RUMA PAL, BHASKAR BHATTACHARYA ( 1 ) THE Court : The second appeal arises out of an appellate decree passed by the District Judge dismissing a suit for eviction filed by the appellant. The suit premises are 77/1, Hazra Road (hereinafter referred to as the premises ). The appellant is the owner of the premises. The premises were leased in 1959 to Manik Chandra Das for a period of 15 years. ( 2 ) AFTER expiry of the lease period the appellant filed a Title Suit being T. S. No. 105 of 1979 against Manik Chandra Das (being the predecessor in interest of the respondent) before the Third Munsif at Alipore for his eviction. Manik Chandra Das filed a written statement in the suit claiming to be a thika tenant in respect of the premises and challenging the 1959 lease deed as being vitiated by misrepresentation. Manik Chandra Das died soon thereafter and his widow, Gouribala together with his two sons ( the present respondents, were substituted in his place and stead. ( 3 ) AFTER several further proceedings, in May, 1989 the respondent No. 2 filed a separate written statement and also deposed that the respondents and Gouribala were thika tenants under the Calcutta Thika Tenancy (Acqusition Regulation Act, 1981 (referred to as the 1981 Act) in the premises. ( 4 ) ON 16th December, 1989 the appellant entered into three separate agreements with Gouribala and the present respondents. Under each agreement the appellant agreed to sell 1/3 portion of the premises to each of the respondents and Gouribala. Each of the respondents and Gouribala were to pay Rs. 3 lakhs in respect of the portion to be purchased. The respondents and Gouribala paid Rs. 75,000/- each to the appellant by way of earnest money immediately prior to the execution of the agreement. The agreements are identical in all material respects. ( 5 ) THE hearing of the eviction suit continued. On 12th June, 1990, the respondents' witness deposed that the respondents were thika tenants and that the sub tenants in the premises paid rent to them. On 15th June, 1990, the respondent No. 2 made an application for adding the State of West Bengal represented by the Thika Controller as a defendant in the eviction suit. ( 6 ) AT this stage the three agreements were cancelled by the appellant by letter dated 22nd May 1990. On 15th June, 1990, the respondent No. 2 made an application for adding the State of West Bengal represented by the Thika Controller as a defendant in the eviction suit. ( 6 ) AT this stage the three agreements were cancelled by the appellant by letter dated 22nd May 1990. It is not necessary to go into the controversy relating to the validity of the cancellation for the purpose of this judgement. ( 7 ) ON 22nd August, 1990 the respondent No. 2 applied to the Munsiff for summoning the Thika Controller, Calcutta as witness. The application was rejected by the Munsiff. The revisional application filed by the respondents was however allowed by the High Court to a certain extent on 12th September, 1990. ( 8 ) ON 23rd September, 1990 Gouribala died. On 30th October, 1990 the present respondents filed Title Suit No. 49 of 1990 before the Ninth Court of the Assistant District Judge, Alipore against the appellant, for specific performance of the three agreements of sale. The suit is still pending. ( 9 ) THE respondents continued to defend the appellants suit and on 8. 11. 90 a representative of the Thika Controller was called and examined as a witness by the respondents. ( 10 ) ON 18. 12. 90 the respondent No. 1 successfully made an application for amendment of his written statement in the suit. By the amendment the respondent No. 1 sought to claim that the suit for eviction could not succeed because his possession was protected under section 53a of the Transfer of Property Act, 1882. The following issues were framed by the learned Munsiff :" 1. IS the suit maintainable ? 2. Is the plaintiff entitled to get a decree for ejectment and mesne profits as prayed for ? 3. To what relief, if any, is the plaintiff entitled ? 4. Whether the lease dated 1. 4. 59 was vitiated by misrepresentaion and undue influence ? 5. Whether the defendants are entitled to plead Thika Tenancy Right in respect of the suit property irrespective of Deed of Lease dated 1. 4. 59 for 15 years ? 6. Whether the defendants are in lawful possession in suit property in view of the agreement for sale dated 16. 12. 89 in respect of the suit property ?" ( 11 ) ISSUE No. 4 was taken up first. 4. 59 for 15 years ? 6. Whether the defendants are in lawful possession in suit property in view of the agreement for sale dated 16. 12. 89 in respect of the suit property ?" ( 11 ) ISSUE No. 4 was taken up first. It was held that the allegations of misrepresentaion and undue influence were not substantiated. This issue having been decided in favour of the appellant and against the respondents, issue Nos. 1, 2 and 5 were also decided in the appellant's favour. As far as issue No. 6 was concerned, the learned Munsiff accepted the argument of the appellant that the plea of part performance under section 53a of the Transfer of Property Act was not available to the respondents as they had neither pleaded nor proved that they were ready and willing to perform their part of the agreement. He also accepted the submission of the appellant that the possession of the premises could not be said to be equivocally related to the agreements. The learned Munsiff rejected the claim of the respondents that they were Thika Tenants under the 1981 Act as claimed by them and decreed the appellant's suit on 21. 