Smt. Rano Singh . vs Sh. Gurbax Singh (D) Th Lrs
- Court
- Supreme Court
2026 INSC 1137
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7025 OF 2012
SMT. RANO SINGH AND OTHERS … APPELLANT(S)
VERSUS
SH. GURBAX SINGH (D) TH LRS
AND OTHERS … RESPONDENT(S)
J U D G M E N T
ARAVIND KUMAR, J.
1. Heard.
2. The instant appeal is filed by the Plaintiffs who are the legal
heirs of late Shri. Sohan Singh, challenging the Judgment and
1
order of the High Court of Delhi passed in RFA No.377/2010
Signature Not Verified
Digitally signed by
RAHUL KUMAR
Date: 2026.10.16
16:48:08 IST
Reason:
1
Hereinafter referred to as the “High Court”
Civil Appeal No. 7025 of 2012 Page 1 of 51
dated 02.02.2012 whereunder the Judgment and decree passed
2
by Additional District Judge, Tis Hazari, Delhi dated
14.01.2010 in Case No. M-27/2009 (old Suit No.475/1975)
dismissing the suit for possession came to be affirmed.
3. For the sake of convenience, the parties herein shall be referred
in terms of their nomenclature, rank and status before the Trial
Court, i.e., Appellants as legal heirs of Sohan Singh or
Plaintiffs and the Respondent No. 1 as Defendant No. 1. As
Respondents No. 2 to 10 are also the legal heirs of Sohan Singh
and they are seeking identical relief to that of the Plaintiffs,
hence, their claims are not discussed separately.
4. Before we proceed to formulate the question of law for
adjudication of facts, we deem it necessary to first set out the
inter se relationship between the parties to the suit and their
respective legal heirs for better understanding. Accordingly,
genealogical chart depicting the relationship between the
parties to this lis and their rank as per the Trial Court and before
this Court is set out hereinbelow -
2
Hereinafter referred to as the “Trial Court”
Civil Appeal No. 7025 of 2012 Page 2 of 51
5. The dispute between the parties relate to Plot No.8, Friends
Colony, New Delhi admeasuring approximately 4,132 sq.yds.,
together with the super-structure constructed thereon, which,
for the ease of reference shall be referred to as “plot” or “suit
property” hereinafter.
Civil Appeal No. 7025 of 2012 Page 3 of 51
CASE AND ARGUMENTS ADVANCED BY THE
PLAINTIFFS
6. Sohan Singh is the father of Plaintiffs, S. Mukhinder Singh and
S. Sukhinder Singh. He became the member of Nathu Ram
3
Friends Colony Co-operative Housing Building Society Ltd.
on 16.01.1950 and was allotted the suit property by way of an
Agreement to Sell dated 14.01.1952, with an express condition
that he has to raise construction over the plot within a stipulated
time-period of three years. In accordance with the said written
agreement, Sohan Singh paid the sale consideration of Rs.
11,824/- along with other charges.
7. Sohan Singh had close friendly/brotherly relations with Sobha
Singh and they also shared a commercial relationship as
partners in a firm. Thus, Sohan Singh entrusted all matters
relating to the suit property to Sobha Singh, who was acting as
his agent in respect thereof. Since Sohan Singh was at Shimla,
the construction of the house was assigned to Sobha Singh,
who carried out the same. After the completion of the
construction, Sohan Singh wrote a letter to the Society
evidencing the completion of construction and contends that
3
Hereinafter referred to as the “Society”
Civil Appeal No. 7025 of 2012 Page 4 of 51
the ownership of Sohan Singh was duly recorded in Resolution
No. 6 dated 30.08.1959.
8. The dispute, according to the Plaintiffs arose when the Society
decided to transfer the plot to Defendant No. 1 vide meeting
held on 13.12.1959, despite duly recording that Sohan Singh is
the owner of the plot. Although the sale consideration was paid
by Sohan Singh, the Society vide Sale Deed dated 03.12.1960
transferred the plot to Defendant No. 1, by way of a sham and
voidable document. The Plaintiffs further contended that the
plot exclusively belonged to Sohan Singh and that, aggrieved
by the execution of the Sale Deed in favour of Defendant No.
1, Sohan Singh approached the Society on 14.05.1963 seeking
execution of the Sale Deed in his favour upon completion of
the construction. However, by letter dated 23.05.1963, the
Society informed him that the plot originally allotted to him
had already been transferred in favour of Defendant No. 1 and
that the Sale Deed had been executed on 03.12.1960.
9. The Plaintiffs, alleging that the Society, in collusion with
Defendant No. 1, fraudulently transferred the plot in favour of
Defendant No. 1, approached the Registrar of Co-operative
Society for redressal of his grievance, through arbitration
proceedings. However, the Society thereafter approached the
Civil Appeal No. 7025 of 2012 Page 5 of 51
Registrar of Co-operative Societies, which permitted the
Society to institute a civil suit before the Competent Court. The
Society filed Suit No. 235 of 1966 seeking declaration that the
Sale Deed dated 03.12.1960 executed in favour of Defendant
No. 1 as valid and also sought perpetual injunction against the
Plaintiffs. Subsequently, the Plaintiffs instituted the Suit No.
475 of 1975 (subject suit) seeking of possession of the plot
along with mesne profits. In support of the contentions raised
Appellants have relied upon the following judgments.
i. Poona Ram vs. Moti Ram (Dead) Through Legal
Representatives and Others; (2019) 11 SCC 309.
ii. Narasamma and Others vs. A. Krishnappa (Dead)
Through Legal Representatives; (2020) 15 SCC 218.
iii. Umadevi Nambiar vs. Thamarasseri Roman Catholic
Doicese; (2022) 7 SCC 90.
CASE AND ARGUMENTS ADVANCED BY THE
DEFENDANT NO. 1
10. The Defendant No. 1, Gurbax Singh, son of Sobha Singh,
contended that the suit be dismissed on the following amongst
other contentions –
Civil Appeal No. 7025 of 2012 Page 6 of 51
11. Notwithstanding the initial allotment of the plot in favor of
Sohan Singh, the Defendant No. 1 categorically submitted that
Sohan Singh failed to satisfy an essential covenant of the
Agreement, which obligated him to raise construction on the
suit property within a stipulated timeframe. He asserted that
Sohan Singh lacked the financial means to undertake such
construction and, consequently, by way of a letter dated
04.10.1954, requested the Society to transfer the plot to
Defendant No. 1, whom he described therein as his “nephew”.
12. Acting upon the letter of Sohan Singh recommending the
transfer of the suit property in favour of Defendant No. 1, the
Society, by resolution dated 13.10.1954, resolved to transfer
the plot to Defendant No. 1. Thereafter, by letter dated
16.10.1954, the Society informed Defendant No. 1 of the
recommendation made by Sohan Singh and directed him to
clear all outstanding dues. Subsequently, by letter dated
22.11.1954, the Society informed Sohan Singh that the plot had
been allotted to Defendant No. 1.
