JUDGMENT : Mohapatra, J. - This is a Plaintiff's second appeal against the reversing judgment dated 22-8-50 of Sri S.K. Mohapatra, 2nd Additional Subordinate Judge of Cuttack. The Plaintiff brought a suit for declaration of his title to the disputed land with a house standing on it and for possession of the same by ejecting the Defendants therefrom and for damages at the rate of Rs. 5/- p.m. It is the admitted case of both parties that the house in dispute belonged to one Asli Bewa who entered into a contract in writing with Sadananda for sale of the disputed house for a consideration of Rs. 225/- on 11-8-29 Asli Bewa received an advance of Rs. 39/- towards the consideration money on that date. There was a further renewal of the contract by another document dated 2-8-32 as between the same parties, that is Asli and Sadananda, and a further payment of Rs. 17/- was made towards the consideration money. The Plaintiff's version of the case is that Asli served a registered notice on Sadananda (Exts. 1 and 1-a) on 6-9-33 demanding payment of the balance of the consideration money and registration of the Kabala within seven days from the date of the receipt of the notice, failing which the contract would stand cancelled. Thereafter the Plaintiff purchased the disputed land along with the house by virtue of a registered Kabala from Asli Bewa for a consideration of Rs. 200/- on 17-9-89. Sadananda, who was a party in the suit, died on 28-4-42 and his legal representatives have been brought on Record. The other Defendants 2 to 5 are made parties representing the public. The allegation of the Plaintiff is that these Defendants have dispossessed him, the Plaintiff therefore claims for damages and for recovery of possession. 2. The defence is that in fact the contract entered into by the late Sadananda was on behalf of the members of the public and further that the Defendants in their own rights were possessing the disputed house for a very long time and have acquired title by adverse possession. They had taken a plea in the written statement also that the Defendants were entitled to the protection u/s 53A of the Transfer of Property Act. 3. The trial Court negatived the defence plea of adverse possession and granted a decree to the Plaintiff. They had taken a plea in the written statement also that the Defendants were entitled to the protection u/s 53A of the Transfer of Property Act. 3. The trial Court negatived the defence plea of adverse possession and granted a decree to the Plaintiff. The decree was upheld in appeal against which the Defendants had filed Second appeal No. 9 of 1945. This Court in the aforesaid second appeal passed judgment remanding the case to the trial Court to examine if the Defendants were entitled to protection u/s 53A of the Transfer of Property Act, inasmuch of the Courts below did not give the parties the benefit of their finding on the question even thought the plea was specifically taken in the written statement. After remand, the trial Court decreed the Plaintiff's suit finding that the Defendants were not entitled to bring in aid the provisions of Section 53A mainly on the ground that the contract was a personal contract by Sadananda who is dead and his sons are not contesting the suit. The lower appellate Court however reversed the judgment and decree, finding that the contract entered into between Sadananda and Asli for the purchase of disputed house was on behalf of the members of the public and he farther found that the conditions of Section 53A had been complied with. 4. Section 53A of the Transfer of Property Act runs as follows: Part Performance: 53A. 4. Section 53A of the Transfer of Property Act runs as follows: Part Performance: 53A. Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, 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, notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefore by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract: Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof. The lower appellate Court observes that "To bring a case within the operation of this section three conditions have to be fulfilled. First, there must be a contract in writing by the parties for the transfer of the immovable property for consideration signed by the transferor. Secondly, the transferee in part performance of the contract must have taken possession of the property or any part thereof and thirdly the transferee must be willing to perform his part of the contract". In formulating the first point he has committed an illegality in omitting the further necessary ingredient "from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty". In formulating the first point he has committed an illegality in omitting the further necessary ingredient "from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty". Again while laying down the second condition he has omitted the condition necessary in the particular case "continues in possession in part performance of the contract and has done some act in furtherance of the contract", inasmuch as the defence case is that prior to the contract they were in possession, but they continued in possession after the contract. 5. But I will take the third condition first which is "that the transferee is willing to perform his part of the contract". The lower appellate Court has taken cognizance of this ingredient as a necessary one in order that the Defendants may take advantage of the provisions of Section 53A. But unfortunately he has not given us the benefit of his finding that in fact the Defendants were willing to do their part of the contract it is their case that in fact they had paid only Rs. 56/- towards the consideration of Rs. 225/- and the balance still remains due. The lower appellate Court on the contrary, find in the last part of his judgment "admittedly the Defendant have not paid the balance amount to Asli Bewa and the Plaintiff who acquired the rights of Asli Bewa can enforce the payment of the balance of the consideration in appropriate proceedings". On a consideration of the circumstances of the case it is not possible to find that in fact Defendants are willing to perform their part of the contract. The second contract was completed in the year 1932. The present suit was filed on 14-11-41. If really the Defendants were willing to do their part of the contract, there is no explanation why they did not enforce the contract in suit against Asli Bewa on the deposit of the consideration money. The fact remains that they did not make any attempt for payment of the consideration money even till the year 1936 when the Plaintiff purchased for Rs. 200/-. The fact remains that they did not make any attempt for payment of the consideration money even till the year 1936 when the Plaintiff purchased for Rs. 200/-. Furthermore this suit having been instituted in the year 1941 and