3. 91. ( 12 ) IN the appeal from the decree before the Additional District Judge (Title Appeal No. 309 of 1991), the respondents did not challenge the finding of the Munsiff to the effect that they are not thika tenants nor the finding that the suit was maintainable at the hearing. They restricted their challenge to the finding that they were not entitled to resist eviction by invoking the defence of part performance under section 53a of the Transfer of Property Act. ( 13 ) THE learned District Judge allowed the appeal and dismissed the appellant's suit on 25th February, 1992. This is the subject matter of the Second Appeal being heard by us. ( 14 ) AT the time of the admission of the second appeal, on 11th May 1992, the Appellate Court directed that the second appeal would be heard on grounds nos. 14 and 15 as taken in the Memorandum of Appeal. An order of status quo as on that date was also directed to be maintained by the parties until further orders. Grounds 14 and 15 of the Memorandum of Appeal read as follows :xiv. 14 and 15 as taken in the Memorandum of Appeal. An order of status quo as on that date was also directed to be maintained by the parties until further orders. Grounds 14 and 15 of the Memorandum of Appeal read as follows :xiv. " For that the learned lower appellate court failed to appreciate the substantial question of law involved in the appeal before it, namely whether it is necessary to expressly plead readiness and willingness to perform the defendant's obligations under the contract to take the defence of part performance under section 53a of the Transfer of Property Act, 1882, and to resolve the conflict of opinions on the said question between the Madras High Court in Karthikeya Mudaliar v. Singaram Pillai, AIR 1956 Madras 693, holding that it is not necessary so to expressly plead and the contrary view, requiring such fact to be expressly pleaded, taken by the Punjab High Court in Kuldip Singh v. Prakash Chand, AIR 1985 Punjab 222 and the Madhya Pradesh High Court in Bhagwandas v. Surajmal, AIR 1961 Madhya Pradesh 237. XV. FOR that the learned Additional District Judge failed to percieve the substantial question of law involved in the interpretation of section 53a of the Transfer of Property Act, 1882, involved in the instant case, namely whether it is open to a defendant, who has acted in subversion of the relationship intended to be established by the contract, to invoke the defence of part performance of the said contract under section 53a of the Transfer of Property Act, 1882, relying on the terms thereof. " ( 15 ) PRIOR to the introduction of section 53a in 1929 in the Transfer of Property Act, a person in possession pursuant to an agreement for sale had to file a suit on the agreement and pray for stay of proceedings for eviction (Pir Bux v. Mahomed Taher : AIR 1934 PC 235 ). With the introduction of section section 53a the possessor may successfully resist eviction in the suit for eviction itself. ( 16 ) SECTION 53a of the Transfer of Property Act provides :"53a. With the introduction of section section 53a the possessor may successfully resist eviction in the suit for eviction itself. ( 16 ) SECTION 53a of the Transfer of Property Act provides :"53a. Where any person contracts to transfer for consideration any immoveable 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, ( 17 ) 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 trensfer, that the transfer has not been completed in the manner prescribed therefore 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. " ( 18 ) ANALYSED the conditions necessary for making out the defence of part performance to an action in ejectment by the owner are: (1) that there is a contract in writing for transferor of any immovable property 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. (see : Nathulal v. Phoolchand : AIR 1970 SC 546 ). ( 19 ) ALL four conditions must exist before the defence under section 53a is available. (see : Nathulal v. Phoolchand : AIR 1970 SC 546 ). ( 19 ) ALL four conditions must exist before the defence under section 53a is available. It follows that if any one of the conditions is absent the defence must fail. In this case there is no dispute that the first condition has been fulfilled. ( 20 ) BUT in order to avail oneself of the benefit of the provisions of section 53a it must be shown that the possession refers unequivocally to the contract. In other words, the possession must only be referable to the agreements and not be referable to any other title. Where a person is already in possession and continues in possesion after the contract for sale it does not necessarily follow that he