on the pleadings of the
parties, no prejudice was caused to the appellant on account of the lower
court entertaining the suit. Indeed, the lower court has conducted a full
fledged trial and made a threadbare discussion on the merits of the case,
including the plea of oral agreement of sale propounded by the appellant.
Therefore, on the facts of the present case, it would be a grave travesty
of justice to non-suit the respondents on the ground of lack of
jurisdiction in the civil court.
On the analysis as above, I hold that the lower court has
jurisdiction to entertain the suit and it has rightly done so.