HARI DASS vs CHHERGU DECEASED THROUGH LRS SUNEHRU AND OTHERS

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High Court of H.P.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No. 224 of 2009
Reserved on: 04.05.2026
Date of Decision: 05.06.2026
Hari Dass ...Appellant
Versus
Chhergu (deceased) through LRs ...Respondents
Coram
Hon’ble Mr Justice Rakesh Kainthla , Judge.
1
Whether approved for reporting? Yes
For the Appellant : Mr Mohinder Verma, Advocate.
For the respondents
No.1(a) and 1(b)
: Mr Anand Sharma, Senior
Advocate, with Mr Karan Sharma,
Advocate.
None for respondents No. 1(c) and 1(d)
Rakesh Kainthla, Judge
The present appeal is directed against the judgment
dated 04.04.2009 passed by the learned District Judge, Kinnaur,
Civil Division at Rampur Bushahr, H.P. (learned Appellate Court)
vide which the judgment and decree dated 31.03.2008 passed by
the learned Civil Judge, Senior Division, Rampur, Bushahr,
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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District Shimla (learned Trial Court) were set aside. (The parties
shall hereinafter be referred to in the same manner as they were
arrayed before the learned Trial Court for convenience).
2. Briefly stated, the facts giving rise to the present
appeal are that the plaintiff filed a civil suit for possession of the
suit land described in para 1 of the plaint. It was asserted that
plaintiff’s father had planted about 25 apple trees in the suit
land. Only two apple trees survived, and the rest perished for
want of care. The defendant approached the plaintiff’s father in
the year 1980 and requested him to give the suit land to him for
cultivation to earn his livelihood. He promised to hand over the
vacant possession of the suit land on demand. The plaintiff's
father acceded to the defendant’s request and delivered the
possession to the defendant. The plaintiff's father died in the
year 1990, and the plaintiff also permitted the defendant to
cultivate the suit land. The defendant got himself recorded in
possession as a bilasift in connivance with the revenue officers.
The plaintiff requested the defendant to hand over the vacant
possession of the suit land to the plaintiff, but the defendant
declined. Hence, the suit was filed to seek the relief mentioned
above.
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3. The suit was opposed by filing a written statement
taking preliminary objections regarding lack of maintainability
and cause of action, the suit having not been properly valued for
Court fees and jurisdiction, the plaintiff being estopped from
filing the present suit by his omissions and commissions, and
the plaintiff having not come to the Court with clean hands. The
contents of the plaint were admitted to the extent that the
plaintiff's father was recorded to be the owner of the suit land.
The rest of the plaintiff's claim was denied. It was asserted that
the plaintiff’s father had sold the suit land to the defendant for a
consideration of ₹250/-, and the defendant was put in
possession of the suit land. The plaintiff had also agreed to sell
the suit land to the defendant on 08.01.1992 for a consideration
of ₹3600/-. The defendant paid ₹3600/- to the plaintiff on
08.01.1992. The defendant is ready and willing to perform his
part of the contract and is entitled to protect his possession
under Section 53A of the Transfer of Property Act. The defendant
is in continuous possession of the suit land, and he has become
the owner by way of adverse possession. Hence, it was prayed
that the suit be dismissed.
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4. A replication denying the contents of the written
statement and affirming those of the plaint was filed.
5. The following issues were framed by the learned
Trial Court on 16.09.2005:
1. Whether the suit land had been handed over by the father
of the plaintiff to defendant without consideration, as
alleged? OPP
2. If issue No.1 is proved, whether the plaintiff is entitled to
the relief of possession of the suit land, as prayed for?
OPP
3. Whether the suit is not within time, as alleged? OPD
4. Whether the suit had not been properly valued for the
purposes of Court fee and jurisdiction. If so, what is its
correct valuation? OPD
5. Whether the plaintiff is estopped by his act and conduct
by filing the suit? OPD
6. Whether the father of the plaintiff had sold the suit land
to the defendant for a consideration of ₹250/- as alleged,
if so its effect? OPD
7. Whether vide deed dated 08.01.1992 defendant had agreed
to sell the suit land to defendant for a consideration of
₹3600/-, and if so, whether the suit is barred by the
provisions of Section 53-A of Transfer of Property Act?
