JUDGMENT - B.N. Sapre, J.:---This is a plaintiffs second appeal, who brought a suit for possession of an agricultural land and was unsuccessful in both the Court below. The case of the plaintiff was that he is the owner of the suit land. He orally agreed to sell it to the defendants for Rs. 3,210/-. That agreement was made on 30th June, 1958. The plaintiff received Rs. 2,400/- from the defendants as part payment of the consideration. The defendants were pure in possession of the land. The defendants were to obtain permission from the Collector within six months for the sale. The balance amount of Rs. 810/- of the consideration was to be paid at the time of the registration of the sale deed. The defendants, however, did not seek permission of the Collector and thus committed a breach of the contract. The contract had, therefore, come to an end. The plaintiff issued a notice dated 31st May, 1965 to the defendants to hand over possession of the land to him. The defendants refused to do so. Hence the suit. The defence taken by the defendants was that the contract was not oral, but it was in writing. It was made on 29th June, 1958. The defendants paid Rs. 2,400/- to the plaintiff on that date and the plaintiff issued an earnest receipt dated 29th June, 1958. They denied that it was the responsibility of the defendants to obtain permission of the collector for the sale and contended that the responsibility in this behalf was of the plaintiff. They denied that the contract stood cancelled or that the plaintiff was entitled to rescind it. The main defence of the defendants was that their possession was protected under section 53-A of the Transfer of Property Act and hence, the plaintiff was not entitled to the relief of possession. The trial Court did not accept the defendants case of a contract having been made on 29th June, 1958 and an earnest receipt being executed by the plaintiff in favour of the defendants on that date. But it also did not accept the plaintiffs case that the contract was oral. On 30th June, 1958 itself, the plaintiff had sworn an affidavit (Ex. 42) seeking permission of the Collector of the sale. The trial Court held that this affidavit contained the contract sale and it was in writing. Admittedly, the defendants had paid Rs. But it also did not accept the plaintiffs case that the contract was oral. On 30th June, 1958 itself, the plaintiff had sworn an affidavit (Ex. 42) seeking permission of the Collector of the sale. The trial Court held that this affidavit contained the contract sale and it was in writing. Admittedly, the defendants had paid Rs. 2,400/- out of the consideration and had taken possession of the suit land in part performance of the contract. The trial Court accordingly upheld the defence that the defendants could resit the plaintiffs claim for possession under section 53-A of the Transfer of Property Act. The trial Court also held that it was not the responsibility of the defendants to obtain permission of the collector for the sale. The plaintiff was not, therefore, entitled to rescind the contract and that contract could not be said to have come to an end. The trial Court accordingly dismissed the suit of the plaintiff. The plaintiff preferred an appeal to the district Court. That Court substantially upheld the findings of the trial Court and dismissed the plaintiffs appeal. The main point canvassed by Mr. Dabir on behalf of the plaintiff appellant in this appeal is that affidavit dated 30th June, 1958 (Ex. 42) of the plaintiff for being filed before the Deputy Collector, Aurangabad, seeking permission for the sale of the suit land, could not be regarded as a contract in writing signed by the plaintiff within the meaning of section 53-A of the Transfer of Property Act. The case of the plaintiff was that an oral contract of sale took place on 30th June, 1958 and after the oral contract was made, both the plaintiff and the defendants swore affidavits on the same day (Ex. 43 being the affidavit of the defendants) for being filed before the Deputy Collector, Aurangabad, for according sanction to the sale transaction. As against third, the defendants specific case was that the contract was in writing and it was made on the previous day, that is, 29th June, 1958, on which date the defendants paid Rs. 2,400/- to the plaintiff and the plaintiff executed an earned receipt on that day in favour of the plaintiffs. That case was negatived by both the courts below. Then remained that case only of an oral sale as pleaded by the plaintiff. 