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Tuesday, March 28, 2017

Section 53A of T.P. Act - Section 16 of the Act, 1963, specific performance of a contract- = the right to claim protection under Section 53A of T.P. Act would not be available, if the transferee remains passive without taking effective steps and abstains from performing his part of the contract or conveying his readiness and willingness to that effect. Added to this, to reiterate, is the proviso to Section 53A of T.P. Act which excludes from the rigour of the said provision a transferee for consideration, who has no notice of the contract or of the part performance thereof. the materials on record do not unmistakably demonstrate that the original defendant during his lifetime and on his demise, his heirs i.e. the respondents had been always and ever ready and willing to perform his/their part of the contract and that the appellant/plaintiff had notice either of the agreement for sale or the fact that the original defendant had been in occupation of the suit premises by way of part performance of the contract.- Apropos, Section 16 of the Act, 1963, specific performance of a contract cannot be enforced in favour of a person who, inter alia, fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him unless prevented or waived by the other party thereto. As mentioned hereinabove, though there is an averment in the written statement that before the death of the predecessor-in-interest of the vendors of the appellant/plaintiff, the original defendant had requested him to execute the sale deed and after his demise, he made similar demands with them, evidence is jejune to irrefutably establish the readiness and willingness of his, during his lifetime and after his death, of the respondents, to perform his/their part of the contract. It is also not the case of either the original defendant or the present respondents that his/their performance of the contract had been either prevented or waived by either the vendors of the appellant/plaintiff or their predecessor-in-interest at any point of time.- Noticeably, the sale deed executed in favour of the appellant/plaintiff and proved in evidence has not been annulled as on date and is thus valid and subsisting.- conclusions recorded by the courts below are based on an erroneous understanding of the prescriptions of Sections 53A of T.P. Act. The determinations made thus cannot be sustained.- the respondents are not entitled to the benefit of the protection of Section 53A of the T.P. Act read with Section 16 of the Act, 1963.

                                                                  REPORTABLE

                             IN THE SUPREME COURT OF INDIA

                             CIVIL APPELLATE JURISDICTION

                  CIVIL  APPEAL NOS.  4311-4312       OF 2017
             (ARISING OUT OF S.L.P (C) NOS.29405-29406 OF 2008)


VASANTHI                                           .…APPELLANT


                                   VERSUS

VENUGOPAL (D) THR. L.RS.                           ....RESPONDENT(S)
                              J U D G  M E  N T

AMITAVA ROY,J.