OPD
8. Relief
6. The parties were called upon to produce the evidence,
and the plaintiff examined himself (PW1) and Purnu (PW2). The
defendant examined himself (DW1) and Nakhru Ram (DW2). The
plaintiff examined Man Dass (PW3) in rebuttal.
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7. The learned Trial Court held that the plaintiff is
recorded to be the owner of the suit land. The pleas taken by the
defendant that he has become the owner by way of adverse
possession, that he had agreed to purchase the suit land from
the plaintiff, and that the plaintiff delivered possession to him
pursuant to the agreement, are mutually inconsistent and
contradictory. The defendant had not satisfied the requirements
of adverse possession. The defendant had not filed the suit for
Specific Performance, and the limitation for filing the suit for
Specific Performance had expired. Hence, the benefit of Section
53A was not available to the defendant. The defendant got his
possession recorded during the settlement. He had failed to
show any right to retain the possession. The plaintiff, being the
owner, was entitled to take possession from the defendant.
Hence, the learned Trial Court answered issue Nos. 1 and 2 in
affirmative, the rest of the issues in negative and decreed the
plaintiff’s suit.
8. Being aggrieved by the judgment and decree passed
by the learned Trial Court, the defendant filed an appeal which
was decided by the learned District Judge, Kinnaur, Civil
Division at Rampur, Bushaher (learned Appellate Court). The
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Appellate Court held that the plaintiff’s witness, Man Dass
(PW3), admitted the plaintiff’s signatures on the agreement to
sell, which supported the defendant’s plea that the plaintiff had
agreed to sell the suit land to the defendant. The learned Trial
Court erred in denying the benefit of Section 53A of the Transfer
of Property Act to the defendant on the ground that the suit for
Specific Performance had become barred by limitation.
Therefore, the learned Appellate Court allowed the appeal and
reversed the judgment and decree passed by the learned Trial
Court.
9. Being aggrieved by the judgment and decree passed
by the learned First Appellate Court, the plaintiff has filed the
present appeal, which was admitted on the following substantial
questions of law on 18.05.2009.
1. Whether plea of acquiring title through writing exhibit
DW3/A has neither been pleaded nor proved?
2. Whether the protection of Section 53-A of Transfer of
Properties Act has neither been pleaded nor proved, and
even otherwise, there are no specific findings by the Ld.
District Judge, therefore, findings as recorded by him are
liable to be set aside and quashed?
3. Whether in the absence of acquiring any title by
defendant over suit land since plaintiff has a title over
suit land, he being owner, therefore, he is entitled for a
decree of possession?
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10. I have heard Mr Mohinder Verma, learned counsel for
the appellant and Mr Anand Sharma, learned Senior Advocate,
assisted by Mr Karan Sharma, learned counsel for respondents
No.1(a) and 1(b).
11. Mr Mohinder Verma, learned counsel for the
appellant, submitted that the learned Appellate Court erred in
reversing the well-reasoned judgment passed by the learned
Trial Court. The defendant had taken the plea of adverse
possession and part performance, which were mutually
contradictory, and the learned Appellate Court erred in
accepting the plea of part performance. The defendant asserted
that the plaintiff’s father had sold the land to him, but failed to
prove the oral sale. Therefore, the possession of the defendant
could not have been pursuant to the part performance of the
agreement entered into with the plaintiff. Man Dass (PW3) had
not deposed anything about the execution of the agreement to
sell between the parties. Learned Appellate Court failed to
properly appreciate the material on record. Hence, he prayed
that the present appeal be allowed and the judgment and decree
passed by the learned Appellate Court be set aside. He relied
upon the following judgments in support of his submissions: -
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(i) Raysing Hurji Bhil & ors. Vs. Vaniben Manjibhai &
ors. AIR 2007 Gujarat 69;
(ii) Jai Kishan & ors. Vs. Sardari Lal & ors. AIR 2015
HP 93;
(iii) L.M. Aswathama & anr. Vs. P. Prakash (2009) 13
SCC 229;
(iv) Kesar Bai Vs. Genda Lal & anr. (2022) 10 SCC 217;
(v) Ram Nath & anr. Vs. Ram Singh & ors. Latest HLJ
2001 (HP) 1125;
(vi) Rambhau Namdeo Gajra Vs. Narayan Bapuji
Dhotra (dead) through LRs (2004) 8 SCC 614; and
(vii) Roop Lal Vs. Durga Dass and others, AIR 2017 HP
165 and
(viii) Sita Ram vs. Smt. Kanta Devi and others, 1981
Shim. LC 239 .
