This second appeal, has been filed by the plaintiff. The plaintiff brought a suit being Title Suit No. 130 of 1979 before the learned Munsiff No. 1 at Dibrugarh for declaration of title and recovery of khas possession by demolishing the house of defendant No. 1. That suit was decreed by the trial Court. There was an appeal being Title Appeal No.5 of 1987 before the learned Additional District Judge, Dibrugarh and the learned Additional District Judge allowed the appeal and reversed the judgment of the trial Court. The appellate Court held inter alia as follows: (i) That the defendant No. 1 is protected under section 53A of the Transfer of Property Act. (ii) That the defendant No. 1 has constructed a permanent house on the basis of which he is protected under section 5 of the Assam Non Agricultural Urban Areas Tenancy Act, 1955 as amended from time to time. Hence this second appeal . 2.1 have heard Shri AK Goswami, learned Advocate for the appellant and Shri A. Roy, learned Advocate for the principal respondent. None appears for the proforma respondent. Shri Goswami raises three questions : (i) That the finding of the learned Additional District Judge that without filing a cross-objection a respondent cannot challenge a finding, is an erroneous one. (ii) That the defendant No. 1 is protected under section 53A of the Transfer of Property Act is not a correct finding inasmuch as according to the contract between the plaintiff and defendant No. 1 the essentials of section 53A are not present. (iii) That the defendant having denied the title of the landlord is not entitled to get the protection under the Act as such the finding that he is protected under section 5 of the Assam Non-Agricultural Urban Areas Tenancy Act, 1955 is an erroneous finding. 3. Before we go to the detail let us have a look at the fact of the case. The plaintiff herein purchased the suit land along with other land vide Ext 1, the Deed of Sale dated 29.3.71 from proforma-defendant. As the defendant No. 1 was in possession of a part of the land of the Deed of Sale and did not vacate the same, so this case was filed. The plaintiff herein purchased the suit land along with other land vide Ext 1, the Deed of Sale dated 29.3.71 from proforma-defendant. As the defendant No. 1 was in possession of a part of the land of the Deed of Sale and did not vacate the same, so this case was filed. Before this suit was filed another suit was filed that is, Title Suit No. 169 of 1971 and in that suit the defendant No. 1 appeared and filed a written statement claiming that a part of the suit land was taken on lease on 3.5.53 from Pabitra Jiban Das and thereafter on 18.6.65 Pabitra Jiban Das by executing the Ext X took an amount of Rs.5,000 from him as loan and there was a clause that if this amount of Rs.5,000 with interest is not paid within 31.12.70, the land which was the subject matter of that document shall be deemed to be sold in favour of defendant No. 1 and Pabitra failed to pay the money as promised and as such by virtue of this document the defendant No. 1 became the owner of the land, and as he also claim the protection under section 53A of the Transfer of Property Act. That earlier suit was withdrawn by the plaintiff and thereafter this suit, the present Title Suit No. 130 of 1979 was filed. In the aforesaid suit the defendant No. 1 filed the written statement and he took the same plea as taken in the earlier suit meaning thereby that he is protected under section 53A of the Transfer of Property Act and he is also entitled to be protected under section 5 of the Assam Act as he has constructed the houses thereon of permanent in nature within 5 years of lease. It is the concurrent findings of fact of both the Courts below that the defendant No. 1 constructed permanent houses within 5 years from the date of lease and he was in continuous possession. But the trial Court held that the defendant No. 1 is not entitled to protection under section 53 A of the Transfer of Property Act and it was further held by the trial Court that as the title of the plaintiff was denied so he will also not be entitled to protection under section 5 of the Assam Non Agricultural Urban Areas Tenancy Act, 1955. These two findings of the trial Court were reversed by the appellate Court. Let us take the questions one by one. First question is whether without filing a cross objection a finding can be challenged. Let us have a look at Order 41 Rule 22 of the Code of Civil Procedure which is the provision for filing cross objection. In Order 41 Rule 22 it should be borne in mind that there are two remedies : (i) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree but may also challenge that the findings against him in the Court below in respect of any issue ought to have been in his favour, and may also take any cross-objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the appellate Court may see fit to allow. (ii) He may challenge part of the decree by filing cross-objection. The respondent aggrieved by a finding of the Court in the judgment on which the decree appealed against is based may, under this rule, file cross-objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree is, wholly or in part, in favour of that respondent. The respondent without filing cross-objection can canvas the correctness of finding against him in