Transfer of Property Act, 1882 — Section 53 — Part performance with possession — Suit for getting back possession

February 20th, 2013

Transfer of Property Act, 1882 — Section 53 — Part performance with possession — Suit for getting back possession — Non-filing of counterclaim or separate suit for specific performance by purchaser, effect — Receiving of entire sale consideration, and handing over of vacant and peaceful possession in pursuant to agreement to sell by plaintiff — General Power of Attorney in favour of attorney of purchaser — Authorization to sell the suit property as well as to carry on additions and alterations — Non-existent of clause to claim back the possession of the suit property in agreement to sell — Defendant No. 1 sold the suit property to defendant No.3 — The plaintiff claimed the possession and mesne profits in respect of the suit property which was dismissed by trial Court — Challenged in appeal — Held, agreement to sell, receipt, indemnity bond and affidavit are legal, valid and subsisting and have not been cancelled by the plaintiff — Consequently, plaintiff has no interest left in the suit property and, therefore, cannot claim the possession or mesne profits in respect of the suit property — True nature of the transaction between the parties was the agreement to transfer the suit property by the plaintiff to defendant No.1 — Defendants are protected by Section 53A of the Transfer of Property Act, 1882 and, therefore, the plaintiff is not entitled to the recovery of possession of the suit property — The mere fact that the defendants did not file a counter-claim or suit for specific performance cannot lead to a conclusion that they have given up all their rights in the suit property — It can, at best, be said that the defendants have lost the opportunity of perfecting their title but it would not entitle the plaintiff to claim the possession — On consideration of totality of the facts and circumstances of this case, no infirmity found in the well reasoned impugned judgment — Plaintiff misused the process of law by raising a false claim and had no respect for truth and made false statements on oath and shamelessly resorted to falsehood and has attempted to pollute the pure fountain of justice with tainted hands and, therefore, the plaintiff is not entitled to any relief — Consequently, appeal is dismissed with costs of Rs.2,00,000/- on the appellant — Practice and Procedure — Abuse of process of court — Disentitlement to relief — Contract Act, 1872 — Section 202 — Transfer of right under power of attorney — Nature of.

Harbans Singh v. Shanti Devi, 1977 RLR 487, Prem Raj v. Babu Ram, 1991 RLR 458, H.L. Malhotra v. Nanak Jai Singhani, 1986 RLR(Note) 89, Kuldeep Singh Suri v. Surinder Singh Kalra,(1999) 48 DRJ 463, D.R. Puri v. Kamlesh Sawhney, 2001 (60) DRJ738, Ramesh Mohan v. Raj Krishan, PLR (1984) 86 P&H211, Suraj Lamp and Industries Private Limited v.State of Haryana, 183 (2011) DLT 1 (SC) & Ramesh Chand v. Suresh Chand, 188 (2012) DLT538, Referred.

[Para 24(i)(vi)(xii) & (xiii) & 27]

Hardip Kaur v. Kailash, RFA No. 648/2006(18/05/2012), 2012(193) DLT 168 [J.R. Midha, J.]

Entry Filed under: Judgements,Property Laws