13. Pursuant thereto, Defendant No. 1 took possession of the plot
in 1954, discharged all outstanding dues payable to the Society
entirely and, from his own funds, constructed a two-storeyed
residential house thereon, which was completed by 1959. Since
Civil Appeal No. 7025 of 2012 Page 7 of 51
then, Defendant No. 1 has remained in continuous and
uninterrupted possession and occupation of the suit property,
asserting and exercising rights of absolute ownership over the
property. They also denied the contention of the Plaintiffs that
Sobha Singh was acting as an agent of Sohan Singh.
14. In response to the submissions advanced by the Plaintiffs,
Defendant No. 1 contended that Sohan Singh had forfeited all
rights that he previously held in respect of the suit property. On
14.08.1959, Defendant No. 1 informed the Society that the
construction had been completed without any financial
assistance or contribution from Sohan Singh or the Plaintiffs.
15. Alternatively, the Defendant No. 1 also took the contention of
adverse possession on the ground that he has been in
continuous possession of the plot since 1954. In support of their
contentions, they have relied upon following judgments.
i. Ningawwa vs. Byrappa Shiddappa Hireknrabar and
Others; (1968) SCC OnLine SC 206.
ii. Hussain Ahmed Choudhury and Others vs. Habibur
Rahman (Dead) through Lrs. And Others; (2025) SCC
OnLine SC 892.
iii. Anathula Sudhakar vs. P. Buchi Reddy (Dead) by Lrs.
And Others; (2008) 4 SCC 594.
Civil Appeal No. 7025 of 2012 Page 8 of 51
iv. Nikhila Divyang Mehta and Another vs. Hitesh P.
Sanghvi and Others; (2025) SCC OnLine SC 779.
v. Prem Singh and Others vs. Birbal and Others; (2006) 5
SCC 353.
vi. Dhurandhar Prasad Singh vs. Jai Prakash University and
Others; (2001) 6 SCC 534.
CASE AND ARGUMENTS ADVANCED BY DEFENDANTS
NO. 2 TO 5 (RESPONDENT NOS. 2 TO 10) IN THIS APPEAL
16. The Respondent Nos. 2 to 10 in the present appeal had filed
their written statements before the Trial Court supporting the
plaintiffs and in the present appeal they have reiterated their
stand and sought for the appeal being allowed.
TRIAL COURT AND ITS DECISION
17. Owing to the commonality of issues involved, the suit
instituted by the Society and the suit filed by the Plaintiffs were
consolidated to be tried together and disposed of jointly and the
evidence recorded in the suit preferred by the Society was
ordered to be treated as evidence in the subject suit. However,
the suit of the Society came to be dismissed for default, but the
Civil Appeal No. 7025 of 2012 Page 9 of 51
evidence recorded was preserved for the adjudication of the
Plaintiffs suit.
18. The Court initially framed fourteen issues inter alia, question
of limitation, estoppel and on ownership and possession of the
suit property. Further, three additional issues were framed with
regard to the amount involved in construction and payment of
the sale consideration by Sohan Singh. Since we are dealing
with the most significant questions of law, we confine
ourselves to those questions specifically challenged before us.
19. Defendant No. 1 argued that the suit is not maintainable as the
Plaintiffs have sought for possession without seeking any relief
of specific performance or cancellation of the Sale Deed dated
03.12.1960. On evaluation, the Trial Court observed that the
issue of the validity of the Sale Deed was already framed as an
issue and since damages were not claimed by the Plaintiffs, the
only relief left was of possession. Thus, on the said score, Trial
Court admitted the suit.
20. The Trial Court, on the aspect of limitation, held in favour of
the Plaintiffs. It came to be held that dispute arose in 1963
when the Plaintiffs came to know of the alleged sale deed
executed in favour of Defendant No. 1. The Plaintiffs raised
the dissonance before the Society and the matter was referred
Civil Appeal No. 7025 of 2012 Page 10 of 51
to Arbitration. The Learned Arbitrator was of the opinion that
issue “involved a complicated question of law and fact” and
relegated the parties to approach the Civil Court for proper
adjudication. As a result, the Society filed Civil Suit No.
235/1966 wherein Sohan Singh and the Defendant No. 1 were
arrayed as parties. Realising that the Society had transferred the
plot to the Defendant No. 1, the Plaintiffs filed Civil Suit No.
475/1975 renumbered as Suit No. M-27 of 2009 seeking
possession. Thus, the Trial Court concluded that for the
purpose of limitation, the facts right from 1963 till the filing of
the suit in 1975 are to be considered as the dispute was raised
before other forums before the suit was finally filed in 1975.
21. Nonetheless, on merits, the Trial Court recognised that the
Plaintiffs were estopped from contending that transfer of the
plot to the Defendant No.1 was without consent. This was for
the reason that firstly, Sohan Singh had never given any letter
to Sobha Singh or to Defendant No. 1 derecognising their rights
over the plot, which resultantly, gave Sobha Singh and
Defendant No.1 permissible possession of the suit property.
Secondly, the Society has transferred the plot to the Defendant
No. 1 on the strength of the letter dated 04.10.1954 by Sohan
Singh and no efforts were made to raise any objection to the
Civil Appeal No. 7025 of 2012 Page 11 of 51
possession of the Defendant No. 1 over the property till 1975.
Sohan Singh or anyone claiming through him has not
financially contributed for raising the construction or complied
with the conditions stipulated under the agreement dated
14.01.1952 by which the Suit Schedule property was allotted
to Sohan Singh.
HIGH COURT - THE REGULAR FIRST APPEAL AND ITS
JUDGMENT
22. Before the High Court, the parties made submissions on four
issues as enumerated under the impugned order -
a. Application of Section 53A of the Transfer of Property
Act, 1882 to ascertain whether Sohan Singh had become
the owner of the suit property by virtue of part
performance?
b. Whether the sale deed dated 03.12.1960 executed in
favour of the Defendant No. 1 is on account of fraud and
collusion and its effect thereto?
c. Whether the suit filed by the Plaintiffs is barred by
limitation by the operation of Article 59 of the Limitation
Act, 1963?
Civil Appeal No. 7025 of 2012 Page 12 of 51
d. Whether the Defendant No. 1 was the owner of the suit
property by virtue of estoppel or by adverse possession?
23. The first aspect dealt with by the High Court was the argument
raised by the Plaintiffs under Section 53A of the Transfer of
Property Act, to the effect that the buyer, and in the instant
case, Sohan Singh, acquired rights over the suit property
pursuant to an agreement entered into between Sohan Singh
and the Society, upon payment of the agreed sale consideration.
The High Court rejected this argument on the premise that the
written agreement dated 14.01.1952, under which the property
was agreed to be sold to Sohan Singh, contained an express
clause obligating him to raise construction on the said plot
within a specified time. To establish readiness and willingness
under Section 53A, Sohan Singh was required to demonstrate
performance of this condition. Instead, being unable to carry
out the construction, Sohan Singh had addressed a letter dated
04.10.1954 to the Society requesting the transfer of the plot in
favor of Sobha Singh.
