JUDGMENT P.K.Palli, J. :- Suit for possession filed by the plaintiff/appellant, was decreed by the learned trial Court. The defendants/respondents appeal laying challenge to the judgment and decree, was allowed and it is the plaintiff/appellant who is in second appeal before this Court. Parties, here-in-after in this judgment, shail.6e referred to as plaintiff and defendants 2. Suit for possession was filed by the plaintiff in respect of 99 Kanals 2 Marlas of land, here-in-after referred to as land in dispute, on the allegations that the defendants vide agreement dated 11.8.1969 agreed to purchase and the plaintiff agreed to sell the suit land. A similar agreement had already been executed between the parties in the year 1964. At that time, the area was apart of the State of Punjab and the agreement of 1969 was executed after merger of the area into the State of Himachal Pradesh. It is alleged that there was some scheme floated by the Welfare Department of the State of Punjab and the agreement had been entered into with the intervention of the said Department. 3. The defendants under the scheme were to arrange finance partly from the Welfare Department and partly through the Land Mortgage Bank. The said scheme was aimed to benefit Scheduled Castes and Backward Classes. The entire sale consideration was fixed at Rs. 9,000/- Rs. 4, 000/- is said to have been paid and the balance of Rs 5,000/- was to be arranged. The amount of Rs. 4,000/- advanced was to carry interest at the rate of 6-1/2% till the sale is finally executed on final payment. 4. Possession of the land in dispute is said to have been delivered in sequence of the agreement. The plaintiff further pleaded that the defendants forged certain numbers given in the agreement and possession of other lard, belonging to the plaintiff was taken. Reference to this effect is made in the judgment of the learned trial Court at page 2. It is further alleged by the plaintiff that he approached the Welfare Department of the State of Himachal Pradesh, as well as the defendants for payment of the balance but with no effect. The plaintiff, under the situation, cancelled the agreement by sending a registered notice to the defendants dated 15.8.1980. It is further alleged by the plaintiff that he approached the Welfare Department of the State of Himachal Pradesh, as well as the defendants for payment of the balance but with no effect. The plaintiff, under the situation, cancelled the agreement by sending a registered notice to the defendants dated 15.8.1980. It is said that there was no such scheme in the State of Himachal Pradesh for financing such sales and the agreement, in the given situation, has become in executable as well as avoidable being uncertain. In this situation, the present suit for possession has been filed by the plaintiff. 5. While contesting the suit, the defendants raising other pleas have stated on merits that they were in cultivating possession of the suit land as tenants and on that account have become full owners by operation of law in view of the provisions contained in the Himachal Pradesh Tenancy and Land Reforms Act. This has been pleaded by them irrespective of the agreement in question. Their possession as tenants-at-will is alleged prior to the execution of the agreement. In the alternative, they have set up a plea of adverse possession. 6. The learned trial Court, on appreciation of the material placed on record by the parties, has recorded that there was no scheme in the State of Himachal Pradesh for financing such sales to Scheduled Castes and Backward Classes. It has been found that the first agreement was executed through the Welfare Department of Punjab. Rs. 4,000/- were to be given by the Welfare Department and the remaining consideration was to be borrowed by the beneficiaries from the Land Mortgage Bank. It is also found that the first agreement in the year 1969 on the same terms and conditions. The agreement is Ext. PA on record. It was also found by the learned trial court that the defendants were delivered possession but they have taken possession of certain other Khasra numbers also. Since the plaintiff had recovered the agreement vide notice Ext. P-l, he is owner of the suit land and was entitled to a decree for possession claimed by him. The plea of tenancy set up by the defendants was not accepted. The learned trial Court further held that the agreement had become in executable and frustrated due to the charge of situation and stood rightly revoked by the plaintiff by issuance of notice. The plea of tenancy set up by the defendants was not accepted. The learned trial Court further held that the agreement had become in executable and frustrated due to the charge of situation and stood rightly revoked by the plaintiff by issuance of notice. Plea of adverse possession was also held against the defendants. 7. In appeal, the first appellate Court while reversing the judgment and decree of the learned trial Court, has observed that neither of the parties took any initiative towards the execution of the sale deed. It has also been opened that the time was not the essence of the contract between the parties as the agreement does not stipulate the period by which the sale is to be executed or the balance of the sale consideration is to be paid to the plaintiff. On construction of the agreement it has been found that the plaintiff was not in hurry for the execution of the sale deed nor for the payment of the balance consideration. He at best was entitled to interest at the rate of 6-1/2% till the balance is paid and the sale deed is executed. 