JUDGMENT 1. - Appeal No. 272/95 arises out of the judgment and decree dated 22.3.1995 passed by Additional District Judge No. 5, Jaipur City, Jaipur in Civil First Appeal No. 12/94 confirming the judgment and decree dated 25.3.1994 passed by Addl. Civil Judge No. 2, Jaipur City, Jaipur in Civil Suit No. 93/93 whereby the first appellate Court upheld the eviction of the defendant-appellant from the suit premises. 2. Appeal No. 270/95 arises out of the judgment and decree dated 22.3.1995 passed by Additional District Judge No. 5, Jaipur City, Jaipur in civil first appeal No. 11/94 whereby the learned first appellate Court confirmed the judgment and decree dated 25.3.1994 passed by learned Additional Civil Judge No. 2, Jaipur City, Jaipur in civil suit No. 119/93 whereby the learned trial Court dismissed the suit of the plaintiff-appellant for specific performance. 3. Since the parties are the same, the dispute pertaining to the subject matter of the property is the same, the alleged agreement in respect of which the parties are claiming their rights is also the same and the substantial questions of law which arise for consideration of this Court are also the same, both the aforesaid appeals are being dealt with and disposed of by this single common judgment. 4. For the sake of convenience and ready reference appeal No. 272/95 shall be treated as the main case. The facts giving rise to the filing of the aforesaid appeal, briefly stated, are that the plaintiff-respondent was allotted a House bearing No. 7-Jha 38 in Jawahar Nagar, Jaipur by the Rajasthan Housing Board (hereinafter referred to as "the Board") on 28.6.1975 and the possession of the same was handed over to the plaintiff-respondent on 4.3.1977. The defendant-appellant approached the plaintiff with the request that he was in need of a house for his residential requirement and hence an oral tenancy was created in his favour subject to terms and conditions verbally settled between the parties. Thereafter respondent let out the suit premises to the appellant-tenant on the basis of an oral agreement which contained the following stipulations:- 1. That the defendant would deposit outstanding sum of Rs. 3447.36 with the Rajasthan Housing Board. This amount would be treated as advance towards rent and would be, adjusted or would be refunded when the premises is vacated. 2. The rent would be Rs. That the defendant would deposit outstanding sum of Rs. 3447.36 with the Rajasthan Housing Board. This amount would be treated as advance towards rent and would be, adjusted or would be refunded when the premises is vacated. 2. The rent would be Rs. 456.00 per month and the house tax will be paid extra. This amount would be deposited by the defendant with the Rajasthan Housing Board every month. (This was the monthly instalment which the plaintiff was required to deposit with Rajasthan Housing Board). 3. The tenancy will be monthly and would commence from 1.3.1977. It was alleged by the plaintiff in the plaint that the defendant did not deposit or pay the amount due by way of instalments to the Board and as such a letter was received from the Board on 17.8.1981 by the plaintiff indicating therein that the instalments are due since September, 77 and an auction notice in this regard was also published in Rajasthan Patrika, dated 27.9.1981 to the effect that recovery of Rs. 32,843.70 was due on account of the arrears of instalments and penalty and that the plaintiff's house shall be auctioned for the recovery of the said amount. Since the plaintiff had failed to deposit the amount after having obtained loan against his provident fund, default in payment of rent for more than six months was averred. It was further alleged in the plaint that the plaintiff was living in a rented premises in Tilak Nagar, Jaipur at a monthly rent of Rs. 350/-. The landlord of the said premises was harassing and pressurising the plaintiff to vacate the said premises under his occupation for the past 5-6 months. It was also averred in the plaint that the plaintiff had lodged an FIR dated 3.12.1984 with police station, Adarsh Nagar, Jaipur against his landlord and his family members under sections 147, 448 and 323 IPC. Thus a decree for eviction on the ground of default in payment of rent, personal and bonafide necessity, arrears of rent and permanent injunction was prayed for from the trial Court. 5. The suit was contested by the defendant who filed written statement denying the averments made in the plaint as regards the tenancy and relationship of the landlord and the tenant was also disputed. 5. The suit was contested by the defendant who filed written statement denying the averments made in the plaint as regards the tenancy and relationship of the landlord and the tenant was also disputed. It was contended in the written statement that the parties were good friends and when the suit house was allotted to the plaintiff by the Board in the year 1976, he did not have enough funds to purchase the same and was therefore, interested in selling out the same to someone else at premium. The defendant had agreed to purchase the same and in lieu of the oral agreement to sell dated 2.2.1977, the plaintiff had agreed to sell the suit house to defendant on the following terms:- 1. The possession of the house shall be handed-over to the tenant as soon as its possession is handed over to the plaintiff by the Board. 2. A sum of Rs. 8000.00 shall be paid by the defendant as premium to the plaintiff out of which a sum of Rs. 5000.00 was to be paid on 31.3.1977 and Rs. 3000.00 were to be paid on 30.4.1977. 3. A sum of Rs. 7382.50 which was deposited by the plaintiff with the Board till then, shall be paid by the defendant to the plaintiff at the time of delivery of possession and further monthly instalments towards the price of the house shall be paid by the defendant to the Board. 