JUDGMENT S. Padmanabhan, J. 1. Defendants 2 and 3 and other legal representatives of the deceased first respondent are the appellants. Suit property is 10 cents, which belongs to the plaintiff. He entered into an agreement with the first defendant for sale of the property. The suit was filed for recovery of possession on the strength of title alleging trespass. Contention is based on S.53A of the Transfer of Property Act. He also wanted specific performance of the agreement and paid court fee. Plaintiff contended that the first defendant committed breach of the contract. 2. Trial Court decreed the suit. Request of the first defendant to get refund of the advance amount was refused. Even though the appeal was dismissed, the appellate court ordered refund of the advance amount. 3. It is admitted by the parties that there was an agreement for sale on 8-4-1975 for a consideration of Rs. 750/- and Rs. 250/- was paid as advance. The fact that sale deed had to be executed on 18-4-1975 is also not in dispute. First defendant contended that on the date of agreement, he was put in possession by way of part performance. That fact is not admitted. Case of the plaintiff is that subsequently, possession was taken by force. It is the common case that a written agreement was executed in two parts and each took one copy. Under Explanation.1 to S.62 of the Evidence Act each part is primary evidence of the document. Though the first defendant has a case that the agreement itself provides that he was put in possession, that fact is denied. The agreement is not produced by either side. Plaintiff said that the agreement with him is lost. First defendant said that the agreement with him was produced before the police when the plaintiff complained of trespass, but it was not returned. Though he cited to examine the Sub Inspector to prove this fact, he did not pursue the prayer. That is the position. 4. The suit, is only one for recovery of possession on the strength of title alleging trespass. Plaint claim is not based on the agreement. It is unconnected with the agreement. Specific performance and benefit of S.53A of the Transfer of Property Act are claimed by the first defendant. Burden is on him to establish those claims. 4. The suit, is only one for recovery of possession on the strength of title alleging trespass. Plaint claim is not based on the agreement. It is unconnected with the agreement. Specific performance and benefit of S.53A of the Transfer of Property Act are claimed by the first defendant. Burden is on him to establish those claims. There is nothing to show that the contention of the plaintiff that the agreement with him is lost is mala fide. First defendant failed to establish his case that the agreement with him is unavailable. He must, therefore, suffer the consequences. He did not establish the fact that he was put in possession or he took possession in part performance of the contract. In that connection, there is only oath against oath. 5. Relying on the decision in Nagar Khan and others v. Gopi Ram Agarwala (AIR 1976 Patna 2), learned counsel for the appellants said that "taking possession", contemplated under S.53A of the Transfer of Property Act, need not be at the instance of the vendor and even possession independent of the agreement is sufficient. According to him, even if he is treated as a trespasser, as alleged by the plaintiff, that possession itself is sufficient to attract S.53A because the words used are "taken possession" and not "put in possessions". I do not think that I will be able to agree. It is not necessary that possession should be of the whole of the property. Continence of possession which the transferee had, is also sufficient. But, in order to attract the section, it is necessary that taking possession or continuing in possession must be in part performance of the contract. It is also necessary that the transferee must also have done something in furtherance of the contract, over and above taking possession or continuing in possession, in part performance of the contract. 6. An act of part performance must be an act done in performance of the contract. Acts introductory to and previous to the agreement cannot be acts of part performance. Even an act subsequent to the contract, though done in pursuance of the contract, is not an act of part performance, unless done strictly in performance of the, contract. 6. An act of part performance must be an act done in performance of the contract. Acts introductory to and previous to the agreement cannot be acts of part performance. Even an act subsequent to the contract, though done in pursuance of the contract, is not an act of part performance, unless done strictly in performance of the, contract. If A agreed to give B a lease of certain properties and B obtained a release from a third party of a right of lease claimed by him, the obtaining of the lease, though done in pursuance of the contract, was not an act of part performance, but only the fulfilment of a condition precedent. It is not necessary that delivery of possession must be at the instance of the vendor or that the contract must contain a direct covenant regarding transfer of possession. But it is absolutely necessary that possession was taken in part performance of the contract. Possession obtained