JUDGMENT - Waikar M.R. J.:- This revision is filed by the Original plaintiff whose application for ad-interim temporary injunction granted by the trial Court was rejected in the miscellaneous appeal by the learned District Judge, Yavatmal. 2. The plaintiff filed the suit for specific performance of the contract dated 19-4-1976 in respect of field survey no. 12/2 of village Gaul Khurd, Tq. Pusad, Distt. Yavatmal. This field belonged to deceased Honaji, the father of defendant no. 1 and father-in-law of defendant no. 2. 3. It was alleged by the plaintiff that deceased Honaji agreed to sell this land to him for a consideration of Rs. 21,000/-, that he paid earnest of Rs. 1,700/-to him on 19-4-1976 and deceased Honaji had executed an agreement and also delivered possession of this field to him. Having filed the present suit for specific performance of the contract, an application for grant of temporary injunction was filed restraining the defendants from interfering with his peaceful possession over the field, which he had obtained on 19-4-1976 from deceased Honaji in pursuance of his contract of purchase. 4. According to the defendants the document executed by deceased Honaji was really not an agreement of sale, but was executed as a security for loan that he had taken. They denied that the plaintiff was put in possession of this field by deceased Honaji. 5. The trial Court found that the crop statements of the field for the years 1976-77 and 1977-78 showed the cultivation of the plaintiff. Receipt dated 15-3-1978 further showed that the plaintiffs mother paid the land revenue of this field for the years 1976-77 and 1977-78. Relying upon the evidence of the plaintiff and the documentary evidence on record, the trial Court found that a prima facia case is made out by the plaintiff showing that he was in possession of the field in question during the year 1976- 77 and 1977-78. The defendants did not file their own affidavits and two affidavits of the witnesses Tukaram and Prabhu of the defendants were discarded. Having found that the plaintiff was in possession of the field in question, it further found that the balance of hardship also tips in his favour and an irreparable injury would be caused to him if the temporary injunction is not granted. 6. Having found that the plaintiff was in possession of the field in question, it further found that the balance of hardship also tips in his favour and an irreparable injury would be caused to him if the temporary injunction is not granted. 6. The defendants being aggrieved by this order of the trial Court, preferred miscellaneous appeal and the learned District Judge, Yavatmal, who heard it, allowed the same and set aside the order of the trial Court granting temporary injunction mainly on the ground that the plaintiff could not invoke the provisions of section 53 A of the Transfer of Property Act, placing reliance upon (Smt. Parul Bala Ghosh Vs. Saroj Kumar Goswani1, and Maruti v. Krishna)2. 7. Having heard Shri G.D. Patil, the learned counsel for the petitioner, I find that the approach of the learned District Judge in dealing with this matter was highly mis directed and the above rulings relied upon by him, in fact, have no application. 8. In the aforesaid case of the Calcutta High Court, the suit was filed for specific performance of the contract or in the alternative, for refund of the consideration. The. trial Court as well as the first appellate Court, both refused the prayer for specific performance. In the High Court, an attempt was made to show that in pursuance of the agreement, possession of the property was in fact delivered to the plaintiff and a decree for specific performance be passed upon the principle of section 53A of the Transfer of Property Act. Rejecting the submission, the High Court held that it could not be said that the plaintiff in a suit for specific performance was asserting only an equity. His claim was really on the active title set up by him and he could not avail of the said provisions of the Transfer of Property Act. 8. In the Bombay case ( AIR 1967 Bom. 34 .), the transferee, who claimed to be in possession of the property only under an agreement of sale in part performance of the contract, had filed a suit under Order 21 Rule 103 of the Code of Civil Procedure against the auction purchaser who had purchased the said property in execution of a decree passed against his vendor (Judgment-debtor). Could such a transferee maintain a suit against an auction purchaser was the question. Could such a transferee maintain a suit against an auction purchaser was the question. The trial Court had dismissed the suit, while the first appellate Court had decreed the claim. The question before the High Court was whether the auction purchaser could be regarded as a person claiming under the transferor within the meaning of that expression of section 53 A of the Transfer of Property Act, (Part 4). Having held that he is not, the claim of the transferee in possession under a contractt of sale against the auction purchaser claiming protection of his possession by virtue of provisions of section 53A of the Transfer of Property Act, was found untenable and the decree of the trial Court dismissing the claim was restored. Though the decision turned mainly on this question, the observations of this Court as to the nature of the claim put forward by the transferee under section 53 A, have unfortunately been missed by the learned District Judge. This Court relying upon (Rath Chander Vs. Maharaj Kunwar)3, Firdos Jahan v. Dr. Mohd. Yunus)4, (Pakkirchi Umrna v. Kakprath Kalandan),5 and (Akram Mea v. Secunderabad Municipality),6 found that in essence such a suit is defensive in character. 