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Article Published in the Express Magazine Dated
March 24, 2002
General Attorney : Rajiv K. Luthra
I am living in a flat on lease since more than
30 years. The landlord agreed to sell the flat to
me 10 years ago. We never signed an agreement
regarding the sale, but everything was
communicated via mail, which I have recorded
completely, and I have already paid half of the
purchase price. Suddenly, the landlord wants me to
vacate the flat, stating, that the sale is not
valid. I must have a right in the property
especially after such a long time. Please advise.
Rohit Kapoor, Mumbai
In terms of the doctrine of part performance laid
down in Section 53 A of the Transfer of Property
Act, 1882 (the “Act”), you may be entitled to
defend your possession upon satisfaction of
certain conditions. Broadly speaking, Section 53 A
of the Act provides that where any person
contracts to transfer for consideration any
immovable property by writings signed by him from
which the terms necessary to constitute the
transfer can be ascertained and the transferee
has, in part performance of the contract, taken
possession of the property, or being already in
possession, continues in possession in part
performance of the contract and has done some act
in furtherance of the contract, and the transferee
has performed or is willing to perform his part of
the contract, then he is entitled to protect his
possession in respect of the property of which he
was put in possession. A written agreement is
necessary for the applicability of the doctrine of
part performance. Such a written document has to
include the essential terms of an agreement to
complete this requirement. These terms could be
the time frame within which the sale deed was to
be executed and as to who would have paid the
registration charges etc. If these terms are not
mentioned in the written document, you may not
succeed in protecting your possession under
Section 53 A of the Act and continue in possession
of the flat in pursuance of the doctrine of part
performance.
Since a long time has elapsed since you occupied
the premises, you might think of a right as an
owner according to adverse possession. But a mere
undisturbed possession of land for any length of
time can never convey the impression that the
possession is adverse. The right out of an adverse
possession is essentially given, if a hostile
possession, which must be actual, visible and
exclusive, continues for over a period of at least
12 years. But the Hon´ble Supreme Court has also
held, that the plea of adverse possession and
retaining the possession by operation of Section
53 A of the Act are inconsistent with each other,
which means, that they cannot be raised at the
same time and regarding the same property.
Nevertheless you are advised to consult a lawyer.
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