2,400/- to the plaintiff and the plaintiff executed an earned receipt on that day in favour of the plaintiffs. That case was negatived by both the courts below. Then remained that case only of an oral sale as pleaded by the plaintiff. The only reason why the two courts below had negatived the case of the plaintiff of the oral sale was that Ex. 42 could be regarded as a contract in writing. This, according to Mr. Dabir, was an error of law. The writing relied upon must itself be the contract. Here, Ex. 42 could not be said to be itself the contract. The plaintiff swore his affidavit (Ex. 42) as a next step in furtherance of the oral contract which had already been made, because for obtaining permission for the sale an affidavit was required to be sworn by the plaintiff and filed before the Deputy Collector. Mr. Dabir relied upon a reported decision of this Court in (Shravan Jayaram v. Garbad Ukha)1, A.I.R. 1943 Bom. 406 which was later followed by Catna, J. in Second Appeal No. 74 of 1963 unreported) decided on 8th April, 1970. I find force in the submission of Mr. Dabir. In Shravan Jayaram v. Garbad Ukha, the facts were these. The plaintiff filed the suit to recover possession of the land which he claimed to have given into the defendants possession to be enjoyed for six years towards the satisfaction of a loan of Rs. 330/- borrowed by him on 10th February, 1932. The defendant denied that he had given a loan to the plaintiff and contended that he had purchased the land for Rs. 660/-, that the plaintiff had recovered the price and put him into possession and that he was entitled to resist the plaintiffs claim for possession under section 53-A of the Transfer of Property Act, 1882. The trial Court held that the plaintiff had orally sold the land to the defendant, had received a part of the consideration and had put the defendant in possession of the land. The trial Court, however, decreed the claim of the plaintiff for possession on the ground that the agreement of sale was not in writing. The decree was confirmed in appeal. A second appeal was taken to the High Court on behalf of the defendant. There was no contract of transfer by writing signed by the plaintiff or on his behalf. The trial Court, however, decreed the claim of the plaintiff for possession on the ground that the agreement of sale was not in writing. The decree was confirmed in appeal. A second appeal was taken to the High Court on behalf of the defendant. There was no contract of transfer by writing signed by the plaintiff or on his behalf. But on behalf of the defendant it was contended that an application was moved by the plaintiff to the village officers requesting that in the mutation register the name of the defendant should be entered against the land as it had been sold to him for Rs. 660/- and he had been put in possession do it and this was a contract in writing. It was pointed out by the High Court that before the plaintiff moved the application for mutation of the name of the defendant, the contract of sale must have preceded it. The application itself could not be the contract or agreement of sale. A distinction must be drawn between a writing, which is a reduction into writing of a previous oral agreement, which would fall within the provision of section 53-A, and a writing in which there is a mere reference to a previous oral agreement .It is true that in that case, in the application it was especially mentioned that the land had been orally sold to the defendant, thus showing that the contract of sale was oral and not in writing. As against this, in Ex. 42, it has not been expressly mentioned that the land had been orally sold. But there is a recital that the agreement of sale had been made and that the plaintiff had received Rs. 2,400/- from the defendants. The affidavit was given by the plaintiff because it was to be filled before the Deputy Collector, Aurangabad, for sanctioning the transaction of sale. It is true that some of the terms of the contract can be ascertained from Ex. 42, but, as pointed out in Shravan Javaram v. Garbad Ukha, the section contemplates that the contract itself shall be in writing signed by or on behalf of the transferror and not that there shall be a writing mentioning some part or parts of a previous contract which may have been oral. 42, but, as pointed out in Shravan Javaram v. Garbad Ukha, the section contemplates that the contract itself shall be in writing signed by or on behalf of the transferror and not that there shall be a writing mentioning some part or parts of a previous contract which may have been oral. In the vary nature of things, just as an application for mutation is contemplated as step subsequent to the making of the contrast, so also the affidavit brought into existence for being filed before the Deputy Collector of Aurangabad, with a view to obtain sanction for the sale, must be regarded as a step subsequent to the contract of sale. The contract must have pre-existed the affidavit (Ex-42), and if Ex. 42 itself cannot be that contract, that contract, in the absence of any other case, must be held to be oral. Although full facts are not available in Second Appeal No. 74 of 1963, decided by Catne, J. on 8th April, 1970, It appears that the plaintiff in that case also had applied to the Deputy Collector for the necessary permission to sell the land and had made an affidavit in that connection. It was the plaintiffs affidavit that was relied upon by the defendants and it was urged that from that affidavit all the essential terms of the sale could be spelt out without any difficulty. That argument was not accepted and it was pointed out that what is required by