No Protection Under Section 53A TPA if Possession Not Delivered in Part Performance: Punjab & Haryana High Court

“Once the suit for specific performance stood dismissed, the foundation for invoking Section 53A ceased to exist… The protection available under the said provision being purely defensive in nature, cannot be extended to sustain possession after extinguishment of contractual rights.” - In a decisive ruling Punjab and Haryana High Court rejected the claim of protection under Section 53A of the Transfer of Property Act, 1882, by a defendant who entered possession several years after signing an agreement to sell. Justice Deepak Gupta upheld the concurrent findings of the Trial Court and First Appellate Court, holding that the defendant’s possession was neither contemporaneous with the contract nor in part performance of it, and thus not entitled to legal shield. The appeal was dismissed in the absence of any substantial question of law.

"Possession Not in Part Performance Cannot be Protected by Section 53A" — Agreement to Sell Must Be Fulfilled, Not Just Executed

The plaintiffs, legal heirs of Gurmukh Singh, approached the court seeking possession and mesne profits over a property he had purchased in auction from the Department of Rehabilitation. They alleged that Amar Nath, the appellant, and Hans Raj, predecessor of the proforma respondents, were occupying the property illegally, without paying rent or ownership rights. An earlier ejectment petition was dismissed for lack of tenancy proof, leading the plaintiffs to seek possession on grounds of ownership.

The appellant countered the suit by relying on an unregistered agreement to sell dated 07.05.1963, supported by a receipt dated 15.09.1963, to claim possession under Section 53A, arguing that Gurmukh Singh had agreed to sell the property for ₹725, of which ₹525 was paid as earnest money and ₹200 subsequently. It was alleged that construction had been raised by the vendees based on this agreement, and possession was thus legal.

The Court, however, found these assertions legally insufficient. It observed that:

“It stands established that the defendants entered into possession only several years after execution of the agreement and not in pursuance of the agreement to sell.”

The Court pointed out that neither the agreement nor the receipt recorded a contemporaneous delivery of possession. In fact, even the receipt gave a vague permission to “take possession at will,” revealing that actual possession had not been delivered under the agreement.

"Doctrine of Part Performance Cannot Coexist with a Plea of Adverse Possession" — Court Rejects Inconsistent Legal Defence

In addition to invoking Section 53A, the defendant also attempted to claim ownership by adverse possession, creating a conflicting legal position. The High Court called out the contradiction:

“A person who claims possession under an agreement to sell cannot simultaneously plead adverse possession, as such possession is lawful only under the contract.”

The Court invoked the authoritative ruling in Mohan Lal (Deceased) through LRs v. Mirza Abdul Gaffar and Another, AIR 1996 SC 910, wherein the Supreme Court had clarified that once a suit for specific performance is dismissed, the right to invoke Section 53A disappears, and mere continued possession cannot sustain legal protection.

Thus, since the defendant’s suit for specific performance had already been dismissed, the Court ruled:

“The protection under Section 53A, being purely defensive, cannot be extended to sustain possession after extinguishment of contractual rights.”

"Readiness and Willingness Are Not Mere Words – They Must Be Proven" — Failure to Perform Bars Equitable Relief

The Court emphasized that the readiness and willingness to perform the contract, as required under Section 53A TPA and Section 16(c) of the Specific Relief Act, was absent. There was no evidence that the defendant made further attempts to execute the sale deed or sought registration once Gurmukh Singh obtained conveyance from the Rehabilitation Department.

Referencing Nathulal v. Phoolchand, AIR 1970 SC 546, the Court reiterated the four cumulative conditions necessary for invoking Section 53A, and held that the defendant failed all.

The judgment observed:

“There is no credible evidence on record demonstrating the appellants’ readiness and willingness to perform their part of the contract.”

Thus, the equitable protection collapsed with the breach of contractual obligation, and the defendants were left with no lawful right to retain the property.

"Concurrent Findings of Fact Are Not to Be Disturbed in Second Appeal" — No Substantial Question of Law Made Out

Finally, the Court reiterated the limited scope of second appellate jurisdiction under Section 100 CPC:

“It is a well-settled principle that concurrent findings of fact recorded by the Courts below, when based on proper appreciation of evidence and sound reasoning, are not liable to be interfered with… unless shown to be perverse.”

The Court found the findings of both courts fully supported by documents (the agreement and receipt) and the admission of delayed possession by the appellant himself. No legal infirmity or perversity was demonstrated to invoke interference under second appellate powers.

The Regular Second Appeal failed on every front — the defence of Section 53A was unsustainable, plea of adverse possession was inconsistent, and readiness to perform was absent. The defendant’s attempt to cling to possession failed not due to lack of documents, but due to failure to comply with their legal implications.

“The appeal being devoid of merit is accordingly dismissed, with no order as to costs.”

Date of Decision: October 13, 2025