order to support the judgment that has been passed against the appellant. The respondent challenging the finding which is assailed does not want alteration of the decree. If any authority is required for this proposition of law one may look AIR 1973 SC 2565 (Shri Chandra Prabhuji Jain Temple & others vs. Harikrishna & others); AIR 1960 SC 1349 (The Management of Itakhoolie Tea Estate vs. Its Workmen) wherein in paragraphs 5 and 6 the Supreme Court has pointed out that a respondent may support the decree on any of the grounds decided against him in the Court below. But it does not and cannot confer on him a right higher than that he would have had if he had preferred an appeal against the ground decided against him. A ground will not be available which he cannot urge as an appellant. The Supreme Court has pointed out that the respondent can support the decree on any of the grounds decided against him. Therefore the law is settled, against the finding given in decision as indicated in AIR 1973 SC 2565 , a respondent can challenge the finding even without cross objection. Both these decisions are before the amendment of 1976. But in the Amendment of 1976 no substantial change has been introduced changing this proposition of law. So the finding of the appellate Court that without filing a cross objection a finding cannot be challenged by the respondent is erroneous in law and the same shall stand set aside as urged by Shri Goswami. That does not allow him to cross the hurdle. 4. The trial Court as well as the appellate Court have found that even if the opinion of the expert is not taken into consideration there are adequate evidence to show that this document Ext X was duly executed by Shri Pabitra Jiban Das and this is a valid piece of document. This is a finding of fact and can not be touched in second appeal. 5. In order to appreciate the second ground urged by Shri Goswami, let us have a look at Ext X, the document which is the basis of the claim under section 53A of the Transfer of Property Act. That document in its entirety is quoted below to appreciate the contention of the parties. “Two Rupees Two Rupees Ext X Deed of Agreement This deed of agreement made this the 18th day of June, 1965 between Shri Pabitra Jiban Das son of late Lakhinath Das, resident of New Masterpara, Dibrugarh PS & Sub Registry Dibrugarh, Dist Lakhimpur, Assam hereinafter called the 1st party of the one part and Shri Kristo Mohan Choudhury, son of late Nabin Ch Choudhury, resident of New Masterpara, Dibrugarh PS & Sub Registry Dibrugarh, Dist Lakhimpur, Assam hereinafter called the 2nd party of the other part. Now this deed witnessed as follows : 1. Now this deed witnessed as follows : 1. Whereas the 2nd party is a lessee under the 1st party for land described in schedule below on rent of Rs 50 per year. That the 2nd party has constructed his own house on the lease land of the 1st party and paying the rent to the 1st party regularly. That now being in urgent need of money the 1st party approached the 2nd party to give a loan of Rs.5,000 and the 2nd party agreed to pay the said sum of Rs. 5,000 to the 1st party as a loan which the 2nd party paid today and the 1st party acknowledge the same. That the 1st party will repay the said sum of Rs. 5,000 (Rs five thousand) to the 2nd party together with interest at the rate of 12% per annum within 31st December, 1970. It is further agreed that if the 1st party fails to repay the said amount of Rs. 5,000 together with interest within the 31st, December, 1970, the land which is in occupation of the 2nd party will be absolutely treated as sold to 2nd party and he will be the absolute owner of the said land. That as security for aforesaid loan of Rs.5,000 the 1st party hereby mortgage unto the 2nd party the land described in Schedule below, which now under his occupation as a lessee. In witness whereof the parties hereto have set their hands on this deed on the day, month and year first above written. Schedule of the Land A plot of land measuring 18' ft x 120' ft under Dag No 155/138 of P. PattaNo.138 of New Masterpara, Dibrugarh Town Mouza bounded as under North : Municipal Board, South : Abdul Kadir, East: Landlord's own land. West: Nizamuddin Ahmed. Witnesses 1. Sd/- China Ranjan Dass Signature of the 1st party 2. Sd/- Pijush Kanti Barua. Sd/- Kristo Mohan Choudhury 18.6.65 Signature of the 2nd party 6. It is urged by Shri Goswami that based on this document no protection under section 53A of the Transfer of Property Act can be claimed. West: Nizamuddin Ahmed. Witnesses 1. Sd/- China Ranjan Dass Signature of the 1st party 2. Sd/- Pijush Kanti Barua. Sd/- Kristo Mohan Choudhury 18.6.65 Signature of the 2nd party 6. It is urged by Shri Goswami that based on this document no protection under section 53A of the Transfer of Property Act can be claimed. In this connection by placing section 53A he urges that (i) Pabitra did not contract to transfer any immovable property for consideration; (ii) That the terms construing transfer can not be ascertained with reasonable certainty; (iii) That the defendant No. 1 in part performance of the contract has not done anything to enable him to claim protection under section 53A of the Transfer of Property Act. 7. With regard to that Shri Goswami places reliance on the following decisions: (i) AIR 1970 SC 546 (Nathulal vs. Phoolchand) wherein in paragraph 9 the Supreme Court laid down four conditions to make out the defence of part performance in an action in ejectment by the owner. It is not necessary to quote the conditions enumerated by the Apex Court as they are same as indicated g above in the early part of the judgment. 