JUDGMENT T. R. Handa, J.—The defendant is in appeal before this Court against the judgment of the District Judge affirming that of the Subordinate Judge and granting the plaintiff a preliminary decree for possession by redemption of the land in suit on payment of Rs. 3,250, being the mortgage amount. The plaintiff Smt. Kesri Devi died during the pendency of this appeal and the present respondents, being her daughters and son were brought on the record as her legal representatives. 2. Smt. Kesri Devi, the deceased plaintiff, brought a simple suit for possession of the land detailed below by redemption on the plea that the defendant inspite of a registered notice dated 18-12-1970 served on him on 28-12-1970 requiring him to receive the mortgage amount of Rs. 3,250 within 15 days from the receipt of notice and to redeem the land, hid failed to respond to that notice. The particulars of the mortgage sought to be redeemed as given in the plaint are as follows :— 1. Date of mortgage : 14-4-1961 2. Name of the Mortgagor: Smt. Kesri Devi plaintiff 3. Name of the Mortgagee: Shri Sita Rasa defendant 4. Sum secured : Rs. 3,250 Property subject to mortgage. : Land measuring 25 bighas 6 biswas bearing Khasra No. 285, 288 290, 292, 295 and 432 situate in village Bhad. 3. The defendant denied if relationship of mortgagor and mortgagee existed between the parties in respect of the land in question. According to the plea of the defendant; the land in question had previously been mortgaged by the plaintiff with one Shri Ganga Dutt of village Bhad for Rs. 2,000. The plaintiff agreed to sell this land to the defendant and asked ,the defendant to pt it redeemed from the aforesaid mortgagor. The defendant accordingly got it redeemed from Shri Ganga Dutt mortgagor with the consent of the plaintiff on 21-3-1961 and right from that date the defendant was put into possession of the said land. The sale price was fixed at Rs. 3,250 out of which an amount of Rs. 2,000 was paid by the defendant to Shri Ganga Dutt at the instance of the plaintiff. I he balance amount of the sale price was to be paid on the day of getting the mutation of sale attested. The plaintiff had been taking such balance sale price in parts. 3,250 out of which an amount of Rs. 2,000 was paid by the defendant to Shri Ganga Dutt at the instance of the plaintiff. I he balance amount of the sale price was to be paid on the day of getting the mutation of sale attested. The plaintiff had been taking such balance sale price in parts. The further plea of the defendant was that in the year 1965 the plaintiff reduced the earlier oral agreement to sell into writing. The plaintiff, however, failed to get the mutation of sale attested in favour of the defendant though she had received the entire sale price. 4. The defendant further pleaded that he was in possession of the land in question as an absolute owner and bonafide believing himself to be such owner he had made improvements over the land in question to the extent of more than Rs. 20,000. He had also constructed a house over this land at a cost of Rs. 6,000. The plaintiff never objected to such improvements being made by the defendant. He admitted the receipt of notice which he failed to comply with as there was no question of his receiving the amount of Rs. 3,250 and delivering possession, he being in possession not as a mortgagee but as an owner. In the alternative he claimed that in the case of dispossession, he was entitled to compensation in the sum of Rs. 26,000 for the improvements made by him. The other pleas raised by the defendant would be apparent from he following issues which were struck by the trial Court on the pleadings on the parties: 1. Whether there exists the relationship of mortgagor and mortgagees between the parties ... O. P. P. 2. Whether the defendant has made improvements on the land in suit ? If so, of what amount and to what effect ?. O. P. D. 3. Whether the defendants have constructed a, house worth Rs. 6,000 on the land in suit ? If so, its effect ? ... (O. P. D. 4. Whether the land in suit was sold to the defendant by the plaintiff as set out in written statement ? O. P. P. 5. If issue No. 4 is proved, whether the sale is the result of fraud practised upon the plaintiff by the defendant ? O. P. P. 6. If so, its effect ? ... (O. P. D. 4. Whether the land in suit was sold to the defendant by the plaintiff as set out in written statement ? O. P. P. 5. If issue No. 4 is proved, whether the sale is the result of fraud practised upon the plaintiff by the defendant ? O. P. P. 6. Whether the suit is not maintainable in the present form ? ... O. P. D. 7. Whether the plaintiff has no cause of action against the defendant ? .M O. P. D. 8. Whether the plaintiff is estopped from filing the suit as alleged ?... O. P. D. 9. Whether the defendant is entitled to special cost ? ... O. P. D. 10. Relief. 