8. The appellate Court thereafter, in view of the provisions contained in Section 46 of the Contract Act, has observed that the plaintiff became aware in the year 1966 that there was no such department nor there was any such scheme and, thus, a period of three years was reasonable for performance of the contract. The renewal of the agreement in the year 1969 would not permit the plaintiff to turn around and say that the agreement is avoidable. The plaintiff, according to the first appellate Court, could not be unilaterally permitted to rescind the contract. As the plaintiff never called upon the defendants to execute the sale deed, it was not open for him to treat the contract as cancelled and pray for the decree for possession. 9. The appellant court has further found that the plaintiff could have rescinded the contract within three years from 1966 and as he had kept quiet till the filing of the suit, he has waived and abandoned his rights to rescind the contract and has acquiesced with the continuation of it. 9. The appellant court has further found that the plaintiff could have rescinded the contract within three years from 1966 and as he had kept quiet till the filing of the suit, he has waived and abandoned his rights to rescind the contract and has acquiesced with the continuation of it. It has been further observed in para 28 of the impugned judgment that the remedy of the plaintiff lay in filing a suit for specific performance of contract or for damages. Relying on Jamabandi Ext. D-9 of the year 1965-66, it has been held that Diwan Chand and Krishan Lai were tenants over the suit land prior to the execution of the agreement on payment of l/3rd of the produce. Resultantly, it was found that even if the agreement is deemed to have come to an end the defendants being non-occupancy tenants before the agreement, the plaintiff is not entitled to recover the possession of the suit land from them. 10. Mr. Bhupender Gupta, learned counsel appearing for the plaintiff, contends that the appellate Court has gone absolutely wrong in reversing the well- reasoned judgment rendered by the learned trial Court. He further contends that the agreement Ext. PA has been read out of its context resulting in wrong conclusions. Mr. Gupta further proceeds on the submit that the possession of the defendants was in sequence of the agreement and they have been wrongly held to be the tenants prior to the agreement. Jamabandi Ext.P-9 was corrected later reflecting ground realities which entries the defendants have accepted. Reliance is placed on Rojnamcha’ to further strengthen the arguments. It is also argued that even if the defendants are accepted to be the tenants, which position is vehemently denied, in that situation the tenants rights merged into the agreement and as the defendants failed to fulfill their commitment under the terms and conditions of the agreement, the plaintiff was at liberty to unilaterally rescind the contract and was entitled to the decree for possession. 11. Pt. Om Parkash, in reply to the arguments raised by the learned counsel for the plaintiff, contends that the defendants have successfully established themselves to be non-occupancy tenants over the suit land prior to the arguments in question. 11. Pt. Om Parkash, in reply to the arguments raised by the learned counsel for the plaintiff, contends that the defendants have successfully established themselves to be non-occupancy tenants over the suit land prior to the arguments in question. The Jamabandi entries of 1965-66 are based on Girdawari entries recorded four years prior there to, and therefore, the first appellate court has rightly concluded that the defendants are tenants on the suit land and the plaintiff was not entitled to the decree for possession claimed by him. Mr. Sharma has further highlighted that the Khasra numbers of the land given in the agreement are different from the one given in the suit and as the plaintiff has based his claim on the agreement, the suit land being different, no decree for possession could be passed. 12. Learned counsel for the defendants has further heavily relied upon clause (o) of the agreement and contends that at best the matter could be referred to arbitrator under the said clause and the present suit is barred. It is also submitted that at best the plaintiff could resort to the remedy of a suit for specific performance. Lastly, Mr. Sharma contends that Section 53- A of the Transfer of Property Act is clearly applicable in the given situation and the plaintiff is not entitled to be granted any relief. 13. After having heard the learned counsel for the parties at length and on careful examination of the impugned judgments and the record, I am of the considered opinion that the appeal deserves to be allowed. 14. It is not disputed that the first agreement between the parties was executed in the year 1964. In order to prove that the defendants are the tenants over the suit land, they were required to place on record the entries projecting them as tenants-at-will prior to 1964 which they have failed to place on record. 