What is the right of buyer to protect his possession if he took possession under agreement to sell? An agreement to sell is executed between the owner and purchaser. The owner does not want to obey the agreement and takes steps to evict me from the property. Entire deal was finalized in thirty-nine lakh rupees; five lakh rupees was given as advance and an agreement to sell that property was executed.
According to the terms of the agreement the buyer must pay the remaining amount within six months. When the buyer deposited the advance money in the bank account of seller, he has been put the buyer in possession of property.
Now I am living in the said property. After lapse of six months the seller has increased the property’s sale consideration. He is now demanding forty-five lakh rupees. Some dispute arose between us and finally I have told him that the sale will be concluded on the price agreed and mentioned in the agreement to sell.
Then seller lodged FIR against me and also file a suit for eviction. Police is continuously harassing me to leave the property. I am stuck in the untoward situation. What is the legal right of a person who has agreement to sell?
Asked from: Uttar Pradesh
In the facts and circumstances of the present case, the seller cannot, merely on the basis of the agreement to sell, forcibly dispossess you from the property. It is correct that under Section 54 of the Transfer of Property Act, 1882, an agreement to sell does not by itself create any right, title or interest in favour of the proposed purchaser.
However, Section 53-A of the Transfer of Property Act protects a transferee who has taken possession of the property in part performance of a written agreement to sell and has performed, or is willing to perform, his part of the contract.
In the present case, there is a written agreement to sell; possession of the property was delivered to you pursuant to the said agreement; and you are ready and willing to pay the remaining sale consideration and complete the transaction.
Thus, the essential requirements for claiming protection under Section 53-A of the Transfer of Property Act are prima facie satisfied.
Although such protection does not confer ownership or title upon you, it protects your possession against the seller and prevents the seller from taking back possession otherwise than in accordance with law.
The Hon’ble Supreme Court in Rambhau Mandeo Gajare v. Narayan Bapuji Dhotra, (2004) 8 SCC 614, has held that the protection available under Section 53-A of the Transfer of Property Act operates as a shield against dispossession. A transferor who has put the transferee in possession in pursuance of an agreement to sell cannot disturb such possession contrary to the protection available under Section 53-A.
It is, however, important to keep in mind that an agreement to sell, whether with possession or without possession is not a conveyance within the meaning of Section 54 of the Transfer of Property Act.
Therefore, you cannot claim ownership or title merely on the basis of said agreement. The right available is to protect possession and to seek enforcement of the contractual obligation through appropriate legal proceedings. You may also seek specific performance of the agreement and call upon the seller to execute the sale deed upon receipt of the balance sale consideration.
The aforesaid legal ground (part performance) constitutes a substantial defence to the eviction suit filed by the owner. Therefore, in that civil suit you can file an application under Order VII Rule 11 CPC for rejection of plaint. If the plaint does not disclose a cause of action.
The defence based upon Section 53-A may also be considered by the court because possession was given in pursuance of the agreement to sell. In the prevailing circumstances you can also file a suit for specific performance, to compel the owner to receive the remaining sale amount and execute sale deed.
So far as the FIR is concerned, if the allegations in the FIR arise solely out of the contractual/property dispute and the ingredients of any cognizable offence are not disclosed. You can file a writ petition under Article 226 of the Constitution of India, seeking quashing of the FIR and consequential proceedings.
Where criminal proceedings are found to be an attempt to give a criminal colour to a purely civil dispute and the essential ingredients of the alleged offences are absent, the High Court may quash the FIR.
Also read: Eviction of old aged tenant