24. In furtherance, the Court pointed out another critical
observation - Sohan Singh had voluntarily abjured his rights
under the agreement dated 14.01.1952 vide letter dated
Civil Appeal No. 7025 of 2012 Page 13 of 51
04.10.1954. Once a person willingly puts an end to the
performance of continuous obligations set out in the
agreement, he cannot thereafter raise a claim under Section
53A of Transfer of Property Act. Thus, the undisputed factual
position as discerned by the High Court was that there was no
transaction between Sohan Singh and Sobha Singh or with
anybody else for the purpose of construction over the said
plot/suit property.
25. The Original purchaser or allottee from the Society of the suit
property was Sohan Singh. The suit was filed by the legal heirs
of Sohan Singh. The Court noticed that during his life time,
Sohan Singh neither revoked his letter nor questioned the sale
deed. In addition to the above, the Court further noted that there
was an intention to transfer the plot and the membership to the
Defendant No. 1 and this intention overrides the nature of
relationship shared between Sohan Singh and Sobha Singh.
26. Discussing the Rules of the Society, the High Court relied on
the Resolution dated 28.11.1954, passed much prior to the sale
deed dated 03.12.1960, which provided that transfer can take
place not only to a close blood relation but also to a friend of
the member of the society. The Court clarified that Sobha
Singh was a close friend of Sohan Singh, but vide letter dated
Civil Appeal No. 7025 of 2012 Page 14 of 51
04.10.1954, Sohan Singh refers to Defendant No. 1 as
“nephew” evidencing their close bond and by operation of the
resolution expanding the transfer to non-blood relatives, the
sale in favour of Sobha Singh was validly executed.
27. On limitation, the High Court held that Plaintiffs and their
predecessor in interest, Sohan Singh, had knowledge of the
Sale Deed since 1960 itself which forms an actual and factual
knowledge. This was corroborated by the admission of
Plaintiff No. 1 who specifically admitted that they came to
know of the fraud of execution of the Sale Deed in the year
1960. In any event, registration of the sale deed constituted
deemed notice under Section 3 of the Transfer of Property Act.
Ergo, the Plaintiffs are said to have notice of the sale deed once
it was duly registered. As per Article 59 of the Limitation Act,
1963, a suit to cancel or set aside an instrument has to be filed
within three years from the date when the facts entitling the
plaintiff to have the instrument cancelled or set aside becomes
known to him. The High Court therefore was of the view that
even if the limitation is computed from the date as stated by the
Plaintiffs, i.e., 1963, the suit is patently barred by limitation as
the challenge to the sale deed ends in the year 1966 and the suit
Civil Appeal No. 7025 of 2012 Page 15 of 51
was filed in the year 1975, without challenge to the sale deed
dated 03.12.1960.
28. On the issue of estoppel and the ownership of the Defendant
No. 1, the reasoning of the High Court was based on the law
laid down under Section 115 of the Indian Evidence Act, which
estops an owner from asserting title after intentionally inducing
another to believe and act upon the representation of
ownership. Applying this principle, the Court observed that
Defendant No. 1 acted as the owner of the suit property as per
the letter dated 04.10.1954 by Sohan Singh to the Society as
the Society transferred the plot and the membership to
Defendant No.1. High Court further observed that no amount
was paid or contributed by the Plaintiffs in lieu of the
construction undertaken by the Defendant No. 1.
29. Based on the said reasonings, the High Court while upholding
the Judgement of the Trial Court dismissed the First Appeal of
the Plaintiffs, prompting them to approach this Court by way
of the present Appeal.
30. We have had the opportunity to go through all the documents
placed on record and have given our anxious consideration to
the rival contentions raised by the Learned Counsels appearing
Civil Appeal No. 7025 of 2012 Page 16 of 51
for the parties. In our considered opinion, the following point
would arise for our consideration:
“Whether the Judgment of the High Court, which confirmed
the dismissal of the suit for possession passed by the Trial
Court requires interference?”
ANALYSIS, DISCUSSION AND CONCLUSION
In Re: On Limitation
31. Undisputed facts -
Date of Agreement to Sell in favour
of the Plaintiff executed by Society
14.01.1952
Time period given to complete
construction and for execution of
Sale Deed (3 years)
14.01.1955
Date of Letter submitted by Sohan
Singh to the Society to transfer the
Suit Schedule property in favour of
Gurbax Singh
04.10.1954
Date of Sale Deed registered &
executed in favour of Defendant
No.1 by the Society
03.12.1960 (construction
was completed in 1959)
Date of institution of the suit 1975
Civil Appeal No. 7025 of 2012 Page 17 of 51
32. On the issue of limitation, the High Court and the Trial Court
have taken divergent views, while the Trial Court observed that
the suit is maintainable, the High Court rules that the suit is
barred by limitation. The stand of the parties and the Courts
being completely divergent would compel us to discuss each
of their stands independently.
33. The Plaintiffs advanced arguments to the effect that suit had
been instituted within the prescribed period of limitation. Their
specific case was that the Sale Deed dated 03.12.1960 was
executed by playing fraud, pursuant to which the Plaintiffs
raised claims by letter dated 25.04.1964 against the Society by
raising a dispute before the Registrar of Co-operative Societies
resulting in Arbitral Proceedings. However, upon an
application made by the Society, the Registrar, vide order dated
22.01.1966, directed the Society to institute a civil suit before
the competent Court within a period of six months. Hence, the
Society filed a Civil Suit No. 235/1966 against Sohan Singh
seeking declaration that the sale deed registered in favour of
Gurbax Singh was valid along with a prayer for perpetual
injunction. In the said suit, Gurbax Singh was also impleaded
as a party and he filed the Written statement on 21.08.1971
Civil Appeal No. 7025 of 2012 Page 18 of 51
claiming title by virtue of sale deed executed by the Society in
his favour on 03.12.1960. Thereafter, the Plaintiffs filed Civil
Suit No.475/1975 for possession on 22.05.1975. Both Suits
were consolidated and ordered that evidence recorded in Civil
Suit No.235/1966 be treated as evidence in Civil Suit
No.475/1975.
34. Defendant No. 1 contended that Plaintiffs had full knowledge
of execution of the Sale Deed dated 03.12.1960 since the very
year of its execution. As recorded by the High Court, Plaintiff
No. 1 too, in his deposition before the Trial Court categorically
admitted that he became aware of the fraud played upon him in
st
1960. Hence, 1 Defendant advanced submissions to the effect
that suit filed by the Plaintiffs is barred by limitation, inter alia,
all reliefs that have been sought or could be sought by the
Plaintiffs are hopelessly barred by limitation. It is in this
background Trial Court framed Issue No.7 to the following
effect:
“7. Whether the Suit is within Limitation”
35. Three limbs of arguments were presented by the Defendant
No.1 to non-suit the Plaintiffs on the issue of Limitation -
a. Article 54 of the Limitation Act, 1963 : Although the
Plaintiffs have not sought specific performance,
Civil Appeal No. 7025 of 2012 Page 19 of 51
arguendo , even if such a relief were to have been sought,
the suit would be barred by limitation. Under Article 54,
a suit for specific performance must be instituted within
three years from the date fixed for performance or, where
no such date is fixed, from the date when the Plaintiff has
notice of the refusal to perform. In the present case, the
limitation period expired in 1963.
b. Article 59 of the Limitation Act, 1963 : If the Plaintiffs
intended to seek a declaration for cancellation of the Sale
Deed dated 03.12.1960, such a suit ought to have been
instituted within three years from the date of execution of
the Sale Deed, as prescribed under Article 59 of the
Limitation Act. However, it was not done so.
c. Article 64 of the Limitation Act, 1963 : The Plaintiffs
have sought the relief of possession which must be
instituted within twelve years from the date of
dispossession. In the present case, the period of limitation
expired in 1972, whereas the suit was instituted only in
1975 and was thus barred by limitation.