8. The next judgment is AIR 1982 SC 989 (Sardar Govindrao Mahadik & another vs. Devi Sahai & others) wherein in paragraph 39 the Supreme Court pointed out that in order to claim the benefit of part performance it must be shown that in pursuance of the contact some overt act was done by the person claiming protection. 9. The next judgment is 1997 (II) GLT 367 (Niranjan Sarkar & others vs. Smti Swapna Dam & others) (1997 (2) GLJ 23). That was also a case with regard to section 53A and there was no separate contract save and except a money receipt which has been quoted in the judgment in paragraph 9 and in that view of the matter the Single Judge of this Court states that this is not a case where section 53A is available. There was no contract in writing and the term necessary to construe the contract with a reasonable certainty can not be ascertained from the money receipt. The present case stands on a different footing. Here, there is a written contract, it has the essentials of section 53A or not that will have to be decided. 10. There was no contract in writing and the term necessary to construe the contract with a reasonable certainty can not be ascertained from the money receipt. The present case stands on a different footing. Here, there is a written contract, it has the essentials of section 53A or not that will have to be decided. 10. Regarding the forfeiture of protection on denouncing the title of the landlord Shri Goswami relying on the doctrine of approbate and reprobate submits that a tenant having denounced the tenancy is not entitled to protection. This doctrine of approbate and reprobate can not operate against a statute (See AIR 1965 SC 1216 ). A tenant can also plead that the title of the original lessor has since come to an end. A tenant can show without surrendering possession that since the date of tenancy the title of the landlord ceased (See AIR 1987 SC 2192 ). A tenant can also challenge the title of the purchaser from his landlord on myriad grounds. Further the waiver of the right/protection must be intentional abandonment of right with knowledge of the existence of right (See AIR 1979 SC 621 ). Plea of loss of protection, extinguishments of right must be pleaded and factual foundation for it must be laid in pleadings. Section 5 of the Act of 1955 has to be so interpreted as not to destroy the object of enactment. The already vested right of the tenant under the Act cannot be wiped out by subsequent events (See AIR 1973 A & N 151, Bireswar vs. SK Bose) 11. On the other hand-Shri Roy, the learned Advocate for the respondent submits that on the basis of Ext X, the benefit of section 53 A shall be available. He submits that section 53A mainly is to prevent fraud and not to allow a person to back out from a promise made by him and thereafter to gain wrongful benefit by a subsequently selling the property making a mockery of earlier contract. Section 53A was inserted in the Transfer of Property Act by the Transfer of Property (Amendment) Act, 1929. The section reflects recognition although in a modified form the principle of part performance which the Court in India already applied earlier to 1929 in numerous cases. Section 53A was inserted in the Transfer of Property Act by the Transfer of Property (Amendment) Act, 1929. The section reflects recognition although in a modified form the principle of part performance which the Court in India already applied earlier to 1929 in numerous cases. It was pointed out by Mukherjee, J in Calcutta case as follows : “It is well settled as the result of long series of decisions and in this case when in pursuance of an agreement to transfer of property, the intended transferee has taken possession through requisite document, specific performance can be obtained between the parties in the agreement and the same Court and at the same time when the subsequent legal question falls to be determined. This doctrine is based on the well-known doctrine of equity enunciated long back in Walsh vs. Lausdale, wherein it was pointed out that in certain circumstances, equity dictates that to be done or ought to have done. That was later on approved by the Privy Council in a subsequent decision though the whole h principle of equity as laid down in the case of Walsh by the English Court was not accepted in India. The basic principle is accepted in India by adding section 53A by the amendment in the year 1929. The origin of the doctrine of part performance is that in England by section 4 in Statute of Fraud that no action or suit is maintainable regarding transfer of land which was not in writing, signed by the party to be genuine. The strict application of the provision led to hardship where agreement relating to land have been partly performed by one party and he cannot sue the other party for specific performance. Thus fraud was encouraged and in such a case the Court of equity intervened and/or interfered to grant the relief when failure to give relief was found to encourage fraud. As indicated above the true