ISSUE:1:- WHETHER THE APPELLANT CAN INVOKE THE JURISDICTION OF THE HONORABLE

HIGH COURT IN ONE OR MORE APPROACHES OR NOT?

The appellant is the aggrieved party here. In the present case the appeal here filed is filing on
the second instance. Previously it was filed before the civil court junior division, where the
learned trial court gave the judgement and decree in favour of the appellant and hold the
opinion that the doctrain of part performance is not applicable here.

The respondent aggrieved against the judgment and decree passed by the Trial Court, the
appellant filed an appeal before the first appellate court. The first appellate Court taking a
different view set aside the judgment of the trial Court and dismissed the suit filed by the
plaintiff. The first Appellate Court came to the conclusion that the appellant had acquired an
equitable/ possessory title to the suit land on the basis of the agreement of sale executed in his
favour by Kishorilal and was therefore, entitled to protect his possession under Section 53-
A of the Act.

Thus this second instance of appeal is entertaining here against the judgement and decree of
the first appellate court. the concerned provisions are provided under the civil procedure code.

Those are Section 100 r/w Section 103 of the said act:

The Supreme Court, speaking through Justice BS Chauhan, has in Municipal Committee,
Hoshiarpur v. Punjab State Electricity Board, examined the scope of S. 100 and 103 of the
Code of Civil Procedure, 1908 and the law relating to Second Appeals against decrees. The
Supreme Court has examined the same issue several times:-

Second Appeal: Sections 100 & 103 C.P.C.:

These provisions provide for the conditions precedent for entertaining a Second Appeal and
the specific manner of its disposal. Section 100 CPC reads as follows:
"100. Second Appeal.-(1) Save as otherwise expressly provided in the body of this Code or by
any other law for the time being in force, an appeal shall lie to the High Court from every
decree passed in appeal by any Court subordinate to the High Court, if the High Court is
satisfied that the case involves a substantial question of law.

(2) ............................................ (3) In an appeal under this section, the memorandum of appeal
shall precisely state the substantial question of law involved in the appeal.

(4) Where the High Court is satisfied that a substantial question of law is involved in any
case, it shall formulate that question.

(5) The appeal shall be heard on the question so formulated and the respondent shall, at the
hearing of the appeal, be allowed to argue that the case does not involve such question.

Section 103 CPC reads as under:

"103. Power of High Court to determine issue of fact.--In any second appeal, the High Court
may, if the evidence on the record is sufficient, determine any issue necessary for the disposal
of the appeal,--

(a) which has not been determined by the lower appellate court or both by the court of first
instance and the lower appellate court, or

(b) which has been wrongly determined by such court or courts by reason of a decision on
such question of law as is referred to in Section 100."
 WHETHER THE JURISDICTION OF THE COURT CAN BE BROUGHT WITHIN THE SCOPE OF SECTION
100 R/W SECTION 103 OF THE CODE OF CIVIL PROCEDURE, 1908.

INVOLEMENT OF SUBSTANCIAL QUESTION OF LAW

Shri Alladi Krishnaswamy Iyer interpreted the provision any question of law said o be a

substantial when it simply means necessary for the disposal, or that the case turns on

interpretation.

1. The party is directly subject to an adverse effect by the statute or action in question, and

the harm suffered will continue unless the court grants relief. This is called the

"something to lose" doctrine.

2. The party has standing because they directly will be harmed by the conditions for which

they are asking the court for relief. The party is granted automatic standing by act of law.

The Supreme Court of India, in case of Vijay Kumar Talwar v. Commissioner of Income Tax,

Delhi1, Honble Justice D.K. Jain and Justice T.S. Thakur quoted:-
In order to be "substantial" it must be such that there may be some doubt or difference of
opinion or there is room for difference of opinion.23

A question of law would be a substantial question of law if, it directly or indirectly,

affects the rights of parties4. In the present case, the judgement as well as the decree of
equitable possession passed by the learned court of first appeal is directly affecting the
rights of the parties.