We deem it apt and appropriate to extract aforesaid Articles of
Limitation Act, 1963 for analysis of the arguments advanced
on this aspect and same is extracted hereinbelow.
Civil Appeal No. 7025 of 2012 Page 20 of 51
Description of Suit Period of
Limitation
Time from which period
begins to run
Article 54
For specific
performance of a
contract
Three years The date fixed for the
performance, or, if no
such date is fixed, when
the plaintiff has notice
that the performance is
refused.
Article 59
To cancel or set aside
an instrument or decree
or for the rescission of
a contract
Three years When the facts entitling
the plaintiff to have the
instrument or decree
cancelled or set aside or
the contract rescinded
first become known to
him.
Article 64
For possession of
immovable property
based on previous
possession and not on
title, when the plaintiff
while in possession of
the property has been
dispossessed
Twelve years The date of dispossession.
Civil Appeal No. 7025 of 2012 Page 21 of 51
36. Before we embark upon our discussion and reasoning, we
deem it appropriate to analyse the law on limitation application
to the instant case.
37. The law of limitation, as a procedural law, finds its roots in the
maxims “ interest reipublicae ut sit finis litium ” which means
that it is in the interest of the State that there should be a limit
to litigation and “ vigilantibus non dormientibus jura
subveniunt ” - the law assists the vigilant and not those who
sleep over their rights. It specifies that a litigant ought to be
diligent, careful and proactive in enforcing and protecting his
rights for a purpose that the litigation ought to be raised before
the cause expires and also to prevent the litigation from being
dragged for a prolonged period of time. It cannot be construed
that the period of limitation bars the court from enforcing
substantive justice. As the scope of the Act specifies, it is to
make sure that the parties knock the doors of the court within
a time bound manner so as to not render their cause otiose. A
substantial cause seeking justice has a lifespan and once the
cause dies, it cannot be revived by dilatory tactics by clinging
to another cause. Thus, the period of limitation cannot be
extended by any party to make it naturally convenient to bring
the cause within the period of limitation.
Civil Appeal No. 7025 of 2012 Page 22 of 51
38. In State of Kerala and Others v. V.R. Kalliyanikutty and
4
Another , referring to Halsbury’s Laws of England, 4th Edn. ,
this Court has supported the existence of statutes of limitation
holding that a dormant claim can be more cruel than bring
justice; the Defendant might not have or would have lost the
requisite evidence needed to prove the case; and a good cause
should be perused with reasonable diligence. What needs to be
seen is that an existing cause is redressed and not the
resurrection of a stale one. Keeping these legal principles in
mind, we shall now advance to the adjudication of the rival
claims. We clarify that the suit filed by the Plaintiffs is one for
possession. However, we also deem it appropriate to discuss
other points for the specific contentions raised by the
Defendant No. 1 and to lay to rest all contentions in that regard.
39. The claim of the Plaintiffs being barred under Article 54 of the
Limitation Act, 1963 -
a. Article 54 primarily provides the limitation period to file
a suit for specific performance. The Plaintiffs, in the
present matter have not sought for specific performance,
but even assuming they had, the suit would be barred by
limitation. As per the Article, a suit for specific
4
(1999) 3 SCC 657
Civil Appeal No. 7025 of 2012 Page 23 of 51
performance has to be filed within a period of three years
from the “ date fixed for performance or if no such date is
fixed, when the plaintiff has notice that the performance
is refused ”. For clear understanding we refer to the case
of Ahmadsahab Abdul Mulla (2) Dead by proposed LRs
5
v. Bibijan & Others , which clarified that, when there is a
date for performance of the contract, there is a definite
date for doing that particular act. The second date runs
from the time the plaintiff notices the refusal. Thus, both
dates are definitive and refers to a date from the calendar.
b. First instance - date fixed for performance: The
Agreement to Sell dated 14.01.1952 stipulated a period of
three years within which Sohan Singh was required to
raise construction on the plot. Accordingly, the date fixed
for performance fell due on 14.01.1955. Under Article 54
of the Limitation Act, the period of limitation would
commence from the date so fixed and expire three years
thereafter, i.e., on 14.01.1958. Any suit for specific
performance instituted thereafter would be barred by
limitation.
5
(2009) 5 SCC 462
Civil Appeal No. 7025 of 2012 Page 24 of 51
c. Second instance - date of notice of refusal: The period of
limitation would begin from the date on which the
Plaintiffs had notice of refusal to perform. The execution
of the Sale Deed dated 03.12.1960, at the very least,
constituted such refusal. The Plaintiffs contended before
the High Court that they came to know of the Sale Deed
only on 14.05.1963, when they approached the Society for
execution of a Sale Deed in their favour. The Society, vide
letter dated 23.05.1963, informed Sohan Singh that a Sale
Deed had already been executed in favour of Defendant
No. 1. Even reckoning limitation from the date of such
knowledge, the period of three years would have expired
in 1966. The present suit, having been instituted only in
1975, is ex facie barred by limitation.
40. The claim of the Plaintiffs being barred under Article 59 of the
Limitation Act-
a. Article 59 of the Limitation Act applies to all suits seeking
to cancel or set aside an instrument or decree, or to rescind
a contract. For present purposes, we are concerned with
the cancellation or setting aside of an instrument. An
instrument is a written document, which may include a
contract, agreement or deed, etc., which is not void ab
Civil Appeal No. 7025 of 2012 Page 25 of 51
initio . The limitation under this Article begins three years
from “ when the fact entitling the plaintiff to have the
instrument or decree cancelled or set aside or the contract
rescinded first become known to him ”.
b. A suit for cancellation of a Sale Deed is to be filed within
3 years from the date of sale or from when the party comes
to know of it. Accordingly, a suit seeking cancellation or
setting aside of the Sale Deed dated 03.12.1960 ought to
have been instituted by Sohan Singh within three years
from the date on which the Plaintiffs acquired knowledge
of the facts entitling them to seek such relief. Even
assuming that the Plaintiffs acquired knowledge of the
Sale Deed only on 23.05.1963, when the Society informed
them that the Sale Deed had already been executed in
favour of Defendant No. 1, the period of limitation would
expire in 1966. On the other hand, if limitation is
calculated from the date of execution of the Sale Deed, the
period would have expired in 1963. In either event, the
suit was instituted only in 1975 and was barred by
limitation.