9. The facts in the Allahabad case (1939 AII. 611) which are apposite, were that the plamtiff, who claimed to be in possession of a property as a lessee under a written but a defective lease deed, filed a suit for injunction against the defendant, his lessor. On the question whether the plaintiff could rely on the provisions of section 53 A of the ' Transfer of Property. Act,, the Allahbad High Court observed; “It was defondants who were seeking to enforce their rights under the contract of lease. The plaintiff was only seeking to debar them from doing so and was thus merely protecting his rights. There was, therefore, nothing in the terms of Section 53-A which disentitled the plaintiff from maintaining the suit.” 10. The aforesaid Allahabad case was referred to by the Supreme Court in its decision reported in (Delhi Motor Co. v. V.A.B. Basrurkar)7 the facts of which were that the plaintiff, a partnership firm, had entered into a contract with the defendant company for taking a sub-lease of a building of which the company was a tenant. The plaintiff was given possession of only a part of the building and it had started its business. v. V.A.B. Basrurkar)7 the facts of which were that the plaintiff, a partnership firm, had entered into a contract with the defendant company for taking a sub-lease of a building of which the company was a tenant. The plaintiff was given possession of only a part of the building and it had started its business. The plaintiff being dispossessed had brought a suit for possession of the building on the basis of unregistered documents of leases. It was found that such leases Could not have been validly made except under registered instruments and as such the firm could not claim any rights on the basis of these lease deeds evidenced by unregistered documents. The suit, as stated earlier, was to recover possession and as to the applicability of section 53 A of the Transfer of Property Act, in such a case,it was rightly held by the Supreme Court that the section is only available as a defence to a lessee and not as conferring a right on the basis of which the lessee can claim right against the lessor. It did not give any right to the lessee to claim possession on the basis of unregistered leases. Referring to the aforesaid Allahabad decision, the Supreme Court observed; “Without expressing any opinion as to the correctness of the view taken by the Alahabad High Court, we have to point out that the interpretation put on Section 53 A of the Transfer of Property Act even by that Court is of no assistance to the firm in the present case. In this case, the firm is seeking to enforce rights under the unregistered lease and to seek a decree for possession against the lessor. The Allahabad High Court in that case proceeded on the basis that the plaintiff of that suit was in the position of a defendant and was only seeking to protect his rights by resort to the provisions of Section 53 A of the Transfer of Property Act, so that no principle was laid down by the High Court that Section 53A is available to a lessee otherwise than as a defence.” “That decision may be justified, if at all, on the basis that, though the lessee in that case was a plaintiff, he was actually seeking protection under section 53A of the Transfer of Property Act by being in the real position of a defendant. On the question whether a person, who sues as a plaintiff, may still be regarded as defending the rights, sought to be conferred upon him by an unregistered deed, we need express no opinion. In the present case before us the claim, which was put forward by the firm in the plaint, can by no means be construed as a mere defence of the firm's rights. What the firm is actually seeking to do so is to enforce the rights under the lease and in such a ease, Section 53 A of the Transfer of Property Act is clearly inapplicable.” 11. The ratio of these decisions, therefore, is that though the principle that the right conveyed under section 53A of the Transfer of Property Act can be invoked only as a shield and not as a swords beyond any debate or any challenge, the mere position of a party in the heading of a suit is not the determining factor. What in essence is the nature of the right that is claimed by the transferee would be the crux of the matter. So long as the transferee relies on the provisions of section 53 A not for founding any cause of action, but only as a shield and a protection, he would be entitled to do so, no matter whether he Appeared as a plaintiff or a defendant in an action. 12. The present suit, no doubt, is one for specific performance of the contract based on a Souda Chithi executed by deceased Honaji, predecessor-in-title of the defendants. The execution of the document is not denied. Whether it is really an agreement to sell the property as alleged by the plaintiff or is a colourable document to cover up a loan transaction as contended by the defendants will have to be fesolved on the conclusion of a full-fledged trial. In case the contention of the defendants ultimately prevails, the plaintiff may be non-suited. What the plaintiff seeks is an ad-interim relief namely, temporary injunction restraining the defendants from disturbing his present possession which is with him since the execution of the document. The applicability of the principle of part performance in deciding an application for temporary injunction as sought to be introduced by learned District Judge in fact does not arise, apart from the fact that the interim relief that is sought is only protective in its character. The applicability of the principle of part performance in deciding an application for temporary injunction as sought to be introduced by learned District Judge in fact does not arise, apart from the fact that the interim relief that is sought is only protective in its character. The learned District Judge, therefore, was wrong in holding that the plaintiff failed to make out any prima facie case. He further erred in holding that no hardship would be caused to him in case the relief is not granted since he can be compensated for in money in case he is dispossessed. When the plaintiff has • been in an undisturbed and prima facie lawful possession of this land since the year 1976, it can hardly be said that his dispossession, during the pendency of the suit which is likely to last for some years, would cause him only a pro tern and not a substantial harm and injury. 13. For all these reasons, the revision is allowed with costs. The order passed by the learned District Judge is hereby set aside and that passed by the trial Judge is restored. Revision allowed ----