12. Mr Anand Sharma, learned Senior Counsel for
respondent No.1(a) and 1(b), submitted that the plaintiff had not
come to the Court with clean hands. He had suppressed the
existence of the agreement with the defendant. The execution of
the agreement by the plaintiff with the defendant was duly
proved on record. The defendant was put in possession by the
plaintiff’s father, and the defendant had entered into a fresh
agreement with the plaintiff to avoid any dispute. Learned
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Appellate Court had rightly held that the benefit of Section 53-A
of the Transfer of Property Act cannot be denied to a person
merely because the time for Specific Performance of the
agreement had expired. The present appeal does not involve any
substantial question of law. Hence, he prayed that the present
appeal be dismissed.
13. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully
Substantial Questions of Law No.1 & 2 :
14. Both the substantial questions of law are related to
the benefit of Section 53A of the Transfer of Property Act, and
therefore, they are being taken up together for consideration.
15. The defendant asserted in para 2 of the written
statement that a deed was executed on 08.01.1992 whereby the
plaintiff agreed to sell the suit land for a consideration of
₹3600/- and promised to get the sale deed registered within a
period of three months. An amount of ₹3600/- was paid to the
plaintiff on 08.01.1992. The possession of the suit land was
already with the defendant. The suit otherwise is hit by the
provisions of Section 53A of the Transfer of Property Act and is
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not maintainable. The defendant has fulfilled his part of the
contract, and he is ready and willing to fulfil his part of the
contract. The sale deed could not be executed because the
mutation of inheritance was not attested in the plaintiff's name,
which was attested in the year 1990.
16. Learned Appellate Court held after appreciation of
the fact that the plea of the defendant that he had entered into
an agreement to sell with the plaintiff was duly proved. This
finding is based on the evidence.
17. The defendant stated that he had entered into an
agreement (Ext.DW3/A) to purchase the suit land from the
plaintiff. Mr D.D. Bhaik (DW3) stated that he had written the
agreement (Ext.DW3/A) as per the wishes of the plaintiff. The
plaintiff had put his signature after acknowledging its
correctness. Ram Singh and Man Dass (PW3) were also present
as witnesses who had put their signatures on the agreement.
The defendant paid ₹3600/- in his presence. He stated in his
cross-examination that he had known the plaintiff since 1978
because he had scribed the plaintiff's partition application. The
owner was recorded to be in possession of the Jamabandi. He
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denied that he had not written any document and was making a
false statement.
18. Ram Singh (DW4) stated that he had signed the
agreement (Ext.DW3/A) on 08.01.1992. The plaintiff had sold the
land to the defendant, and the defendant had paid ₹3600/- to
the plaintiff in his presence. This agreement was written by Mr
D.D. Bhaik, the Document Writer. He stated in his cross-
examination that he was called at about 9:30 am. He was posted
in the Copying Agency of the Record Room. The defendant had
called him to be a witness because he is a resident of the same
village. He did not remember who had put the signatures first
and whether the money was paid by the defendant in his
presence.
19. The statements of both these witnesses corroborate
each other. Nothing was suggested to them in their cross-
examination to show that they had any enmity with the plaintiff
or motive to depose falsely against the plaintiff. Therefore, the
learned Appellate Court had rightly relied upon their
testimonies.
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20. The plaintiff Hari Dass (PW1) denied that he had
entered into any agreement with the defendant. He denied his
signature on the agreement or the fact that he had got it written
from D.D. Bheik. He also denied that the defendant had paid
₹3600/- to him on the date of execution of the agreement.
21. His witness, Man Dass (PW3), on the other hand,
stated that the agreement was written regarding the contract of
gallabatai of the land. He put his signature at the instance of the
plaintiff on a document. He had not read the contents of the
document signed by him.
