Case Name : Shrimant Shamrao Suryavanshi & Anr vs Pralhad Bhairoba Suryavanshi (D) by Lrs & Ors Case Reference: (2002) 3 SCC 676 : (2002) 1 SCR 393 Case Number: CA No. 2706/1991 Court: Supreme Court Bench: 02 Coram: VN Khare (Author), Ashok Bhan Date: 22.01.2002
There are six necessary conditions for a transferee to defend or protect his possession under ToPA - Section 53A.
- There must be a contract to transfer for consideration of any immovable property;
- The contract must be in writing, signed by the transferor, or by someone on his behalf;
- The writing must be in such words from which the terms necessary to construe the transfer can be ascertained;
- Transferee must, in part-performance of the contract, take possession of the property or any part thereof;
- Transferee must have done some act in furtherance of the contract;
- Transferee must be performed or be willing to perform his part of the contract.
Limitation Act does not extinguish a defence but only bars the remedy. Though the period of limitation may bar a suit for specific performance of contract, it is open to a defendant in a suit for recovery of possession to take a plea in defence of part-performance of the contract to protect his possession. Though, he may not be able to enforce that right through a suit or action.
Refer also: MK Venkatachari vs LAR Arunachalam Pilla, AIR 1967 Mad 410: The defence to limitation is a creature of positive law and cannot be extended to cases which do not strictly fall within the enactment. It is an established canon of construction of the law of limitation not to enlarge the scope of statutory provisions of limitation by analogy or logic.
See also:
Act, Section
PDF: Shrimant Shamrao Suryavanshi vs Pralhad Bhairoba Suryavanshi, (2002) 1 SCR 393.pdf