ground of the application of the doctrine itself is prevention of fraud. In India part performance does not give right to an equity as in England but to a statutory right. It is a shield and not a sword meaning that it is available only as a defence. For the exercise of the right, no question of limitation can arise, it is immaterial whether the suit for specific performance is barred. In India part performance does not give right to an equity as in England but to a statutory right. It is a shield and not a sword meaning that it is available only as a defence. For the exercise of the right, no question of limitation can arise, it is immaterial whether the suit for specific performance is barred. In order to prevent fraud such circumstances led to introduction of the equitable doctrine in England and to uphold said principle the legislature only gave recognition in India to many decisions earlier to 1929. Shri Roy places reliance in AIR 1982 Supreme Court 989 (Sardar Govindrao Mahadik & another vs. Devi Sahai & others)! The cases which have been relied by Shri Goswami are relied in paragraph 13 and 31. AIR 1982 Supreme Court 989 (supra) was a case with regard to the question that how far a mortgagee in possession can acquire the title of ownership which would deny the suit of the mortgagor and it was this question which was canvassed in the two appeals before the Apex Court. In that case a suit was filed in respect of house No.4l and a loan of Rs. 10,000 (Rs ten thousand) was secured for the mortgage while the mortgagee was in it possession. The plaintiff No.2 is the purchaser of the mortgaged property from plaintiff No. 1 under registered sale deed. Subsequently because of some negotiation a sale was made against the mortgaged property in favour of the mortgagee for Rs 50,000 (Rs fifty thousand) and the sale of equity of redemption also was worked out. But this document was never registered. Thereafter the property which was sold in favour of a subsequent purchaser was resisted on many grounds including the ground of section 53 A of the a Transfer of Property Act. In paragraph 13, the Supreme Court after considering section 4 of the Statute of Fraud of 1677 of United Kingdom pointed out that: “No persons shall be charged upon any contract for sale of lands or any interest in land etc unless the agreement or some memorandum or some note thereof shall be in writing and signed by the party to be charged a thereunder or some other persons there unto by him lawfully authorised. This provisions has been substantially re-enacted in section 40 (i) of the Law of Property Act, 1925 with this departure that sub-section (2) specifically provides that the substantive provision in sub-section (1) does not affect the law relating to part performance or sales by the Court. As no action could be brought on oral agreement the doctrine of part performance was devised by the Chancery Court with a view to mitigating the hardship arising out of an advantage taken by a person under an oral contract and failure to enforce it would permit such person to retain the undeserved advantage by the Equity Court enforcing the contract. The situation must be such that not to enforce the contract in face of the defence of Statute of Frauds after taking advantage of oral contract would perpetuate the fraud which the statute sought to prevent. The party who altered its position under the contract must have done some at under the contract and it would amount to fraud in the opposite-party to take advantage of the contract not being in writing. Such a situation arose where one of the parties to the oral agreement altered its position and when specific performance who sought after taking advantage under oral contract, setup the defence available under the Statute of Frauds. The Chancery Court while granting relief of specific performance wanted to be wholly satisfied that the pleaded oral contract exists and is established its almost satisfaction and in order to ascertain the existence of the oral contract before granting a relief of specific performance the Court wanted to be satisfied that some such act has been done which would be unequivocally referable to the oral contract as would prove the existence beyond suspicion, meaning part performance of the contract.” 12. In paragraph 31 the Supreme Court pointed out that to qualify for the protection of the doctrine of part performance it must be shown that there is a contract to transfer for consideration immovable property and the contract is evidenced by a writing, signed by the persons sought to be bound by it and from which the term necessary to constitute the transfer can be ascertained with reasonable certainty. It must be further shown that a transferee had in part performance of the contract either taken possession of the property or any part thereof or the transferee being already in possession, contributes in possession in part performance of the contract, and has done some act in furtherance of contract. 13. The Supreme Court pointed out that in order to ascertain whether the protection is available or not one must look at the writing that the offer to the contract and makes it in furtherance of the contract and find out whether there is a real nexus as in part performance. The Supreme Court said that ordinary people should not be refused the reliefs that would mean perpetuating the fraud of the party who after having taken advantage or benefit to the contract takes out the defence of statute of frauds. 