            Leave granted.
2.    The impugnment  herein  is  both  of  the  judgment  and  order  dated
31.7.2006, rendered by the Single Judge of the High Court of  Judicature  at
Madras in A.S. No.  124  of  1990,  preferred  by  the   appellant/plaintiff
questioning  the  decision  of  the  Subordinate  Judge,   Cuddalore   dated
28.4.1989 in O.S. No. 172 of 1987 as well  as  the  order  dated  8.10.2007,
passed by the Division Bench of the said High Court  rejecting  the  Letters
Patent Appeal SR. No.16958 of 2007 preferred by her  against  the  dismissal
of Appeal A.S. No.124 of 1990, as not maintainable in the  face  of  Section
100-A of the  Code  of  Civil  Procedure,  1908  (as  amended)  (hereinafter
referred to as “CPC/Code”).
3.     We  have  heard  Mr.  R.  Basant,  learned  senior  counsel  for  the
appellant/plaintiff  and  Ms.  Malini  Poduval,  learned  counsel  for   the
respondents.
4.    As the rival assertions are  integrated  in  the  pleadings,  a  brief
reference thereto,  is  indispensable.  The  appellant/plaintiff  instituted
O.S. No.172 of 1987  against  the  predecessor-in-interest  of  the  present
respondents i.e. Venugopal (deceased)  praying  for  a  declaration  of  her
title in the suit property and also  for  recovery  of  possession  thereof.
She claimed to have purchased the  same  vide  registered  sale  deed  dated
26.6.1982 for the consideration  price  of  Rs.35,000/-  from  the  sons  of
Ramnathan Chettiar, the original owner, whereupon she was registered in  the
municipal records as the title-holder thereof.   She  averred  that  at  the
time of sale, the original defendant Venugopal  was  in  possession  of  the
property as a tenant of her vendors on payment rent  of  Rs.100  per  month.
As the  defendant-Venugopal did neither  accept  her  as  his  landlord  nor
agreed  to pay the enhanced rent  of Rs. 150/-, as demanded,  after  causing
a notice to be served on him,  the appellant/plaintiff filed an  application
before the Rent Controller, Cuddalore being R.C. O.P. No. 29  of  1986   for
his eviction from the suit property.
5.    In the said proceeding, the original  defendant-Venugopal  denied  the
title of appellant/plaintiff in the suit  property  and  claimed  to  be  in
occupation thereof on the strength of an agreement of sale executed  between
him  and  the   original   owner   Ramnathan   Chettair.    At   this,   the
appellant/plaintiff   instituted   a   suit   claiming   the   reliefs,   as
aforementioned,  by  pleading  that  neither  she  was  aware  of  any  such
agreement at the time of her purchase nor of any  part  performance  thereof
as  claimed  and  that  even  if  any  such   agreement   did   exist,   the
respondent/defendant was not entitled to remain in possession  of  the  suit
property  without  enforcing  the  same,  as  contemplated  in  law.     She
contended that she was a bona fide purchaser  for  value without  notice  of
such agreement and maintained that the defendant was not entitled  to  avail
the protection under Section 53A of the Transfer of Property Act, 1882  (for
short, hereinafter to be referred to as “T.P. Act”).
6.    The  original defendant-Venugopal  in  his  written  statement,  while
reiterating that Ramnathan Chettiar  was the owner  of  the  suit  property,
stoutly  denied the transaction of  sale  by  his  sons  in  favour  of  the
plaintiff vide registered sale deed dated 26.6.1982.  He also asserted  that
the vendors of the appellant/plaintiff had no subsisting title in  the  suit
property to convey to her.  He  denied  that  his  possession  of  the  suit
property at the time of purported sale in favour of appellant/plaintiff  was
that of a tenant under her  vendors  and  reiterated  that  pursuant  to  an
agreement  of  sale  dated  20.5.1975  with  the  original  owner  Ramnathan
Chettiar, he had  by installments, in all paid  Rs.  26,000/-  by  12.4.1976
which formed a major part of the consideration price.    He  stated  further
that  at the time of execution of the agreement  of  sale  dated  20.5.1975,
one Purushothaman was in occupation of the suit property as a  tenant  under
the original owner, who following the compromise between  him  (tenant)  and
the landlord vacated the suit premises, whereafter  possession  thereof  was
delivered by the original owner to him on 1.7.1976 and that since  then,  he
paid as well the property tax therefor.  However,  though  agreed  upon  and
inspite of repeated insistences, the original  owner  did  not  execute  the
sale deed and after his death, his sons also avoided to do  so.  He  claimed
protection of his possession in terms of Section 53A of T.P.  Act  and  also
alleged that the plaintiff was not a bona fide purchaser without  notice  of
