JUDGMENT BHASKAR BHATTACHARYA) 1. This First Appeal is at the instance of plaintiffs in a suit for specific performance of contract and other relief and is directed against the judgment and decree dated June 13, 2011 passed by the 3rd Joint Civil Judge [Senior Division] at Vadodara in Special Civil Suit No. 1016 of 1999 thereby dismissing the suit on the ground of res judicata. 2. Being dissatisfied, the unsuccessful plaintiffs have come up with the present First Appeal. 3. The following facts are not in dispute. The land in dispute originally belonged to one Ranchhodbhai Khushalbhai. On 25th November 1968, an apparent sale-deed was executed by the said Ranchhodbhai Khushalbhai in favour of one Fakirbhai Jibhai, predecessor-in-title of the present plaintiffs. In the said registered deed of sale, there was a clause that if Ranchhodbhai Khushalbhai, after completion of 5 years returns the sum mentioned in the deed to the purchaser, the purchaser would be bound to return the land to the seller. Subsequently, Ranchhodbhai Khushalbhai died and in the year 1974, there was a fresh agreement for sale between Fakirbhai Jibhai and the defendants by which the price of the selfsame land was fixed at Rs.15,500/-. In the said agreement, it was mentioned that out of the said sum of Rs.15,500/-fixed as the proposed consideration, a sum of Rs.8000/- had already been paid as per earlier deed dated November 25, 1968, a further sum of Rs.3000/- was paid on April 19, 1972 and a further amount of Rs.4400/- was paid on November 4, 1974 aggregating a sum of Rs. 15,400/- which should be adjusted and thus, only Rs.100/- was to be paid at the time of executing the sale-deed. In the said agreement for sale, it was further specified that in view of the fact that the property was a fragmented one, the sale-deed would be executed the moment the impediment of sale of fragmented land would be lifted. 4. It may not be out of place to mention here that the deceased Ranchhodbhai Khushalbhai filed a suit being Regular Civil Suit No. 1444 of 1982 for declaring that the apparent sale-deed dated November 25, 1968 was in fact a deed of mortgage and he prayed for redemption of the said mortgage as additional relief. The learned trial Judge dismissed the said Regular Civil Suit No. 1444 of 1982. 5. The learned trial Judge dismissed the said Regular Civil Suit No. 1444 of 1982. 5. Being dissatisfied, Ranchhodbhai Khushalbhai preferred an appeal being Appeal No. 4 of 1993 and the first appellate court declared that the sale-deed dated November 25, 1968 was in essence a deed of mortgage and thus, the appeal was allowed by the first appellate Court and a decree of redemption of mortgage was passed with a further direction upon the defendants therein for restoration of possession. The defendants in the earlier suit, who are predecessor-in-title of the plaintiff of the present suit, filed a Second Appeal before this High Court, which was dismissed, and a Special Leave Application preferred against such decision also ended in dismissal. 6. It is also pertinent to mention here that in the earlier Regular Civil Suit No. 1444 of 1982, the predecessor of the present plaintiff put forward as defence the agreement of sale dated November 4, 1974, which is the subject matter of the present suit, for resisting the prayer of the predecessor-in-interest of the defendants and after taking into consideration the said agreement, the first appellate court in the earlier litigation held that the original transaction dated November 11, 1968 read with the agreement for sale dated November 4, 1974 made it clear that the transaction was a mortgage. 7. By the present suit, the plaintiffs have prayed for the following relief: “(1). Decree for Specific Performance of Contract dated 4.11.74 Annexure 'A' may be passed in favour of the plaintiffs against the defendants. (1A). If decree for Specific performance of Contract is not passed, decree for recovery of Rs.14,00,000/- (Forteen lacs) may be passed. (1B). If necessary, partition of the suit land may be made and thereafter, decree for specific performance may be passed. 2. The defendants or Court Receiver may be directed to obtain necessary permission from the government to make sale-deed. 3. The plaintiffs are in possession of the suit land in view of agreement to sale dated 4.11.74. It may be declared that the plaintiffs are entitled to keep and to protect possession of the suit land and defendants have no right to make obstruction or interference in possession of the plaintiffs. 4. The defendants may be restrained permanently from making obstruction and interference in possession of the plaintiffs. 5. Any other relief may be granted which court may think fit.” 8. 4. The defendants may be restrained permanently from making obstruction and interference in possession of the plaintiffs. 