1
Vijay Kumar Talwar v. Commissioner of Income Tax, Delhi; (2011) 1 SCC 673.
2
Udhavdas Kewalram v. CIT; (1967) 66 ITR 462
3
State of Kerala v. R.E. DSouza; (1971) 3 SCR 71
4
Sir Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd.; A.I.R. 1962 SC 1314.
 That a question of law having a material bearing on the decision of the case (i.e., a
question, answer to which affects the rights of parties to the suit) will be a substantial
question of law. There is involvement of substantial question of law in this present
appeal5.

The existence of a substantial question of law is a sine-qua-non for the exercise of jurisdiction
under the provisions of Section 100 C.P.C. It is the obligation on the Court to further the clear
intent of the Legislature and not to frustrate it by ignoring the same678.

In Mahindra & Mahindra Ltd. v. Union of India & Anr.9 this Court observed:

The reason for permitting the substantial question of law to be raised, should be recorded by
the Court. It is implicit there from that on compliance of the above, the opposite party should
be afforded a fair or proper opportunity to meet the same. It is not any legal plea that would
be alleged at a stage of second appeal. It should be a substantial question of law. The reasons
for permitting the plea to be raised should also be recorded."

In Jai Singh v. Shakuntala10, AIR 2002 SC 1428, this Court held as under:
"....it is only in very exceptional cases and on extreme perversity that the authority to examine
the same in exten so stands permissible - it is a rarity rather than a regularity and thus it can be
safely concluded that while there is no prohibition as such, but the power to scrutiny can only
be had in very exceptional circumstances and upon proper circumspection."
While dealing with the issue, this Court in Leela Soni & Ors. v. Rajesh Goyal & Ors.11
observed as under: "

5
Hero Vinoth v. Seshammal; (2006) 5 SCC 545.
6
Santosh Hazari v. Purshottam Tiwari (dead) by Lrs., AIR 2001 SC 965
7
Sarjas Rai & Ors. v. Bakshi Inderjeet Singh, (2005) 1 SCC 598
8
Manicka Poosali (Deceased by L.Rs.) & Ors. v. Anjalai Ammal & Anr., AIR 2005 SC 1777
9
Mahindra & Mahindra Ltd. v. Union of India & Anr. AIR 1979 SC 798
10
Jai Singh v. Shakuntala, AIR 2002 SC 1428
11
Leela Soni & Ors. v. Rajesh Goyal & Ors., (2001) 7 SCC 494
There can be no doubt that the jurisdiction of the High Court under Section 100 of the Code
of Civil Procedure (CPC) is confined to the framing of substantial questions of law involved
in the second appeal and to decide the same
It will be apt to refer to Section 103 CPC which enables the High Court to determine the
issues of fact:
The section, noted above, authorises the High Court to determine any issue which is necessary
for the disposal of the second appeal provided the evidence on record is sufficient, in any of
the following two situations: (1) when that issue has not been determined both by the trial
court as well as the lower appellate court or by the lower appellate court; or (2) when both the
trial court as well as the appellate court or the lower appellate court have wrongly determined
any issue on a substantial question of law which can properly be the subject-matter of second
appeal under Section 100 CPC."
The only substantial question of law which arises in this appeal for determination is whether
the defendant, who is in possession of the suit land on the basis of an agreement of sale dated
1-9-1961 executed by Pishorilal Punjabi, who himself, in turn, had come in possession of the
suit land on the basis of a similar agreement dated 16-6-1961 executed by the plaintiff, can
claim benefit of the equitable doctrine of part performance as stated in section 53-A of the
Transfer of Property Act to protect his possession.
Thus this appeal has involved a substancial question of law and the same lies with in the
scope of section 100 r/w section103 of code of civil procedure 1908.
 WHETHER RULE 3 OF ORDER 22 OF THE CODE OF CIVIL PROCEDURE, 1908 HAS ANY
APPLICABILITY OR NOT IN THE PRESENT CASE.

In this present case the original plaintiff has been died thus for his representation the legal
representative of the deceased has been appointed. Theconcerned provision which justified
the validity of the same is Order 22 Rule 3 of Code Of Civil Procedure1908.