the agreement for sale between him and the original owner.   He  pleaded  as
well that his right, secured under Section 53A of  the  T.P.  Act,  did  not
stand effaced by any period of limitation, as time was not  the  essence  of
contract for enforcing  the  specific  performance  thereof.    The  parties
though did exchange  additional  pleadings,  it  is  inessential  to  dilate
thereon.
7.    The Trial Court, on the basis of the pleadings, framed issues  and  by
its verdict dated 28.4.1989 dismissed the suit holding inter alia  that  the
possession of the original defendant of  the  suit  property  was  protected
under Section 53A of the TP Act, as the ingredients thereof  stood  complied
with by him and that the appellant/plaintiff was not entitled to the  relief
of declaration or possession, as sought for.
      8.    Being aggrieved, the appellant/plaintiff preferred appeal  being
A.S. No.124 of 1990 before the High Court of Judicature  at  Madras  and  as
hereinbefore mentioned, the same  also  met  the  same  fate.   Her  Letters
Patent Appeal being L.P.A.  SR  No.16958   of  2007  was  dismissed  as  not
maintainable being  in the teeth of Section 100-A of  C.P.C..
9.    Mr. Basant has assiduously urged that as Section 100-A of CPC  is  not
attracted to the LPA filed by the  appellant/plaintiff,  dismissal  thereof,
by reference to that provision, is patently  erroneous.   Without  prejudice
to this plea, the  learned  senior  counsel  has  urged  that  as  the  suit
property had been purchased by  the  appellant/plaintiff  by   a  registered
sale deed dated 26.6.1982 from the owners thereof  and  as  the  transaction
has remained unimpeached, the agreement for sale  dated  20.5.1975   between
the predecessor in-interest of the respondents and the original owner,  even
if valid, is of  no consequence  and,  therefore,  both  the  forums  below,
have grossly erred in law and on facts in dismissing her suit.  He   further
contended that  not only the appellant/plaintiff is a  bona  fide  purchaser
for value without any notice of the said  agreement,  in  the  face  of  the
failure of the respondents to prove the readiness and willingness  of  their
predecessor to perform his part of the contract at all  relevant  times  and
also  his  omission to file a  suit  for  specific  performance  within  the
prescribed period of limitation, no protection  under Section  53A  of  T.P.
Act was available to him and presently to the respondents.  Further  as  the
respondents/defendants have declined to  admit  the  appellant/plaintiff  as
their landlord, their occupation of  the  suit  premises  is  that  of  rank
trespassers and as such, are  liable  to  be  evicted.   Mr.  Basant  placed
reliance on the decision of this Court in Kamla Devi vs. Kushal  Kanwar  and
another  (2006) 13SCC 295 and  Mohd. Saud and another vs. Dr. (Maj.)  Shaikh
Mahfooz and others (2010) 13 SCC 517.
10.    Ms.  Malini  Poduval,  learned  counsel   for  the  respondents,   in
repudiation, has argued that the vendors of the appellant/plaintiff,  having
categorically admitted the  agreement  for  sale   dated  20.5.1975  between
their predecessor-in-interest Ramnathan Chettiar and the original  defendant
Venugopal and his possession of the suit property on the basis thereof,  the
finding that the benefit of Section 53A  of the TP  Act  is  extendable   to
them, is unexceptionable in the facts and circumstances of  the  case.   Not
only the original defendant had been ever ready and willing to  perform  his
part of contract, the purported purchase  by  the  appellant/plaintiff  from
the heirs of Ramnathan Chettiar, being  with  the  full  knowledge  of  said
agreement and the  possession  of  the  original  defendant,  on  the  basis
thereof, the transaction of sale did neither convey any  title  to  her  nor
was it bona fide for all intents and purposes.   According  to  the  learned
counsel, the suit has been rightly dismissed by  both  the  forums  and  the
dismissal of the LPA filed by the appellant/plaintiff is also unassailable.
11.   The competing propositions have been duly addressed.  The  disputation
pertaining to the maintainability of  the  LPA  deserves  attention  at  the
threshold.   Section 100-A of the CPC was inserted by the amendment Act  104
of 1976, which reads as under:
“100-A. No further  appeal in certain cases –
Notwithstanding anything contained  in  any  Letters  Patent  for  any  High
Court or in any other instrument having the force of law in  any  other  law
for the time being in force, where any appeal from an  appellate  decree  or
order is heard and decided by a Single Judge of a  High  Court,  no  further
appeal  shall lie from the judgment, decision or order of such Single  Judge
in such appeal or from any decree passed in such appeal.”


