JUDGMENT Dhirendra Mishra, J. :- 1. This second appeal under Section 100 of Civil Procedure Code is directed against the judgment and decree dated 5th August, 1988 passed by the District Judge, Raigarh in Civil Appeal No. 57-A/1987 whereby the judgment and decree dated 8-5-1987 passed by the Civil Judge Class I, Sarangarh, District Raigarh in Civil Suit No. 30-A/1985 has been reversed and the suit of the appellant has been dismissed. (Hereinafter the parties shall be referred to as per their description in the judgment of the trial Court.) 2. Briefly stated the case of the plaintiff is that the land described in Schedule-A was recorded in. the name of his father Gaura. The plaintiff, Duryodhan and Sudarshan are sons of Gaura whereas Vrandavati and Nanki Bai are his daughters. The suit property was property of the plaintiff and the plaintiff mortgaged the suit land for a consideration of Rs. 5,000/- with the defendant No. 1 for a period of 5 years and thereafter the suit land was to be returned to the plaintiff and to evidence this transaction, the document of Ex. D-1 was executed. However, when the defendant No. 1 did not return the suit land till 1985, a suit for declaration of title and recovery of possession has been filed. The defendant No. 1 in reply to the averments of the plaint stated in his written statement that he had entered into an agreement to sell the suit land and in pursuance of the same, an agreement was executed by the plaintiff and since then, he is in possession over the suit land and cultivating the same. The plaintiff never requested for return of the suit land and the plaintiff has to execute a registered sale deed as per the agreement. 3. The suit was decreed by the trial Court with the findings that the suit land was mortgaged with the defendant No. 1 for a consideration of Rs. 5,000/-. No agreement to sell for a consideration of Rs. 5,000/- was entered into by the plaintiff in favour of the defendant No. 1. The plaintiff is entitled for declaration of title over the suit land. The plaintiff is also entitled to obtain possession of the suit land and the defendant No.1 is not entitled for the possession of the suit land as per the agreement 4. 5,000/- was entered into by the plaintiff in favour of the defendant No. 1. The plaintiff is entitled for declaration of title over the suit land. The plaintiff is also entitled to obtain possession of the suit land and the defendant No.1 is not entitled for the possession of the suit land as per the agreement 4. In first appeal, the learned First Appellate Court allowed the appeal preferred by the defendant No. 1 and dismissed suit with a finding that the plaintiff has failed to prove that he mortgaged the suit land to the defendant No. 1 and the defendant No. 1 is entitled to protect his possession over the suit land as per Section 53(A) of the Transfer of Property Act and accordingly, decree of possession in favour of the plaintiff was set aside. 5. This appeal has been admitted by this Court vide order dated 174-1989 on the following substantial questions of law : “(a) Whether the lower appellate Court in the absence of pleading, proof and issue could dismiss the suit relying on the doctrine of part-performance under section 53-A of the T.P. Act?" “(b) Whether the Court below was right in construing Ex. D-1 as an agreement of sale even though there is no stipulation of consideration ?" “(c) Whether sections 91 and 92 of the Evidence Act create a bar precluding the plaintiff from leading oral evidence to show real nature of transaction evidenced by Ex. D-1 ?" 6. From pleadings and evidence adduced by the respective parties, it is not in dispute that (i) the suit land belonged to the plaintiff; (ii) the deed of Ex. D-1 was executed by the plaintiff and thereafter the possession of the suit land was delivered to the defendant No. 1 after receiving a sum of Rs, 5,000/-; and (iii) the defendant No. 1 continues to be in possession over the suit land. The plaintiff claims that he had mortgaged the suit land after obtaining Rs. 5,000/- for a period of 5 years as he required the same in connection with some criminal case and land was to be returned to the plaintiff after a period of 5 years. 7. The case of the defendant No. 1 is that the plaintiff sold the suit land for a sum of Rs. 5,000/- and to evidence this transaction, the document of Ex. D-1 was executed on a Rs. 7. The case of the defendant No. 1 is that the plaintiff sold the suit land for a sum of Rs. 5,000/- and to evidence this transaction, the document of Ex. D-1 was executed on a Rs. 1 stamp paper by the plaintiff and put him in possession for ever and orally agreed that he shall be executing registered sale deed on his own expenditure arid since then, he is cultivating the suit land as owner without any interruption from the plaintiff. 