14. The next case is AIR SC 345 (Vol. 41 CN 83) (Chundchun Jha vs. Ebadat All & another). This case has been relied by Shri A. Roy in order to show that the Ext X is not a deed of mortgage by conditional sale, but it is an agreement for a sale and sale only and in this connection he refers to paragraphs 5,6 and 8 of the aforesaid judgment, in order to decide whether this document is a deed of mortgage or agreement for sale. It is the intent of the party which must be scrutinized. The word mortgage-used do not make a document mortgage one can arrive at a finding that this is not a deed of mortgage but an agreement of sale and the amount is only a security. 15. The next judgment is AIR 1960 SC 301 (Bhaskar Waman Joshi (deceased) & others vs. Shrinarayan Rambilas Agarwal (deceased) & others). That also is a case with regard to a document where the same question arose and whether it is a deed of mortgage or sale deed and there the Supreme Court pointed out that if the words are plain and unambiguous they must be construed in the light of the evidence and surrounding circumstance be given their true, legal effect. That also is a case with regard to a document where the same question arose and whether it is a deed of mortgage or sale deed and there the Supreme Court pointed out that if the words are plain and unambiguous they must be construed in the light of the evidence and surrounding circumstance be given their true, legal effect. If there is ambiguity in the language employed, the intention may be ascertained from the contents of the deed with such extrinsic evidence as may by law be permitted to be adduced to show in what manner the language of the deed was related to existing facts. The Supreme Court also laid down that evidence of contemporaneous conduct is always admissible as a surrounding circumstances. In considering the document the Court can find out whether the deed in question ostensibly conveyed an absolute title to the properties, the deed mentioned there contained the following conditions as to reconveyance; (1) that the transferee shall recovery the properties within five years from the date of the conveyance to the transferor at the expense of the transferors for the price mentioned in the deed; (2) that if within four years and six months from the date of the conveyance, the right of re-conveyance in respect of the three houses or any of them is not exercised by the transferors and if the transferees do not desire to retain all or any of the houses, they have the right to recall from the transferors the amount of the consideration and to return all or any of the three houses in the condition in which they may be; (3) that in the event of failure on c the part of the transferors to comply with the request to take back the houses, a breach of agreement of re-conveyance rendering the transferors liable to pay damages shall be committed; (4) that in the event of re-conveyance the transferors shall pay the full price set out in the sale deed and take back the houses in the condition in which by vis major, Govt action or any reasons whatsoever they may be. 16. The next case is AIR 1966 SC 902 (PL Bapuswami, vs. N. Pattay Gounder). 16. The next case is AIR 1966 SC 902 (PL Bapuswami, vs. N. Pattay Gounder). That also is a case with regard to mortgage by conditional sale and the Supreme Court on the reading of the document found that it was a document of mortgage by conditional sale and not sale with condition for retransfer. On the basis of this decision Shri Roy submits that here is a case where bare reading of the document will show that it is an agreement for sale and there was no uncertainty whatsoever, the sale price was specifically mentioned and he submits that there are other factors/evidence which show certain thing were done by the defendant No. 1 in part performance of the contract. Shri Roy submits that it is the concurrent findings of fact of both the Courts below that after execution of the document no repayment was made, that the defendant No. 1 claimed title to the land and he was no longer admitting himself to be tenant of the land. He submits as follows: (2) That consideration money was paid in entirety. (3) DW 5, the defendant deposed that after the execution of Ext X he constructed houses on the land. 17. It is urged by Shri Goswami, that even if there is a contract, that is, Ext X, he must be deemed not to be protected getting the benefit of the proviso to section 53A. A purchaser when he entered into a contract and for this purpose he relies on the last proviso of section 53A of the Transfer of Property Act which provides that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof. Shri Goswami submits that he will get the protection of this proviso in the facts and circumstances of the case. Shri Goswami submits that he will get the protection of this proviso in the facts and circumstances of the case. Regarding -this plea of Shri Goswami, it has been negative by the appellate Court holding that the plaintiff did not make any enquiry whatsoever as required and in this connection Shri Roy draws my attention to section 3 of the Transfer of Property Act and Explanation