continues in possession performanace of the contract. He must show either from the contract itself or from some other evidence that the continuance of his possession was with reference to or pursuant to and consistent with the contract for sale alone and no other source [see : Bharat Chandra v. Ramjan : 45 CWN 489; Ranchhoddas Chhaganlal v. Devaji Supdu Dorik (1977) 3 SCC 584 ; Fry on Specific Performance (6th Edn.) P. 276; Halsbury's Law of England (4th Edn.) Vol. 44 para 458 (2); Thakamma Mathew v M. Azamathallah Khan and Ors : AIR 1993 SC 1120 ; Sardar Govindrao Mahadik v. Devi Sahai : (1982) 1 SCC 237 and Anant Ramulu v. Asif Ahmed 1964 (II) Andhra LT 159]. ( 21 ) AT the time of hearing of the instant appeal, at the very outset, the agreements for sale were placed before us. Mr. Mukherjee, the learned advocate appearing for the appellant drew our attention to clause 14 of the agreements wherein it is specifically mentioned that those agreements were without prejudice to the rights and contentions of the parties in Title Suit No. 412 of 1977 and thus expressly deprived the respondents of the benefit of the doctrine of part performance. Mr. Mukherjee, the learned advocate appearing for the appellant drew our attention to clause 14 of the agreements wherein it is specifically mentioned that those agreements were without prejudice to the rights and contentions of the parties in Title Suit No. 412 of 1977 and thus expressly deprived the respondents of the benefit of the doctrine of part performance. ( 22 ) IN view of the aforesaid, we formulated the following additional point, which according to us is a substantial question of law, for the purpose of disposal of the instant second appeal by exercising our power conferred by section 100 (5) (Proviso) of the Code of Civil Procedure :"whether Clause 14 of the agreements for sale excluded the operation of the doctrine of part performance in the instant suit for eviction ?" ( 23 ) ACCORDINGLY, we invited the learned advocates for the parties to make their respective submissions on the aforesaid additional question before going to the other two grounds upon which this appeal was admitted under Order 41 Rule 11 of the Code. ( 24 ) BEFORE we proceed to discuss the aforesaid additional point, it will be profitable to refer to the said Clause No. 14 which is quoted below :"that this agreement is made without prejudice to the rights and contentions of the parties in the Title Suit No. 412 of 1977 before the First Court of the Munsiff at Alipore and the parties shall proceed with the said suit until the proposed three deeds of sale are executed. If for any reason whatsoever the three proposed deeds of sale are not executed the parties shall proceed with the suit and this agreement shall not have any effect on the said suit. " ( 25 ) THE last clause of the agreement viz. Clause 15 is also relevant and accordingly the same is reproduced below :"that simultaneously with the execution of the sale deeds the parties shall file compromise petition in the court for withdrawal dismissal as the case may be, or the aforeasid Title Suit No. 412 of 1977. " ( 26 ) THE aforesaid two clauses leave no doubt that notwithstanding execution of those agreements, the appellant is entitled to proceed with the instant proceeding for eviction and consequently to enjoy the fruit hereof if for "any reason whatsoever" the sale deeds are not executed. " ( 26 ) THE aforesaid two clauses leave no doubt that notwithstanding execution of those agreements, the appellant is entitled to proceed with the instant proceeding for eviction and consequently to enjoy the fruit hereof if for "any reason whatsoever" the sale deeds are not executed. However, if those deeds are executed, the parties will file necessary application for withdrawal of the Title Suit No. 412 of 1977. Thus, the aforesaid two clauses curtail the rights of the respondents to take any additional defence in the eviction suit by taking aid of those agreements including the plea of part performance and as such the respondents are precluded from asserting that they are continuing in possession in part performance of the agreements. ( 27 ) MR. Ghosal, the learned senior Advocate appearing on behalf of the respondents submitted that we should not read those two clauses in isolation but the entire agreement should be read as a whole. Having gone through the entire agreement we could not detect any provision therein indicating that the respondents or their mother would continue in possesion till the execution of the sale deeds or that the rights and contentions of the appellant in the eviction proceeding are in any way prejudiced by the execution of those agreement. ( 28 ) IN addition to possession, the statue also requires that the transferee should have done "some act in furtherance of the contract". There was no such act in this case by the respondent. The learned District Judge found that this condition was fulfilled because "it was not at all disputed that the appellant had already realised a sum of Rs. 1 lakh as equivalent arrears of rent upto the date of proposed sale deeds and