Annual Patta, Section 53A and the Refusing Vendor
On 5 June 2019 Hari Charan Nath, a cultivator holding 2 bighas 4 lechas of annual patta land at village Kharghuli in Kamrup district, executed a registered agreement for sale in favour of Gitanjali Deka for Rs. 12,00,000, of which Rs. 3,00,000 was paid as earnest money. Possession was handed over on the same day; Deka has since cultivated the land, paid land revenue and obtained receipts in her own name, and built a boundary fence costing Rs. 80,000. The sale deed was to be executed by 5 June 2022 'after obtaining necessary permission from the Deputy Commissioner'. No permission was ever applied for. On 1 July 2022 Nath served a notice refusing to sell, and in August 2022 executed a sale deed of the same land in favour of Bimal Das, who is in possession of half the plot and has erected a shed. Deka filed Title Suit No. 47/2025 on 12 January 2025 before the Civil Judge (Senior Division), Guwahati, for specific performance, and alternatively for refund with damages. Bimal Das was not impleaded.
1. Frame the issues arising on these pleadings and indicate on whom the burden of proof lies on each.
Read the worked answer
Issues under Order XIV Rule 1 CPC, with burdens:
- Whether there is a valid and enforceable contract dated 5 June 2019 - burden on the plaintiff, who asserts it; the registered agreement makes this largely formal.
- Whether the plaintiff has always been ready and willing to perform her part - Section 16(c) Specific Relief Act. Burden squarely on the plaintiff. Readiness and willingness must be pleaded in the plaint as a fact and proved; a bare averment is not enough. It must be continuous, from the date of the contract to the date of the decree.
- Whether the land being annual patta land transferable only with the previous sanction of the Deputy Commissioner, the contract is enforceable - burden on the defendant, who pleads the statutory bar; but the plaintiff must first establish the contract and the nature of the tenure.
- Whether the plaintiff is entitled to the protection of Section 53A TPA in resisting any claim for possession by the defendant or his successor - burden on the plaintiff, who claims the equity.
- Whether the suit is barred by limitation under Article 54 of the Limitation Act - a question of law to be decided on the plaint and the admitted dates, though the defendant must plead it.
- Whether Bimal Das is a transferee for consideration in good faith without notice under Section 19(b) of the Act - burden on Bimal Das, when impleaded, to prove absence of notice.
- Whether, the specific relief being refused, the plaintiff is entitled to refund and compensation - burden on the plaintiff to prove the payments and the value of improvements.
The plaint is defective in not impleading Bimal Das, since complete relief cannot be granted without him; the court should direct impleadment before framing the last issue.
2. Does the absence of the Deputy Commissioner's sanction defeat the suit, and can the plaintiff invoke Section 53A of the Transfer of Property Act against Bimal Das?
Read the worked answer
Two distinct questions arise - enforceability of the contract, and protection of possession.
Enforceability. The restriction on transfer of annual patta land is a settlement/statutory restriction designed to protect a class of cultivators. A contract to sell such land is not per se unlawful under Section 23 of the Contract Act, because it is open to the parties to seek the sanction; here the agreement itself conditions the sale deed on obtaining permission from the Deputy Commissioner. A vendor cannot take shelter behind the absence of a sanction he never even applied for. The court may, therefore, decree specific performance by directing the defendant to apply for and obtain sanction within a fixed time, the sale deed to follow on sanction being granted; if sanction is refused, the decree becomes unexecutable and the plaintiff falls back on refund and compensation. Where, however, the statute makes the transfer void and incapable of being regularised, the court will not compel the defendant to do what the law forbids.
Section 53A. The requirements are a written contract signed by the transferor from which the terms can be ascertained with reasonable certainty (the registered agreement satisfies this), possession taken in part performance, the transferee having done some act in furtherance of the contract (cultivation, revenue receipts in her own name, the fence), and willingness to perform. Section 53A is a shield, not a sword. Deka may resist ejectment by Nath or by a person claiming under him, but she cannot use it to eject Bimal Das. Against Bimal, her remedy lies under Section 19(b) of the Specific Relief Act - if Bimal purchased with notice of her agreement and of her open, visible possession, the later sale will not defeat her specific performance. That is why the recitals in the August 2022 deed and the position on the ground will decide the suit.
3. Is the suit barred by limitation under Article 54? Does the notice of refusal of 1 July 2022 help the plaintiff or the defendant?
Read the worked answer
Article 54 provides two alternative starting points: where a date is fixed for performance, time runs from that date; where no date is fixed, time runs from the date on which the plaintiff has notice of refusal to perform.
Here a date was fixed - 5 June 2022. Three years expire on 5 June 2025. The suit was filed on 12 January 2025 and is therefore comfortably within time.
The notice of refusal dated 1 July 2022 does not start a fresh period and does not shorten the period. The refusal of 1 July merely evidences an anticipatory breach; the plaintiff was entitled to treat the contract as at an end and sue at once, or to wait until the contractual date. Where a date is fixed, the second limb of Article 54 does not operate at all.
The argument that the August 2022 sale to a third party created a new cause of action is also unhelpful to the defendant - it does not postpone or extend limitation for specific performance.
The genuine vulnerability of the plaintiff is not limitation but Section 16(c). Between the refusal of July 2022 and the plaint of January 2025 she must show that she kept the balance of Rs. 9,00,000 ready, offered it, and remained willing to perform. Her payment of land revenue in her own name and her continued possession help but are not a substitute for either the averment or the offer. If the court finds she treated the contract as abandoned, the suit fails notwithstanding that it was filed in time.