5. The trial Court found that the relationship of mortgagor and mortgagee existed between the parties and that the land in question was never sold by the plaintiff to the defendant and hence decided issue No. 1 in favour of the plaintiff and issue No 4 against the defendant. In view of the findings on issue No. 4, issue No. 5 was treated as redundant. On issues Nos. 2 & 3 the trial Court found that the defendant had planted an orchard and also raised some construction over the land in dispute but no evidence had been led to prove the value thereof. In the result the Court found that the defendant was entitled to take away the material of the house and the plants of fruits standing on the land in suit but was not entitled to any compensation on that account. In view of the findings on issues Nos. 1 and 4, issues Nos. 6 and 7 were also found against the defendant. Out of the remaining issues, issue Mo. 8 was found against the plaintiff and issue No. 9 against the defendant. In the result the trial Court granted the plaintiff a preliminary decree for possession by redemption of the suit land on payment of Rs. 3,250 being the mortgage amount given in the plaint. The plaintiff was allowed three months time to pay the mortgage amount failing which the suit was to stand dismissed. The defendant was held entitled to take away the. material of the house and the plants of fruits standing on the suit land. 6. 3,250 being the mortgage amount given in the plaint. The plaintiff was allowed three months time to pay the mortgage amount failing which the suit was to stand dismissed. The defendant was held entitled to take away the. material of the house and the plants of fruits standing on the suit land. 6. On appeal the learned District Judge concurred with the findings of the learned trial Court on all the issues and hence dismissed the appeal leaving the parties to bear their own costs. 7. Before dealing with the contentions raised at the Bar, I would like to narrate a few relevant facts of this case which are either admitted or proved on record by evidence. The plaintiff Smt. Kesri Devi was admittedly the owner of the land in question. She had earlier mortgaged this land with one Shri Ganga Dutt for Rs. 2,000. This mortgage was redeemed in March 1961 and the requisite amount for redemption of this mortgage was supplied by the defendant appellant. When the mortgage in favour of Shri Ganga Dutt was redeemed in March 1961, the defendant who had furnished the mortgage amount for such redemption had been put in actual possession of the land in question. An entry to that effect was then recorded in the Khasra Girdawari on 14-4-1961 as is apparent from the copy of the Khasra Girdawari Ex. P. W. 2/C In this Khasra Girdawari the defendant was recorded in possession in his capacity as mortgagee in the sum of Rs. 3,250. This entry continued to be repeated in all the subsequent Girdawaries. In the Jamabandi prepared in 1967-68 copy Ex. P. W. 2/A, the name of the defendant was mentioned in the column of possession though as Gair Mauroosi. In the column of rent, however, the entry is Bila Lagan Bawaja Rehin, that is, without payment of any rent on account of mortgage. On 22-8-1965 the plaintiff executed the writing Ex. D. A. In this writing the plaintiff Smt. Kesri Devi acknowledged that she owned a doubt in the sum of Rs. 2,760 to Shri Sita Ram defendant which she had taken for redemption of the mortgage and to meet her household requirements. On 22-8-1965 the plaintiff executed the writing Ex. D. A. In this writing the plaintiff Smt. Kesri Devi acknowledged that she owned a doubt in the sum of Rs. 2,760 to Shri Sita Ram defendant which she had taken for redemption of the mortgage and to meet her household requirements. Describing herself as the debtor and the defendant as the creditor, the plaintiff Smt. Kesri Djvi then agreed to sell in favour of the defendant about 26 bighas of land which she had earlier mortgaged to Shri Ganga Dutt. The sale price was mentioned at Rs. 3,250. She further undertook to get the mutation in respect of the sale sanctioned in favour of Shri Sita Ram defendant within a year against receipt of the balance amount of Rs. 490. The writing Ex. D. A. further mentions that in the alternative the plaintiff Smt. Kesri Devi was entitled to get back possession of the land on payment of Rs. 2,760 to Shri Sita Ram within a year. The writing also provided that in case of default on the part of the plaintiff, Shri Sita Ram defendant could get the agreement specifically enforced. 