that the appellant had also realised a sum of Rs. 2 lakhs towards earnest money". ( 29 ) BOTH statements are factually incorrect. It is nobody's case that apart from the earnest money any futher payment was made by the respondents to the appellant. Mr. Ghosal, in his usual fairness conceded that the finding of the learned first appellate court that apart from earnest money, the appellant also accepted a sum of Rs. 1,00,000/- towards arrears of rent after the expiry of 15 year's lease is absolutely wrong and based on no evidence. Mr. Ghosal, in his usual fairness conceded that the finding of the learned first appellate court that apart from earnest money, the appellant also accepted a sum of Rs. 1,00,000/- towards arrears of rent after the expiry of 15 year's lease is absolutely wrong and based on no evidence. ( 30 ) AS far as the earnest money was concerned the total amount paid in respect of the three agreements was Rs. 2,25,000/ -. The amount was paid before the execution of the agreements and is recorded as such in the agreements. The payment could not therefore be in furtherance of the contract. The phrase "in furtherance" implies acts subsequent to the agreement. ( 31 ) THEREFORE, we are of the firm opinion that in view of clauses 14 and 15 of the agreements for sale, the respondents cannot, by any stretch of the imagination, be said to be continuing in possession of the suit premises in part performance of the contract and thus are not entitled to the benefits of section 53a of the Transfer of Property Act. The learned first court below thus totally misread the agreements for sale and by arriving at the erroneous finding that the appellant took Rs. 1,00,000/- as arrears of rent, which is based on no evidence, illegally gave protection to the respondents by wrongly applying the doctrine of part performance to the fact of the present case. The aforesaid errors on the part of the learned first appellate court below fall within the purview of section 100 of the Code justifying our interference. ( 32 ) IN the circumstances, there is no necessity to enquire whether the respondents have performed their part of the contract or are willing to perform their part of the contract. In view of our finding on the additional ground, the grounds No. XIV and XV upon which initially this appeal was admitted lose their significance. We, accordingly, answer the additional point formulated by us in the affirmative in favour of the appellant. ( 33 ) IN this appeal, the respondents have filed an application under Order 41 Rule 27 of the Code thereby praying for bringing on record as additional evidence documents showing their readiness and willingness to perform their part of the contract. As stated above, such evidence is immaterial for the purpose of disposal of this appeal in view of our above finding. As stated above, such evidence is immaterial for the purpose of disposal of this appeal in view of our above finding. ( 34 ) THE appellant made an application seeking to raise a futher ground. The appellant's prayer for taking an additional ground of appeal arises from exhibit "r" in the suit. Exhibit "r" is a written objection filed by the appellant in the respondent's suit for Specific Performance. In the written objection the appellant had admitted the execution of the three agreements of sale and also claimed that the agreements had been cancelled. The written objection was brought in evidence and marked as Exhibit "r" by the respondents to substantiate their case under section 53a. It is submitted by the appellant that the respondents could not rely on one part of the objection and were bound by all the statements contained in the objection. According to the appellant, therefore the agreements being admittedly cancelled the defence under section 53a could not be raised at all. ( 35 ) THE additional ground now sought to be added reads as follows :"for that both the learned Courts below erred substantially in law in failing to consider that the defendants/respondents having themselves unreservedly caused the appellant's written objection to the respondent's application for temporary injunction in their suit for specific performance of the three agreements for sale of the suit property against the appellant (Title Suit No. 49 of 1990) before the Ninth Assistant District Judge, Alipore, to be marked exhibit "r", the respondents cannot challenge the Appellant's statement therein that she had validly cancelled the said three agreements and as such cannot raise the defence of part performance under section 53a of the Transfer of property Act, 1882 based on those cancelled agreements. " ( 36 ) IN view of our finding on the additional issue the application has become unnecessary. This application of the appellant is accordingly rejected. ( 37 ) WE set aside the judgment and decree passed by the learned first appellate court and restore the decree passed by the learned trial Judge in the light of our findings made herein. The appeal is thus allowed. In the facts and circumstances, there will be however no order as to costs. B. Bhattacharya, J.-I agree Appeal allowed