V. N. Khare, J. -
(1.)In this group of appeals the question that arises for our consideration is "whether in a suit brought by a transferor for recovery of possession of the suit property, a defendant-transferee can defend or protect his possession over the suit property obtained in pursuance of a part performance on an agreement to sell under S. 53-A of the Transfer of Property Act (hereinafter referred to as 'the Act'), even if a suit for specific performance of an agreement to sell has barred by limitation."
(2.)Since common question of law is involved in these appeals, we are deposed to notice the facts which have given rise to Civil Appeal No. 2706/1991.
The appellants herein were the defendants in the suit brought by the plaintiff-respondents for recovery of the suit property and for mesne profit. On 9th July, 1964, respondent No. 3 executed an agreement for sale of an agricultural land in favour of appellant No. 1 for a total consideration of Rs. 9,000/-. Appellant No. 1 paid a sum of Rs. 5,700/- towards earnest money. The appellant in pursuance of the said agreement for sale was put in possession over the said property. After the execution of the said agreement, it came to the notice of the appellant that the transferor is negotiating for sale of the said land in favour of respondent No. 1. Under such circumstances, the appellant brought a suit on 2nd August, 1965 for injunction restraining the transferor from selling the said land in favour of respondent No. 1. On 30th April, 1966 the trial Court granted injunction as prayed for. It is the case of the appellants that despite the said injunction order, the transferor sold the said property through a registered sale deed dated 24th May, 1966 in favour of respondent No. 1.
(3.)After the sale deed was executed, the plaintiff-respondent No. 1 on the strength of the said sale deed brought a suit for recovery of possession of the land. The appellants filed a written statement wherein the suit claim was resisted on the ground that they are in possession of the property in pursuance of agreement entered into on 9th July, 1964 and their possession is protected as they are always and still willing and ready to perform their part of the contract. Another contention raised was that the decree passed by the Civil Court in a suit for injunction operates as res judicata and the sale deed which is the basis of the title of the appellant has not been proved. The trial Court dismissed the suit. The learned single Judge of Bombay High Court dismissed the appeal preferred by the plaintiff-respondents. However, the Letters Patent Bench allowed the Letters Patent Appeal filed by the plaintiff-respondents. The view taken by the Letters Patent Bench was that the protection as regards possession is not available to the defendant-appellants as the suit for specific performance of agreement for sale is barred by limitation. It is against the said judgment of the Letters Patent Bench, the appellants are in appeal before us.