8. The original plea of the defendant as taken by him in the written statement was that the plaintiff had sold the land in question to him for a consideration of Rs. 3,250 and he was, therefore, in possession of that land as an absolute owner. It was on this plea that issue No. 4 was framed by the trial Court. The defendant now seeks to shift his stand by pleading that there was in fact no sale in his favour but there was only an agreement to sell and that he having been put in possession of the land in question in part performance of that agreement, he was entitled to retain that possession by the application of the doctrine of part performance. Whereas it may be open to the defendant to give up his stand that the land in question had been sold to him by the plaintiff and that he was in possession of such land as an absolute owner, I have my doubts if it is now open to him for the first time in this second appeal to raise the plea that he is entitled to the protection under Section 53-A of the Transfer of Property Act. Section 53-A of the Transfer of Property Act provides : "53-A. Part Performance.—Where any person contracts to transfer for consideration any immovable 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." 9. A perusal of the language of the section clearly suggests that the following conditions are necessary for making out the defence of part performance to an action brought by the owner for possession : 1. that the transferor had agreed to transfer for consideration some immovable property by means of a writing signed by him or on his behalf and such writing mentions the terms necessary to constitute the transfer with reasonable clarity and certainty, 2. that the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or 3. the transferee, being already in possession continues in possession in part performance of the contract and has done some act in further once of the contract, and 4. that the transferee has performed or is willing to perform his part of the contract. the transferee, being already in possession continues in possession in part performance of the contract and has done some act in further once of the contract, and 4. that the transferee has performed or is willing to perform his part of the contract. A person seeking protection of doctrine of part performance as enunciated in Section 53-A of the transfer of Property Act has thus to plead and prove inter alia that he has in part performance of the contract taken possession of the property or any part thereof and in case he was already in possession, he continues to be in such possession in part performance of the contract and has done some act in furtherance of the contract. In addition he has also to allege and prove that he has performed or is willing to perform his part of the contract. Now these pleas do involve questions of fact and if they had been raised by the defendant before the trial Court, it was open to the plaintiff to contract them by pleading and proving that the defendant had not taken possession of the property in part performance of the contract or if he was already in possession, he had done no act in furtherance of the contract and that the defendant had neither performed nor was willing to perform his part of the contract. In the absence of such pleas having been raised by the defendant, the plaintiff had been allowed no opportunity to counteract such pleas and under the circumstances if the defendant-appellant is now allowed for the first time in this second appeal to raise such pleas it would certainly amount to providing a handicap to the opposite party. The plea that the defendant is protected by the doctrine of part performance, therefore, cannot be allowed to be raised at this stage. 10. Even if it be assumed for the sake of arguments that it is open to the defendant-appellant to raise the plea of doctrine of part performance at this stage, the facts of this case as established from the evidence on record would not entitle him to claim the protection of this doctrine. As per admitted and proved facts of this case the defendant assumed possession of the land in question in March 1961 when he advanced Rs. As per admitted and proved facts of this case the defendant assumed possession of the land in question in March 1961 when he advanced Rs. 2,000 to the plaintiff for redemption of the mortgage earlier made in favour of Sbri Ganga Dutt. The defendant was thus already in possession of the land in question on 22-8-1965 when the writing Ex. D. A, the alleged agreement to sell, was executed by the plaintiff. The defendant was thus admittedly not put in possession of the land in question in part performance of the agreement to sell since this agreement was executed on 22-8-1965 and the defendant was put in possession of the land in March 1961. In case the contention is that the defendant being already in possession, continued in such possession in part performance of the agreement, in that case he had inter alia to show that he had done some act in furtherance of this agreement. Now the only act which the defendant could have done in furtherance of the agreement Ex. D. A. was to pay the balance amount of Rs. 490 as mentioned in this agreement or a part thereof to the plaintiff. The written statement of the defendant is silent on the point as to when and how he paid this balance amount to the plaintiff. The defendant examined as many as 4 oral witnesses besides his own statement but none of them supports him on this point. Even in his own examination-in-chief the plaintiff had not the courage to state in so many words that he had made any payment to the plaintiff in pursuance of and after the execution of the agreement Ex. D. A. It was only in his cross-examination that he stated that he delivered two buffaloes of the value of Rs. 600 to the plaintiff after the execution of agreement Ex. D. A. This story of buffaloes was neither pleaded in the written statement nor put to the plaintiff when she appeared in the witness box nor was corroborated by any of the four defence witnesses who appeared for the defendant. This was evidently an afterthought which deserves no credence and was rightly disbelieved by the Courts below. 