5. Any other relief may be granted which court may think fit.” 8. The present suit has been contested by the defendants by filing written statement thereby denying the material allegations made in the plaint. According to the defendants, in view of the fact that in the earlier proceedings between the parties under which the present parties claim, the first appellate court had, after taking into consideration the agreement for sale dated 4th November 1974, came to the conclusion that the transaction between the parties dated November 25, 1968 was really a mortgage and that the predecessor-in-interest of the present defendants was entitled to get the recovery of possession on redemption, the plaintiffs of the present suit are not entitled to get any relief for specific performance of the selfsame agreement dated November 4, 1974. In other words, according to the defendants, the present suit should be held to be barred by the principle of res judicata and the plaintiffs of the present suit are not entitled to get any relief in the present proceedings as the decree passed in the earlier proceedings had attained finality. 9. The learned trial Judge, on consideration of the material on record, came to the conclusion that if in the present proceedings a decree for specific performance of contract was passed in respect of the agreement dated November 4, 1974, the same would amount to sitting as appellate court on the Supreme Court as the earlier proceedings went up to the Supreme Court. The learned trial Judge took into consideration the fact that as in the earlier proceedings, the selfsame agreement dated November 4, 1974 was put forward by the predecessor-in-interest of the plaintiffs as a shield to resist the decree for redemption of mortgage, the present suit is barred by the principles of res judicata. The suit has been thus dismissed with the aforesaid findings. 10. Mr. The suit has been thus dismissed with the aforesaid findings. 10. Mr. B.S. Patel, the learned advocate appearing on behalf of the appellant, has strenuously contended before us that the findings of the learned trial Judge that suit was barred by the principles of res judicata is not tenable in the eye of law for the simple reason that in the earlier suit between the predecessors of the parties, the Court had no occasion to consider the question of grant of relief of specific performance of the agreement dated November 4, 1974. Mr. Patel contends that in the earlier suit, no issue was framed as to whether the predecessor of the present plaintiffs were entitled to get a decree for specific performance of contract and thus, in the absence of any decision on the issues which are relevant for the purpose of disposal of the present suit, the decision passed in the earlier suit cannot be held to be res judicata. 11. Mr. Patel further contended that the earlier suit filed by the predecessor-in-interest of the present defendants being one for redemption of mortgage, in such a suit, the plea of specific performance of contract cannot be advanced as a defence and thus, the issues involved in the present suit were not directly and substantially in issue in the earlier proceedings and consequently, the learned trial Judge committed a serious error of law in holding that the issues in the present suit are barred by res judicata. 12. Mr. Patel further contends that in the earlier proceedings, the Special Leave Application filed by his client having been dismissed, there was no merger of the decree of the first appellate court with that of the Supreme Court, and, therefore, the findings of the learned trial Judge that to pass a decree in the present suit would amount to contempt of the Supreme Court of India was patently a perverse finding of the fact. 13. Mr. Patel, therefore, prays for setting aside the judgment and decree passed by the learned trial Judge and also for passing a decree for specific performance of contract on the basis of the evidence already on the record as according to him, it would appear from such agreement that execution of such agreement is admitted by the defendants and that the plaintiffs were, at all material time, ready and willing to perform their part of the contract. Mr. Patel, therefore, prays for passing a decree for specific performance of contract by this Court on the basis of materials on record. 14. Mr. R.A. Patel, the learned advocate appearing on behalf of the respondents has, on the other hand, supported the ultimate conclusion arrived at by the learned trial Judge and according to him, the suit is clearly barred by the principles of constructive res judicata as envisaged in explanation (iv) to section 11 of the Code of Civil Procedure. According to Mr. R.A. Patel, the predecessor of the plaintiffs, in the earlier proceedings specifically relied upon the selfsame agreement for the purpose of opposing the relief claimed by his clients for recovery of possession on redemption but the Court having passed such a decree and such decree having attained finality, it must be concluded that the suit is barred by the principles of constructive res judicata. 15. Therefore, the first question that arises for determination in this appeal is whether the issues involved in the present suit for specific performance of contract should be held to be barred by the principles of res judicata as provided in Section 11 of the Code of Civil Procedure. 