JUDGMENT R.L KHURANA, J.—The appellants before this Court were the defendants before the learned trial Court (Senior Sub-Judge, Solan) and they are being referred to accordingly hereinafter. 2. The subject-matter of dispute between the parties is the house property known as "Dayal Villa" situated in Khasra Nos. 1195, 1196, 1198, 1200, 1201 and 1202 measuring 613 Sq. metres of Solan Town, specifically described in the plaint and hereinafter referred to as the property in dispute. 3. The plaintiffs Mool Chand and Leela Ram are the owner of the property in dispute. Leela Ram above-named died during the pendency of the suit before the learned trial Court and his name was substituted by respondents 2 to 4 (widow and sons) as plaintiffs. 4. One Bhagwan Dass, the predecessors in interest of the defendants was the real uncle (fathers brother) of the plaintiffs. Consequent upon the partition of the country, the said Bhagwan Dass, who belonged to Sindh Province (now in Pakistan) was forced to migrate to India. He had no place to live in after having migrated to India. The plaintiffs, therefore, permitted him to occupy and live in the property in dispute as a licensee on account of close relationship. The said Bhagwan Dass started living in the property in dispute along with his family since 1948 as a licensee. He was repeatedly asked to vacate the property in dispute and handover its possession to the plaintiffs but he failed to do so. Ultimately in the year 1974 six months time was granted to the said Bhagwan Dass to vacate the property in dispute. He agreed that on his failure to vacate the property in dispute within the stipulated period, he would be liable to pay damages at the rate of Rs. 20 per day for the use and occupation of the property in dispute till the date of actual vacation. Since the said Bhagwan Dass failed to vacate the property in dispute and to pay the damages as agreed upon, a suit, out of which the present appeal has arisen, came to be filed by the plaintiffs on 9.9.1982 for possession of the property in dispute as well as for recovery of Rs. 43,200 as mesne profits for the use and occupation of the property in dispute at the rate of Rs. 1,200 per month. 5. 43,200 as mesne profits for the use and occupation of the property in dispute at the rate of Rs. 1,200 per month. 5. The defendants while resisting the suit averred that the property in dispute was sold by the plaintiffs to Shri Bhagwan Dass in the year 1968 for a consideration of Rs. 30,000 out of which Rs. 10,000 was paid to the plaintiffs. A sum of Rs. 1,100 was kept by the said Bhagwan Dass with Smt. Kishni, mother of the plaintiffs, at their instance and a further sum of Rs. 10,000 was deposited by the said Bhagwan Dass with one Gulab Singh brother of the plaintiffs in the year 1969 as part of the sale consideration. It was further averred that initially in the year 1949 the above-named Bhagwan Dass was permitted to occupy the property in dispute by Chandi Ram, the father of the plaintiffs. The property in dispute was in a dilapidated condition then. Bhagwan Dass occupied the property till 1968 as a permissive user. Thereafter he was placed in possession in part performance of the contract of sale. The defendants since after 1968 are coming in possession of the property in dispute in their own right and they have improved upon the property in dispute by spending about Rs. 35,000 by reconstructing the walls, flooring, roof of Balcony and by providing flush laterines. No objections were raised at any time by the plaintiffs to such improvements carried out by the defendants as owners of the property in dispute. The defendants also pleaded that they have always been and are ready to perform their part of the agreement to sell and pay the remaining amount of sale consideration. Alternatively, the defendants have claimed to have acquired title qua the property in dispute by virtue of their continuous adverse possession since 1968. The claim of the plaintiffs as to mesne profits was denied. 6. The plaintiffs in their rejoinder pleaded that plaintiff No. 1 Mool Chand in the year 1968 had agreed to sell his half share in the property in dispute to Bhagwan Dass on the latters representation that the market value of the entire property in dispute at that time was Rs. 30,000. The value of half share being Rs. 15,000. The plaintiffs also admitted that plaintiff No. 1 Mool Chand had received Rs. 10,000 as part of the sale consideration. 30,000. The value of half share being Rs. 15,000. The plaintiffs also admitted that plaintiff No. 1 Mool Chand had received Rs. 10,000 as part of the sale consideration. It was, however, pleaded that since Bhagwan Dass failed to pay the balance sale consideration, the deal fell and the amount of Rs. 10,000 received as part of the sale consideration, was forfeited and appropriated towards use and occupation charges. The plaintiffs further pleaded that plaintiff No. 2 Leela Ram had no intention to sell his half share in the property in dispute nor any agreement to sell was arrived at between him and Bhagwan Dass. The plaintiffs also controverted the claim of the defendants as to adverse possession. They further denied the improvements having been carried out to the property in dispute by the defendants. They averred that taxes in respect of the property in dispute were deposited by Bhagwan Dass in his capacity of being the attorney of the plaintiffs. 