FACTS:
Gangamma (Plaintiff 1) is the wife of late Honnanna. Vanajakshi (Plaintiff 2) is her daughter whereas Nagesha and Manjunatha are her sons. Plaintiffs filed the suit for declaration and possession over an area measuring East-West 50 feet and North-South 15 feet with a house built thereon measuring 15×12 feet at Kamakshipalya, in the State of Karnataka. According to the plaintiffs, the property originally belonged to one Ramakrishna. He had purchased the same and sold the said property to Honnanna. According to the plaintiffs, Honnanna executed the power of attorney in respect of the suit property in favour of defendant No. 1 and 3 which came to an end on his death on 13th July, 1986. Defendant No. 1 and 3, hereinafter referred to as the defendants (appellants herein), contested the suit. They have not denied that Honnanna had purchased the property from Ramakrishna. However, they claim title over the property on the basis of an agreement to sale dated 27th November, 1982. It is further case of the defendants that there being a ban on registry of the property, an irrevocable power of attorney was executed by Honnanna on 14th July, 1985 as also an affidavit of the same date.
The Trial Court held that plea of the defendants that Honnanna delivered possession of the scheduled property in the light of the agreement dated 27th November, 1982 on the date of agreement is false. The Trial Court, thus, decreed the suit and on appeal by the defendants, the High Court had dismissed the appeal and affirmed the judgment and decree of the Trial Court.
ARGUMENTS BY THE APPELLANT(S):
The learned counsel submitted that Honnanna executed an agreement to sale in favour of defendant no.3 Jayamma and she was put in possession. According to him, after the execution of the agreement to sale, the ban on the registration of the documents was not lifted and accordingly Honnanna executed an irrevocable power of attorney and sworn affidavit, acknowledging possession on 14th July, 1985. The counsel further drew attention to the agreement to sale dated 27th November, 1982 and the affidavit dated 14th July, 1985 and contended that Honnanna having delivered the possession of the property, defendants shall have right over the property. Attention has been drawn to Section 53A of the Transfer of Property Act, 1882.
ARGUMENTS BY THE PLAINTIFF(S)-RESPONDENT(S):
The learned counsel, however, contended that the plea put forth by the defendants that they were handed over the possession of the property in part performance of the contract is unfounded on fact and hence Section 53A of the Act is not remotely attracted. He also pointed out that the findings recorded by the Trial Court, as affirmed by the High Court that possession was not delivered to the defendants is on appraisal of evidence which does not call for interference in this appeal.
DECISION OF THE SUPREME COURT:
The Apex Court observed that if Jayamma had got possession of the property in pursuance of the agreement to sale dated 27th November, 1982, then there would have been no occasion for Honnanna to recite in clear terms in the power of attorney that he was in possession of the property.
The Court, thus, affirmed, the finding recorded by the Trial Court as affirmed by the High Court that defendants did not get possession of the property after execution of the sale deed.