4. Water and electricity connections were to be obtained by the defendant at his own expense. It was submitted that the plaintiff obtained possession of the house on 4.3.1977 from the Board and defendant in terms of agreement to sell, as referred to above, deposited a sum of Rs. 3447.36 with the Board on 8-9.2.1977 with penalty and also deposited a sum of Rs. 28.06 on 28.2.1977 on account of late deposit. The defendant paid to the plaintiff a sum of Rs. 7382.50 on 4.3.1977, Rs. 5,000/- on 31.3.1977 and another Rs. 3000/- on 30.4.1977. As the plaintiff had already applied for water connection, a sum of Rs. 500/- was paid by the defendant for it and the defendant also applied for two electricity connections. It was averred that the defendant entered the house on 7.3.1975, after performing rites and ceremonies on `Grah Pravesh' and on this occasion nearly hundred of the relatives and friends were invited. 500/- was paid by the defendant for it and the defendant also applied for two electricity connections. It was averred that the defendant entered the house on 7.3.1975, after performing rites and ceremonies on `Grah Pravesh' and on this occasion nearly hundred of the relatives and friends were invited. The family of the plaintiff also attended the function. Even after occupying the house, the defendant made substantial improvements and repairs in the house and spent huge amount. As agreed, the defendant deposited the monthly instalments from March 1977 to August 1977. At that time, on advice of his children, the defendant requested the plaintiff to execute some document towards sale but the plaintiff did not show any willingness for executing the same. Under apprehension, the defendant stopped making payment of monthly instalments but the plaintiff in spite of its knowledge, did not act upon the request of the defendant. It was also submitted that as per the Board Rules, price of the house is to be paid within 12 years of the allotment and the allottee cannot transfer the house to third person till the expiry of certain period. As this period had not expired and there was no written document, the defendant could not insist upon the plaintiff to do so. It was also submitted that the rate of rent for similar houses in the locality was around Rs. 225- 250/- and not Rs. 450-500/-, as alleged by the plaintiff. On receipt of notice from the Board and on its publication in the newspaper, the defendant offered the plaintiff that he will deposit the amount of instalments along with the penalty, if the plaintiff is ready to execute some written document in his favour but the plaintiff did not reply. 6. The tenancy was denied and it was submitted that he is in possession of the house as owner under agreement to sell, the part performance of which has taken place. The personal and bonafide necessity of the plaintiff was denied. It was averred that the property at Gangauriyon-Ka-Rasta is joint family's property and the defendant has no justification to live on occupying the same. Therefore, it was prayed that the suit of the plaintiff be dismissed. 7. The plaintiff in his re-joinder dated 3.9.1985 controverted the averments made by the defendant in the written statement and receipt of any sum of Rs. 8000/- towards premium of Rs. Therefore, it was prayed that the suit of the plaintiff be dismissed. 7. The plaintiff in his re-joinder dated 3.9.1985 controverted the averments made by the defendant in the written statement and receipt of any sum of Rs. 8000/- towards premium of Rs. 7382.50 dated 4.3.1977 was also denied. It was contended by the plaintiff that a sum of Rs. 2245.00 was deposited with the board by the plaintiff himself on 15.6.1976. Performance of any rites and housewarming ceremony were also denied. The plaintiff further disputed the payment of any amount for obtaining water connection or for having made any improvement/ repairs in the house in question. 8. The trial Court on the pleadings of the parties framed 8 issues. Issue No. 1 related to the point whether defendant is a tenant of the plaintiff in the suit premises at the rate of Rs. 456/- per month as alleged since 1.3.1977. Issue No. 6 was to the effect that whether the defendant is in possession as owner under agreement to sell and whether its part performance has taken place as alleged and if so to what effect ? The parties led evidence in support of their case and the learned trial Court after recording necessary evidence and hearing learned counsel for the parties decreed the plaintiff's suit for eviction of the defendant vide its judgment and decree dated 25.3.1994. Aggrieved by the said judgment and decree of the trial Court, the defendant-appellant preferred first appeal before the learned District Judge which was transferred to the Court of Addl. District Judge No. 5, Jaipur City, Jaipur for its disposal in accordance with law. Learned first appellate Court after hearing the parties and considering the materials placed on the record dismissed the defendant's appeal vide its impugned judgment and decree, dated 22.3.1995 but remanded back the case to the trial Court for deciding the issue of partial eviction since no such issue had been framed earlier. 9. It is under the above circumstances that the present second appeal has been preferred to this Court by the defendant- appellant contending inter-alia that the decree passed by the learned Courts below is perse illegal, perverse and contrary to law. 9. It is under the above circumstances that the present second appeal has been preferred to this Court by the defendant- appellant contending inter-alia that the decree passed by the learned Courts below is perse illegal, perverse and contrary to law. It has been further contended by the appellant that miscarriage of justice has occasioned since there is complete lack of evidence on the record to prove the relationship of the landlord and the tenant between the parties. It has further been averred that the Courts below have committed gross error in arriving at the conclusion that the disputed premises was let out to the defendant on the condition that since he is in occupation of the premises on the basis of agreement to sell, he shall continue to pay the monthly instalments due to the housing board and that the rent shall be adjusted towards the instalment. It has also been averred that the plaintiff has miserably failed to prove that the house was ever let out to the defendant on the terms and conditions as alleged. 