7. The learned Senior Sub-Judge vide judgment and decree dated 23.2.1988 dismissed the suit of plaintiff No. 1 Mool Chand. The suit of the plaintiff No. 2 Leela Ram for possession of half share in the property in dispute and mesne profits at the rate of Rs. 20 per day amounting to Rs. 21,600 was, however, decreed. The learned Senior Sub-Judge came to the conclusion that plaintiff No. 1 Mool Chand alone had entered into an agreement to sell his half share in the property in dispute in favour of Bhagwan Dass for a consideration of Rs. 15,000 out of which a sum of Rs. 10,000 was received by plaintiff Mool Chand. The learned Senior Sub-Judge also held that Bhagwan Dass was placed into possession of half share of the properly in dispute by plaintiff Mool Chand as part performance of the agreement to sell. Benefit of Section 53-At Transfer of Property Act, 1882, was however, denied to the defendants by the learned Senior Sub-Judge on the ground that the defendants had failed to prove that they were and are willing to perform their part of the agreement. The defendants were found to have acquired title to the property in dispute to the extent of half share of plaintiff Mool Chand by virtue of their adverse possession since 1968. 8. The defendants were found to have acquired title to the property in dispute to the extent of half share of plaintiff Mool Chand by virtue of their adverse possession since 1968. 8. Insofar as the share of plaintiff No. 2 Leela Ram is concerned, the defendants were held to be in permissive possession thereof as licensees. Plaintiff Leela Ram was thus held entitled to possession of half share in the property in dispute and mesne profits for use and occupation at the rate of Rs. 20 per day. 9. Both the parties felt aggrieved by the judgment and decree dated 23.2.1988 of the learned Sub-Judge. They accordingly approached the learned District Judge by way of two separate appeals, The appeal preferred by the defendants came to be registered as Civil Appeal No. 18 Section 13 of 1985 while that of the plaintiffs came to be registered as Civil Appeal No. 30 Section 13 of 1985 on the files of the learned District Judge. Both the appeals though were heard by the learned District Judge together, came to be disposed of by two separate judgments and decrees dated 1.8.1996. The learned District Judge dismissed the appeal of the defendants and affirmed the findings of the learned Senior Sub-Judge insofar as the same were in respect of the plaintiff No. 2 Leela Ram. The appeal preferred by the plaintiffs was allowed and the findings of the learned Senior Sub-Judge holding the defendants to have become the owners of the property in dispute to the extent of half share of plaintiff Mool Chand by virtue of adverse possession were set aside. Consequently, the suit of the plaintiffs for possession of the entire property in dispute was decreed along with mesne profits to the tune of Rs. 43,200 at the rate of Rs. 1,200 per month. The defendants have thus come before this Court by virtue of the present appeal against the judgments and decrees dated 1.8.1996 of the learned District Judge. I have heard the learned Counsel for the parties and have also gone through the record of the case. The case of the defendants is that they were placed into possession of the property in dispute in part performance of the agreement to sell arrived at in 1968 on payment of part of the sale consideration and as such their possession is protected under Section 53-A, Transfer of Property Act, 1882. The case of the defendants is that they were placed into possession of the property in dispute in part performance of the agreement to sell arrived at in 1968 on payment of part of the sale consideration and as such their possession is protected under Section 53-A, Transfer of Property Act, 1882. Alternatively, their case is that they have become the owners of the property in dispute by virtue of their continuous adverse possession since 1968. 10. The learned trial Court after denying the benefit of Section 53-A, Transfer of Property Act, 1882 to the defendants, found them to have become the owners of the property in dispute to the extent of half share of plaintiff No. 1 Mool Chand on account of their continuous adverse possession since 1968. Such findings of the learned Senior Sub-Judge were set aside by the learned District Judge. After setting aside these findings, the learned District Judge failed to examine the question if the possession of the defendants was protected under Section 53-A, Transfer of Property Act, 1882. The learned District Judge should have examined such question and recorded his findings thereon. On the failure of the learned District Judge to do so, there has been an error on the part of the learned District Judge. Ordinarily, this Court would have remanded the case to the learned District Judge for recording his findings on this question. However, this course has not been resorted to since the learned Counsel for the parties have consented that instead of remanding the case, this Court may, on the basis of evidence coming on record, decide this question. Taking up the question of adverse possession first, suffice to say that since the defendants are claiming to be in possession of the property in dispute in part performance of the agreement to sell, the plea of title by adverse possession is not available to them. 11. In Mohan Lai (deceased) through his LRs. Kachru and others v. Mira Abdul Gaffar and another (AIR 1996 SC 910), the defendant therein had raised two pleas in his defence. One, that having remained in possession from March 8, 