Order 22 Rule3 :-

Procedure in case of death of one of several plaintiffs or of sole plaintiff.-

(1) Where one of two or more plaintiffs dies and the right to sue does not survive to the
surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the
right to sue survives, the court, on an application made in that behalf, shall cause the legal
representative of the deceased plaintiff to be made a party and shall proceed with the suit.

(2) Where within the time limited by law no application is made under sub-rule (1), the suit
shall abate so far as the deceased plaintiff is concerned, and, the court may award to him the
costs which he may have incurred in defending the suit, to be recovered from the estate of the
deceased plaintiff.

Thus it is very clear from the concerned provision that order 22 rule 3 should be applicable
here without any question.
ISSUE 2: WHETHER THE APPELLANT IS ENTITLED FOR THE POSSESSION OF THE SUIT
PROPERTY.

In the present case the appellant who was the original plaintiff before the trial court is entitled
for the possession of the suit property.

As per the facts The property in dispute is agricultural land bearing Survey No. 94
admeasuring 18 acres and 23 gunthas situated at Village Banar, Taluka Jodhpur in the State of
Rajasthan and the same is the subject matter for this suit for possession of said property. The
appellant made a clear declaration as to the subject that the concerned property is the self
acquired property of him.

To establish this contention he gave a reference of the Special Civil Suit No. 20 of 1972
which is filed by his brother for partition and possession of the ancestral property. Is is
averted here that suit land along with other lands was left to his share.

The further submission of this case of the appellant is establishing basis point as Kishorilal
have no title to transfer the suit property to Mr. x and the doctrine of the part performance is
not applicable here. Moreover appellant will establish how the doctrine of privity of contract
must not be applicable here.
 WHETHER THE AGREEMENT BETWEEN OM SINGH RATHORE (ORIGINAL
PLAINTIFF/APPELLANT) AND KISHORILAL CREATED ANY TITLE IN FAVOUR OF LATER.

The appellant counsel contended that Kishorilal had no title to the suit land which he could
transfer to the defendant.

In The case of Suraj Lamp & Industries Pvt Ltd v State of Haryana 12 the Supreme Court of
India recently observed that it has become common practice to effect transfers of immovable
property by way of either general power of attorney (GPA) sales or sale agreement.

Although it held that such transactions are illegal and cannot be recognised as valid under
law, the Supreme Court further sought to distinguish these illegal transactions from genuine
transactions entered into by parties in good faith.

In the present case the facts are speaking about that the agreement to sale between origina
plaintill and kishorilal as it was just an agreenment to sell the suit property the main subject
which was missin here it that the sale deed was not duly registered.

Moreover it was not on the record at the time of the trial. It leaves a serious question even on
the existence of any agreement as stated by respondent.

12
Suraj Lamp & Industries Pvt Ltd v State of Haryana 2012 1 SCC 656
The honourable supreme court While referring to Sections 53A and 5413 of the Transfer of
Property Act and its decisions in Narandas Karsondas v SA Kamtam14 and Narayan Bapuji
Dhotra deceased & Anr.v Rambhau Namdeo Gajre15 decided by Bombay High court, the
Supreme Court further observed that a transfer of immovable property by way of sale can be
effected only by a deed of conveyance. In the absence of a deed of conveyance (which must
be duly stamped and registered as required by law), no right, title or interest in an immovable
property can be transferred.

Thus only by this requirement of registration and absence on the record the deed cannot be
treated as it was created a valid and secured title for respondent.

Further The Supreme Court observed that measures taken by states in order to curb these
practices included:

the amendment under section 1716of the Registration Act 1908, to require the
registration of documents that contain a contract to transfer for consideration (eg,
agreements of sale) relating to any immovable property for the purpose of Section 53A
of the Transfer of Property Act; and