10. Apart from the grounds as referred to above, the defendant appellant has further contended in appeal that the Courts below have failed to consider that it is admitted case of the parties that they were very good friends and it is for this reason that no written agreement was executed by them and in view of these circumstances there was no occasion for the defendant to have insisted for issuance of the receipt in lieu of payment made to the plaintiff which otherwise is well established from the evidence on record. The appellant has further contended in the grounds of appeal that the Courts below have failed to consider that the execution of the document Ex. /A 1 was not even disputed by the plaintiff and its possession with the defendant itself speaks of the factum of agreement to sell. It has been further contended in the grounds that the Courts below have not appreciated the fact that it was proved by the defendant both by oral as well as documentary evidence that the prevailing rent in the locality was Rs. 250/- or Rs. 300/- in respect of the similar accommodation and that the rent of the house in question could not have been Rs. 456/- plus house-tax as alleged. 250/- or Rs. 300/- in respect of the similar accommodation and that the rent of the house in question could not have been Rs. 456/- plus house-tax as alleged. The defendant has thus denied the assertion made by the plaintiff that a sum of Rs. 456/- was being deposited by him with the board towards monthly instalments which were not on account of the rent but towards the price of the house. It has been further contended by the appellant that the findings of the Courts below are based on extraneous considerations and are liable to be set aside inasmuch as while deciding issue Nos. 2 & 5, the Courts below have committed illegality in not considering that the plaintiff himself has admitted the deposit of Rs. 74,318.88 towards arrears of rent against the arrears of Rs. 65,664/- and that no finding has been given by the Courts below on this issue. The appellant has further contended in the grounds that in absence of any pleading to the effect that the plaintiff is in need of the suit premises as he had retired or on account of pausity of accommodation due to growth of family and in absence of such pleadings there was no occasion for the Courts below that the premises are required by the plaintiff for his personal and bonafide necessity. It has been further averred that mere fact that the plaintiff was being pressurised by his landlord for vacation of the rented premises does not constitute bonafide requirement of the plaintiff for the house in question. The appellant has also seriously disputed the observations made by the Courts below with regard to the salient fact that there could not have been oral agreement to sell in absence of material evidence on the record and the learned counsel for the appellant has vehemently assailed concurrent findings of the Courts below in this regard as well as with regard to the other aspects of the case and as such has vehemently opposed the findings of the Courts below which, as per his contention, deserve to be set aside. Learned counsel for the appellant has also prayed to this Court that this Court should go into the question of appreciation of evidence regarding the statements of the defence witnesses, namely, Radhaballabh and Devkumar Jain DW 2 & 3 respectively which establishes that the house was agreed to be sold to the defendant by the 2 plaintiff subject to the terms and conditions as referred to in the oral agreement which has been pleaded by the defendant. The learned counsel for the appellant has further assailed the findings recorded by the first appellate Court on the ground that it is in violation of the provisions of O. 41 R. 25 CPC since while remanding the case on the question of partial eviction, no issue was framed by the trial Court and the appellate Court could not dismiss the appeal finally unless the issue was framed and decided and finding recorded by the trial Court. On the pleadings of the parties the following substantial questions of law arise for determination by this Court:- 1. Whether the hirer gets the right to enter into an agreement of sale of the property, which admittedly belongs to the Rajasthan Housing Board, with the purchaser without obtaining the express permission in writing from the Rajasthan Housing Board as stipulated in clause (h) of the Hire Purchase Tenancy Agreement which is an integral part of the Rajasthan Housing Board (Disposal of Property) Regulations, 1970? 2. Whether in absence of such permission on the record it was open to the purchaser to enter into the agreement of sale with the hirer contrary to the regulations of the Rajasthan Housing Board and what would be the effect of such sale on the rights of the prospective purchaser particularly where the oral agreement has been pleaded? 3. What would be the effect of Section 41 of the T.P. Act on the rights of the purchaser? 4. Whether in view of the Regulations of the Rajasthan Housing Board 1970 in respect of disposal of property, whether such an oral agreement could be entered into between the parties herein when the right to sell or alienate the property in question is itself curtailed by the said Regulations? 5. What would be the effect of Section 13 of the Specific Relief Act, 1963 on the rights of the purchaser against a person with no title or imperfect title? 11. 5. What would be the effect of Section 13 of the Specific Relief Act, 1963 on the rights of the purchaser against a person with no title or imperfect title? 