16. After hearing the learned counsel for the parties and after going through the material on record, we agree with the submission of Mr. B.S. Patel, the learned advocate for the appellants, that the reasons assigned by the learned trial Judge that if the suit is decreed it would amount to contempt of the Supreme Court of India is not correct. We agree with Mr. B.S. Patel that the Special Leave Application having been dismissed, there was no merger of the decree of the High Court in Second Appeal with the order of the Supreme Court and thus, no question of contempt of Supreme Court arises. 17. We are, however, unable to agree with Mr. We agree with Mr. B.S. Patel that the Special Leave Application having been dismissed, there was no merger of the decree of the High Court in Second Appeal with the order of the Supreme Court and thus, no question of contempt of Supreme Court arises. 17. We are, however, unable to agree with Mr. B.S. Patel that in the absence of any decision on the issue involved in the earlier suit, it cannot be said that Section 11 of the Code of Civil Procedure applies; on the contrary, we are of the view that even if there is no specific finding on any relevant issues, a suit may still be held to be barred by res judicata in the circumstances indicated in explanation (iv) to Section 11 of the Code of Civil Procedure and in those situations, though it would be a case of constructive res judicata, nevertheless, section 11 of the Code would be attracted. 18. We are also quite conscious of the position of law that being the first appellate court against the decree of learned trial Judge, we, in exercise of our powers conferred under Order 41 of the Code may not approve the reasons assigned by the trial Court but can affirm the final conclusion or the decree by supplying the appropriate reasons in support of the ultimate decree. 19. We, therefore, in exercise of such powers, propose to consider whether the present suit is really barred in view of explanation (iv) of the section 11 of the Civil Procedure Code on the basis of materials on record. 20. After hearing learned counsel for the parties and after going through the materials on record, we find that in the previous proceedings, when the predecessor-in-interest of the respondents before us prayed for redemption of mortgage, which necessarily meant recovery of possession in the facts of that case, the first appellate court granted such relief. In such proceedings, the predecessor-in-interest of the present plaintiffs who was defendant therein specifically put forward by way of a shield the selfsame agreement for the purpose of protecting his possession on the basis of such independent right. The Court having overruled such objection and granted a decree for recovery of possession in favour of the present respondents, explanation (iv) to section 11 is clearly attracted. 21. The Court having overruled such objection and granted a decree for recovery of possession in favour of the present respondents, explanation (iv) to section 11 is clearly attracted. 21. In other words, by taking aid of the selfsame agreement, the predecessor of the plaintiffs could have raised a specific plea under section 53A of the Transfer of Properties Act but he having failed to take such plea in the earlier proceedings, the present plaintiffs are precluded from relying upon the selfsame agreement for the purpose of enforcing any right arising out such agreement. 22. If in the earlier suit, the predecessor-in-interest of the plaintiffs took a specific plea that the relief of redemption of mortgage was not available in view of the subsequent agreement between the parties therein permitting the predecessor-in-interest of the present appellants to continue in possession, the court could have decided such question and granted relief to the predecessor-in-interest of the present appellants by refusing the prayer of recovery of possession in favour of the respondents. But, in spite of existence of such right arising out of the agreement dated November 4, 1974 in his favour, the predecessor-in-interest of the present appellants decided not to exercise such right, and therefore, his successors cannot enforce their right of specific performance based on the very same agreement. 23. It is now a settled law that in order to exercise right under Section 53 A of the Transfer of Property Act for protecting one’s possession, such person must prove the following facts: (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. (See Nathulal v. Phoolchand reported in AIR 1970 SC 546 ) In spite of having such a right to retain possession, if the plaintiff’s predecessor did not take such a plea in the earlier suit, it should be presumed that he could not have proved those ingredients or abandoned his right under the agreement. In other words, he was not willing to perform his part of the contract, and for that reason, such plea was not taken. The question whether the transferee was at all material time ready and willing to perform his part of the contract is also a relevant issue in the suit for specific performance of contract filed by the transferee. Thus, when the decree for recovery of possession passed in the earlier proceedings became final against the predecessor-in-interest of the plaintiff, the second proceedings filed for specific performance of contract of the same agreement must be held to be barred by the constructive res judicata. In fact, all the four aforesaid ingredients required to be proved to maintain possession by taking aid of Section 53A of the Transfer of Property Act are relevant in this suit for specific performance. 