11. In this connection an argument was advanced that the plaintiff herself, in her plaint, had admitted the receipt of the full consideration of Rs. This was evidently an afterthought which deserves no credence and was rightly disbelieved by the Courts below. 11. In this connection an argument was advanced that the plaintiff herself, in her plaint, had admitted the receipt of the full consideration of Rs. 3,250 inasmuch as she had mentioned this amount as the amount of the mortgage. It is true that the plaint mentions Rs 3,250 as the amount of the mortgage but then this would not mean that the plaintiff had admitted the receipt of any amount after the execution of the agreement Ex. D. A. It may be pointed out that the mortgage referred to in the plaint and in respect of which the amount has been stated at Rs. 3,250 pertains to the year 1961. It may also be mentioned that in the earliest entry dated 14-4-1 %i made in the Khasra Girdawari Ex. PW. 2/C in respect of this mortgage, this very amount of Rs. 3,250 was mentioned as the mortgage money. It was presumably from this entry Ex. P. W. 2-C that the mortgage amount was mentioned in the plaint, in any case even if it be assumed as an admission on the part of the plaintiff, this admission only means that the plaintiff had received the mortgage amount of Rs. 3,250 in 1961. It was much later that the agreement Ex. D. A. was executed on 22-8-196^. At that time it was specifically mentioned that the only amount received by the plaintiff was to the tune of Rs. 2,760 and that she was to get the mutation of sale sanctioned in favour of the defendant only on receipt of the balance amount of Rs. 490. All these circumstances considered together cannot lead to the conclusion that the plaintiff had admitted the receipt of any amount from the defendant after the execution of the agreement Ex. D. A. on the other hand it looks reasonable to presume that the defendant in connivance with the revenue officials got himself recorded in the Khasra Girdawari in 1961 as mortgagee in the sum of Rs. 3,250 as against the actual amount advanced by him. 12. The defendant has thus in my view failed to establish if he did any act in furtherance of the agreement Ex. D. A. so as to entitle him to claim the protection of the doctrine of part performance. 13. 3,250 as against the actual amount advanced by him. 12. The defendant has thus in my view failed to establish if he did any act in furtherance of the agreement Ex. D. A. so as to entitle him to claim the protection of the doctrine of part performance. 13. Again the defendant has neither alleged nor proved if he was ready and willing to perform his part of the contract and by his conduct in inventing the story of buffaloes, be can safely be said to have refused to perform his part of the contract. This is an additional factor in denying the protection of the doctrine of part performance. 14. The claim of the defendant before the two Courts below that he was in possession of the land in dispute in his capacity as full owner was not pressed in this Court. In passing it may be observed that this claim was based on the document Ex. D. A. Interpreting this document to the best advantage of the defendant, it can be said to be only an agreement to sell which could give rise to a right to enforce specific performance and no more. Such an agreement does not by itself create any interest in, or charge on the property forming subject matter thereof. So this writing Ex. D. A. could not support the claim of the defendant for absolute ownership and it was for this reason that the learned counsel for the defendant did not press such claim in this Court. 