11. Apart from the oral submissions advanced by the learned counsel for the parties at the bar learned counsel were also given an opportunity to file the written submissions and which have been filed on the record of this case. 12. Learned counsel for the appellant has contended that both the Courts below have seriously erred in holding that there could not be any question of relationship of landlord and tenant between the parties in absence of (a) rent note and (b) any rent receipt from the plaintiff. Learned counsel has contended that tenancy could not be possible between the parties in absence of payment of advance rent given generally either for 3, 6 & 9 months and in any case if Rs. 3447.00 are divided by Rs. 456.00 then no exact number of months can be worked out. He has further contended that defendant spent more than Rs. 40,000/- for carrying out substantial improvements in the tenanted premises which are of permanent nature and which no tenant could ever do and that the plaintiff has not denied such improvements. 13. In my considered opinion the above contentions advanced by the learned counsel for the appellant are without any foundation or basis and are vague pleas and assertions being raised before this Court in second appeal and cannot be permitted to be raised before this Court as it would involve an exercise by this Court to go into the disputed questions of facts which are not assailable in second appeal before this Court. Faced with the above situation the learned counsel for the appellant has unsuccessfully tried to draw the attention of this Court to the statements of the plaintiff-respondent recorded before the trial Court in the suit for specific performance of the oral agreement to sell, which in my considered opinion is not the province of this Court to go into the question of appreciation of evidence in second appeal, particularly when the matter already stands concluded by the well reasoned findings of the trial Court as well as the first appellate Court. In support of his contentions advanced at the bar, learned counsel for the appellant has placed reliance upon the following judgments:- Silla Chandra Sekharam v. Ramchandra Sahu, AIR 1964 SC 1789 ; Kalyanpur Lime Works Ltd. v. State of Bihar & Anr., AIR 1954 SC 165 ; Abdul Satar Haji v. Shah Manilal Talakchand, AIR 1970 Gujarat 12 ; Rojasara Ramijibhai Dahyabhai v. Jani Narottamdas lallubhai, 1986 (3) SCC 300 , and Dr. C.L. Katial & Ors. v. Mrs. C.W.V. Madden, AIR 1963 Punjab 136 . In the matter of Silla Chandra Sekharam v. Ramchandra Sahu (supra) Hon'ble Raghuver Dayal, J. speaking for the Court observed that the expression `subsequently to the sale or lease', means subsequent to the contract to sell or let and not subsequently to the execution of the sale-deed or lease-deed by vendor or lessor as the case may be, in pursuance of the contract to sell or let. It was further held that Section 18(a) of the Specific Relief Act, 1877 cannot be restricted in its application to cases where actual sale or lease of property had taken place. It was also observed that if the aforesaid provision of the Specific Relief Act was to apply after the completion of sale or lease and on the vendor or lessor acquiring interest in the property in which he had imperfect title to start with, .there would be considerable overlapping between the provisions of the said Act and Section 43 of the Transfer of Property Act.In the matter of Kalyanpur Lime Works Ltd. v. State of Bihar & Anr. , (supra) the Apex Court while dealing with the interpretation of the provisions of Sections 15 & 18(a) of the Specific Relief Act held that in case of a lease by the Government in respect of property in which the lessor had imperfect title, section 18 of the Act was attracted to the facts of the case, but since substantial period of lease had already expired relief could not be given under the said provision.In the matter of Abdul Satar Haji Ibrahim v. Shah Manila Talakchand (supra) in an appeal before the Apex Court the question which had arisen for consideration was regarding the Ordinance of the year 1949 and the Act of 1950 which was introduced by the Government pursuant to the scheme of the administration of the Evacuee property, it was held by the Apex Court that the Custodian merely acts as a statutory agent having owners to manage and administrate the evacuee property and the title of the evacuee mains as it were in statutory suspense till the property comes to be restored to him under section 16(1) of the Act.In the matter of Rojasara Rainjibhai Dahyabhai v. Jani Narottamdas Lallubhai (supra) Hon'ble A.P. Sen, J. speaking for the Court held that vendee initially having imperfect title to agricultural land, the transfer of which being subject to stipulation in sale agreement that vendor would apply for permission from Collector to convert the land into village site for non-agricultural use, and the vendee after purchase covenanting to sell the land to other villagers at his own expenses it was held by the Apex Court that since the original vendor had applied but since he had failed to obtain requisite permission from the Collector, there was no legal impediment for the execution of the sale-deed and the subsequent vendees were entitled to specific performance of the contract.In the matter of Dr. C.L. Katial & Ors. v. Mrs. C.L. Katial & Ors. v. Mrs. C.W.V. Madden (supra) learned Division Bench of Punjab High Court at Delhi held that an agreement for sale of a house in New Delhi which contains a clause to the affect that the vendor is to obtain the sanction of the Chief Commissioner for transfer of the site on which the house was constructed within the stipulated period, does not remain inchoate unless and until the said sanction is obtained, when there is nothing to suggest that the application for sanction was likely to be rejected.In my considered opinion the ratio of the aforesaid decisions of the Apex Court as well as Punjab High Court Bench at Delhi are not applicable to this case. Since in this appeal admittedly the hirer gets no right to enter into an agreement of sale