12.   Though this Section was amended by  the  Amendment  Act  46  of  1999,
reference thereto is avoided as the said amendment was not given effect to.

13.   This provision underwent another amendment  by  Amendment  Act  22  of
2002, to be refashioned as hereinbelow.
“100-A:  No further appeal  in  certain  cases  –  Notwithstanding  anything
contained in any Letters Patent for any High  Court  or  in  any  instrument
having the force of law or in any other law for the  time  being  in  force,
where any appeal from an original or appellate decree or order is heard  and
decided by a Single Judge of a High Court, no further appeal shall lie  from
the judgment and decree of such Single Judge.”

14.   This  amended  provision  enforced  w.e.f.  1.7.2002  predicated  that
notwithstanding anything contained in any Letters Patent for any High  Court
or in any instrument having the force of law or in any  other  law  for  the
time being in force, where any appeal from an original or  appellate  decree
or order is heard and decided by a Single Judge of a High Court, no  further
appeal would lie from the judgment and decree of such Single Judge.
15.   The purport and  purview  of  this  amended  provision  fell  for  the
scrutiny of this Court, amongst others in Kamla Devi (supra) and Mohd.  Saud
(supra), wherein it was held in unambiguous terms that  only Letters  Patent
Appeal, filed prior to the coming into force of the said amendment vide  Act
22 of 2002 would be maintainable and as a corollary, by virtue  of  the  bar
contained therein, Letters Patent Appeal  filed  thereafter,  would  not  be
maintainable.
16.   As the contextual facts in these  decisions  are  inessential,  having
regard to the hyaline legal postulations as above,  elaboration  thereof  is
avoided. The dismissal of the LPA of the appellant/plaintiff,  in  the  face
of the above judicially adumbrated explication of Section 100-A  of  CPC  by
this Court, cannot thus be faulted with.
17.   Reverting to the availability of the protection of Section 53A  of  TP
Act to the original defendant and on his death, to the present  respondents,
to reiterate, the evidence on record does proclaim that  the  agreement  for
sale dated  20.5.1975 had indeed been executed between the  predecessors-in-
interest of the vendors  of  the  appellant/plaintiff  and  the  respondents
herein,  pursuant whereto, an amount of Rs. 26,000/- in all  had  been  paid
by the proposed purchaser and the  possession of the suit property had  been
handed over to him in consideration thereof.   As a matter of fact,  at  the
time of execution of said agreement, the suit property was in occupation  of
a tenant of the proposed seller  i.e.  the  predecessor-in-interest  of  the
vendors of the appellant/plaintiff and  that  following  a  compromise,  the
tenant delivered possession of the  suit  property  to  the  predecessor-in-
interest of the present  respondents  and  since  thereafter,  they  are  in
occupation thereof.  The evidence on  record,  however,  does  not  in  very
clear terms establish that the appellant/plaintiff had conscious  notice  or
knowledge  of  this  agreement  for  sale  at  the  time  of  her  purchase.
Admittedly as well, neither the predecessor-in-interest of  the  respondents
nor they  had  taken  recourse  to  law  for  specific  performance  of  the
agreement.  This assumes importance in view of  the  averment  made  in  the
written statement that even prior  to  the  demise  of  the  predecessor-in-
interest of the vendors of the appellant/plaintiff, he did not  comply  with
the requests of the original defendant to get the  sale  deed  executed  and
his legal heirs, after his demise, also  adopted  the  same  non-cooperative
stance.
18.   Section 53A of T.P. Act and Section 16 of  the  Specific  Relief  Act,
1964 (for short, hereinafter to be referred to as  “Act,  1963”),  being  of
significant relevance are extracted hereunder:
“53A.  Part  performance.—Where  any  person  contracts  to   transfer   for
consideration any immoveable property by writing signed by  him  or  on  his
behalf from which the terms necessary to  constitute  the  transfer  can  be
ascertained with reasonable certainty,
and  the  transferee  has,  in  part  performance  of  the  contract   taken
possession of the property or any part thereof,  or  the  transferee,  being
already in possession, continues in possession in part  performance  of  the
contract and has done some act in furtherance of the contract,
and the transferee has performed or is willing to perform his  part  of  the
contract,
then, notwithstanding that 2[***] where there is an instrument of  transfer,
that the transfer has not been completed in the manner  prescribed  therefor
by the law for the time  being  in  force,  the  transferor  or  any  person
claiming under him shall be debarred from enforcing against  the  transferee
and persons claiming under him any right  in  respect  of  the  property  of
which the transferee has taken or continued  in  possession,  other  than  a
right expressly provided by the terms of the contract:

