JUDGMENT PRADIP MOHANTY, J. — Aggrieved by the confirming judgment dated 16.11.1998 of the learned 1st. Additional District Judge, Ganjam, Berhampur, in T.A. No. 38/88 (T.A. 70/86 GDC), the plaintiff before the trial Court has come up with this appeal for setting side the judgments and decrees of both the Courts below. 2. Shorn of unnecessary details, the facts in brief are herein below : Judhisthira Pattnaik, defendant No.1 (since dead) and one Nrusingha Patnaik, father of defendant No. 2 jointly purchased the suit house on 27.11.1962 by a registerer sale deed (Ext.A/3) and remained in possession thereof. On 18.1.1980 the original defen¬dant No.1, Judhisthira entered into an unregistered agreement (Ext.1) with plaintiff Jagannath Mishra (subsequently substituted by Ali Kishore Patnaik), said to be the Secretary of the Commu¬nist Party of India (Marxist)( in his official capacity, for sale of the suit house for Rs. 4000/- on receipt of Rs. 700/- in part performance of the contract. It was stipulated in the said agree¬ment that defendant No.1 would sell the suit house to the plain¬tiff within three months, failing which he would bear the penalty of Rs. 700/- along with the advance taken. It is pertinent to mention here that three years prior to the date of the agreement, the house was let on rent to the plaintiff to run the party office. The averments made in the plaint are that defendant No.1 failed to execute the sale-deed within the stipulated time for which the plaintiff issued a registered letter asking defendant No.1 to come ready with the documents and execute the sale-deed, on receipt of which defendant No.1 by a registered letter asked the plaintiff that he should deposit the arrear house rent and vacate the house. Simultaneously, defendant No.2 son of Nrusingha Patnaik, the co-owner of the suit house under the sale-deed (Ext. A/3), issued a registered letter asking the plaintiff to vacate the suit house soon since he has purchased a part of the said house by registered sale-deed. The plaintiff having come to know that the suit house has been sold away to defendant No.2, filed a suit before the Munsif, Berhampur, with a prayer to direct defendant No.1 to execute a registered sale-deed for the suit house in his favour before the Sub-Registrar and to receive the balance consideration of Rs. The plaintiff having come to know that the suit house has been sold away to defendant No.2, filed a suit before the Munsif, Berhampur, with a prayer to direct defendant No.1 to execute a registered sale-deed for the suit house in his favour before the Sub-Registrar and to receive the balance consideration of Rs. 3,300/- in cash and, in the event of his failure to execute the sale-deed conveying title of the suit house to him he should be directed to execute the document through Court and further he sought for a direction of the Court that the sale is bad in law and that defendant No.2 has no manner of right, title and inter¬est or possession over the suit house. 3. Defendants Nos.1 and 2 filed separate written state¬ments. Defendants No.1 in his written statement admitted the execution of the agreement (Ext.1) and claimed absolute ownership over the suit house and stated that as defendant No.2 forcibly prevailed upon him to execute a registered sale-deed for a por¬tion of the suit house during his illness, he executed the sale-deed. He further pleaded that the sale-deed in favour of defen¬dant No.2 is invalid being without consideration and is a nominal one. He admitted that the latches and delay in the execution of the sale-deed was beyond his control. Defendant No.2 in his written statement, inter alia, denied all the plaint averments and asserted that his father Nrusingha Patnaik being a close relation of defendant No.1 purchased the house jointly. As because he was a Government servant and was remaining outside, his father had entrusted due maintenance of the suit house to defendant No.1 during his life time. He asserts that defendant No.1 has no manner of right, title and interest to enter into agreement with the plaintiff and that the agreement (Ext.1) is a fictitious and fabricated one, and the same cannot be a shield in furtherance to the doctrine of part performance of the contract. 4. On considering the evidence, both oral and the documentary, the learned Munsif decreed the suit in part on contest against defendant No.1 and dismissed the suit on contest against defendant No.2 without cost. The learned Munsif further directed that the plaintiff is entitled to realise Rs.1400/-(i.e. Rs.700/- the principal amount and penalty of Rs.700/-) from the legal representatives of defendant No.1 who are liable to pay the same. The learned Munsif further directed that the plaintiff is entitled to realise Rs.1400/-(i.e. Rs.700/- the principal amount and penalty of Rs.700/-) from the legal representatives of defendant No.1 who are liable to pay the same. Aggrieved by the said order of the learned Munsif, the plaintiff carried an appeal to the Court below and by order dated 16.11.88 the learned 1st Additional District Judge, Ganjam, Berhampur, dismissed the appeal and affirmed the judgment and decree of the Munsif. Hence this appeal. 