of the property which belongs to the Rajasthan Housing Board with the purchaser without obtaining the express permission in writing from the Rajasthan Housing Board as stipulated in clause (h) of the Rajasthan Housing Board (Disposal of Property) Regulations, 1970 which mandates that the hirer shall not sell, transfer, assign or otherwise part with the possession of the whole or any portion of the said property unless previous consent in writing of the owner has been obtained and which it shall be entitled to refuse in its absolute discretion. I am of the opinion that this condition of the Housing Board Regulations, 1970 is binding on the parties and since no evidence has come on the record regarding the sale permission from the Housing Board prior to entering into agreement to sell between the parties, the plaintiff was not competent to enter into such agreement with the defendant regarding sale of the property in question. I am further of the opinion that it was also enjoined upon the defendant-appellant to have insisted upon such sale permission before making any payment or part payment of the sale price to the plaintiff-respondent which has admittedly not been done in this case. I am further of the opinion that it was also enjoined upon the defendant-appellant to have insisted upon such sale permission before making any payment or part payment of the sale price to the plaintiff-respondent which has admittedly not been done in this case. The appellant has on the contrary alleged oral agreement of sale which too has not been proved on the record and I am of the considered opinion that no party would take the risk of entering into an oral agreement of sale by making substantial payment or part payment towards the sale consideration without getting agreement to sell duly executed and registered as has been pleaded by the appellant in this case. I deem it appropriate to refer to the second proviso to clause (h) of Regulations of 1970 which stipulates that no such assignment or transfer shall be valid or permissible where the assignee or the transferee is a person who does not fulfil the requirements of eligibility as provided in the Regulations. I am of the opinion in this regard that even this basic requirement of eligibility as provided in the aforesaid Regulations which is the pre-condition to any sale, transfer or assignment, has not been fulfilled by the vendor in favour of the vendee and in absence of which no such sale can be deemed to be operative or binding between the parties on the basis of alleged oral agreement to sell. 14. Mr. A.K. Bhandari, learned counsel for the plaintiff- respondent, while controverting the contentions advanced by the learned counsel for the appellant has contended at the bar that a suit was filed by the plaintiff-respondent against the defendant- appellant for eviction and arrears of rent. It was pleaded in the plaint that the suit premises were allotted on instalment basis to the plaintiff-landlord by the Rajasthan Housing Board and possession thereof was handed over on 4.3.1977. The defendant-tenant was let out the premises on certain conditions as stipulated in the tenancy agreement. It was further contended in this regard that since the defendant did not deposit the monthly rent with the Housing Board, the plaintiff became aware of the default by a letter, dated 17.8.1981 received from the Board. Defaults were committed since September, 1977 and the Board had issued auction notice in Rajasthan Patrika, dated 27.9.1981 as the outstanding instalments and penalty amounting to Rs. 32,843.70 were not deposited. Defaults were committed since September, 1977 and the Board had issued auction notice in Rajasthan Patrika, dated 27.9.1981 as the outstanding instalments and penalty amounting to Rs. 32,843.70 were not deposited. The plaintiff obtained loan against his provident fund from the University of Rajasthan and deposited the amount with the Board on 11.12.1981. The defendant had committed defaults for more than six months. In the written statement filed by the defendant before the trial Court it was alleged that in view of the friendly relations between the parties, after the allotment of the suit premises by the board to the plaintiff, the plaintiff had shown his willingness to sell the house to the defendant as he was not in a position to make arrangement for payment of the sale price and keeping in view this fact an agreement to sell was entered into on 2.2.1977 by which it was agreed between the parties that possession of premises would be handed over as soon as it is given by the Board to the plaintiff. Learned trial Court after hearing and recording the evidence of the parties decreed the suit in favour of the plaintiff vide its judgment and decree, dated 25.3.1994. Learned trial Court observed that the relationship of the landlord and the tenant was duly proved and that no agreement to sell was ever entered into the parties. Learned trial Court further held that since there had been default towards the payment of rent which was deposited after determination of the lease, the plaintiff was entitled for the benefit of default. Learned trial Court further opined that the personal and bonafide necessity of the plaintiff was duly proved and he will suffer great hardship if the suit premises is not vacated. It was further held that no partial eviction can be done of the suit premises. Also keeping in view the fact regarding denial of title it was held that the respondent is entitled to get the decree of eviction duly executed. Aggrieved by the above judgment and decree of the trial Court an appeal was preferred before the first appellate Court by the appellant which in turn concurred with the findings of the learned trial Court and after dealing with all the relevant evidence and material on the record confirmed the decree passed by the trial Court. Aggrieved by the above judgment and decree of the trial Court an appeal was preferred before the first appellate Court by the appellant