41. The claim of the Plaintiff being barred under Section 27 read
with Article 64 of the Limitation Act -
Civil Appeal No. 7025 of 2012 Page 26 of 51
a. Section 27 of the Limitation Act provides for
extinguishment of the right on the lapse of the period of
limitation fixed to institute a suit for possession of any
property. In essence, the right of a person to institute a suit
extinguishes if it is not brought within the prescribed time
period. The right to sue that accrues in a person has to be
enforced within the time prescribed under law.
b. When possession is the moot question, Article 64 also
comes into play. Possession is not based on title and
anyone who claims lawful possession can invoke this
Article within twelve years from the date of
dispossession. It is founded on the principle of prior
possession and subsequent dispossession. The possession
of the Plaintiff can be of any form and dispossession for
the purpose of this Article means taking possession
without the consent of the person who was already in
lawful possession. It involves some active element in the
mind of the person dispossessing a person against his will
with the intention of taking absolute and exclusive control
over the property.
c. Absence of Dispossession - To maintain a suit under
Article 64, the Plaintiffs were required to prove previous
Civil Appeal No. 7025 of 2012 Page 27 of 51
possession which was demonstrated by the Agreement to
Sell under which handed over possession of the plot to
Sohan Singh to raise construction. The second covenant
of dispossession is not established by the Plaintiffs.
Pertinently, Sohan Singh was not dispossessed by any act
attributable to either the Society or Defendant No. 1. The
words “ I am requesting the Society through you to kindly
sanction the transfer of the plot to my nephew Col.
Gurbax Singh ” used in the letter dated 04.10.1954, shows
the intention of Sohan Singh to part with possession of the
plot to Defendant No. 1, pursuant to which Defendant No.
1 was legally put in possession by the Society acting upon
the communication dated 04.10.1954, the working
committee of the society in its meeting held on
13.10.1953 by Resolution No. 3 (c) resolved to transfer
the suit schedule plot to the name of the Col. Gurbax
Singh. This Resolution as well as accepting his prayer
made in the letter dated 04.10.1954 was communicated to
Sohan Singh by the Society, by communication dated
16.10.1954 and Sohan Singh was also called upon to clear
the arrears of Rs.1180/- against development charges.
This amount was paid by Gurbax Singh on 20.10.1954.
Civil Appeal No. 7025 of 2012 Page 28 of 51
Therefore, in the instant case, there is no element of
dispossession.
d. Suit filed after the expiry of 12 years - Article 64 can be
invoked before the expiry of 12 years from the date of
dispossession. From the facts borne from the records,
Defendant No. 1 was put in possession of the plot in 1954
and completed construction by 1959. Thus, for all
purposes, the Plaintiffs had lost possession over the plot
in the year 1954 and the period of twelve years would
extinguish in 1966.
e. Alternative plea of adverse possession - Defendant No. 1
also raised a plea of adverse possession, contending that
even if it were assumed that he had dispossessed the
Plaintiffs, their claim for recovery of possession was
required to be instituted within twelve years of such
dispossession. The execution of the Sale Deed dated
03.12.1960, at the latest, marked the point from which the
Plaintiffs claim to possession stood excluded.
Accordingly, the period of twelve years would expire in
1972, rendering the suit instituted in 1975 barred by
limitation.
Civil Appeal No. 7025 of 2012 Page 29 of 51
42. Though the Plaintiffs are liable to be non-suited on the ground
of limitation alone, we deem it appropriate to examine the
matter on merits as well.
In Re: Nature of Agreement dated 14.01.1952 and Letter dated
04.10.1954
43. The Plaintiffs place substantial reliance upon Agreement dated
14.01.1952, by which the plot was transferred in favour of
Sohan Singh. This Agreement is in the nature of an Agreement
to Sell and also bears the same title. Pertinently, Clause 7 of
the said Agreement stipulated that the buyer/Vendee, i.e.,
Sohan Singh, has to complete construction of the house within
three years. Clause 7 expressly provided that in the event of
failure to complete construction within the stipulated
timeframe, the vendee shall “ loose the right to obtain a sale of
the plot agreed to be sold ”. We are of the opinion that this was
a mandatory condition to be fulfilled by the vendee. While
Sohan Singh had time until January 1955 to raise the
superstructure, he addressed a communication dated
04.10.1954, much prior to the expiry of the three-year period,
expressing his inability to build. Stating that he had no other
option, Sohan Singh requested the Society to transfer the plot
Civil Appeal No. 7025 of 2012 Page 30 of 51
to Defendant No. 1, Col. Gurbax Singh, whom he described as
his 'nephew'.
44. It is trite law that an Agreement to Sell does not transfer title
or create any right over the property intended to be sold therein.
Section 54 of the Transfer of Property Act, squarely provides
that a Contract for Sale is only a document which provides that
Sale shall take place as per the terms and conditions agreed by
the parties. It is further explicitly mentioned that a Contract of
Sale does not itself, create any interest or charge on such
property. These principles have been time and again laid down
and enunciated by this Court. We have, in the case of Rambhau
Namdeo Gajre v. Narayan Bapuji Dhotra (Dead) through
6
LRs. & Anr , subsequently affirmed in the case of Suraj Lamp
and Industries Private Limited(2) through Director v. State
7
of Haryana and Another , categorically observed that only a
valid, registered Sale Deed is capable of conveying the
property. Mere existence of an Agreement to Sell does not, in
any manner confer title or ownership rights over the property
in the absence of a registered Sale Deed.
6
(2004) 8 SCC 614
7
(2012) 1 SCC 656
Civil Appeal No. 7025 of 2012 Page 31 of 51
45. In Rambhau Namdeo Gajre v. Narayan Bapuji Dhotra
(Dead) through LRs. & Anr (supra), this Court stated:
“ 13. The agreement to sell does not create an interest of the
proposed vendee in the suit property. As per Section 54 of
the Act, the title in immovable property valued at more than
Rs 100 can be conveyed only by executing a registered sale
deed. Section 54 specifically provides that a contract for
sale of immovable property is a contract evidencing the fact
that the sale of such property shall take place on the terms
settled between the parties, but does not, of itself, create any
interest in or charge on such property. It is not disputed
before us that the suit land sought to be conveyed is of the
value of more than Rs 100. Therefore, unless there was a
registered document of sale in favour of Pishorrilal (the
proposed transferee) the title of the suit land continued to
vest in Narayan Bapuji Dhotra (original plaintiff) and
remain in his ownership. This point was examined in detail
by this Court in State of U.P. v. District Judge [(1997) 1
SCC 496] and it was held thus: (SCC pp. 499-500, para 7)
“ 7 . Having given our anxious consideration to the rival
contentions we find that the High Court with respect had
patently erred in taking the view that because of Section 53-
A of the Transfer of Property Act the proposed transferees
of the land had acquired an interest in the lands which
would result in exclusion of these lands from the
computation of the holding of the tenure-holder transferor
on the appointed day. It is obvious that an agreement to sell
creates no interest in land. As per Section 54 of the Transfer
of Property Act, the property in the land gets conveyed only
by registered sale deed. It is not in dispute that the lands
sought to be covered were having value of more than Rs
Civil Appeal No. 7025 of 2012 Page 32 of 51
100. Therefore, unless there was a registered document of
sale in favour of the proposed transferee agreement-
holders, the title of the lands would not get divested from
the vendor and would remain in his ownership. There is no
dispute on this aspect. However, strong reliance was placed
by learned counsel for Respondent 3 on Section 53-A of the
Transfer of Property Act. We fail to appreciate how that
section can at all be relevant against the third party like the
appellant State. That section provides for a shield of
protection to the proposed transferee to remain in
possession against the original owner who has agreed to
sell these lands to the transferee if the proposed transferee
satisfies other conditions of Section 53-A. That protection
is available as a shield only against the transferor, the
proposed vendor, and would disentitle him from disturbing
the possession of the proposed transferees who are put in
possession pursuant to such an agreement. But that has
nothing to do with the ownership of the proposed transferor
who remains full owner of the said lands till they are legally
conveyed by sale deed to the proposed transferees. Such a
right to protect possession against the proposed vendor
cannot be pressed in service against a third party like the
appellant State when it seeks to enforce the provisions of
the Act against the tenure-holder, proposed transferor of
these lands .”