24. We, therefore, hold that this is a case the learned trial Judge should have dismissed the suit on the ground of constructive res judicata and the reason of contempt of the Supreme Court pointed out by him was not the appropriate reason. 25. Apart from the aforesaid fact, we find that the suit is also liable to be dismissed on the ground that it is patently barred by limitation, even if we ignore the issue of res judicata. 26. There is no dispute that the suit has been filed in the year 1999. The agreement was entered into in the year 1974 with a specific clause that the defendants will be under obligation to execute sale-deed in favour of the plaintiffs the moment prohibition of transfer of fragmented land would be lifted. There is no dispute that such prohibition was lifted by the Mamlatdar on August 25, 1992. The respondents unsuccessfully challenged the decision up to the level of Revision before the State Government and it is not the case of the appellant that at any point of time, there was any order of stay of the order dated August 25, 1992. There is no dispute that such prohibition was lifted by the Mamlatdar on August 25, 1992. The respondents unsuccessfully challenged the decision up to the level of Revision before the State Government and it is not the case of the appellant that at any point of time, there was any order of stay of the order dated August 25, 1992. It further appears that a legal notice for execution of the deed of sale was issued on August 19, 1996 which was denied by the respondent on August 29, 1996. 27. According to Article 54 of the Limitation Act, if in an agreement a specific time limit is specified for performance of the part of the contract at the instance of the defendants, the suit for specific performance of agreement has to be filed within three years from that date and in the absence of such clauses, it should be filed within three years from the date when the plaintiff had knowledge that the defendant had refused to perform his part of the contract. 28. Thus, in the case before us, even in the agreement dated November 4, 1974, the time of execution of sale-deed, which is the date of removal of prohibition of transfer of fragmented land, is fixed. Such prohibition having been lifted on August 25, 1992, the suit should have been filed within three years from that date. Undisputedly, the suit has been filed in the year 1999, long after the period of limitation and neither in the plaint nor in the evidence given by the plaintiffs, any circumstance providing for extension of time under the Limitation Act has been either pleaded or explained. The plaintiffs issued even the notice of execution of sale-deed after the expiry of three years. Thus, in the absence of pleading or evidence claiming the benefit of extension as contained in the Limitation Act, the suit is patently barred. 29. We now propose to deal with the decisions cited by Mr. B. S. Patel. Mr Patel at the very outset placed strong reliance upon the following decisions in support of his contention that there cannot be res judicata unless specific issues involved in the suit were are framed and decided in the earlier proceedings. According to Mr Patel, in absence of decision on any of the relevant issues in the earlier suit, there cannot be res judicata. According to Mr Patel, in absence of decision on any of the relevant issues in the earlier suit, there cannot be res judicata. Those decisions are referred to below:- i. Prataprai N Kothari vs. John Bhraganja reported in (1999) 4 SCC 403 ; ii. Lonan Kutty vs. Thomman and another reported in AIR 1976 SC 1645 ; iii. Baldevdas Shivlal and another vs. Filmstan Distributors (India) Pvt. Ltd. reported in AIR 1970 SC 406 ; iv. Madhviamma Bhawani Amma & Ors vs. Kunjikutty Pillai Meenakshi Pillai & Ors, reported in (2000) 6 SCC 301 ; v. Keval Singh vs. Smt. Lajvanti reported in (1980) 1 SCC 290 ; vi. Ragho Prasad Gupta vs. Shri Krishna Poddar reported in AIR 1969 SC 316 ; vii. William vs. Lourd Samy & Anr. Reported in (2008) 5 SCC 647 . We do not, for a moment, dispute with the well-settled propositions laid down by the Supreme Court in those decisions dealing with the issue of res judicata. But the law is equally settled that a case can also come within the purview of Section 11, if the conditions mentioned in explanation (iv) to Section 11 are attracted and in those type of cases, even in the absence of any specific issue framed and decided, the principle laid down in Section 11 can be very much applicable provided such issue could have been