which in turn concurred with the findings of the learned trial Court and after dealing with all the relevant evidence and material on the record confirmed the decree passed by the trial Court. On the question of partial eviction the first appellate Court remanded the matter to the trial Court for recording evidence of the parties. It is under these circumstances that this second appeal has been filed by the defendant-tenant before this Court wherein the appellant has assailed the concurrent findings of the Courts below. The appellant has filed this appeal against the decree for eviction only. 15. It is admitted case of the parties that the house in question bearing No. 7-Jha 38, Jawahar Nagar, Jaipur was allotted to the respondent by the Rajasthan Housing Board vide allotment letter dated 27.4.1976 at the price of Rs. 46,050/- which was payable by the allottee in monthly instalments of Rs. 456/- spread over a period of 12 years. Initial deposit of Rs. 2244.91 was made by the plaintiff with the Housing Board along with the application for allotment. Un-disputably the Rajasthan Housing Board Regulations, 1970 are applicable to the parties. 16. Shri Bhandari, learned counsel for the respondent has contended at the bar that during the period March, 1977 to August, 1977 the appellant deposited 8 instalments of Rs. 456/- with the Housing Board and thereafter stopped the payment of monthly instalments. It was in the year 1981 when the Housing Board issued notice regarding auction of the suit property that the respondent was surprised to learn regarding default committed by the appellant in payment of monthly instalments w.e.f. 1.10.1977. A sum of Rs. 32,843.70 was shown outstanding by the Housing Board which was to be paid by the respondent towards the cost price of the house in question within the stipulated period as indicated in the notice vide Ex. /A 2 and A-3 dated 8.12.1981 on the record. A sum of Rs. 32,843.70 was shown outstanding by the Housing Board which was to be paid by the respondent towards the cost price of the house in question within the stipulated period as indicated in the notice vide Ex. /A 2 and A-3 dated 8.12.1981 on the record. It was contended by the learned counsel for the respondent that if there was an oral agreement to sell the suit premises, then in that event there would have been no occasion to take loan from the University where the respondent was employed for the purpose of paying the outstanding dues to the Housing Board with regard to the suit premises allotted to the respondent by the Housing Board. During the course of argument, learned counsel for the respondent has further contended that the appellant had applied for installation of electric connection in the suit premises for which he obtained N.O.C. from the respondent and mentioned in the Formates that he was a tenant of the respondent in the suit premises. In support of his contentions reliance has been placed by the learned counsel on Exs. 12 to 16 dated 5.3.1977 which are formates duly filled by the appellant and which he had submitted with the Electricity Board. Learned counsel for the respondent has further contended that the falsity of the contentions of the appellant regarding alleged oral agreement to sell is further fortified from the fact that suit for eviction was filed by the respondent- landlord against the appellant in the year 1985 on the ground of (a) default, (b) bonafide requirement, and (c) denial of title under Rajasthan Premises (Control of Rent and Eviction) Act, 1950 and order was passed by the trial Court under section 14(2) of the Act when the case was remanded by learned first appellate Court to the trial Court to record evidence of the parties on the question of partial eviction. Suit for specific performance of the oral agreement to sell was filed by the appellant in the year 1987. If there was oral agreement to sell as alleged by the appellant, then the appellant would not have stopped payment of monthly instalments, since the appellant would not have taken the risk of loosing ownership rights which he would have subsequently acquired on payment of the full consideration to the Housing Board. If there was oral agreement to sell as alleged by the appellant, then the appellant would not have stopped payment of monthly instalments, since the appellant would not have taken the risk of loosing ownership rights which he would have subsequently acquired on payment of the full consideration to the Housing Board. It was further contended by the learned counsel for the respondent that the suit for specific performance of the oral agreement was filed by the appellant as a counterblast to the suit for eviction which was filed earlier by the respondent in the year 1985. In support of his contentions advanced by the learned counsel for the respondent, reliance has been placed upon the following judgments:- Sardar Govindrao Mahadik & Anr. v. Devi Sahai & Ors., 1982 (1) SCC 237 : AIR 1982 SC 989 ; Nathulal v. Phoolchand, AIR 1970 SC 546 ; Lade Ram v. State of Haryana & Ors., AIR 1994 P & H 175 and B. Sitaram Rao & Ors. v. Bibhisano Pradhan, AIR 1978 Orissa 222 . In the matter of Sardar Govindrao Mahadik v. Devi Sahai & Ors. , (supra) the question which had arisen for consideration of the Apex Court was regarding the interpretation of Section 53-A of the T.P. Act, 1882 (Act 4 of 1882). A mortgagee who was in possession of the suit property claimed title of ownership against a suit filed by the mortgager for redemption of mortgage. It was held by the Apex Court that the doctrine was not applicable to the case since Section 53-A of the T.P. Act has made sine-qua-non the existence of a written contract from which the terms necessary to constitute transfer can be ascertained with reasonable certainty. It was further held that more oral agreement to discharge a mortgage cannot be an act of part performance unless in fact such an act was done. In this regard I am of the opinion that Section 53-A of the T.P. Act insists upon requisite