law is that the writing relied upon must itself be the agreement and the affidavit in that case could not be regarded to be a contract in itself. Mr. Bhadekar relied upon two decisions in order to show that the writing itself need not be the contract and some other writing, from which the terms necessary to constitute the transfer can be ascertained with a reasonable certainty, can satisfy the requirement of section 53-A of the Transfer of Property Act. The first of these decisions is (Karthikeva v. Singaram)2, A.I.R. 1956 Mad. 693. In that case, the case of defendant No. 2 who had put forward the plea under section 53-A of the Transfer of Property Act. The first of these decisions is (Karthikeva v. Singaram)2, A.I.R. 1956 Mad. 693. In that case, the case of defendant No. 2 who had put forward the plea under section 53-A of the Transfer of Property Act. Was that there was an arrangement to grant a lease for a period of five years on an annual rent of 400 kalams of paddy and that a hand letter was executed embodying the said arrangement which was signed by defendant No. 2. As the letter was with the plaintiff, defendant No. 2 tried to prove its contents by adducing secondary evidence. Thus, in that case, the letter, the proof of the contents of which was tried to be given by adducing secondly evidence, was itself the contract between the parties. The above decisions is, therefore, distinguishable on facts. The other decision relied upon by Mr. Bhadekar is of the Supreme Court in (Maneklal v. H.l. Cinwalla Sons)3, A.I.R. 1950 S.C.I. There the suit was filled by the plaintiff firm in ejectment to recover possession of certain lands situate in Rampura in Ahmedabad District. There was a Talukdari estate called the Bhankoda estate in Viramgam Taluka in Ahmedabad District. It was jointly owned by several Talukdars in different shares and comprised 12 villages one of which was Rampura in which the suit lands were situate. By Government Resolution, the estate was taken under Government management. The firm of the predecessors in interest of the defendant desired to erect a ginning factory on some of the suit lands and, with that object, approached the Talukdari Settlement Officer for a permanent lease of those lands. The said Officer agreed to grant a lease subject to sanction of Government. By another Resolution, Government granted the requisite sanction. What was relied upon by the defendant to prove the lease was a certificated copy (Ex.18) of the letter from the Chief Secretary to Government to the Commissioner and to the Talukdari Settlement Officer. The conditions of the lease agreed upon by the parties were annexed with letter and a copy of the offer was also sent to Government Ex. 181 recited the contents of the offer and stated the undertaking given by the lease. The question that arose before the Supreme Court was whether there was evidence of a written agreement or lease within the meaning of section 53-A of the Transfer of Property Act. 181 recited the contents of the offer and stated the undertaking given by the lease. The question that arose before the Supreme Court was whether there was evidence of a written agreement or lease within the meaning of section 53-A of the Transfer of Property Act. The High Court had held that the correspondence summarised Ex. 181 could not be treated as evidence of the contract and that its terms could not be reasonably deduced from the document. The Supreme Court observed that it was no doubt true that Ex. 181 was merely secondary evidence of the agreement of lease, but it was equally true that it was a very reliable piece of secondary evidence coming as it did from Government records. It furnished proof of the fact that there was an acceptance in writing under which the contract to transfer the lands in suit by way of lease was effected by the Talukdari Settlement Officer in favour of the predecessors-in-interest of the defendant. The offer was also in writing signed by the offeror. The Government Resolution which made the agreement binding was also in writing and was signed by competent authority. No objection as to admission of secondary evidence could be taken as the primary evidence was in the possession either of the plaintiff or of the Talukdars, the predecessors-in interest, and inspite of notice, it was not produced. It was held that Ex. 181 was a good secondary evidence of the agreement of sale and there could be no doubt from Ex. 181 that by an offer and an acceptance made in writing and signed by the respective parties, an agreement was completed between the Talukdari Settlement Officer and the predecessors-in-interest of the defendant. In this case also, therefore, the writing that was being relied upon was in itself the contract between the parties. The facts in the Supreme Court decision are, therefore, also distinguishable. In the instant case, the plaintiffs case all along was that the contract was oral. As against this, the case of the defendants was that the contract was in writing and it was brought into existence on 29th June, 1958, that is, a day prior to Ex. 42. That