raised either by way of attack or in defence by any of the parties. Therefore, the above decisions have no application to the facts of a case, where a Court proposes to apply the principle of constructive res judicata by invoking explanation (iv) to Section 11, and in such circumstances, even in the absence of framing of and decisions on relevant issues in the earlier suit, Section 11 would be attracted. On the question of constructive res judicata, Mr B.S. Patel relied upon the following three decisions:- i. Ramnandan Prasad Narayan Singh & Anr. Vs. Kapildevo Ramjee and others reported in AIR 1951 SC 155 ; ii. Jaswant Singh & Anr. Vs.Custodian of Evacuee Property, New Delhi reported in (1985) 3 SCC 648 = AIR 1985 SC 1096 : iii. Krishnalal vs. State of J & K reported in (1994) 4 SCC 422 . In the case of Ramnandan Prasad Narayan Singh & Anr. Vs. Kapildevo Ramjee and others reported in AIR 1951 SC 155 ; ii. Jaswant Singh & Anr. Vs.Custodian of Evacuee Property, New Delhi reported in (1985) 3 SCC 648 = AIR 1985 SC 1096 : iii. Krishnalal vs. State of J & K reported in (1994) 4 SCC 422 . In the case of Ramnandan Prasad Narayan Singh & Anr. (supra), the decree-holder contended that as Section 11 of the Bihar Money Lenders Act, 1938 was declared void and ultra vires, therefore, Section 7 of the new Act which corresponded to Section 11 was also inapplicable in answer to the claim of the judgment-debtors that they were entitled to the benefit of Section 7 of the new Act. In the previous proceedings, as it appears from the judgment, the Federal Court held that the judgment-debtors who were the appellants before the Supreme Court were entitled to claim the benefit of the provisions of the new Act when the Executing Court proceeded under Section 13 to determine the value of the properties to be sold. In such circumstances, the Supreme Court was of the opinion that the correct interpretation of Section 7 was not in question between the parties in the earlier proceeding, and to contend that the appellants were entitled to take advantage of the new provisions of Section 7 was entirely different from the controversy that the interpretation sought to be put by them on Section 7 was the right one. According to the Supreme Court, the Federal Court was not dealing with any question of interpretation at all and, therefore, the doctrine of constructive res judicata did not come in. In the case before us, we have already pointed out that in the previous proceedings, the predecessor of the appellants could successfully resist the plea of redemption and recovery of possession by contending that by virtue of a subsequent agreement of sale they were allowed to retain possession and at the same time, they were all along ready and willing to perform their part of the subsequent contract. Such plea not having been raised, and in spite of production of the subsequent agreement in the earlier proceedings, the court having passed a decree of recovery of possession, the doctrine of constructive res judicata is squarely applicable and, therefore, the said decision of the Supreme Court cannot have any application to the facts of the present case. Such plea not having been raised, and in spite of production of the subsequent agreement in the earlier proceedings, the court having passed a decree of recovery of possession, the doctrine of constructive res judicata is squarely applicable and, therefore, the said decision of the Supreme Court cannot have any application to the facts of the present case. In the case of Jaswant Singh (supra), the Supreme Court while dealing with the question of plea of res judicata made the following observations in paragraph 14 which has been relied on by Mr Patel :- “14. The main ground urged in support of the above appeal by the appellants of whom appellant No. 1, Jaswant Singh is the auction-purchaser, is that the order dated March 28, 1949 passed by the Sub-Judge, Ist Class, Delhi having become final, it would operate as a bar to any enquiry into the application which had been made by the Custodian after the promulgation of Ordinance No. XII of 1949, and Ordinance No. XXVII of 1949. This ground is based on the principles underlying S. 11 of the Civil P.C. 1908. That section provides that no court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court. explanation (iv) to that section provides that any matter which might or ought to have, been made a ground of defence or attack in such former suit shall be deemed to have been directly and substantially in issue in such suit. It is well settled that in order to decide the question whether a subsequent proceeding is barred by res judicata it is necessary to examine the question with reference to the (i) forum or the competence of the Court, (ii) parties and their representatives, (iii) matters in issue, (iv) matters which ought to have been made ground for defence or attack in the former suit and (v) the final decision. In the instant case there is no dispute that the parties and the properties involved in the proceedings in which the order dated March 28, 1949 was passed and in the