proof of some acts having been done by the parties in furtherance of a contract. If the parties claim commission of some acts in part performance of furtherance of the contract the same must be unequivocally referable to the pre-existing contract and there must be positive evidence regarding implementation or part performance of the contract. If the parties claim commission of some acts in part performance of furtherance of the contract the same must be unequivocally referable to the pre-existing contract and there must be positive evidence regarding implementation or part performance of the contract. I am further of the opinion that mere assertion of agreement to sell on the basis of oral understanding between the parties cannot give rise to a cause of action unless there is positive evidence on the record regarding implementation of its performance. There must be a real nexus between the act alleged to have been done and the agreement itself in pursuance of which the acts are said to have been committed. In this case there is no iota of evidence to suggest that the payment of monthly instalments by the appellant was on account of sale-price of the house in question and rather there is positive evidence to suggest that the said payments were made on account of rent due to the respondent which the appellant had agreed to pay on behalf of the respondent to the Housing Board. If it was in lieu of agreement to sell, then the appellant would not have taken the risk of committing breach of agreement by not depositing the monthly instalments due to the Housing Board and would have rather seen to it that all the instalments stood duly paid so as to acquire a valid title by transfer from the respondent which admittedly he has failed to prove on the record. I am further of the opinion that the Regulations of the Housing Board do not permit sale/transfer of the property in ownership of the Housing Board unless and until the sale consideration of the property is duly paid by the allottee and it is only on the payment of entire sale consideration the original allottee would get right to transfer the property by sale to someone else. Since in this case the payments of instalments were admittedly due to the Housing Board and since there was a default in payment of the balance sale price, the question of any title or ownership rights having been developed upon the respondent, does not arise in view of the fact that the Board would not have issued the auction notice to the respondent if the sale consideration had been duly paid. Hence the question of assuming any ownership right on the basis of alleged oral agreement to sell, does not arise.In the matter of Nathulal v. Phoolchand (supra) similar question had arisen for consideration of the Apex Court with reference to the interpretation of provisions of sections 31 and 55 of the Indian Contract Act, 1872 and Section 53-A of the T.P. Act, 1882. With reference to the above provisions it was held by the Apex Court that where by a statute- property is not transferable without the permission of the authority, an agreement to transfer the property must be deemed subject to the implied condition that the transferor will obtain the sanction of the authority concerned. The Apex Court further held that the conditions necessary for making out the defence of part performance to an action in ejectment by the owner are:- 1. that the transferor has contracted 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; 2. that 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; 3. that the transferee has done some act in furtherance of the contract; and 4. that the transferee has performed or is willing to perform his part of the contract. If these conditions are fulfilled 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 therefor by the law for the time being in force, the transferor or any person claiming under him is debarred from enforcing against the transferee 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". In the matter of Ude Ram v. State of Haryana and Ors. (supra) it was held by the Apex Court that Section 53-A of the T.P. Act primarily imports the equitable doctrine of part performance propounded by the Courts in England. In the matter of Ude Ram v. State of Haryana and Ors. (supra) it was held by the Apex Court that Section 53-A of the T.P. Act primarily imports the equitable doctrine of part performance propounded by the Courts in England. However, there is an essential difference between the `English doctrine', and the provisions of Section 53-A. While in England the contract to which the doctrine of part performance applies may be oral, Section 53-A expressly requires that the contract must be in "writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty". It does not recognise an oral contract. It has to be in writing. It has to be signed by the person contracting the transfer of immovable property. These are the conditions precedent for invoking the principle of part performance.In the matter of B. Sitaram Rao & Ors. v. Bibhisano Pradhan (supra) it was held by the Orissa High Court that section 53-A cannot be pressed into service by the plaintiff for obtaining a decree for declaration of his title and relief of injunction. Further, special facts have to be pleaded to invoke the application of the provision. Further, it is a well settled rule that the doctrine is available to a defendant to protect his possession and does not create a title of the defendant. Thus the doctrine of part performance could not have been availed of, for establishing title to the property. Further, special facts have to be pleaded to invoke the application of the provision. Further, it is a well settled rule that the doctrine is available to a defendant to protect his possession and does not create a title of the defendant. Thus the doctrine of part performance could not have been availed of, for establishing title to the property. My observations are further fortified from the provisions of Section 53-A of the T.P. Act which reads as under:- "Section 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 therefor 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 contractor of the part performance thereof". 