m gopal

1. Whether the plaintiff acquired title to the schedule lands by adverse possession? 2. Whether the plaintiff is entitled to protect his possession under law and whether he can claim positive relief of perpetual injunction in his favour in a suit filed by him?=a person who obtained the possession of the property under executory terms of contract of sale, cannot ask for declaration of his title even on the ground that he remained in possession of the property for more than 12 years period and contending that his possession is adverse to the real owner. The Apex Court said in the above two judgments that possession of such person cannot be adverse and he cannot set up the plea of adverse possession. Therefore, in my view the trial court has fallen into error in declaring the title of the plaintiff holding that he perfected his title to the schedule mentioned property by adverse possession against the defendants 1 and 2 who are the real owners and defendants 3 and 4 who are the subsequent purchasers. However, by virtue of the doctrine of part performance embodied in Section 53-A of the Transfer of Property Act, the plaintiff can protect his possession from defendants 1 and 2 who sold the property to him under the simple sale deed, so also he can protect his possession from defendants 3 and 4 who have knowledge of the earlier sale transaction in his favour under Exs.A-1 and A-1(a) sale deed. It is argued before me by the learned counsel appearing for the defendants that the plaintiff having recourse to the doctrine of part performance can only protect his possession but he cannot file a suit for simple injunction by his positive act seeking a decree in his favour. It is true that Section 53-A only operates as a bar against the defendants in the present case from enforcing any rights against the plaintiff other than those which were provided under Exs.A-1 and A-1(a) simple sale deed. Although the section does not confer title on the person who took possession of the property in part performance of the contract, the law is now well settled that when all conditions of the section are satisfied as in the present case, the possession of the person must be protected by the court whether he comes as a plaintiff or defendant. The only embargo is that Section 53-A cannot be taken in aid by the transferee to establish his right as owner of the property. But the transferee can protect his possession having recourse to Section 53-A either by instituting a suit for injunction as a plaintiff or by defending the suit filed by the transferor or subsequent purchasers as a defendant. It is also well settled that the transferee can very well file a suit for injunction to protect his possession even though his remedy to file a suit for specific performance of contract is barred by limitation.no adverse possession. injunction for protection can be granted

THE HON’BLE SRI JUSTICE R.KANTHA RAO A.S. No.713 OF 1993 08-06-2011 M.Gopal and another K.Janga Reddy and another Counsel for petitioners: Sri Yadaiah Counsel for respondents:Sri K.Raghuveer Reddy :JUDGMENT: This appeal is filed against the judgment and decree dated 24.08.1992 passed by the Subordinate Judge at Sanga Reddy in O.S.No.49 of 1986. I have heard … Continue reading →