8. Learned counsel for the appellant submits that the trial Court decreed the suit of the plaintiff. There was no pleading by the defendant No. 1 with respect to the part-performance of the contract and, therefore, no issues were framed by the trial Court and the suit of the plaintiff for declaration of title and recovery of possession over the suit land was decreed. From bare perusal of the document Ex. D-1, it would be evident that neither the description of the suit land nor the consideration of sale has been mentioned, even then the appellate Court allowed the appeal and dismissed the suit of the plaintiff by extending the protection of possession under Section 53-A of the Transfer of Property Act. Relying upon the judgments of the Hon'ble Supreme Court in the matters of D.S. Parvathamma Vs. A. Srinivasan1 and Shrimant Shamrao Suryavanshi and another Vs. Pralhad Bhairoba Suryavanshi2, it is argued that to protect possession under Section 53-A of the Transfer of Property Act, the transferee is required to fulfill the following conditions: (1) there must be a contract to transfer for consideration of any immovable property; (2) the contract must be in writing, signed by the transferor, or by someone on his. behalf; (3) the writing must be in such words from which the terms necessary to construe the transfer can be ascertained; (4) the transferee must in part-performance of the contract take possession of the property, or of any part thereof; (5) the transferee must have done some act in furtherance of the contract; and (6) the transferee must have performed or be willing to perform his part of the contract. 9. Further relying upon the judgment in the matters of Devisahai Premraj Mahajan Vs. 9. Further relying upon the judgment in the matters of Devisahai Premraj Mahajan Vs. Govindrao Balwantrao and others3, it is submitted by the learned counsel for the appellant that in order to seek protection under Section 53(A) of the Act, there has to be a contract of transfer for consideration of immovable property in writing signed by the vender from which the terms necessary to construe the transfer could be ascertained with certainty and the transferee in part performance of the contract taken possession of the property and must have done some act in furtherance of the contract and the transferee has performed or is willing to perform the contract, in the instant case, all the three ingredients necessary for part performance of the contract under Section 53-A of the Act are missing. From the document of Ex. D-1 the Inference of transfer cannot be reasonably ascertained. He further submits that there was no issue before the trial Court with respect to the part-performance of the contract and, therefore, the appellate Court was not justified in dismissing the suit of the appellant-plaintiff by extending protection under Section 53A of the Act. 10. On the other hand, learned counsel for the respondents submits that the defendant No. 1 was in possession over the suit land after the plaintiff executed the unregistered sale deed of Ex. D-1 in the year 1977 and since then, he was put in possession by the plaintiff-vender in part-performance of the contract. Since the total consideration against the transaction was paid to the plaintiff at the time of transfer of property and the plaintiff agreed to execute the sale deed in favour of the defendant at his own expenses, no part of the contract remained to be performed by the defendant No. 1. With respect to the objection of the plaintiff that in the absence of stipulation of the consideration and description of the suit land in the document of Ex. D-1, it is contended that the plaintiff has himself admitted in the plaint that he obtained a sum of Rs. 5,000/- in lieu of execution of document Ex. D-1 and in view of the fact that the property in question has been described by the plaintiff himself in his statement as described in document of Ex. D-1, the document of Ex. D-1 cannot be discarded on the ground of above objections. 5,000/- in lieu of execution of document Ex. D-1 and in view of the fact that the property in question has been described by the plaintiff himself in his statement as described in document of Ex. D-1, the document of Ex. D-1 cannot be discarded on the ground of above objections. Placing his reliance in matters of Shankarlal Vs. Rajendra Prasad4, it is contended that non-mention of consideration in the document of transfer shall not disentitle the defendant No. 1 for protection under Section 53-A of the Act. Further relying upon the judgment in the matters of Jagdish Vs. Ramkhilawan and others5, it is submitted that in a suit for possession, an unregistered sale deed is admissible as evidence of part-performance under Section 53-A of the Act for collateral purpose under 49 of the Registration Act. Further relying upon the judgment in the matters of Lekhraj Diddi Vs. Sawan Singh6, it is submitted that where a party admits execution of sale deed, he cannot be permitted to lead oral evidence for contradicting, varying, adding to or subtracting from its terms unless a case failing under any provisos to Section 92 of the Evidence Act is specifically pleaded. 11. I have heard the learned counsel for the parties. 