proceedings commenced by the application which has given rise to this appeal are the same. The only point of difference between them however is that whereas in the former proceedings, the custodian had relied upon the provisions of S. 8 of the East Punjab Act, in the present proceedings reliance is placed by him on the provisions of S. 17(2) of Ordinance No. XXVII of 1949 and S. 17(2) of the Central Act. Section 8 of the East Punjab Act which was relied on by the Custodian in the earlier proceedings stated that all subsisting attachments of evacuee property effected after Dec. 31, 1947 under orders of a Civil or Revenue court or an officer or other authority would cease to have any effect, and all sales, leases or other forms of alienation by any court, officer or authority of such property effected after the above mentioned date were liable to be set aside at the instance of the Custodian on an application filed, before the court, officer or authority concerned. The application made by the Custodian under that provision was dismissed by the Sub-Judge, Ist Class, Delhi as already mentioned on the ground that the attachment of the properties involved in the case had been effected prior to Dec. 31, 1947 and, therefore, the sale of those properties was not assailable under S. 8 of the East Punjab Act. The next application with which we are concerned in this appeal was filed by the Custodian on Aug. 24,1949 before the court. By then Ordinance No. XII of 1949 had been promulgated. Ordinance No. XXVII of 1949 which came into force on Oct. 18, 1949 during the pendency of that application had repealed and replaced Ordinance No. XII of 1949, and therefore the Sub-Judge, Ist Class, Delhi should. have taken into consideration the provisions of Ordinance No. XXVII of 1949 on March 24, 1950 when he disposed of the said application. As mentioned earlier, the learned Sub-Judge had not referred, to Ordinance No. XXVII of 1949 at all in the course of his order. have taken into consideration the provisions of Ordinance No. XXVII of 1949 on March 24, 1950 when he disposed of the said application. As mentioned earlier, the learned Sub-Judge had not referred, to Ordinance No. XXVII of 1949 at all in the course of his order. Sub-section (2) of S. 17 of Ordinance No. XXVII of 1949 was wider in its scope and content than S. 8 of the East Punjab Act which arose for consideration at the time when the order dated March. 28, 1949 was passed by the court. Section 17(2) of Ordinance No. XXVII of 1949 which conferred a new right on the Custodian provided that any transfer of evacuee property under orders of a court or any other authority made after the 14th day of Aug. 1947 was liable to be set aside if an application was made to such court or authority by or at the instance of the Custodian. within three months from the commencement of the Ordinance. A comparison of S. 8(2) of the East Punjab Act with S. 17(2) of Ordinance No. XXVII of 1949 would show that whereas S. 8(2) of the. East Punjab Act affected sales of properties by court which had been attached after Dec. 31, 1947, S. 17(2) of Ordinance No. XXVII of 1949 affected any transfer of evacuee property under orders of a court or any other authority made after the 14th day of August, 1947. In the present case the properties in question had been attached by the court on Oct. 9, 1947 which was a date anterior to Dec. 31, 1947 which was the crucial date for purposes of S. 8(2) of the East Punjab Act but subsequent to Aug. 14, 1947 which was the crucial date for purposes of S. 17(2) of Ordinance No. XXVII of 1949. It was not, therefore, open to the Custodian to contend in his application which was disposed of by the order dated March 28, 1949 that the court sale was liable to be set aside. The cause of action for making that claim arose only after Ordinance No. XXVII of 1949 was passed. A cause of action for a proceeding has no relation whatever to the defence which may be set up, nor does it depend upon the character of the relief prayed for by the plaintiff or the applicant. The cause of action for making that claim arose only after Ordinance No. XXVII of 1949 was passed. A cause of action for a proceeding has no relation whatever to the defence which may be set up, nor does it depend upon the character of the relief prayed for by the plaintiff or the applicant. It refers entirely to the grounds set forth in the plaint or the application as the case may be as the cause of action or in other words to the media upon which the plaintiff or the applicant asks the court to arrive at a conclusion in his favour. In order that a defence of res judicata may succeed it is necessary to show that not only the cause of action was the same but also that the plaintiff had an opportunity of getting the relief which he is now seeking in the former proceedings, The test is whether the claim in the subsequent suit or proceedings is in fact founded upon the same cause of action which was the foundation of the former suit or proceedings, In the instant case but for the new law contained in S. 17(2) of Ordinance XXVII of 1949 the