22. The statement of this witness corroborates the
statement of the defendant and his witnesses that some
document was written on 08.01.1992, which was signed by the
parties. His testimony that the statement was regarding the
contract or the gallabatai is without any basis. The plaintiff
never claimed that he had entered into any agreement with the
defendant regarding the gallabatai . Hence, the explanation
furnished by Man Dass cannot be accepted, and the explanation
of the defendant that the agreement was regarding the sale of
the suit land to the defendant has to be accepted as correct.
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Thus, the learned Appellate Court had rightly held that the
execution of the agreement to sell was duly proved on record.
23. The requirement of part performance was explained
by the Hon’ble Supreme Court in Vasanthi v. Venugopal , (2017) 4
SCC 723 , wherein it was observed:
18. 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 .
19. In terms of this provision, if the above preconditions
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
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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.”
24. A similar view was taken in Rambhau Namdeo Gajra
(supra).
25. In the present case, it was duly proved that the
parties had executed an agreement (Ext.DW3/A) in writing,
which mentions that the possession of the land was already with
the defendant, the defendant had paid ₹3600/- to the plaintiff,
who would execute the sale deed within three months, and the
expenses of registration would be borne by the defendant. The
defendant had thus paid ₹3600/- pursuant to the agreement to
sell. It was laid down by this Court in Chander Kanta vs Durga
Dutt, Latest HLJ 2006 (HP) 721, that where the defendant had paid
the consideration, he was not required to do anything, and his
plea of readiness and willingness was acceptable. It was
observed:
“8. Learned counsel for the appellants, by placing
reliance on a judgment of this Court in Sham Lal v. Smt.
Mathi, AIR 2002 Himachal Pradesh 66 , and another of the
Hon'ble Supreme Court in Mool Chand Bakhru and another
v. Rohan and others, AIR 2002 Supreme Court 812 , urged
that the pleadings and the evidence on record did not
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establish the material particulars of the plea that is
available to a transferee, under Section 53-A of the
Transfer of Property Act, inasmuch as there was no
allegation that the respondent-defendant was prepared
to perform his part of the contract. The contention has
been noticed only to be rejected. As already noticed, a
vendee, in a contract for the sale of property, has only to
pay the sale consideration that is part of his contract. In
the present case, respondent-defendant specifically
pleaded and also led the evidence that he had paid the
entire sale consideration of Rs.4, 500/- Thus, he had
already performed, his part of the contract in its entirely
when the suit was filed and so there was hardly any
occasion for him to have stated that he had ready and
written to perform his part of the contract.”
26. The defendant asserted in his proof affidavit that he
had asked the plaintiff to execute the sale deed after the
mutation of inheritance was attested in his favour. The plaintiff
prevaricated and filed a false suit. He stated in his cross-
examination that he had paid ₹3600/- to the plaintiff in cash.
He had told the plaintiff to execute the sale deed 2-3 times
orally. He was to pay ₹2000/- to the plaintiff on the date of the
mutation, but he had not paid this money to the plaintiff
because the plaintiff had not executed the sale deed in his
favour.
27. The statement of the defendant clearly shows that he
is ready and willing to perform his part of the agreement. He had
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asked the plaintiff to execute the sale deed repeatedly, but the
plaintiff did not accede to his request. The defendant showed his
willingness to pay ₹2000/- at the time of the attestation of the
mutation, even though the agreement (Ext.DW-3/A) does not
mention that ₹2000/- would be paid at the time of the
mutation; rather, it mentions that the plaintiff would not take
any money from the defendant. Therefore, the requirement that
the defendant is ready and willing to perform his part of the
agreement is duly fulfilled. Hence, all the requirements of part
performance were satisfied
28. Learned Trial Court held that the Specific
Performance of the agreement was barred by the limitation, and
the defendant was not entitled to the benefit of part
performance. Learned Appellate Court had rightly held that the
bar of limitation could not have been used to defeat the claim
based on the part performance. It was laid down by the Hon’ble
Supreme Court in Shrimant Shamrao Suryavanshi v. Pralhad
Bhairoba Suryavanshi , (2002) 3 SCC 676 , that limitation does not
come in the way of the plea of part performance. It was
observed:
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“17. We are, therefore, of the opinion that if the
conditions enumerated above are complied with, the law
of limitation does not come in the way of a defendant
taking a plea under Section 53-A of the Act to protect his
possession of the suit property even though a suit for
specific performance of a contract is barred by limitation.