5. During hearing of the appeal, Mr. Patnaik, the learned counsel for the appellant, vehemently urged that defendants Nos.1 and 2 being owners in common, their respective interest in the property is distinct and severable in as much as the agreement, Ext.1 could be valid for defendant No.1’s half share in the property; that though defendant No.2 claims purchase of the suit house in 1962 by his father, he has not exercised any act of possession and/or ownership; that the right guaranteed under Section 53-A of the Transfer of Property Act, 1882 (hereinafter referred to as ‘the Act’) should have protected the plaintiff’s possession; that the plaintiff having cross-examined defendant No.2 in material particulars with regard to purchase of the suit house under Ext.A/3, no adverse inference is available to defen¬dant no.2 he having not been cross-examined by defendant No.1; and that even if the suit house was purchased jointly, the plaintiff is entitled to half share of the suit house that would have fallen to the share of defendant no. 1 under the provisions of section 53-A of the Act. Mr. Nanda, learned counsel for respondent no. 2 refutting the arguments advanced by Mr. Mohanty, on the other hand, submitted that no point of law having been involverd, this appeal is liable to be dismissed. The learned counsel assailed the execution of the agreement, Ext.1 by defendant no. 1 in favour of the plaintiff as invalid in the eye of law since the suit house was purchased jointly vide Ext.A/3 both by defendant No.1 and Nrusingha Patnaik, father of defendant No.2. Therefore, defendant No.1 has no right to enter into execu¬tion of an agreement for sale of his undefined share in the suit house. He further argued that at best, according to the terms and conditions of the agreement, Ext.1, the plaintiff can only re¬alise the advance paid with penalty from the legal representa¬tives of defendant No.1. 6. Therefore, defendant No.1 has no right to enter into execu¬tion of an agreement for sale of his undefined share in the suit house. He further argued that at best, according to the terms and conditions of the agreement, Ext.1, the plaintiff can only re¬alise the advance paid with penalty from the legal representa¬tives of defendant No.1. 6. Law is well settled that this Court while sitting in second appeal should be slow to interfere with the concurrent findings of fact of the Courts below. The only substantial ques¬tion that needs to be considered in this appeal on the basis of arguments advanced by the learned counsel for the parties is, whether Ext. 1 unregistered agreement executed by defendant No.1 in favour of the plaintiff is enforceable so as to entitle the plaintiff a decree of specific performance of contract against the defendants in respect of the suit property. In view of the nature of controversy involved in this ap¬peal, this Court would like to refer to the provisions under Section 53-A of the Act as it stood on the date of cause of ac¬tion. In view of the nature of controversy involved in this ap¬peal, this Court would like to refer to the provisions under Section 53-A of the Act as it stood on the date of cause of ac¬tion. It reads- “53-A. Part performance.-Where any person contracts to transfers 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 cer¬tainty, 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 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 claim¬ing 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.” This Section has subsequently been amended in 1982 deleting the words occurring in the 4th sub-para “the contract, though required to be registered, has not been registered, or”. 7. A plain reading of the provision under Section 53-A of the Act indicates that in order to avail the protection thereun¬der a transferee, apart from satisfying other conditions, (i) must in part performance of the contract take possession of the property or any part thereof; and (ii) must have done some act in furtherance of the contract. The concurrent findings of the Courts below are that the plaintiff was already in possession of the suit house as a tenant on the date of execution of the agree¬ment (Ext.1) and continued to remain in possession after the date of execution of Ext.1. The concurrent findings of the Courts below are that the plaintiff was already in possession of the suit house as a tenant on the date of execution of the agree¬ment (Ext.1) and continued to remain in possession after the date of execution of Ext.1. The learned Munsif has also held that neither defendant No.1 nor the plaintiff has “done any thing new in furtherance of contract”. Therefore, there is absolutely no scope for the plaintiff for invoking Section-53 A of the Transfer of Property Act either as a shield or a sword. The conditions necessary to seek for protection under Section 53-A of the Act have been succinctly reiterated in 2002 (1) C.C.C. 163 (SC), Shrimant Shamrao Suryavanshi and anor. v. Pralhad Bhairoba Suryavanshi (D) by Lrs. and ors. 8. The categorical finding of the Courts below is that defendant No.1 and the father of defendant No.2 jointly purchased the suit house under the sale-deed, Ext.A/3 since when title of the suit house passed to both of them. Evidence of defendant No.2 with regard to exercise of incidents of title as well as posses¬sion over the suit house remains unassailed by defendant No.1 through whom plaintiff claims his relief. Section 54 of the Act provides that the contract for sale does not, of itself, create any interest in or charge on such immovable property. Even Sec¬tion 44 of the Act does not create any charge on property on the basis of contract for sale. Rather Section 44 can be invoked only when there is a transfer by one co-owner. Defendant No.1 has already transferred his interest in favour of defendant No.2 by executing a sale-deed, Ext.A/4. In such circumstances, it has rightly been held by both the Courts below in answering Issue No.1 that the agreement, Ext.1 is not binding or enforceable against defendant No.2 as well as the suit house. The Courts below have also aptly emphasized the default clause in Ext.1 stipulating refund of part consideration of Rs.700/- along with penalty of Rs.700/- in the event of failure on the part of defendant No.1 to perform his part of the con¬tract. Undoubtedly, the agreement, Ext.1 itself, by such stipula¬tion provides for the equitable relief to which the plaintiff becomes entitled to in the event of non-execution of the sale-deed by defendant No.1. Undoubtedly, the agreement, Ext.1 itself, by such stipula¬tion provides for the equitable relief to which the plaintiff becomes entitled to in the event of non-execution of the sale-deed by defendant No.1. Thus no substantival question of law is advanced in order to find fault with the impugned judgments of the Courts below. 9. In the result, therefore, for the reasons stated above, the second appeal is dismissed, but without cost. Appeal dismissed.