15. There is solitary entry in favour of the defendants in the Jamabandi of the year 1965-66 (Ext. D-9) in which the defendants are recorded as tenants on payment of l/3rd "Gala Batai". The plaintiff felt agitated on this entry and immediately took steps to get it corrected. Ext. P-16 is the Rapat Rojnamcha dated 20.10.1966. A perusal of this Rojnamcha reveals that enquiry was held on the com plaint made by the plaintiff. D-9) in which the defendants are recorded as tenants on payment of l/3rd "Gala Batai". The plaintiff felt agitated on this entry and immediately took steps to get it corrected. Ext. P-16 is the Rapat Rojnamcha dated 20.10.1966. A perusal of this Rojnamcha reveals that enquiry was held on the com plaint made by the plaintiff. The entries in the Jamabandi were based on the basis of Khasra Girdwari entries of Rabi 1965 to. Rabi 1966.The defendants categorically admitted that they had taken possession in sequence of the agreement of sale and were not paying any revenue or produce of share to the plaintiff. The report made by the Girdawar was thus found false. The entries were ordered to be corrected and it was agreed that the defendants would thereafter be shown as in possession under the agreement and not as tenants-at-will on payment of l/3rd of the produce. Thereafter the defendants have been continuously shown as such and they never raised any grievance about the entries 16. In clause ("b) of para 2 of the agreement it is recorded that there is no tenant in possession of the land and the same is under cultivation of the vender. In clause (d) it is said that physical possession of the land under sale has been delivered to the vendees. The appellate Court certainly went wrong in holding that the defendants to be tenants over the suit land. There is no difficulty in holding that the possession of the defendants is in sequence of the agreement of sale. 17. There is no force in the contention raised by the learned counsel for the defendants that the suit land is different from the land given in the agreement. It may be noticed that rid such plea was raised by the defendants either in the written statement or before either of the courts below. The suit is one based on title and the title of the plaintiff is not denied by the defendants. As noticed above, the learned trial Court has already taken notice of the fact that the defendants have taken possession of some other land belonging to the plaintiff. Ever\ in the agreement Ext. PA it is recorded in clause (d) that if at any time, on physical verification there is excess or shortage in the area, necessary adjustment would be made before the final registration of the sale deed. Ever\ in the agreement Ext. PA it is recorded in clause (d) that if at any time, on physical verification there is excess or shortage in the area, necessary adjustment would be made before the final registration of the sale deed. It is not disputed that a total area of 99 Kanals 2 Marlas was agreed to be sold by the plaintiff and the suit has also been filed in respect of 99 Kanals 2 Marlas. No doubt, some of the numbers are different but the plaintiff, if found to be entitled to the decree for possession, the same cannot be denied to him on the objection raised from the side of the defendants. 18. Clause (o) of the agreement Ext. PA does make mention that in case of dispute between the vendor and the vendees, the matter would be finally decided by the Director, Welfare of Scheduled Castes and Backward Classes, Punjab which will be binding on both the parties. The argument, of course, is not available to the defendants in view of the fact that this plea was raised by them before the trial Court when the defendants moved an application under Section 34 of the, Arbitration Act and the same was dismissed vide order dated 25.8.1982. It was held that the arbitration clause could not be enforced. The defendants have not laid challenged to this order which has attained finality and it is too late for them to urge in reply to the arguments in this appeal that the suit cannot proceed as there is an arbitration clause in the agreement. 19. Clause (f) of the agreement Ext. PA is decisive for the proposes of the question involved in the present appeal. The same reads as under: "(f) In case the vendor does not wish to make sale of land or backs out from this commitment; the vendor will pay to the vendees 20% of the subsidy amount or Rs. 1000/- whichever is greater as penalty apart from refunding the advanced taken by him in full." A perusal of this clause, referred to above, provides to the vendor an opportunity to back out of the commitment. This gives to him unfettered right to resile from the agreement and at best he can beheld liable to pay the penalty as provided for along with the refund of the advance taken by him. 20. This gives to him unfettered right to resile from the agreement and at best he can beheld liable to pay the penalty as provided for along with the refund of the advance taken by him. 20. Clause (h) of the agreement further makes an interesting reading and reads as under: "(h) That the performance of this contract i.e. registration of this sale deed in favour of the vendees by the vendor will be carried out when the loan cases of the vendees to get loan from die land mortgage bank is finalised and the vendees are given money for this purpose." 21. The registration of the sale deed has been left to the time when the loan cases of the vendees to get loan from the Land Mortgage Bank is finalised. The language does not stop here itself. It further incorporates that till the vendees are given money for this purpose: It would, thus, follow that no time limit has been fixed for the registration of the sale deed. 22. A perusal of clause (d) states that in case and for any reason what-so-ever the registration is not completed by the vendees within six months from the date of possession, the vendees would pay interests at the rate of 6-1/2% for the balance amount after the said period. It further stipulates that the vendor will not be entitled to this interest if the registration is delayed as result of non-supply of documents required for the completion of loan cases within three months from the date of possession of the land. 23. Under clause (e) the balance of the sale money is to be paid after raising loan from the Land Mortgage Bank. 24. The plaintiff, admittedly, sent a notice on 15.8,1980 to the defendant which is Ext. P-l on record. It is specifically said therein that at the time of agreement, an amount of Rs.4,000/- was received by the plaintiff and the balance of Rs. 5.000/-was to be raised from the concerned departments and on payment of the balance amount, the sale .deed was to be executed and registered. It has beer further said in the notice that though a period of eleven years has passed, yet they have not raised funds. The scheme of the Welfare Department was no longer in existence. 