Provided that  nothing  in  this  section  shall  affect  the  rights  of  a
transferee for consideration who has no notice of the  contract  or  of  the
part performance thereof.” (Emphasis supplied)

“16. Personal bars to relief.—Specific performance of a contract  cannot  be
enforced in favour of a person—

(a) who would not be entitled to recover compensation for its breach; or

(b) who has become incapable of performing, or violates any  essential  term
of, the contract that on his part remains to be performed, or acts in  fraud
of the contract, or willfully acts at variance with, or  in  subversion  of,
the relation intended to be established by the contract; or

(c) who fails to aver and prove that he has performed  or  has  always  been
ready and willing to perform the essential terms of the contract  which  are
to be performed by him, other than terms the performance of which  has  been
prevented or waived by  the  defendant.  Explanation.—For  the  purposes  of
clause (c),—
(i) where a contract involves the payment of money, it is not essential  for
the plaintiff to actually tender to the defendant or  to  deposit  in  court
any money except when so directed by the court;
(ii) the plaintiff must aver performance of, or  readiness  and  willingness
to perform, the contract according to its true construction.”
                                                         (Emphasis supplied)

19.   As would be  patent  from  the  above  quotes,  the  protection  of  a
prospective  purchaser/transferee  of  his  possession   of   the   property
involved, is available subject to the following prerequisites:
(a) There is a contract in writing   by  the  transferor  for  transfer  for
consideration of any immovable property signed by  him  or  on  his  behalf,
from  which  the  terms  necessary  to  constitute  the  transfer   can   be
ascertained with reasonable certainty;

(b)  The  transferee  has,  in  part  performance  of  the  contract,  taken
possession of the property or any part thereof,  or  the  transferee,  being
already in possession, continues in possession in part  performance  of  the
contract;
(c)  The transferee has done some act in furtherance  of  the  contract  and
has performed or is willing to perform his part of the contract.

20.   In  terms  of  this  provision,  if  the  above  pre-conditions  stand
complied with, the transferor or any person  claiming  under  him  shall  be
debarred from enforcing against the transferee and person(s) claiming  under
him, any right in respect of the property of which the transferee has  taken
or continue in possession, other than a  right  expressly  provided  by  the
terms of the contract, notwithstanding  the  fact,  that  the  transfer,  as
contemplated, had  not been completed in the manner prescribed  therefor  by
the law for the time being in  force.   Noticeably,  an  exception  to  this
restraint is carved out qua a  transferee  for  consideration,  who  has  no
notice of the contract or of the part performance thereof.
21.   On a perusal  of the evidence adduced, it  transpires  that  the  sale
deed dated 26.6.1982 had been proved on behalf of  the  appellant/plaintiff.
PW1 Subramanian, the husband of the  appellant/plaintiff  in  his  testimony
has stated that at the time  of  purchase,   when  he  enquired   about  the
possession  of the original defendant, his vendors told him that he  was  in
occupation of the premises as a tenant and that  after the purchase,  as  he
(original defendant) refused to pay the rent, the   application  before  the
Rent Controller, Cuddalore was filed for his eviction therefrom and  it  was
in  that  proceeding,  that  the  original  defendant  disclosed  about  the
agreement for sale, whereafter the suit had to be filed seeking  declaration
of title and possession.   This  witness   categorically  denied  about  his
knowledge of such agreement for sale  at the time of purchase.