17. From the above provisions it is evidently clear that no agreement for sale regarding the property in question could take place between the parties on the basis of mere assertion of an oral agreement to sale, since terms necessary to constitute the transfer cannot be ascertained with reasonable certainty on the basis of such oral agreement which admittedly had not been proved. I am further of the opinion that the alleged transferee, i.e., the appellant herein in part performance of the alleged agreement to sell did not take possession of the property or any part thereof or being already in possession, continued in possession in part performance of the contract or alleged oral agreement. Further there is no evidence to suggest that the transferee had performed or was willing to perform his part of the contract which fact is evident from the defaults committed by the appellant towards the payment of monthly instalments due to the Housing Board. Since the basic ingredients of the said provisions are lacking in this case, no case for specific performance of the agreement to sell is made out by the appellant against the respondent and hence no reliance can be placed by this Court on the basis of such oral agreement. I am further of the opinion that the ratio of the above referred decisions of the Apex Court as well as other High Courts relied upon by the learned counsel for the respondent are fully attracted to this case. 18. With regard to appeal No. 270/95 filed by the plaintiff- appellant which arises out of the suit for specific performance of the agreement to sell I am of the opinion that learned Courts below have committed no illegality in not decreeing the suit of the plaintiffs and in observing that the defendant was barred from selling the house in question to any person since Rules of Housing Board do not permit such sale and as such the specific performance of the contract cannot be enforced by any Court. I am further of the opinion that the contentions of the learned counsel for the appellant that Section 41 of the T.P. Act, 1882 permits sale in favour of otensible owner are not relevant in this case in view of the specific bar created under the Rajasthan Housing Board Regulations, 1970, as referred to above. I am further of the opinion that the contentions of the learned counsel for the appellant that Section 41 of the T.P. Act, 1882 permits sale in favour of otensible owner are not relevant in this case in view of the specific bar created under the Rajasthan Housing Board Regulations, 1970, as referred to above. Since in the absence of permission to sell from the Housing Board on the record it was not open to the purchaser to enter into agreement to sell with the allottee contrary to the Regulations of the Housing Board it should, in my considered opinion, neither validities any title or create any rights in favour of the prospective purchaser which would pass on the basis of oral agreement to sell as had been pleaded by the appellant in this case. My observations are also fortified from the provisions of Section 53-A of the T.P. Act which do not permit any such sale in absence of an agreement in writing which cannot be enforced contrary to the Regulations of the Housing Board. I am further of the opinion that admittedly no such oral agreement can be made operative against the law when there is specific prohibition under the statute or any Regulation of the Housing Board and hence no party should be permitted to plead any agreement to the contrary when the right to sell or alieneate the property in question is itself curtailed by the said Regulations or statute. 19. Thus, in view of the above discussion, I am of the considered opinion that the appellant does not deserve to succeed in the above appeal, since he has failed to make out any case on merits for interference with the well reasoned concurrent findings of the Courts below. Since the plaintiff-appellant has been admittedly held to be a tenant of the respondent-defendant by concurrent findings of the Courts below against which S.B. Civil Second Appeal No. 272/1995 has been preferred, in my considered opinion, no cause of action survives in favour of the appellant and the findings of the Courts below deserve to be sustained and confirmed by this Court. 20. As a result of the above discussions I find no force in the aforesaid appeals and the same are dismissed with no order as to costs. 20. As a result of the above discussions I find no force in the aforesaid appeals and the same are dismissed with no order as to costs. The judgment and decree of the learned first appellate Court in Civil First Appeal No. 11/1994 confirming the judgment and decree dated 25.3.1994 passed by Addl. Civil Judge No. 2, Jaipur City, Jaipur in civil suit No. 119/1993 and the judgment and decree of learned first appellate Court in civil first appeal No. 12/1994 confirming the judgment and decree dated 25.3.1994 passed by learned Addl. Civil Judge No. 2, Jaipur City, Jaipur in civil suit No. 93/1993 are confirmed. Keeping in view of the fact that the appellant has been residing in the suit premises as a tenant for the part couple of years and will have to make alternative arrangement to shift his family in another residential accommodation, I deem it appropriate in the interest of justice to grant three months time to the appellant to vacate and handover peaceful possession of the said premises to the respondent on or before 17.7.1996. The appellant shall pay to the respondent rent, water and electricity charges for user of the premises in question every month failing which the decree passed by the Courts below shall stand executable forthwith. An undertaking in this regard shall be filed by the appellant in this Court within one week from today.Order accordingly. *******