continuing till today, during the course of the last 12 years the Defendants have not thought fit to make a deposit of the consideration money indeed they have averred in the written statement that they are willing to do their part of the contract; but there is no other positive evidence or material from which it can be gathered that in fact they are willing to pay the consideration money. On the contrary, as I have indicated above, these circumstances are very important to lead me to conclude that in fact they are not willing to do their part of the contract in the fact of the position that it is more than 20 years that the original contract was entered into and they had not made any attempt for payment of the consideration. There is a further element to be considered in this respect also. As it transpires from the registered notice and the endorsement thereon (Ext. 1 series) in fact Asli has sent a registered notice in the name of Sadananda and that Sadananda refused to accept it. There is no finding of the lower appellate court that in fact Sadananda did not refuse; but there is only a vague finding that the Defendants had no notice of this registered letter. In my opinion, he has gone wrong in law on the point, when according them Sadananda was representing them in the contract on both the occasions in the years 1929 and 1932. Notice of Sadanapda will amount to notice of the Defendants and when Sadananda refused to accept the registered letter, he world be decreed, in the eye of law, to have the notice of the content of the registered letter. In the body of the notice we find, it is categorically stated, that if the payment is not made within seven days from the date of the receipt of the notice, the contract will stand cancelled. In the body of the notice we find, it is categorically stated, that if the payment is not made within seven days from the date of the receipt of the notice, the contract will stand cancelled. From this piece of circumstance as well it can very well be inferred that the Defendants were not willing at any time to do their part of the contract on account of which Asli was compelled to execute a fresh sale-deed in favour of the present Plaintiff in the year 1939. On this ground alone it can be found that the Defendants are not entitled to the protection u/s 53A of T.P. Act. 6. But there are further grounds also to strengthen this position. It is also necessary for the Defendants to prove that they continued in possession of the house in question in part performance of the contract. It is curious to find that even though the lower appellate Court holds that the Defendants are in possession of the property he does not find that the possession is in furtherance of part performance of the contract. To my mind, there is no material on Record that this continuance of Defendants, possession was in part performance of the contract. Mr. Das, appearing on behalf of the Defendants, has in this connection relied upon two circumstances which, according to him, will indicate that the continuance of possession was in part performance of the contract; firstly that the Defendants had constructed a Thakurghar, but there is no evidence that this construction was after the contract or before the contract. It is quite possible that when the Defendants were in permissive possession before the contract they were allowed to put up a small structure. A further circumstance relied upon by Mr. Das is that the property in question was sold away in a certificate proceeding and the present Defendants filed an application to set aside the sale, and not Asli, in the year 1938. To my mind, this is quite insufficient to prove that the possession was in part performance of the contract. 7. Mr. Das has relied upon a Single Bench decision of the Rangoon High Court reported in Ma Thet v. Ma Se Mai AIR 1934 Rang. 304. The decision is beside the point before us. To my mind, this is quite insufficient to prove that the possession was in part performance of the contract. 7. Mr. Das has relied upon a Single Bench decision of the Rangoon High Court reported in Ma Thet v. Ma Se Mai AIR 1934 Rang. 304. The decision is beside the point before us. In that case it was stated that there was a contract and the contractee was continuing in possession in part performance of the contract. The only dispute was whether he had done some other act in furtherance of the contract. But one circumstance seems to me to be very important to indicate that the continuance of position cannot be in furtherance of the contract, that is, that inspite of the notice dated 6-9-33 that the contract would be at an end if the consideration money is not paid within the time fixed, if the Defendants would be continuing in possession it cannot be in furtherance of the contract. On this point, therefore, the Defendants are not entitled to the benefit of the provisions of Section 53A. 8. There is yet a third point on account of which, to my mind, the Defendants plea must fail. The condition required is that there must be a contract in writing signed by the transferor or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty. It is very significant to mark that the documents of contract dated 11-8-29 and 2-8-32 are not forth-coming. Mr. Das, however, very much relies upon the notice (Ext. 1 series) to show that the terms regarding the consideration money and the sale of the house are mentioned in the notice. One of the positions which was very much disputed in the case was whether he contract was by Sadananda personally or on behalf of the members of the public. The documents certainly would have thrown much light on this position. The absence of the documents is a great detriment to our ascertaining with reasonable certainty the position whether the contract was with Sadananda personally or on behalf of the public. There might as well be some conditions in the documents themselves as to within which time the payment was to be made and if the payment was not made that right was reserved in favour of the transferor. There might as well be some conditions in the documents themselves as to within which time the payment was to be made and if the payment was not made that right was reserved in favour of the transferor. In my view, therefore, in the absence of the documents themselves the terms necessary to constitute the transfer cannot in the present case be ascertained with reasonable certainty. On account of these three reasons, the Defendants are not entitled to maintain their possession and to take advantage of the provisions of Section 53A of the Transfer of Property Act. 9. The appeal therefore is allowed, the judgment and decree of the lower appellate Court are set aside and the judgment and decree dated 13-12-48 of Sri P.C.S. Patro, Munsif, are restored. The Plaintiff is entitled to his costs throughout. Final Result : Allowed