12. So far as the first substantial question of law on which this appeal is admitted is concerned, the defendant No. 1 in paragraph 8 of his written statement has pleaded that the plaintiff with the consent of his wife sold the suit land for a consideration of Rs. 5,000/- and delivered the possession of the suit land for ever to the defendant No. 1. and in evidence of the same, he executed an agreement on a Stamp paper of Rs. 1, which he had purchased and further orally agreed that he shall be executing the sale deed later on his own expenses, however, he did not comply the same despite several reminders and the defendant No. 1 considering that he is younger brother relied upon him. From the date of agreement i.e. 21-7-1977, the defendant No.1 is in possession and is cultivating over the suit land as its owner and the plaintiff never raised any dispute. He has specifically denied that there was any talk of mortgage. From the date of agreement i.e. 21-7-1977, the defendant No.1 is in possession and is cultivating over the suit land as its owner and the plaintiff never raised any dispute. He has specifically denied that there was any talk of mortgage. From the above pleading of the defendant No. 1, it is evident that the property in question was sold to the defendant No. 1 on 21-7-1977 for a consideration of Rs. 5,000/- and thereafter in part-performance of the deed, the defendant No. 1 was put in possession and the plaintiff promised to execute registered sale deed. So far as absence of issue in this regard before the trial Court is concerned, from the pleadings of the respective parties and the evidence led in this regard, it is evident that the parties to the suit understood the real implication of the points in dispute and accordingly led evidence on this disputed question, and therefore, merely for want of formal issues, the evidence cannot be ruled out and the finding is not vitiated. The contesting parties to the suit were fully aware of the controversy involved in the suit. The only dispute between the parties was whether the document of Ex. D-1 a deed of mortgage in lieu of Rs. 5,000/- or was an outright sale as claimed by the defendant No. 1. 13. So far as the next substantial question of law whether the document of Ex. D-1 could be construed as an agreement of sale in the absence of stipulation of consideration is concerned, it is true that the defendant No. I in order to claim protection under Section 53-A of the Act is required to establish that there was written contract to transfer of any immovable property for a consideration signed by the transferor or by some one on his behalf and the writing must be in such words from which the terms necessary to construe the transfer can be ascertained. In the instant case, though the amount of consideration is not mentioned in the document of Ex. D-1, however, the plaintiff has himself admitted that he executed the deed of Ex. D-1 after obtaining a sum of Rs. 5,000/- from the defendant No.1 and mortgaged the suit land, thus from the pleadings and the evidence adduced, the finding of the appellate Court that the deed of Ex. D-1 was executed for consideration cannot be faulted. D-1, however, the plaintiff has himself admitted that he executed the deed of Ex. D-1 after obtaining a sum of Rs. 5,000/- from the defendant No.1 and mortgaged the suit land, thus from the pleadings and the evidence adduced, the finding of the appellate Court that the deed of Ex. D-1 was executed for consideration cannot be faulted. Though the counsel for the appellant tried to assail Ex. D-1 on the ground that it: does not contains description of the suit property but the above submission of the appellant has no force as P.W. 1-the plaintiff himself has admitted in the Court that the suit land is known as Piparmal as described in Ex. D-1 and there is no confusion or dispute between the parties regarding identity of the suit land, therefore, this Court is of the view that the appellate Court, did not commit any illegality or infirmity in construing the document of Ex. D-1 as an agreement of sale even in the absence of stipulation with respect to consideration. I am fortified by the judgment in the matters of Shankarlal (supra). 14. So far the 3rd question on which the appeal has been admitted is concerned, the plaintiff has admitted the document of Ex. D-1 by which he has made a solemn declaration that he has sold the land to his younger brother defendant No. 1 and whenever the names would be recorded in the revenue papers, the above land shall be recorded in the name of his brother Sudarshan Sao. From the document of Ex. P-1, it appears that the suit land apart from other lands, were jointly recorded in the names of plaintiff, defendant No. 1 and their other brothers and sisters up to the year 1984-85. Execution of deed Ex. D-1 is admitted by the plaintiff. From the document of Ex. P-1, it appears that the suit land apart from other lands, were jointly recorded in the names of plaintiff, defendant No. 1 and their other brothers and sisters up to the year 1984-85. Execution of deed Ex. D-1 is admitted by the plaintiff. As per Section 91 of the Evidence Act when the terms of a contract, or of a grant, or of any other disposition of the property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property or of such matter except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained. The appellant has tried to lead oral evidence in contravention of the stipulation of documents of Ex. D-1. The appellate Court in para 8 has rightly held that the burden is on the owner to prove that the document of Ex. D-1 has been obtained by practicing fraud and the plaintiff has failed to prove any fraud. Thus in view of Section 91 and 92 of the Evidence Act, it was not open to the plaintiff to lead oral evidence against admitted document of Ex. D-1. 15. In The result, there is no illegality or infirmity in the impugned judgment passed by the First Appellate Court. The appeal is devoid of substance and the same is dismissed. The judgment of the appellate Court is affirmed. Appeal Rejected.