18. The matter may be examined from another angle. The
established rule of limitation is that the law of limitation
is not applicable to a plea taken in defence unless
expressly a provision is made in the statute. The law of
limitation applies to the suits and applications. The
various articles of the Limitation Act show that they do
not apply to a defence taken by a defendant in a suit.
Thus, the law of limitation bars only an action in a court
of law. In fact, what the Limitation Act does is to take
away the remedy of a plaintiff to enforce his rights by
bringing an action in a court of law, but it does not place
any restriction on a defendant to put forward any
defence, though such a defence as a claim made by him
may be barred by limitation and cannot be enforced in a
court of law. On the said principle, a defendant in a suit
can put forward any defence, though such a defence may
not be enforceable in a court of law, being barred by
limitation.
19. In M.K. Venkatachari v. L.A.R. Arunachalam Pillai [AIR
1967 Mad 410: (1967) 2 MLJ 265] it was held, thus: (AIR p.
414, para 10)
“[T]hat the defence to limitation is a creature of
positive law and therefore cannot be extended to
cases which do not strictly fall within the
enactment. It is an established canon of
construction of the law of limitation not to enlarge
the scope of statutory provisions of limitation by
analogy or logic.”
20. It is, therefore, manifest that the Limitation Act does
not extinguish a defence, but only bars the remedy. Since
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the period of limitation bars a suit for specific
performance of a contract, if brought after the period of
limitation, it is open to a defendant in a suit for recovery
of possession brought by a transferor to take a plea in
defence of part-performance of the contract to protect
his possession, though he may not be able to enforce that
right through a suit or action.
21. In the present case, it is not disputed that the
transferee has taken possession of the property in part-
performance of the contract. It is also not disputed that
the transferee has not brought any suit for specific
performance of the agreement to sell within the period of
limitation. It is also not disputed that the transferee was
always and is still ready and willing to perform his part of
the contract. Further, the view taken by the High Court in
judgment under appeal was overruled by the Full Bench of
the Bombay High Court in the case of Mahadeo Nathuji
Patil v. Surjabai Khushalchand Lakkad [1994 Mah LJ 1145
(FB)] , which, according to our view, lays down the correct
view of law. In that view of the matter, these appeals
deserve to be allowed.
29. Therefore, the learned Trial Court erred in denying
the benefit of the part performance on the ground that the suit
for specific performance was barred by limitation.
30. The judgments in Ram Nath (supra), Kesar Bai
(supra), L.N. Aswathama (supra), Jai Kishan (supra), Raysing
Hurji Bhil (supra) deal with adverse possession. Since the
learned Appellate Court has dismissed the suit on the basis of
part performance, and not the adverse possession; hence, the
cited judgments do not apply to the present case.
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31. The judgment in Sita Ram (supra) holds that the plea
of part performance cannot be raised for the first time in a
second appeal. In the present case, the plea of part performance
was raised before the learned Trial Court. Therefore, the cited
judgment does not apply to the present case.
32. The defendant had specifically pleaded and proved
the ingredients of the part performance, and the Learned
Appellate Court had also recorded the findings regarding the
plea of part performance. Hence, these substantial questions of
law are answered accordingly.
Substantial Question of Law No.3 :
33. The plaintiff had entered into an agreement with the
defendant to sell the land. He acknowledged the possession of
the defendant. The defendant paid ₹3600/- to the plaintiff
under the agreement and continued to be in possession. The
plaintiff is precluded from seeking possession by the principle of
part performance noticed above. Therefore, the plaintiff cannot
seek possession because he is the owner of the suit land, and
this substantial question of law is answered accordingly.
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Final Order :
34. In view of the above, the present appeal fails, and it is
dismissed.
35. Pending application(s), if any, also stand(s) disposed
of.
36. Records of the learned Courts below be sent down
forthwith.
(Rakesh Kainthla)
Judge
th
5 June, 2026
(Nikita)
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