the amendment of the stamp laws, to subject agreements of sale with delivery of
possession and/or irrevocable powers of attorney, in favour of non-family members
authorising a sale, to the same stamp duty as deeds of conveyance.
13
54. "Sale" defined
"Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.
Sale how made: Such transfer, in the case of tangible immovable property of the value of one hundred rupees
and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered
instrument.
In the case of tangible immovable property of a value less than one hundred rupees, such transfer may be
made either by a registered instrument or by delivery of the property.
Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he
directs, in possession of the property.
Contract for sale: A contract for the sale of immovable property is a contract that a sale of such property shall
take place on terms settled between the parties.
It does not, of itself, create any interest in or charge on such property.
14
Narandas Karsondas v SA Kamtam 1977 AIR 774, 1977 SCR (2) 341
15
2000(1)ALLMR385; 2000(2)BomCR133
16
Section 17. Documents of which Registration is compulsory refer registration act 1908
In the absence of the registration the deed can not be considered as valid Agreements of sale
The court observed that Section 54 of the Transfer of Property Act makes clear that a contract
of sale does not itself create any interest in or charge on such property. The Supreme Court
has reiterated the settled position of law in this regard - any contract of sale (or agreement to
sell) that is not a registered deed of conveyance or deed of sale will fall short of the
requirements of Sections 54 and 55 of the Transfer of Property Act, and will therefore confer
no title and transfer no interest in an immovable property (except to the limited right granted
under Section 53A of the Transfer of Property Act). According to the Transfer of Property
Act, an agreement of sale - whether with or without possession - is not a conveyance.

The Supreme Court therefore held that sale agreement, GPA and will transfers do not convey
any title or create any interest in immovable property. The court overruled the observations of
the High Court of Delhi in Asha M Jain v Canara Bank17 insofar as the high court recognised
or accepted that such transfers could be considered concluded transfers.

The Supreme Court further held that immovable property can be legally and lawfully
transferred or conveyed only by a registered deed of conveyance. Therefore, since sale
agreement, GPA and will transfers do not convey any title, they do not amount to transfers.

This judgment confirms that a valid transfer of immovable property can occur only through a
registered deed of conveyance. Contract for sale
A contract for sale of immoveable property is a contract that a sale of such property shall take
place on terms settled between the parties. It does not, of itself create any interest in or charge
on such property. An agreement for sale is merely a document creating a right to obtain
another document of sale on fulfilment of terms and conditions specified therein. On the
strength of such an agreement a buyer does not become the owner of the property. The
ownership remains with the seller. It will be transferred to the buyer only on the execution of
sale deed by the seller. The buyer obtains only a right to get the sale deed executed in his
favour18. Crest Hotel Ltd. v. Assistant Superintendent of Stamps, AIR 1994 Bom 228. But

17
Asha M Jain v Canara Bank 94 (2001) DLT 841, 2002 (61) DRJ 101
18
Crest Hotel Ltd. v. Assistant Superintendent of Stamps, AIR 1994 Bom 228
here before the execution of the sale deed in his favour the kishorilal made an another
agreement with the respondent. Here the agreement of sale has no validity.
 WHETHER THE EQUITABLE DOCTRAIN OF PART PERFORMANCE PROVIDED U/S 53 A OF
TRANSFER OF PRPERTY ACT IS APPLICABLE HERE? WHETHER THIS DOCTRINE OF PART

PERFORMANCE CAN BE AVAILED OF BY THE DEFENDANT WITH WHOM THE PLAINTIFF NEVER

MADE ANY AGREEMENT OF SALE.

He further submitted that the equitable doctrine of part performance cannot be availed of by
the defendant who is not the plaintiff's transferee.

53A. 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,

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.

It may be noted that the doctrine of part performance as stated in section 53-A of the Transfer
of Property Act is an equitable doctrine which create a bar of estoppel in favour of the
transferee against the transferor. But in the present the doctrine of part performance cannot be
applicable because the main essential to create an agreement and later turned in to part
performance it the ownership and in present case the kishorilal who made the agreement with
the invalid title cannot transfer a valid title to respondent by way of part performance or any
other way for this purpose.

The doctrine of part performance aims at protecting the possession of such transferee
provided certain conditions contemplated by section 53-A are fulfilled.
These conditions are :

i) that the transfer must be for consideration of an immoveable property

ii) that such contract must be signed by the transferor or any persons on his behalf

iii) that the terms of such contract can be with reasonable certainty ascertained to constitute
the transfer

iv) that the transferee in part performance has taken possession of the property or any part
thereof or being already in possession continues in possession in part performance of the
contract and has done some act in furtherance of the contract.