subsequent to the agreement, and not referable to it, is not an act of part performance. The act in question must be referable to the contract alleged to have been part performed. It is a modified form of equity of part performance. The correct principle, on which the doctrine rests, is that if a man has made a bargain with another, and allowed that other to act on it, he will have created an equity himself which he cannot resist by setting up the want of formality in the evidence of the contract, out of which the equity in part arises. What the equity prevents is to debar the transferor or any person claiming under him from enforcing any right in respect of the property other than the right expressly provided by the terms of the contract. Rights arising under the contract are not barred by the provision. The conditions, which the transferor is expected to satisfy in order to get the equity, are: a) there is a contract in writing from which the terms could be ascertained with reasonable certainty; b) in part performance he took possession or continued in possession; c) he did some act in furtherance of the contract; and d) he has performed or is willing to perform his part. An act of trespass is not an act referable to the contract or in part performance of it. An act of trespass is not an act referable to the contract or in part performance of it. Therefore, possession obtained by trespass cannot be said to be possession taken in part performance of the contract. Even though possession need not necessarily be given by the transferor, it must be by an act offer able to the contract and permitted by transferor expressly or impliedly or atleast not opposed by him or ratified or approved by him. Otherwise, it will amount to encouragement of lawlessness from which no equity could arise. 7. There is no evidence that the first defendant got possession by any lawful means traceable to the contract with the consent, approvable or ratification of the plaintiff. Admittedly, the plaintiff complained to the police alleging trespass. So also, the plaintiff filed O. S No. 35 of 1976 against the first defendant for injunction. Though the first defendant claimed that he was put in possession by way of part performance of the contract, the court did not accept his plea. The suit was dismissed only on the ground that plaintiff did not prove his possession as on the date of suit and the defendant was in possession. That could be by trespass also. The plea that Ext. B 1 judgment operates as res judicata against the plaintiff cannot stand for the simple reason that possession by way of part performance was not a matter in issue or decided. To grant or refuse a decree for injunction, a decision on that question was unnecessary since possession as on the date of suit alone was necessary to be decided. 8. The written contract is not in evidence and its terms cannot be ascertained. One of the essential pre requisites for the applicability of S.53A is that the contract must be written and signed and its terms could be ascertained with reasonable certainty. Possession taken in part performance is also not proved. Execution of the agreement and payment of Rs. 250/- are admitted and hence it could be taken for granted that the first defendant has done some act in furtherance of the contract. But, in order to claim the equity available by way of defence, it will have also to be proved that the transferee has performed or is willing to perform his part of the contract. 9. Admittedly, the agreement was to execute the sale deed on 18-4-1975. But, in order to claim the equity available by way of defence, it will have also to be proved that the transferee has performed or is willing to perform his part of the contract. 9. Admittedly, the agreement was to execute the sale deed on 18-4-1975. Both sides claimed to have appeared before the Sub Registrar on that date ready for the sale. Ext. A2 shows that plaintiff was present and he has spoken to it and said that first defendant did not come. Admittedly, first defendant did not appear on that date. He claims to have gone only on the, previous day. On the question of readiness and willingness, the evidence of the first defendant appears artificial. DW 2 is the broker. While the first defendant, as DW 1, said that he made ready the funds by selling a cow, what DW 2 said was that DW 1 made the amount by pledging ornaments. Anyhow, selling cow and pledging ornaments are not matters proved. In the written statement, the contention was that the sale deed could not be executed because the plaintiff did not turn up, but, in the box, the case was that the document failed because plaintiff refused to pay DW 2 his due. Certain stamp papers were produced as Ext. B2 to show that the first defendant was ready. Firstly they are insufficient for the sale. Secondly, they were purchased in the name of the wife of (he first defendant and there is no case that the sale was intended to be taken her name. Claim based on S.53A of the Transfer of Property Act was, hence rightly refused. Plaintiff is admittedly the title holder. He is entitled to recovery on title. In view of that finding, the question whether the counter claim for specific performance is barred by limitation does not arise. Second appeal is dismissed, without costs.