(emphasis supplied)
There was no agreement between the appellant and the
respondent in connection with the suit land. The doctrine of
part-performance could have been availed of by Pishorrilal
against his proposed vendor subject, of course, to the
fulfilment of the conditions mentioned above. It could not
be availed of by the appellant against the respondent with
Civil Appeal No. 7025 of 2012 Page 33 of 51
whom he has no privity of contract. The appellant has been
put in possession of the suit land on the basis of an
agreement of sale not by the respondent but by Pishorrilal,
therefore, the privity of contract is between Pishorrilal and
the appellant and not between the appellant and the
respondent. The doctrine of part-performance as
contemplated in Section 53-A can be availed of by the
proposed transferee against his transferor or any person
claiming under him and not against a third person with
whom he does not have a privity of contract.”
46. Apropos to the citations discussed, ownership rights in respect
of the suit plot could crystallize in favor of Sohan Singh, or his
legal heirs, only upon due fulfillment of the condition
precedent stipulated under the Agreement which would have
obligated the Society to execute a Sale Deed in favour of Sohan
Singh. Admittedly, Sohan Singh was unable to fulfil the
condition and as a result, he was never conferred with the title
of ownership. The Plaintiffs also directed our attention to
Resolution of the Society dated 30.08.1959 which they
contend, recognises their ownership since the construction of
the house was complete. The right of ownership cannot be
acquired merely by way of a recital or statement in the
Resolution of the Society. It is pertinent to note that no Sale
Deed was executed or registered in favour of Sohan Singh
legally conveying ownership of the suit plot and as such, the
Civil Appeal No. 7025 of 2012 Page 34 of 51
Plaintiffs cannot derive their rights from an Agreement to Sell
which was never completed by their predecessor-in-interest,
Sohan Singh.
47. The Society merely acted upon Sohan Singh’s letter dated
04.10.1954, wherein he unequivocally expressed his inability
to comply with the mandatory construction covenant, thereby
consciously abandoning his rights under the Agreement to Sell,
which admittedly never culminated in a registered Sale Deed.
We are therefore of the considered view that neither Sohan
Singh nor anyone claiming through or under him retained any
subsisting right, title, or interest in the suit plot, as no title ever
came to vest in Sohan Singh. No right could possibly survive
or accrue in his favor after he expressly admitted his inability
to fulfill the fundamental condition stipulated under the
Agreement to Sell. We cannot lose sight of the categorical
submission of Defendant No. 1 that he had been in possession
of the suit property since 1954, when he took over the plot for
the purpose of raising construction thereon. This assertion is
further borne out by the fact that, during the period from 1960
to 1964, the suit property was let out to officers of the New
Zealand High Commission, and the rent of Rs. 1,500 arising
therefrom was collected by Defendant No. 1. There is clinching
Civil Appeal No. 7025 of 2012 Page 35 of 51
evidence in favour of the Defendant No. 1 and against the
Plaintiff to sufficiently establish that Defendant No. 1 had
acquired ownership over the plot and the Agreement to Sell
dated 14.01.1952 was rendered redundant.
In Re: Nature and Reliefs sought for in the Suit filed by the
Plaintiffs
48. We are unable to subscribe to the reasoning of the Trial Court
ruling that the Plaintiffs’ suit for possession was maintainable.
In our opinion, a suit for possession simpliciter is not
maintainable where there is serious, concrete dispute casting a
cloud over the plaintiff's title, necessitating a substantive
prayer for declaration.
49. We may note with benefit the principles enunciated in the case
of Anathula Sudhakar v. P Buchi Reddy (Dead) by LRs. and
8
Others wherein this Court examined various circumstances
and the maintainability of suits and held as follows:
“14. We may however clarify that a prayer for
declaration will be necessary only if the denial of title by
the defendant or challenge to plaintiff's title raises a
cloud on the title of plaintiff to the property. A cloud is
said to raise over a person's title, when some apparent
defect in his title to a property, or when some prima
facie right of a third party over it, is made out or shown .
8
(2008) 4 SCC 594
Civil Appeal No. 7025 of 2012 Page 36 of 51
An action for declaration, is the remedy to remove the
cloud on the title to the property. On the other hand,
where the plaintiff has clear title supported by documents,
if a trespasser without any claim to title or an interloper
without any apparent title, merely denies the plaintiff's title,
it does not amount to raising a cloud over the title of the
plaintiff and it will not be necessary for the plaintiff to sue
for declaration. ...."
(emphasis supplied)
50. This Court has delineated that under normal circumstances, it
is not necessary for the Plaintiff, deeming to be the owner, to
seek declaration, and mere prayer for possession is permissible
if the Plaintiff has clear title and ownership over the property.
The hitch, however, arises when the Defendant or any other
third party raises a plea of ownership which is substantiated by
cognizant defect in the title of the Plaintiff. An exemplification
of one such illustration is demonstrated in the case of Kurella
Naga Druva Vudaya Bhaskara Rao v. Galla Jani Kamma
9
Alias Nacharamma wherein the Court, while relying upon the
the case of Anathula Sudhakara , remarked:
“16. The plaintiff had purchased the suit land under
registered sale deed dated 10.4.1957. Defendant did not
claim title with reference to any document but claimed to
have perfected title by adverse possession. A mere claim
by the defendant that he had perfected his title by
9
(2008) 15 SCC 150
Civil Appeal No. 7025 of 2012 Page 37 of 51
adverse possession, does not mean that a cloud is raised
over plaintiff's title and that the plaintiff who is the
owner, should file a suit for declaration of title. Unless
the defendant raises a serious cloud over the title of the
plaintiff, there is no need to file a suit for declaration .
The plaintiff had title and she only wanted possession and
therefore a suit for possession was maintainable. We are
fortified in this view by the following observations of this
Court in Anathula Sudhakar v. P. Buchi Reddy (2008) 4
SCC 594…”
(emphasis supplied)
51. The aforesaid precedents lays down that if the title of the
Plaintiff is not under risk, a prayer for possession is sufficient.