15. Now coming to issue No. 1, it is an admitted position that the plaintiff had earlier mortgaged the land in suit with Shri Ganga Dutt for Rs. 2,000. This mortgage was redeemed in 1961. The mortgage amount of Rs. 2,000 required for this redemption was furnished by the defendant. Simul taneously with the redemption of the said mortgage, the defendant who had furnished the mortgage amount assumed possession of the land in question. Besides Rs. 2,000 some other amount was also advanced by the defendant to the plaintiff. Consequent upon the defendant entering into possession after redemption of the earlier mortgage in favour of Shri Ganga Dutt, the entries in the revenue record also found a change. Besides Rs. 2,000 some other amount was also advanced by the defendant to the plaintiff. Consequent upon the defendant entering into possession after redemption of the earlier mortgage in favour of Shri Ganga Dutt, the entries in the revenue record also found a change. In the very first Girdawari prepared after the redemption of the mortgage in favour of Shri Ganga Dutt which was admittedly redeemed in March 1961, Shri Sita Ram defendant-appellant has been recorded in possession in his capacity as mortgagee for Rs. 3,250. This entry finds repetition ever since then. In the subsequent Jamabandi prepared in 1967-68 copy Ex P. W. 2/A the possession is again shown that of Shri Sita Ram defendant though the words used are as Gair Mauroosi. In the column of rent, however, the entry is Bila Lagan Bawaja Rehin. It would not be unreasonable to presume that the initial entry which was made in April 1961 and wherein the defendant was shown as a mortgagee in the sum of Rs. 3,250 was at the instance of the defendant himself or else this amount of Rs. 3,250 would not have found mention in 1961. It cannot be a coincidence that this very amount of Rs. 3,250 finds mention in the writing Ex. D. A. as well. Since the plaintiff at the time of execution of Ex. D. A. knew that she had not received more than Rs. 2,000 this writing specifically states that the plaintiff owed a debt of Rs. 2,760 to the defendant and the balance of Rs. 490 would be paid to her by the defendant at the time of attestation of the mutation. It was presumably this entry which misled the counsel for the plaintiff while drafting the plaint in mentioning the mortgage amount at Rs. 3,250 instead of mentioning the actual amount received by the plaintiff. All these circumstances taken with the term in Ex. D. A. which entitled the plaintiff to take back the possession of the land within one year from the date of that document on payment of Rs. 2,760 are sufficient to justify the findings that the relationship between the parties which emerged in 1961 was that of mortgagor and mortgagee. 16. All these circumstances taken with the term in Ex. D. A. which entitled the plaintiff to take back the possession of the land within one year from the date of that document on payment of Rs. 2,760 are sufficient to justify the findings that the relationship between the parties which emerged in 1961 was that of mortgagor and mortgagee. 16. The only point which now remains to be considered is with respect to the claim of the defendant for compensation for the improvements alleged to have been made by him over the land in dispute. In view of the findings of the Courts below which have been affirmed by me, namely, that the defendant is in possession of the land in dispute as a mortgagee, be can claim compensation for such improvements only if his case is covered by Section 63-A of the Transfer of Property Act. Now this section reads : "63-A. Improvements to Mortgaged Property.— (1) Where mortgaged property in possession of the mortgagee has, during the continuance of the mortgage, been improved, the mortgagor, upon redemption, shall, in the absence of a contract to the contrary, be entitled to the improvement, and the mortgagor shall not, save only in cases provided for in sub-section (2), be liable to pay the cost thereof. (2) Where any such improvement was effected at the cost of the mortgagee and was necessary to preserve the property from destruction or deterioration or was necessary to prevent the security from being insufficient, or was made in compliance with the lawful order of any public servant or public authority, the mortgagor shall in the absence of a contract to the contrary, be liable to pay the proper cost thereof as an addition to the principal money with interest at the same rate as is payable on the principal or, where no such rate is fixed, at the rate of nine per cent, per annum, and the profits, if any, accruing by reason of the improvement shall be credited to the mortgagor. This is not the case of the defendant that the improvements alleged to have been effected by him were necessary to preserve the land under mortgage from destruction or deterioration or were necessary to prevent the security from becoming insufficient. Nor can it be said that such improvements were made in compliance with the lawful order of any public servant or public authority. Nor can it be said that such improvements were made in compliance with the lawful order of any public servant or public authority. Under the circumstances the defendant is not entitled to claim any compensation from the plaintiff in respect of such improvements and all that he is entitled to is to remove the same as has been allowed to him by the Courts below. 17. This appeal is thus without force and is dismissed with costs. Appeal dismissed. -