5.000/-was to be raised from the concerned departments and on payment of the balance amount, the sale .deed was to be executed and registered. It has beer further said in the notice that though a period of eleven years has passed, yet they have not raised funds. The scheme of the Welfare Department was no longer in existence. Since the defendants had failed to get the sale deed executed and registered and have further violated the terms and conditions of the agreement, they should treat the agreement as cancelled and the .advance made by them shall stand forfeited. Several other notices were earlier sent by the plaintiff which were received back undelivered for several reasons. The said notices and the Postal receipts and acknowledgements have been placed on record as Ext. P-2 to Ext. P-l 1. Ironically, the defendants never sent any reply to this notice. 25. A reading of the agreements in no situation, can mean that the right of the plaintiff at best was to get interest at the rate of.6-1/2% if the defendants failed to fulfill their obligation agreed upon by them in the agreement. This clause, if read in isolation, would make the other clause, totally redundant wherein it is said that in case the plaintiff-backs out of the transactions, he will at best pay 20% of the subsidy amount or Rs.1000/- as penalty in addition to the refund. 26. The agreement, thus, has made sufficient provisions for breach of the contract on the part of the plaintiff. As I look at the matter, the plaintiff in the present case is not guilty of any willful breach of the contract. He waited for almost eleven years before issuing the notice to the defendants. It is not understood as to how the first appellate Court traveled to examine this question and non-suited the plaintiff by holding that he could not put the agreement to an end unilaterally. There can be no difficulty in coming to the conclusion that the plaintiff had the right and authority to counsel the agreement and such a cancellation has to be accepted as valid. 27. I am further not impressed with the arguments raised by Pt: Om Parkash in respect of the applicability of Section 53-A of the Transfer of 4 Property Act. 27. I am further not impressed with the arguments raised by Pt: Om Parkash in respect of the applicability of Section 53-A of the Transfer of 4 Property Act. A reading of this provisions makes it obligatory on the part of the transferee that he has performed and is willing to perform his part of the contract (Emphasis supplied). This is a condition precedent for invoking the provisions of Section 53-A in defence. 28. The defendants have not raised this plea in the written statement and at no point of time during the entire litigation they have made an offer that they are still willing and prepared to perform their part of the contract. This act and conduct has to be judged keeping in view the fact that no reply was sent by the defendants to the notice given by the plaintiff to them. 29. Interestingly, the defendants have raised a plea of tenancy as well as of adverse possession. The two pleas cannot be permitted to be raised in such^ a situation. It has been seriously contested by them that they took possession of the suit land in sequence of the agreement. Even accepting that they were in possession as tenants, how could they be permitted to raise a plea of adverse possession. There are neither proper pleading to that effect least any proof. 30. The defendants, in my view, have not performed their part of the agreement nor they have fulfilled the conditions as envisaged by Section 33-A of the Transfer of Property Act. Consequently, they cannot be held entitled to any benefit as claimed by them. I am further supported by a judgment of this Court given in RSA. No.136 of 1986, (Bishan Chand v. Inder & Ors.) decided on 2nd July, 1997, facts of which are almost similar to the controversy involved in the present. 31. In view of what has been said above, the judgment and decree passed by the learned first appellate Court is set aside. The plaintiff is certainly entitled to a decree of possession as claimed by him. This shall, however, be subject to the refund of the amount received by him from the defendants. The plaintiff is further liable to pay Rs. 1,000/- as penalty along with the refund of the advance received by him. The decree shall be subject to this condition. 32. This shall, however, be subject to the refund of the amount received by him from the defendants. The plaintiff is further liable to pay Rs. 1,000/- as penalty along with the refund of the advance received by him. The decree shall be subject to this condition. 32. The plaintiff is directed to deposit the amount indicated above within eight weeks from today. The amount be deposited before the learned trial court at Nurpur, District Kangra and on the deposit being made, the plaintiff would he entitled to execute the decree and recover possession from the defendants. In case the deposit is not made as indicated above, the suit filed by the plaintiff shall stand dismissed. The appeal is allowed »n the aforesaid terms. No costs. Appeal allowed.