JUDGMENT : Mohapatra, J. - This is a Defendants' second appeal against the judgment and decree of Sri K.C. Mohapatra, Subordinate Judge, Sambalpur, reversing the judgment of the trial court arising out of a suit under the following circumstances: 2. Plaintiffs 1 and executed a money bond dated 31st March 1928 for a sum of Rs. 300/- in favour of the father of Defendant No. 1. On the bond itself there appears an endorsement that the Defendant being in possession of the properties in dispute of an area of 1.70 for 3 years the Defendants dues towards interest were adjusted on account of the reason that he was in possession and the amount fixed was Rs. 225/- at the rate of Rs. 75/- per year. Thereafter in the year 1931, there was an agreement of sale in respect of the suit lands executed by the Plaintiff No. 1, as manager of the Hindu Joint family consisting of himself and Plaintiff No. 2 in favour of the father of Defendant No. 1 (Ex. B). This agreement is dated 16th May 1931. The Plaintiff's version is that under the agreement he had received a sum of Rs. 400/- towards consideration for sale of the disputed lands in favour of the Defendant but inspite of his repeated demands to take the kabala on payment of the balance of the consideration i.e. Rs. 200/- the Defendant has never taken the kabala nor paid the balance consideration.; as such, the lands still belong to the Plaintiff. Plaintiff's further version is that in fact the money bond of the year 1928 was really a mortgage transaction which he is entitled to redeem and recover possession of the disputed properties. The Plaintiff is also willing to pay back Rs. 400/- which he received by way of advance money on the basis of the agreement of sale dated 16th May 1931 (Ext. B). 3. The main defence was that in fact there was no mortgage transaction between the parties at any time. The present suit, therefore, is bound to fail. The Plaintiff's suit is barred by limitation as the Defendants have been able to mature their title by adverse possession beyond the statutory period. Their third contention before the courts below was that they are entitled to protection u/s 53A of the Transfer of Property Act on the basis of Ext. The present suit, therefore, is bound to fail. The Plaintiff's suit is barred by limitation as the Defendants have been able to mature their title by adverse possession beyond the statutory period. Their third contention before the courts below was that they are entitled to protection u/s 53A of the Transfer of Property Act on the basis of Ext. B even though the deed of agreement is not a registered one. 4. The trial court dismissed the Plaintiff's suit on two ground: that there was never any relationship of mortgagor and mortgagee between the parties, the original transaction being purely a money bond, and that the suit for redemption is bound to fail. The Plaintiffs' suit for possession also is effectively resisted by the Defendants on the basis of the provisions of Section 53A of the T.P. Act according to the trial court. The lower appellate courts however., finding in favour of the present Defendants Appellants that there was never any mortgage transaction between the parties and that there was a valid agreement for sale on the 16th May 1928, has allowed a decree for possession in favour of the Plaintiffs on the ground that the possession of the Defendants ever since 192, was merely permissive and the possession became adverse only since 1943 and further that the Defendants are not entitled o the protection under the provisions of Section 53A and they have never taken plea in the pleadings. 5. Mr. Chatterji, appearing on behalf of the Appellants, has taken up the first point that the present suit is bound to fail on the ground of limitation as the possession of the Defendants became adverse since 24-3-1931 and the suit was brought in 1945. He very strongly relies upon as document (Ext. 1) filed by the Plaintiffs themselves which is a notice served by the Plaintiffs on the Defendants reciting therein that there was an agreement for sale of the lands between the parties but that the Defendants were not taking the kabala nor paying the balance of the consideration. So this notice is given to the Defendants to pay the balance consideration money and take the kabala from the Plaintiffs in respect of the disputed lands. The important clause on which Mr. So this notice is given to the Defendants to pay the balance consideration money and take the kabala from the Plaintiffs in respect of the disputed lands. The important clause on which Mr. Chatterji relies is the last clause reciting that if you fail to pay money and take the kabala within 7 days from the date of the receipt of this notice you will not be entitled to continue in possession of the disputed lands on rental as before. The assertion seems to he quite categorical and that the possession since after the expiry of the 7 days of the notice would amount to adverse of the Defendants; but the position has undergone a complete change on account of a subsequent document evidencing the agreement between the parties, that is, Ext. B, dated 16-5-1931, wherein the present Defendants acknowledge possession of the Plaintiffs in respect of the disputed lands and the further terms of the agreement between the parties are to the effect that the Plaintiffs will execute a deed of sale in favour of the Defendants in respect of the disputed lands. The further recital, in Ext. B is that the Defendants are in possession of the disputed lands in lieu of interest of the loan of Rs. 300/- of the year 1928. In my opinion on account of this agreement, possession of the Defendants cannot be taken to be adverse since after 16-5-31. 6. Mr. Chatterji further relies upon Ext. 2 another notice dated 29-3-1933 given by the Plaintiffs making a further demand for the balance of the consideration and to take the kabala from the Plaintiffs wherein a reference also was made to the question of possession in Ext. 1. In my opinion no importance can be given to the recitals in Ext. 1 on account of the subsequent agreement between the parties evidenced by Ext. B. The position seems to be sufficiently strengthened in favour of the Plaintiffs on account of the reply (Ext. 3-a) given by the Defendants themselves in the year 1943 reciting therein that the Defendants were in possession of the disputes lands only in lieu of interest for the loan of the year 1928, On account of these reasons, therefore, I am in agreement with the view taken by the lower appellate court to find that the possession of the Defendants was not adverse prior to the year 1943. 7. 7. Regarding the other point taken by Mr. Chatterji that his clients are entitled to the protection under the provisions of Section 53-A on the basis of the deed of agreement (Ext. B) which has been found to be a valid deed of agreement by the courts below his first difficulty is that this plea was never taken in their written statement and it will not serve as a bar inasmuch as there will be required further evidence to be placed on the Record either in support of the plea or controverting the plea. Furthermore even on the materials on Record the requirement u/s 53A does not appear to have been satisfied. Ext. B is perfectly silent on the point that there was a delivery of possession to the Defendants on the basis of the contract. There is no indication in the present case that the Defendants were in possession by virtue of the contract of sale. On the contrary, as I have already indicated Ext. 3-80 makes it clear that their possession was only in lieu of interest for the loan of the year 1928. Further more the transferees, that is, the Defendants, have not proved that they were willing to perform their part of the contract. They have not deposited the balance of the consideration in court even though years have passed during the continuance of the proceedings in the suit. 8. In conclusion, therefore, I find that both the points of Mr. Chatterji fail and the appeal is dismissed with costs and the judgment and decree of the lower appellate court are confirmed. It is stated that the amount of Rs. 400/- has already been deposited in Court. Therefore the Plaintiffs are entitled to take immediate possession. Final Result : Dismissed