case was negatived by both the courts below. The only reason given by the two courts below for holding that the plaintiff had failed to prove the oral contract was that Ex. 42. That case was negatived by both the courts below. The only reason given by the two courts below for holding that the plaintiff had failed to prove the oral contract was that Ex. 42 was in writing and it contained the contract. But, as already pointed out, Ex. 42 was only an affidavit which was a next step in furtherance of the oral contract earlier arrived at between the parties and the specific purpose of Ex. 42 was to file an affidavit of the plaintiff before the Deputy Collector, Aurangabad, in order to obtain sanction for the sale transaction. Even though some of the terms of the contract are reproduced in Ex. 42, that will not mean that Ex. 42 must itself be regarded as the contract arrived at between the parties. It is also true the in Ex. 42 there is no specific mention of an oral contract, but the existence of prior contract can be reasonably inferred from the fact that it was only if there were such a contract that the next step of preparing the affidavit (Ex. 42) for being filed before the Deputy Collector, Aurangabad, to obtain sanction for the sale could be taken. For all these reasons, Ex. 42 cannot be regarded as a contract in writing signed by the plaintiff within the meaning of section 53-A of the Transfer of property Act. It is an essential condition of the applicability of section 53-A that the contract should be in writing. If that condition is absent, the defendants cannot resist the suit of the plaintiff for possession of the suit land on the principle mentioned in section 53-A The only other point requiring determination is whether the relief of possession can be granted in favour of the plaintiff, though the finding of the two courts below is that the plaintiff was not entitled to put an end to the contract on the ground that the defendants had committed a breach of the contract and the contract is still subsisting. It may be true that the contract is still subsisting and the defendants have not committed any breach of the contract and, therefore, are entitled to sue the plaintiff for specific performance of the contract. But the question here is whether the defendants, if the plaintiff wants possession of the suit land, can resist that claim. It may be true that the contract is still subsisting and the defendants have not committed any breach of the contract and, therefore, are entitled to sue the plaintiff for specific performance of the contract. But the question here is whether the defendants, if the plaintiff wants possession of the suit land, can resist that claim. It is true that the plaintiff has stated in the plaint that the defendants had failed to perform there part of the contract and, therefore, by a notice dated 31st May, 1965, the plaintiff had put an end to the contract. But the plaintiff has also stated that he is the owner of the suit land and that he is basing his claim for possession on his title to the suit land. A mere agreement of sale did not create any title in the land in favour of the defendants. They could resist the plaintiffs claim for possession had they been able to bring their case within the four corners of section 53-A of the Transfer of Property Act. Once that defence is not open to the defendants, I fail to see how and why the plaintiff should not be able to get back possession of the land. It is the plaintiff who has title to the suit land. He has claimed possession on the strength of his title. The defendants have no title to the suit land as there is no sale deed in their favour as yet. They may have been put in possession of the suit land in pursuance of the contract, but they are not able to defend that possession, because their case does not fall under section 53-A of the Transfer of Property Act. As the defendants are unable to put forward any other defence to the suit of the plaintiff for possession of the suit land, a decree for possession must necessarily follow. I may add that it will be open to the defendants to sue the plaintiff either for specific performance of the contract or for refund of the earnest money, if they are so advised, and if their claim in this behalf is otherwise tenable. I may add that it will be open to the defendants to sue the plaintiff either for specific performance of the contract or for refund of the earnest money, if they are so advised, and if their claim in this behalf is otherwise tenable. That question has been left open and the claim of the plaintiff for possession of the suit land has been considered only on the basis of his title and on the defence of the defendants under section 53-A of the Transfer of Property Act being negatived. In the result, the appeal is allowed. The decrees passed by the two courts below are set aside. Instead, a decree for possession of the suit land is passed in favour of the plaintiff and against the defendants. The defendants shall pay the costs of the plaintiff and shall bear their own costs throughtout. ------