II, where it is provided that: “Any person acquiring any immovable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof.” There is no denying of the fact that this defendant No. 1 was in possession of the part of the land since from 1952 to 1965. He was in possession of the entire suit land after execution of Ext X. The possession was solely on the basis of the contract. Further the defendant No. 1 had his holding number of the property and they have been exhibited as Exts I to as the land is situated within Dibrugarh Municipality. So Shri Roy submits that if the plaintiff would have enquired he would have got the proper information regarding the possession, the holding number of the property under possession of the defendant No. 1. The plaintiff did not do so. Further it is submitted that in the earlier suit also this defence was taken by the defendant, in spite of it when the subsequent suit was filed in the year 1979 nothing was stated in the plaint with regard to the enquiry which is required to be made by a purchaser. The plaintiff did not do so. Further it is submitted that in the earlier suit also this defence was taken by the defendant, in spite of it when the subsequent suit was filed in the year 1979 nothing was stated in the plaint with regard to the enquiry which is required to be made by a purchaser. Shri Roy also places reliance on the decision reported in AIR 1971 SC 1201 (The Ahmedabad Municipal Corporation of the city of Ahmedabad vs. Haji Abdul Gafur, Haji Hosanbhai) wherein this aspect of the matter was considered by the Apex Court and the Apex Court pointed out in paragraph 7 as follows : “Any person acquiring any immovable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person, who is for the time being in actual possession thereof.” The Supreme Court took note of section 3 of the Transfer of Property Act and held that failure to make proper enquiry meaning willful abstention or deliberate abstention and/or gross negligence will come within purview of section 3 of the Transfer of Property Act. It may differ from case to case. But the law requires that in order to claim protection under the last proviso of section 53A of the Transfer of Property Act it must be shown that the plaintiff is a bona fide purchaser for consideration without notice of defendant having title but with possession. I agree with the finding of the lower appellate Court that the plaintiff did not make any enquiry as required by law. So the contention that he will get the protection by the proviso of section 53 A of the Transfer of Property Act cannot be accepted. I agree with the finding of the lower appellate Court that the plaintiff did not make any enquiry as required by law. So the contention that he will get the protection by the proviso of section 53 A of the Transfer of Property Act cannot be accepted. On the question whether defendant No. 1 will get the protection under section 53 A of the Transfer of Property Act, the learned District Judge on consideration of the materials on record has come to the finding that he is entitled to get protection as indicated above and on a bare perusal of Ext X it will be seen that it is a deed of agreement for sale of the land and nothing else and from that particular document the defendant was put in possession in pursuance of that deed of agreement for sale in the rest portion of the land and he continued in possession of the land which was in his possession from the year 1953 and as indicated above he has also made construction in pursuance o£ the contract. 18. That being the position, the defendant No. l must be deemed to be protected by section 53 A of the Transfer of Property Act as rightly found by the learned District Judge. Once this decision is arrived at the question of protection under section 5 of the Assam Non-Agricultural Urban Areas Tenancy Act becomes irrelevant. But I am having a bird's eye view to the matter as it was argued. 19. Shri Goswami places reliance on the following decisions AIR 1956 Assam 116 (Jitendralal Dattaroy & another vs. Bharat Loan Company Ltd); AIR 1972 Gauhati 102 (Khargeswar Dutta & another vs. Hironmoyee Dutta & others) 1988 (2) GLJ NOC 51 (Subhash Chandra Brahma & others vs. State of Assam & others), AIR 1988 SC 664 to urge that defendant No. l forfeited the protection under section 5 by denouncing title, that aspect of the matter has been considered in earlier part of the judgment. 20. 20. Shri Roy places reliance on a Division Bench decision of this Court in Second Appeal No. 130 of 1987 wherein the question regarding forfeiture of the protection under section 5 came up for consideration and Division Bench by judgment dated 31.3.87 held that the protection so available shall not be wiped out and the defendant shall continue to be a tenant unless and until he is evicted from the land. The question of forfeiture was considered in that judgment. That judgment is squarely binding on me. Once protection is available to defendant No. l in view of the concurrent findings of the Courts below that the defendant No. 1 made permanent construction/structure on the land within the time frame shall get protection under section 5 of the Act and he cannot be ejected. Accordingly there is no merit in the second appeal and the same is dismissed. 21. However, I leave the parties to bear their own costs.