22.   PW2 Deenadayalan, one of the sons  of  the  original  owner  Ramnathan
Chettiar on oath  affirmed the execution of the sale  deed  dated  26.6.1982
in favour of the appellant/plaintiff for a consideration  of  Rs.  35,000/-.
Though, this witness admitted the agreement for sale  between  the  original
defendant and his father, he mentioned that on enquiry, his father had  told
him that the agreement had lapsed as the purchase was not made within  time.
 This witness also categorically stated that he did not disclose  about  the
agreement for sale  to the appellant/plaintiff and  instead  had   disclosed
to her husband that the original defendant  was only a tenant in  possession
of the suit property.
23.   As against this,  the respondents, amongst others sought  to  rely  on
the testimony of DW1 to the  effect  that  he  had  always  been  ready  and
willing to perform the contract and also in the reply to the notice sent  by
the vendors of the appellant/plaintiff conveying  the  cancellation  of  the
agreement, he reiterated his readiness  and  willingness  to  get  the  sale
deed,  on the basis of the agreement for sale, executed.

24.  The attendant facts and the evidence  on  record,  though   demonstrate
that an agreement  for sale of the suit property had been  entered  into  on
20.5.1975  between  the  predecessor-in-interest  of  the  vendors  of   the
appellant/plaintiff and the original defendant and that  an  amount  of  Rs.
26,000/- had been paid by the latter for which the possession  of  the  suit
property had been delivered to him, to reiterate, adequate evidence  is  not
forthcoming to convincingly authenticate that  the  proposed  purchaser  and
thereafter his heirs i.e. the present respondents, had   always  been  ready
and willing to  perform  his/their  part  of  the  contract,  which  amongst
others, is attested by his/their omission to enforce the  contract  in  law.
His/their readiness  and  willingness  to  perform  his/their  part  of  the
contract is also not pleaded in the written statement in clear and  specific
term as required. Further the materials on record also  do  not  testify  in
unequivocal terms that at the time of purchase, the appellant/plaintiff  had
the  knowledge/information  of  such  agreement  for  sale   or   the   part
performance as claimed, so as to repudiate her  transaction  to  be  neither
bona fide nor one with notice of  such  contract  or  the  part  performance
thereof, as comprehended in the proviso to Section 53A of the T.P. Act.
25.   The fact that  at the  first  instance,  the  appellant/plaintiff  had
filed an application before the Rent Controller, Cuddalore for  eviction  of
the original defendant as a tenant,  also  attests  her  ignorance  at  that
point of time of the agreement  for sale and his occupation of the  premises
in part performance thereof.