1956, he had perfected his title by prescription. Secondly, he pleaded that he was entitled to retain his possession by operation of Section 53-A of the Transfer of Property Act, 1882. One, that having remained in possession from March 8, 1956, he had perfected his title by prescription. Secondly, he pleaded that he was entitled to retain his possession by operation of Section 53-A of the Transfer of Property Act, 1882. It was held:— "As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e., upto completing the period of his title by prescription nee vi nee claim nee precario. Since the appellants claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of the land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant." The question then arising for determination is whether the defendants, in the present case, are entitled to retain possession under Section 53-A, Transfer of Property Act, 1882. 12. There is no denying that the two plaintiffs Mool Chand and Leela Ram (deceased) have half share each in the property in dispute. Insofar as plaintiff Leela Ram is concerned, the two Courts below have concurrently held the no agreement to sell was arrived at between him and Bhagwan Dass, that predecessor-in-interest of the defendants. Such findings, which are on a question of fact cannot be interfered with in the present second appeal even if the same might be erroneous, 13. The Honble Apex Court in Kashi Bat and another v. Parwati Bai and others (1996 (1) Sim.L.J. 315) has held that there is no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact based on appreciation of the relevant evidence. The findings of the two Courts below on the question that no agreement to sell was entered into between the plaintiff Leela Ram and Bhagwan Dass are well reasoned and based on appreciation of evidence and as such the same do not call for any interference. 14. The findings of the two Courts below on the question that no agreement to sell was entered into between the plaintiff Leela Ram and Bhagwan Dass are well reasoned and based on appreciation of evidence and as such the same do not call for any interference. 14. Insofar as plaintiff Mool Chand is concerned, admittedly, he had agreed to sell his share in the property in dispute to Bhagwan Dass, the predecessor in interest of the defendants, for a consideration of Rs. 15,000. Such agreement was orally arrived at in the year 1968 and admittedly, the plaintiff Mool Chand had received a sum of Rs. 10,000 from the said Bhagwan Dass towards part of the sale consideration. On and with effect from such agreement to sell, Bhagwan Dass came into possession of the property in dispute to the extent of the share of Mool Chand, plaintiff, in pursuance of such agreement to sell in part performance thereof. The original oral agreement to sell later on came to be incorporated in the correspondence which took place between the plaintiff Mool Chand and Bhagwan Dass. 15. The original oral agreement to sell later on came to be incorporated in the correspondence which took place between the plaintiff Mool Chand and Bhagwan Dass. 15. Section 53-A, Transfer of Property Act, 1882, provides:— "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 contract or of the part performance thereof." Dealing with the scope of the above section, the Honble Apex Court in Nathulal v. Phoolchand (AIR 1970 SC 546) has laid down the conditions necessary for making out the defence of part performance to an action in ejectment by the owner Such conditions 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. 16. It was further held that if the above 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 law for the time being in force, the transferor or any person claiming under him is debarred from enforcing against the transferee any rights 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. 17. In the present case, there is no denying that the first three conditions stand fulfilled. Admittedly, Mool Chand plaintiff had contracted to transfer his share in the property in dispute in favour of Bhagwan Dass for a consideration of Rs. 15,000 and out of this amount a sum of Rs. 10,000 stands paid by Bhagwan Dass and received by plaintiff Mool Chand. It is also admitted case of the parties that Bhagwan Dass abovenamed, who was earlier in permissive possession of the property in dispute, continued in possession thereof to the extent of the share of plaintiff Mool Chand in part performance of the contract of sale. Evidence has come on the record that after the agreement to sell, Bhagwan Dass had carried out improvements in the property in dispute at his own costs. The plaintiff Mool Chand while appearing as PW 1 on 23.6.1987 has not denied such improvements having been carried out by Bhagwan Dass. He has merely pleaded ignorance to this fact. Besides, it is the admitted case of the parties that all taxes, etc. in respect of the property in dispute were/are being paid by Bhagwan Dass and the defendants. Though the plaintiffs in their replication have averred that such taxes were being paid by the deceased Bhagwan Dass in his capacity of being the attorney of the plaintiffs, no evidence has been led in this regard to show that the amount of such taxes was re-imbursed to Bhagwan Dass. Plaintiff Mool Chand as PW 1 has himself not stated even a single word on this aspect of the case. The learned Senior Sub-Judge while denying the protection under Section 53-A, Transfer of Property Act, 1882 to the defendants has held that the fourth condition, as