Custodian would not have been able to question the court sale in question, Since the Custodian could not, therefore, have asked for the relief which he claimed in the application which has given rise to this appeal before March 28, 1949 it cannot be said that the present proceedings are barred by the rule of res judicata, even though in both the proceedings the prayer made by the Custodian was that the sale of the properties in question should be set aside. We are, therefore, of the view that the Division Bench was right in holding that the present proceedings were not barred by the rule of res judicata.” It appears from aforesaid judgment, that the Supreme Court was dealing with a case where in the former proceedings, the Custodian had relied upon the provisions of Section 8 of the East Punjab Act and in the second proceeding reliance was placed by him on the provision of Section 17(2) of Ordinance XXVII of 1949. According to the Supreme Court, Section 8 of the East Punjab Act, which was relied on by the Custodian in the earlier proceedings, provided that all subsisting attachments of evacuee property effected after December 31, 1947 under orders of a Civil or Revenue court or an officer or other authority would cease to have any effect, and all sales, leases or other forms of alienation by any court, officer or authority of such property effected after the above mentioned date were liable to be set aside at the instance of the Custodian on an application filed, before the court, officer or authority concerned. The application made by the Custodian under that provision was dismissed by the Subordinate Judge, Ist Class, Delhi on the ground that the attachment of the properties involved in the case had been effected prior to December 31, 1947 and, therefore, the sale of those properties was not assailable under S. 8 of the East Punjab Act. The further application, with which the Supreme Court was concerned in the said appeal, was filed by the Custodian on August 24, 1949 before the court and by then Ordinance No. XII of 1949 had been promulgated. Ordinance No. XXVII of 1949, which came into force on October 18, 1949 during the pendency of that application, had repealed and replaced Ordinance No. XII of 1949, and therefore according to the Supreme Court, the Subordinate Judge, Ist Class, Delhi, should have taken into consideration the provisions of Ordinance No. XXVII of 1949 on March 24, 1950 when he disposed of the said proceeding. The Supreme Court pointed out that the learned Subordinate Judge had not referred to Ordinance No. XXVII of 1949 at all in the course of his order. The Supreme Court further held that sub-section (2) of Section 17 of Ordinance No. XXVII of 1949 was wider in its scope and content than Section 8 of the East Punjab Act which arose for consideration at the time when the order dated March 28, 1949 was passed by the court. The Supreme Court further held that sub-section (2) of Section 17 of Ordinance No. XXVII of 1949 was wider in its scope and content than Section 8 of the East Punjab Act which arose for consideration at the time when the order dated March 28, 1949 was passed by the court. The Supreme Court emphasized on the fact that Section 17(2) of Ordinance No. XXVII of 1949 which conferred a new right on the Custodian provided that any transfer of evacuee property under orders of a court or any other authority made after the 14th day of August 1947 was liable to be set aside if an application was made to such court or authority by or at the instance of the Custodian within three months from the commencement of the Ordinance. In the case before the Supreme Court, the properties in question had been attached by the court on October 9, 1947 which was a date anterior to December 31, 1947 which was the crucial date for purposes of Section 8(2) of the East Punjab Act but subsequent to August 14, 1947 which was the vital date for purposes of Section 17(2) of Ordinance No. XXVII of 1949. According to the Supreme Court, it was not, therefore, open to the Custodian to contend in his application which was disposed of by the order dated March 28, 1949 that the court sale was liable to be set aside and the cause of action for making that claim arose only after Ordinance No. XXVII of 1949 was passed. In the case before us, we have already pointed out that at the time of disposal of the earlier proceedings, the subsequent agreement of sale having already been entered into and taken in defence, the same could have been very much put forward as a defence to resist the decree for recovery of possession by contending that the predecessor-in-interest of the present plaintiffs was then ready and willing to perform his part of the contract. Thus, the principle laid down in the case of Jaswant Singh, (supra), is not applicable to the facts of the present case, as by taking the plea that he was ready and willing to perform his part of the subsequent agreement, the predecessor of the plaintiffs could have resisted the decree for recovery of possession in the earlier suit. Thus, the principle laid down in the case of Jaswant