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by sayum
22 August 2026 8:42 AM
"Even for the sake of arguments, if agreement dated 01.02.1995 is read into evidence, it is not in favour of the appellants or any of them. It is in favour of one Sanjay Kumar, who was a distinct person in his own capacity." Uttarakhand High Court, in a significant ruling delivered on August 20, 2026, held that occupants facing eviction cannot claim the equitable protection of part-performance under Section 53-A of the Transfer of Property Act, 1882 based on an agreement to sell executed in the name of a distinct family member.
A single judge bench of Justice Ravindra Maithani affirmed that the statutory shield under Section 53-A is strictly personal to the transferee and cannot be invoked by relatives who were not parties to the contract and never held possession in furtherance of it.
The primary question before the court was whether the appellants were entitled to protect their possession under Section 53-A of the Transfer of Property Act, 1882 through an agreement executed in favour of a family member. The court was also called upon to determine whether the suit for eviction was barred by limitation under Order VII Rule 11 of the Code of Civil Procedure, 1908 in conjunction with Section 62(c) of the Indian Easements Act, 1882.
Agreement In Favour Of Distinct Family Member Confers No Section 53-A TP Act Rights
Addressing the core contention under Section 53-A of the Transfer of Property Act, 1882, the bench observed that the alleged agreement to sell dated February 1, 1995 was purportedly executed in favour of Sanjay Kumar, the son of Appellant No. 1 and brother of Appellant No. 2, and not in favour of the appellants themselves. The court stressed that an occupant cannot step into the shoes of a distinct legal person to resist recovery of possession by the true owner.
The court underscored that Section 53-A requires the transferee himself to take or continue in possession in part-performance of the contract. The bench observed that the agreement failed to record that the appellants were put in possession or continued their occupation pursuant to the contract of sale.
"Sanjay Kumar is a different person. Though, he is son of the appellant no.1, Subhash Chand Arora and the brother of the appellant no.2, Ajay Kumar Arora, but he had a distinct identity. It does not record that pursuant to the agreement dated 01.02.1995, the appellants or any of them did get possession."
All Prerequisites Of Section 53-A TP Act Are Cumulative And Mandatory
Reiterating the settled jurisprudence on part-performance, Justice Maithani referenced the Supreme Court precedents in Nanjegowda v. Gangamma and Mool Chand Bakhru v. Rohan, holding that all conditions of Section 53-A are sine qua non. The court pointed out that the appellants neither proved the execution of the 1995 agreement nor established their readiness and willingness to perform their contractual obligations.
The bench emphasized that an unproved, unregistered agreement cannot serve as a permanent shield against eviction, particularly when the appellants never filed a suit for specific performance to enforce the contract during the lifetime of the putative purchaser.
"A party can take shelter behind this provision only when the following conditions are fulfilled... All the postulates are sine qua non and a party cannot derive benefit by fulfilling one or more conditions."
"When a person already in possession of the property in some other capacity enters into a contract to purchase the property, to confer the benefit of protecting possession under the plea of part-performance, his act effective from that day must be consistent with the contract alleged and also such as cannot be referred to the preceding title."
Plea Of Adverse Possession And Section 53-A Are Mutually Destructive
The High Court also highlighted the contradictory defence adopted by the appellants, who concurrently pleaded adverse possession and statutory protection under Section 53-A of the TP Act. Relying on the Supreme Court ruling in Roop Singh v. Ram Singh, the bench noted that entering possession lawfully under an agreement or license inherently negates the hostile animus required to establish title through adverse possession.
The court reiterated that setting up an agreement to sell acknowledges the title of the grantor, thereby destroying any concurrent claim of ownership by prescription.
License Was Not For A Limited Period Under Easements Act
The bench rejected the appellants' argument that the license stood extinguished after 39 months by efflux of time under Section 62(c) of the Indian Easements Act, 1882. The court observed that adjusting the loan amount against monthly fees did not convert the arrangement into a fixed-term license of 39 months.
Relying on Associated Hotels of India Ltd. v. R.N. Kapoor and Mrs. M.N. Clubwala v. Fida Hussain Saheb, the bench held that the license continued until explicitly revoked by the respondents on April 15, 2015, rendering the suit filed in 2016 well within limitation.
Absence Of Specific Issue Caused No Prejudice Under Order XIV CPC
Dealing with the procedural grievance regarding the trial court's refusal to frame a standalone issue on Section 53-A, the High Court held that the parties went to trial with complete knowledge that the question was being examined under the broader issue of title and ownership.
Citing P. Purushottam Reddy v. Pratap Steels Ltd., the bench held that where parties have had full opportunity to adduce evidence on a disputed question, the non-framing of a separate formal issue constitutes a mere irregularity that results in no prejudice.
Dismissing the first appeal, the High Court upheld the trial court's decree granting mandatory injunction for vacant possession and awarding damages for unauthorized use and occupation. The ruling firmly establishes that the equitable defence under Section 53-A of the Transfer of Property Act cannot be claimed vicariously by family members based on an unproved agreement executed in favour of a relative.
Date of Decision: 20 August 2026