enumerated above, has not been proved and established. Plaintiff Mool Chand as PW 1 has himself not stated even a single word on this aspect of the case. The learned Senior Sub-Judge while denying the protection under Section 53-A, Transfer of Property Act, 1882 to the defendants has held that the fourth condition, as enumerated above, has not been proved and established. As stated above, one of the salient condition required to be fulfilled by the transferee for invoking the principle of part performance within the meaning of Section 53-A, Transfer of Property Act, 1882, is that he has performed or is willing to perform his part of the contract. Section 53-A requires that the person claiming the benefit of part performance must always be shown to be ready and willing to perform his part of the contract and if it is shown that he was not ready and willing to perform his part of the contract, he will not qualify for the principle of part performance. (See: Kuldip Singh Sawhney v. Mrs. Parkash Chand (AIR 1985 P & H 222) and Sardar Govindrao Mahadik v. Devi Sahai (AIR 1982 S.C. 989). 18. The defendants in para 3 of the preliminary objections of their written statement have categorically pleaded that they are ready and willing to perform their part of the contract by paying the balance sale consideration to the plaintiffs on their executing the formal sale deed in favour of the defendants. 19. The plaintiffs in their replication dated 27.2.1983 has not denied that the defendants are ready and willing to perform their part of the contract. The plaintiffs in reply to the averments of the defendants regarding the readiness and willingness to perform their part of the contract, have averred in the following terms:— "The very fact that the defendants are ready and willing to pay the balance of the consideration goes to show that their plea of adverse possession has no force." The above pleadings do not amount to denial of the averments made by the defendants in their written statement. 20. Rule 5 of Order 8, Code of Civil Procedure, provides that every allegation of fact made, if not denied specifically or by necessary implication, or stated to be not admitted shall be taken to have been admitted except as against a person under disability. 20. Rule 5 of Order 8, Code of Civil Procedure, provides that every allegation of fact made, if not denied specifically or by necessary implication, or stated to be not admitted shall be taken to have been admitted except as against a person under disability. Therefore, on the failure of the plaintiffs to specifically deny the averments of the defendants as to their readiness and willingness to perform their part of the contract, the plaintiffs would be deemed to have admitted such fact and no further proof of the same was required. 21. The defendant Kishan Bhakru while appearing as DW 1 has categorically stated that the defendants are ready and willing to perform their part of the contract by paying the balance sale consideration. He was never cross-examined by the plaintiffs on this aspect and as such it will have to be presumed that the plaintiffs have admitted this aspect of the case of the defendants. 22. The contradictory stand taken by the plaintiffs in their pleadings and their evidence goes to show that it is the plaintiff Mool Chand who has failed to perform his part of the contract and he is interested in avoiding the deal on one pretext or the other. The case set up by the plaintiffs in para 3 of the replication with regard to the felling through of the contract of sale is in the following terms:— "...The facts are that in the year 1968, plaintiff No. 1 intended to sell his half share of the property and Shri Bhagwan Dass represented to him that the prevalent market price of the whole property at that time was Rs. 30,000 only Believing Shri Bhagwan Dass as regards the value of the property, plaintiff No. 1 agreed to sell his half share in the property for Rs. 15,006? However, Shri Bhagwan Dass paid only a sum of Rs. 30,000 only Believing Shri Bhagwan Dass as regards the value of the property, plaintiff No. 1 agreed to sell his half share in the property for Rs. 15,006? However, Shri Bhagwan Dass paid only a sum of Rs. 10,000 out of the sale consideration and since he did not pay the balance, the deal fell through and the plaintiff No. 1 appropriated that amount towards the charges on account of use and occupation of the premises..." (Emphasis supplied) As against the above pleadings, the plaintiff Mool Chand on 23.6.1987 while appearing as PW 1 has stated that after the agreement to sell, he came to know in the year 1969 that he was misguided by Bhagwan Dass with regard to the prevalent market value of the property in dispute. He has further stated that he came to know that the market value of the property in dispute in the year 1968 was not less than Rs. 60,000. Therefore, he had revoked the contract. 23. The evidence led by the plaintiffs, thus, is in complete variance of the pleadings and as such cannot be relied upon. Besides, in view of such contradictory stand having been taken by the plaintiffs, the only inference is that it is the plaintiff Mool Chand who had failed to perform his part of the contract. 