But if the title of the Plaintiff is rebutted by the Defendant by
cogent evidence, a mere prayer seeking possession of the
property would not suffice. This is for the simple reason that a
person, whose title is disputed, cannot lay a challenge to the
true owners’ right title and ownership as the same becomes a
disputed question of fact for the Court to adjudicate upon.
52.
Reverting to the case on hand, it is the specific contention of
the Defendant No. 1 that he acquired title and ownership rights
over the plot upon construction of the house which stood
completed in 1959, and conclusively, when the Sale Deed
dated 03.12.1960 was executed by the Society in his favour.
The Plaintiffs, on the other hand, asserted that since the
Civil Appeal No. 7025 of 2012 Page 38 of 51
payment of consideration was complete and the Agreement to
Sell dated 14.01.1952 was executed in favour of Sohan Singh,
they were the true owners of the plot being legal heirs of the
original allottees. Thus, this is a case whether there was clearly
a cloud over the title of the Plaintiffs due to the execution of
the Sale Deed dated 03.12.1960 in favour of Defendant No. 1.
Therefore, the proper relief that ought to have been sought by
the Plaintiffs is the relief of declaration for cancellation of the
Sale Deed dated 03.12.1960, inter alia, specific performance
and a relief of declaration of ownership.
53. After Defendant No. 1 asserted his title on the strength of a
registered Sale Deed, it was incumbent on the Plaintiffs to
institute a suit for declaration for cancellation of the Sale Deed
or in the alternative, the plaintiffs ought to have filed a suit for
specific performance of the Agreement to Sell which stood in
their favour. The Trial Court, although dismissed the suit,
overlooked that a proper prayer ought to have been sought by
the Plaintiffs when their title was challenged by compelling
evidence. A basic prayer for possession cannot survive when
the Defendant No.1 has a registered Sale Deed in his name
nullifying the title of the Plaintiffs.
Civil Appeal No. 7025 of 2012 Page 39 of 51
In Re: Doctrine of Estoppel and Acquiscence
54. As far as Estoppel is concerned, as discussed hereinabove, the
High Court was of the view that the Plaintiffs were estopped
from filing the suit as Sohan Singh ceased to act upon the
Agreement to Sell, he lost title over the plot.
55. We also deem it appropriate to analyse the point of estoppel
enshrined under S. 115 of the Evidence Act which provision is
extracted hereinbelow for immediate reference-
“115. Estoppel. ––When one person has, by his declaration,
act or omission, intentionally caused or permitted another
person to believe a thing to be true and to act upon such
belief, neither he nor his representative shall be allowed, in
any suit or proceeding between himself and such person or
his representative, to deny the truth of that thing.
Illustration
A intentionally and falsely leads B to believe that certain
land belongs to A, and thereby induces B to buy and pay for
it. The land afterwards becomes the property of A, and A
seeks to set aside the sale on the ground that, at the time of
the sale, he had no title. He must not be allowed to prove
his want of title.”
56. This Court, in catena of judgments has expounded the meaning
of estoppel. We refer to the case of Pratima Chowdhury v.
Civil Appeal No. 7025 of 2012 Page 40 of 51
10
Kalpana Mukherjee and Another , wherein this Court
observed:
“ 29.2. …. This is against the doctrine of fairness. Lord
Denning in his book, The Discipline of Law , 7th Reprint, p.
223, observed:
‘It is a principle of justice and of equality. It comes to this,
when a man by his words or conduct has led another to
believe that he may safely act on the faith of them—and the
other does act on when it would be unjust or inequitable for
him to do so.’
In the words of Dixon, J.:
‘The principle upon which estoppel in pais is founded is that
the law should not permit an unjust departure by a party
from an assumption of fact which he has caused another
party to adopt or accept for the purpose of their legal
relations.’
The said principle was further stretched to the following
extent:
‘At any rate, it applies to an assumption of ownership or
absence of ownership. This gives rise to what may be called
proprietary estoppel. There are many cases where he is not
the owner, or, at any rate, is not claiming an interest therein,
or that there is no objection to what the other is doing. In
such cases, it has been held repeatedly that the owner is not
to be allowed to go back on what he has led the other to
believe. So much so that his own title to the property, be it
land or goods, has been held to be limited or extinguished,
and new rights and interest have been created therein. And
10
(2014) 4 SCC 196
Civil Appeal No. 7025 of 2012 Page 41 of 51
this operates by reason of his conduct what he has led the
other to believe even though he never intended it.’
It may be said that even in absence of actual promise, if a
person by his words or conduct, so behaves as to lead
another to believe that he will not insist on his strict legal
rights, knowing or intending that the other will act on that
belief and he does so act, that again will raise an equity in
favour of the other, and it is for a court of equity to say in
what way the equity may be satisfied. An equity does not
necessarily depend on agreement but on words or conduct.
The Privy Council in Plimmer v. Wellington Corpn. [(1884)
LR 9 AC 699 : (1881-85) All ER Rep Ext 1320 (PC)]
observed that the Court must look at the circumstances in
each case to decide in what way the equity can be satisfied.”
57. Further, the four postulates of Section 115 were further
explicated which reads thus:
“35. …..
It needs to be understood that the rule of estoppel is a
doctrine based on fairness. It postulates the exclusion of the
truth of the matter. All for the sake of fairness. A perusal of
the above provision reveals four salient preconditions
before invoking the rule of estoppel.
( i ) Firstly , one party should make a factual representation
to the other party.
( ii ) Secondly , the other party should accept and rely upon
the aforesaid factual representation.
Civil Appeal No. 7025 of 2012 Page 42 of 51
( iii ) Thirdly , having relied on the aforesaid factual
representation, the second party should alter his position.
( iv ) Fourthly , the instant altering of position, should be
such, that it would be iniquitous to require him to revert
back to the original position.
Therefore, the doctrine of estoppel would apply only when,
based on a representation by the first party, the second party
alters his position, in such manner, that it would be unfair
to restore the initial position.”
58. The flow of events in the instant case, rightly fulfil all the
preconditions stipulated. While an Agreement to Sell was
executed in favour Sohan Singh, the first condition of making
factual representation, is Sohan Singh’s letter dated 04.10.1954
to the Society wherein he expressed his inability to construct
his house and requested the Society to transfer the plot to
Defendant No. 1. The second condition was fulfilled when the
Society, acting on the said representation/letter dated
04.10.1954, allowed Defendant No. 1 to construct a house on
the plot and executed the Sale Deed dated 03.12.1960 which
consequently altered the position of the Defendant No. 1 as the
owner of the plot, thus fulfilling the third condition . Lastly, the
fourth condition also stood satisfied, once the Sale Deed was
executed in favour of the Defendant No. 1. Hence, it was
Civil Appeal No. 7025 of 2012 Page 43 of 51
impossible for the Plaintiffs to contend that they were the
owners of the plot since they failed to raise any construction
thereon and also failed to initiate judicial proceedings well
within the period of limitation.
59. Needless to state, once Sohan Singh, by his letter dated
04.10.1954, intentionally caused the Society as well as the
Defendant No. 1 to believe that he could not raise any
construction, neither he, nor the Plaintiffs shall be allowed to
deny the contents of the letter.