The further condition, which is required to be fulfilled, is that the transferee has performed or
is willing to perform his part of contract.

The appellant agreed with the contention that all those were fulfilled but a serious problem
lies here in the question, which requires to be considered, is whether this doctrine of part
performance can be availed of by the defendant with whom the plaintiff never made any
agreement of sale. The only right possessed by the kishorrilal under Section 53-A was to
protect his possession as against his proposed vendee. He did not have conveyable interest in
the property which he could transfer to a third party including the possession of the property.

Thus as held by both the court vis. Trail court and appellate court. That the agreement of sale
made by the plaintiff is with kishorilal. Although kishorilal appears to have paid to the
plaintiff the entire amount of consideration still a registered sale deed was never executed in
his favour by the plaintiff. And this invalid title barred the futher transfer by part performance
to respondent. More over a fact that Kishorilal also did not take any action against the plaintiff
for specific performance of contract to obtain a registered sale deed in respect of the suit land.
 WHETHER THERE IS AN EFFECT OF THE PRINCIPLE OF DUE CARE AND CAUTION ON
THE PART OF MR. X IN ASCERTAINING THE OWNERSHIP OF KISHORILAL.

As already pointed out, the agreement of sale in favour of kishorilal was executed by the
plaintiff on 16-6-1971. Both the courts below have held that kishorilal took possession of the
suit land on the basis of the said agreement of sale. Thereafter, within a period of two and
half months kishorilal executed a similar agreement of sale dated 1-9-1971 in favour of the
defendant and put him in possession of the suit land.

The respondent did even take due care about the validity of the title of Kishorial.. Another
instance by which one can easily understand that the respondent did not take due care is that
it is highly improbable that the appeallant has no knowledge about the suit already pending
between om singh rathour his bother and kishorolal.

The property which is already in a dispute cannot be alienated in any way as transfer or sale.
concerned provision is provided under section 52 of transfer of property act.

52. Transfer of property pending suit relating thereto

During the pendency in any court having authority 3[4[within the limits of India excluding the
State of Jammu and Kashmir] Government or established beyond such limits] by the Central
Government of any suit or proceedings which is not collusive and in which any right to
immovable property is directly and specifically in question, the property cannot be transferred
or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any
other party thereto under any decree or order which may be made therein, except under the
authority of the court and on such terms as it may impose.

Explanation : For the purposes of this section, the pendency of a suit or proceeding shall be
deemed to commence from the date of the presentation of the plaint or the institution of the
proceeding in a court of competent jurisdiction, and to continue until the suit or proceeding
has been disposed of by a final decree or order and complete satisfaction or discharge of such
decree or order has been obtained, or has become unobtainable by reason of the expiration of
any period of limitation prescribed for the execution thereof by any law for the time being in
force.

Thus the respondent is not in a position to enforce the title.

WHETHER THE DOCTRINE OF PRIVITY OF CONTRACT AVAIL DEFENDANT TO CLAIM

THE OWNERSHIP OF SUIT PROPERTY?

The doctrain of privity of contract is not applicable here because the respondent and the
appellant were not the party while making the agreement means no agreement as to transfer of
property take place between the appellant and defendant.

As per the facts of the case There was no agreement between the appellant and the defendant
in connection with the suit land..

The defendant is a third party and he has come in possession of the suit land on the basis of an
agreement of sale executed not by the plaintiff but by kishorilal.

Therefore, the privity of contract is between kishorilal and the defendant but not between the
appellant and the defendant.

Even the doctrine of part performance as contemplated by section 53-A can be availed of by
the transferee and any person claiming under him, against the transferor or any person
claiming under him. The defendant is not a transferee within the meaning of section 53-A.
Therefore, he does not have the equitable right to protect his possession as against the
transferor i.e. the plaintiff.
The similar principle were laid down in the case of was Vazir v. Mathura19, wherein it was
held that the doctrine of part performance is one of equitable estoppel and the third party not
being privity to the transaction on which estoppel rests can take no advantage of it.

Thus the respondent must not take the advantage of the doctrain of privity of contract.

19
Vazir v. Mathura A.I.R. 1927 Audh 482