26.   This Court in Shrimant Shamrao Suryavanshi  and  another  vs.  Pralhad
Bhairoba Suryavanshi by Lrs. and others (2002) 3   SCC  676,  while  tracing
the incorporation of Section 53A in the TP Act, vide Act of 1929, acting  on
the recommendations of the Special Committee on the issue, had  ruled   that
mere expiration of  the  period  of  limitation  for  bringing  a  suit  for
specific performance would not debar a person in possession of an  immovable
property  by   way  of  part  performance  from  setting  up  a   plea,   as
contemplated therein in defence to protect his possession  of  the  property
involved.  It was however underlined that  if the conditions  precedent,  as
enumerated, in Section 53A of  the  Act,  are  complied  with,  the  law  of
limitation would not come in the  way  of  the  said  person  to  avail  the
benefit of the protection  to  his  possession  as  extended  thereby   even
though a suit for specific performance of a contract by him had gone  barred
by limitation.  Explicitly therefore, though mere expiry of  the  period  of
limitation for a suit for specific performance  may  not  be  a  bar  for  a
person in possession of an immovable  property  in  part  performance  of  a
contract for transfer thereof for consideration  to  assert  the  shield  of
Section 53A of  T.P. Act, it is nevertheless imperative that  to  avail  the
benefit of such protection, all the essential pre-requisites therefor  would
have to be obligatorily complied with.
27.   In A. Lewis and another vs. M.T. Ramamurthy and others (2007)  14  SCC
87, it was propounded that the right to claim protection under  Section  53A
of T.P. Act would not be  available,  if  the  transferee   remains  passive
without taking effective steps  and abstains  from performing  his  part  of
the contract or conveying his readiness and willingness to that effect.
28.   Added to this, to reiterate, is the proviso to  Section  53A  of  T.P.
Act which excludes from the rigour of the said provision  a  transferee  for
consideration,  who  has  no  notice  of  the   contract  or  of  the   part
performance thereof.
29.   In the contextual facts, as obtained herein, the materials  on  record
do not unmistakably demonstrate that  the  original  defendant   during  his
lifetime and on his demise, his heirs  i.e. the respondents had been  always
and ever ready and willing to perform his/their part  of  the  contract  and
that the appellant/plaintiff had notice either of the agreement for sale  or
the fact that the original defendant had been  in  occupation  of  the  suit
premises    by    way    of    part    performance    of    the    contract.

30.   Apropos, Section 16 of  the  Act,  1963,  specific  performance  of  a
contract cannot be enforced in favour of a person who, inter alia, fails  to
aver and prove that he has performed or has always been  ready  and  willing
to perform the essential terms of the contract which are to be performed  by
him unless prevented or waived by the other  party  thereto.   As  mentioned
hereinabove, though there is an  averment  in  the  written  statement  that
before the death of  the  predecessor-in-interest  of  the  vendors  of  the
appellant/plaintiff, the original defendant  had requested  him  to  execute
the sale deed and after his demise,  he  made  similar  demands  with  them,
evidence is jejune to irrefutably establish  the readiness  and  willingness
of his, during his lifetime and after his  death,  of  the  respondents,  to
perform his/their  part of the contract.  It is also not the case of  either
the  original  defendant  or  the   present   respondents   that   his/their
performance of the contract had been either prevented or  waived  by  either
the vendors of the appellant/plaintiff or their  predecessor-in-interest  at
any point of time.
31.     Noticeably,   the   sale   deed    executed   in   favour   of   the
appellant/plaintiff and proved in evidence has not been annulled as on  date
and is thus valid and subsisting.
32.   On an overall view of the matter, we  are  of  the  opinion  that  the
conclusions recorded  by  the  courts  below   are  based  on  an  erroneous
understanding of  the  prescriptions  of  Sections  53A  of  T.P.  Act.  The
determinations made thus cannot be sustained.
33.   On an appraisal of the evidence on record, on the  touchstone  of  the
above legal propositions, we are thus of the considered  view,  that  though
the LPA preferred by the appellant/plaintiff is  not  maintainable  in  law,
the respondents are not  entitled  to  the  benefit  of  the  protection  of
Section 53A of the T.P. Act read with Section 16 of the Act, 1963.
34.   In the result, civil appeal  filed  against  the  judgment  and  order
dated 31.7.2006, rendered in A.S. No. 124 of  1990  affirming  the  judgment
and order dated 28.4.1989  passed in O.S. No. 172 of  1987  is  allowed  and
Civil Appeal  preferred against  the  judgment  and  order  dated  8.10.2007
passed in LPA SR No.  16958 of 2007 is  dismissed.  As  a  consequence,  the
suit filed by the appellant/plaintiff is decreed, as prayed for.  No costs.



............................................J.
                                                (DIPAK                MISRA)



….........................................J.
                                  (AMITAVA ROY)
      NEW DELHI;
 MARCH  21, 2017.

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