24. The learned Senior Sub-Judge appears to have misread the documents Ext. P-23 and Ext. PW 2/B. While Ext. P»23 is the copy of written statement filed by the deceased Bhagwan Dass in the earlier suit between the parties, Ext. PW-2/B is the reply sent by him to the notice served upon him by the plaintiffs. In both these documents, the deceased Bhagwan Dass had specifically averred about the agreement to sell, the payment of part of the sale consideration and his readiness and willingness to perform his part of the agreement by paying the balance of the sale consideration. The learned Senior Sub-Judge by misreading such documents has erred in drawing an adverse inference against the defendants under Section 114(2) of the Evidence Act. 25. On the basis of the evidence coming on record coupled with the admissions on behalf of the plaintiffs, the defendants have been able to prove that all the necessary conditions for application of doctrine of part performance stand fulfilled. 25. On the basis of the evidence coming on record coupled with the admissions on behalf of the plaintiffs, the defendants have been able to prove that all the necessary conditions for application of doctrine of part performance stand fulfilled. The defendants are, therefore, entitled to protect their possession qua the share of plaintiff Mool Chand under Section 53-A, Transfer of Property Act, 1882 and the plaintiff Mool Chand is debarred from enforcing against the defendants any right in respect of the property in dispute. He is as such not entitled to possession of the property in dispute. 26. Next comes the question whether the plaintiff Leela Ram (deceased) through his legal heirs is entitled to actual possession of the half share in the property in dispute from the defendants. Admittedly, the property in dispute was joint of the two plaintiffs and the same has never been partitioned by metes and bound. 27. It is well settled that each co-sharer is deemed to be the owner of every inch of the joint property till such joint property is partitioned by metes and bound and specific portions are allotted to them. 28. Since the property in dispute is joint having never been partitioned and the defendants are in possession thereof to the extent of half share under Section 53-A, Transfer of Property Act, 1882, no effective decree for actual possession of the property in dispute to the extent of undivided half share till such property is partitioned, can be passed in favour of the legal heirs of deceased plaintiff Leela Ram. At the most only a decree of joint possession can be passed. The legal heirs of deceased plaintiff would be entitled to actual possession only consequent upon the partition of the same, 29. Further question arising for determination is whether plaintiff Leela Ram (deceased) is entitled to mesne-profits for the use and occupation of his share in the property in dispute by the defendants. The legal heirs of deceased plaintiff would be entitled to actual possession only consequent upon the partition of the same, 29. Further question arising for determination is whether plaintiff Leela Ram (deceased) is entitled to mesne-profits for the use and occupation of his share in the property in dispute by the defendants. “ Mesne profits" have been defined under Section 2(12) of the Code of Civil Procedure, in the following terms:— "mesne profits of property means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession." The Honble Apex Court in Bhaiya Ramanuj Partap Deo v. Lalu Maheshanuj Partap Deo and others (AIR 1981 SC 1937) and in Nathuni Prasad Singh and others v. Bishwanath Singh Sharma and others (AIR 1978 SC 30) has held that the very foundation of the cause of action for mesne profit is wrongful possession of the defendant. 30. The High Court of Punjab and Haryana in Hukum Singh Nadir Singh v. Hakumat Rai Nihal Chand, (AIR 1968 P & H 110) has held that it is only a person who is entitled to actual possession that can claim mesne profits. , " 31. The possession of the defendants in the present case is not unlawful. They were initially placed in permissive possession of the property in dispute by the plaintiffs. Thereafter their possession was lawful under Section 53-A, Transfer of Property Act, 1882. They being transferees from tenants-in-common are not liable to mesne profits. Besides, no decree for actual possession is being passed in favour of plaintiff Leela Ram since he has been held to be not entitled to actual possession till partition of the property in dispute. Therefore, he is not entitled to any mesne profits. The remedy available to him is to sue the defendants for accounts of profits derived by them from his share in the property in dispute. 32. For the forgoing reasons, the present appeal is allowed. The judgment and decree dated 1.8.1996 passed by the learned District Judge, Solan in Civil Appeal Nos. The remedy available to him is to sue the defendants for accounts of profits derived by them from his share in the property in dispute. 32. For the forgoing reasons, the present appeal is allowed. The judgment and decree dated 1.8.1996 passed by the learned District Judge, Solan in Civil Appeal Nos. 18 Section 13 of 1995 and 30 Section 13 of 1995 are set-aside and that of the learned Senior Sub-Judge dated 23.2.1988 passed in Civil Suit No. 289/1 of 1984 are modified as under:— (a) the suit of the plaintiff No. 1 Mool Chand for possession of the property in dispute and for recovery of mesne profits is dismissed; (b) the suit of the plaintiff No. 2 Leela Ram (deceased) is decreed to the extent of joint possession of the property in dispute to the extent of half share; (c) the suit of plaintiff No. 2 Leela Ram (deceased) for recovery of mesne profits is dismissed. The parties are left to bear their own costs. Appeal allowed. -