Singh, (supra), is not applicable to the facts of the present case, as by taking the plea that he was ready and willing to perform his part of the subsequent agreement, the predecessor of the plaintiffs could have resisted the decree for recovery of possession in the earlier suit. In the case of Krishanlal (supra), the Supreme Court was dealing with the case of res judicata. At paragraph 12 of the judgment, the Supreme Court pointed out that there was no decision on merits as regards the grievance of the appellant and so the principle of res judicata had no application. According to the Supreme Court, for application of doctrine of res judicata to operate, the relevant issue must have been heard and finally decided and if there was no decision at all on merit of the grievance of the petitioner in the earlier petition, the plea of res judicata was no applicable. We find that in that case, explanation (iv) to Section 11 of the Code was not involved. Thus, the said decision cannot have any application to the facts of the present case. As far as the decision of Assam High Court in the case of Husan Ali and others vs. Gange Nath reported in AIR 1956 ASSAM 17 is concerned, we find that in that case it was held that the right to sue for specific performance could not be set up as a defence to a suit for redemption. After going through the said decision, we find that in that case there was no defence of putting the person in possession of the property pursuant to the agreement for sale and as such, no question of doctrine of part performance was involved. Therefore, the principle laid down in the said decision cannot have application to a case where the defendant in the earlier suit could successfully raise the plea of part performance by taking aid of Section 53A of the Transfer of Property Act for maintaining his existing possession in the proceedings for redemption. On the question of limitation, Mr Patel relied upon the decision of Supreme Court in the case of Banarasi Das and another vs. Kanshi Ram and another reported in AIR 1963 SC 1165 . On the question of limitation, Mr Patel relied upon the decision of Supreme Court in the case of Banarasi Das and another vs. Kanshi Ram and another reported in AIR 1963 SC 1165 . In the said case, it was held that a new plea of limitation which was not purely one of law but a mixed question of law and fact could not have been allowed to be raised for the first time at the stage of arguments in a second appeal by the High Court when it was raised by the non-contesting defendant who had not filed written statement in the suit. According to the Supreme Court, if the High Court felt overwhelmed by the provisions of Section 3 of the Limitation Act, it should at least have given an opportunity to the parties, which supported the decree of the trial Court to meet the plea of limitation by amending their pleadings. In the case before us, we have already pointed out that even on the basis of own case made out by the plaintiff as appearing from materials on record, we find that the Mamlatdar, Vadodara removed the restriction of Fragmentation Act on August 25, 1992 and, therefore, it is apparent that the suit having been filed more than three years thereafter in violation of Article 54 of the Limitation Act, no question of giving any opportunity of amendment to the plaint arises for meeting the plea of limitation. It is well settled that it is for the plaintiff to plead and prove that he is entitled to the benefit of extension of the period of limitation if on the basis of his own case, the suit is filed beyond the period of limitation. The said decision thus has no application to the facts of the present case. Lastly, Mr Patel submitted that even if the suit is held to be barred by limitation, his client’s right to continue in possession cannot be defeated and in support of his contention, he relied upon two decisions, one of Calcutta High Court in the case of Nakulchand Polley vs. Kanipaa Ghosal reported in AIR 1939 Calcutta 163 and the other, of Orissa High Court in the case of Baruna Giri vs. Rajkoshor Giri reported in AIR 1983 Orissa 107. In our opinion, the said contention is also not tenable in view of the fact that we propose to dismiss the suit not only on the ground of being barred by limitation but also on the ground that the plea of Section 53A of the Transfer of Property Act should be held to be barred by constructive res judicata as the predecessor of the appellant did not exercise such right by taking such plea in the earlier proceeding. 30. We, therefore, uphold the ultimate conclusion that the suit is liable to be dismissed, however, on the findings that it is not only barred by the principles of constructive res judicata but also on the ground of limitation even on the basis of the materials on record in the absence of any explanation of the plaintiff claiming benefit of extension of period. We make it clear that we have otherwise not gone into the other issues involved which are unnecessary for the purpose of disposal of this appeal. 31. The appeal is thus dismissed with no order as to costs.