60. The matter can also be looked in the lens of Doctrine of
Acquiescence which is a form of estoppel. It is clarified that
the invocation of acquiescence is independent of delay or
limitation as it is founded on one’s conduct of knowledge of a
fact or legal rights. There are two kinds of estoppel, direct and
indirect. Direct acquiescence constitutes a direct act of a person
done with full knowledge with the express acceptance or
approbation of the consequences of the act. It is propounded in
the case of Chairman, State Bank of India and Another v.
11
M.J. James and an excerpt from the case is extracted below
-
11
(2022) 2 SCC 301
Civil Appeal No. 7025 of 2012 Page 44 of 51
“39. Before proceeding further, it is important to clarify
distinction between “acquiescence” and “delay and laches”.
Doctrine of acquiescence is an equitable doctrine which
applies when a party having a right stands by and sees
another dealing in a manner inconsistent with that right,
while the act is in progress and after violation is completed,
which conduct reflects his assent or accord. He cannot
afterwards complain. In literal sense, the term acquiescence
means silent assent, tacit consent, concurrence, or
acceptance, which denotes conduct that is evidence of an
intention of a party to abandon an equitable right and also
to denote conduct from which another party will be justified
in inferring such an intention. Acquiescence can be either
direct with full knowledge and express approbation, or
indirect where a person having the right to set aside the
action stands by and sees another dealing in a manner
inconsistent with that right and in spite of the infringement
takes no action mirroring acceptance. However,
acquiescence will not apply if lapse of time is of no
importance or consequence.”
61. The question that arises for consideration is whether Sohan
Singh, by his conduct, acquiesced or relinquished or forfeited
the mandatory obligations cast upon him under the Agreement
to Sell, so as to constitute direct acquiescence. A party who, of
his own volition, foregoes performance of a binding
contractual obligation cannot thereafter be permitted to resile
from such conduct and assert claims inconsistent to his actions.
Civil Appeal No. 7025 of 2012 Page 45 of 51
62. Sohan Singh admittedly submitted the letter dated 04.10.1954,
expressly stating his inability to raise construction on the plot
which violated the obligation contained in Clause 7 of the
Agreement to Sell. Significantly, he neither revoked nor
challenged the contents of the said letter, nor sought to rescind
or resile from the position expressed therein, during his
lifetime. His conduct is, therefore, a conscious and unequivocal
abandonment of his obligation to raise construction and an
acceptance of the consequent transfer of the plot in favour of
Defendant No. 1.
63. In these circumstances, we are of the view that the suit falls
flat, as Sohan Singh, by his conduct and by issuance of the
letter dated 04.10.1954, had unequivocally acquiesced and
relinquished the compulsory obligation to raise construction
under the Agreement to Sell. The said letter constituted a clear
and direct act of acquiescence, which precludes the Plaintiffs
from subsequently asserting a claim founded upon an
obligation which Sohan Singh himself had consciously
abandoned. We are not inclined to deal with the issue of fraud
as no cogent evidence was brought before the Courts below to
establish fraud in the execution of the Sale Deed dated
03.12.1960. Thus, we answer this point against the Plaintiffs.
Civil Appeal No. 7025 of 2012 Page 46 of 51
In Re: Invocation of Section 53A of the TP Act by the Plaintiffs
64. The Plaintiffs rely on Section 53A of the Transfer of Property
Act to contend that they had performed the contract in part. The
provision of Part-Performance is traceable to Section 53-A of
Transfer of Property Act and it reads:
“ 53-A. Part performance. —Where any person contracts to
transfer for consideration any immovable 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, 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.”
Civil Appeal No. 7025 of 2012 Page 47 of 51
65. The essentials of part-performance has been expounded by this
12
Court in the case of Nathulal v. Phoolchand , Shrimant
Shamrao Suryavanshi and Another v. Prahlad Bhairoba
13
Suryavanshi (dead) by LRs and Others , and most recently
reiterated in the case of Giriyappa and Another v.
14
Kamalamma and Others which spells -
“ 11. From the aforesaid, it is evident that 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.”
12
(1969) 3 SCC 120
13
(2002) 3 SCC 676
14
2024 SCC OnLine SC 3849
Civil Appeal No. 7025 of 2012 Page 48 of 51
66. Juxtaposing legal principles with the factual position before us,
we find that the most important essentials are not met for the
reason that -
a. A fundamental requirement of the doctrine of part-
performance is that the transferee must take possession of
the property, or a part thereof, and continue in possession.
In the present case, while Sohan Singh was initially
granted possession of the plot to construct a house, he
later unequivocally requested that the plot be transferred
to Defendant No. 1. Defendant No. 1 who subsequently
built the house and has remained in continuous possession
since then till date. Admittedly, the Plaintiffs were out of
possession at the time of filing the suit, a fact clearly
established by their prayer seeking a decree for
possession.
b. Another requirement to be fulfilled is that the transferee
is required to do some act in furtherance of the contract
and has performed or is willing to perform his part of the
contract. As candidly noticed by the High Court, Sohan
Singh was not ready and willing to perform his part of the
contract, i.e., carry out the imperative condition of
construction of the house within three years, as he had
Civil Appeal No. 7025 of 2012 Page 49 of 51
voluntarily tendered a letter dated 04.10.1954, giving up
his rights, thereby abandoning the Agreement to Sell.
Therefore, the Plaintiffs cannot take shelter of part-
performance when Sohan Singh, virtually quit from
performance of mandatory obligations.
67. Therefore, we settle this argument in the negative to hold that
the Plaintiffs have not made a case of part-performance.
CONCLUSION
68. Succinctly put, we are not convinced with the case of the
Plaintiffs as -
a. The suit for possession is hopelessly barred by limitation.
b. Agreement to Sell, without the execution of a registered
Sale Deed does not confer any right title or ownership
over the plot. Sohan Singh had an Agreement to Sell only
in his name but no registered Sale Deed was ever
executed. Therefore, he cannot seek possession without
any prayer for declaration for cancellation the Sale Deed
dated 03.12.1960 or seek specific performance of the
Agreement to Sell.
c. Sohan Singh, or any person claiming through or under
him, is estopped from asserting any right, title or
Civil Appeal No. 7025 of 2012 Page 50 of 51
ownership over the plot, in view of his acquiescence in
the non-fulfilment of the obligatory condition stipulated
in the Agreement to Sell and the subsequent transfer of
the plot in favour of Defendant No. 1.
d. The Plaintiffs have not fulfilled any of the essentials of
Section 53-A of Transfer of Property Act to demonstrate
part-performance.
69. In answer to the points formulated by us, we are of the
considered view that the judgment of the High Court affirming
the judgment and decree of the Trial Court dismissing the suit
warrants no interference and same is upheld.
70. For the foregoing reasons, the Appeal is dismissed. Pending
applications, if any, shall stand consigned to records. No order
as to costs.
………...........................................J.
[ARAVIND KUMAR]
.………...........................................J.
[VIPUL M. PANCHOLI]
NEW DELHI;
th
OCTOBER 16 , 2026.
Civil Appeal No. 7025 of 2012 Page 51 of 51