JUDGMENT : - Dharam Chand Chaudhary, J. Shri Ranvir Kochhar defendant in the trial Court is in second appeal before this Court, as he is aggrieved by the judgment and decree passed by learned District Judge, Chamba, on 31.5.2002, in Civil Appeal No.31/1997/1987, whereby the appeal he preferred in the lower appellate Court was dismissed and the judgment and decree in Civil Suit No.16/1986, dated 21.10.1987, passed by learned Senior Sub Judge, Chamba, affirmed. 2. The appeal has been admitted on the following substantial questions of law: 1. Whether the plaintiff was entitled to a decree for possession when the findings of the court below was that the plaintiff was not ready and willing to perform his part of the contract and had committed breach of the contract and the defendant was in possession of the property in pursuance to the agreement of sale? 2. Whether the findings of the court below are perverse, based on misreading and misconstruction of oral and documentary evidence, particularly when the plea of protection of the possession of the plaintiff had been raised in the written statement which covers the plea of part performance under Section 53-A of the Transfer of Property Act and the assumption that the plea of part performance was not sustainable is justified, more particularly in view of the order of the Supreme Court dated 1.4.2002, when the plea in para 12 of the written statement that the possession of the defendant was lawful? 3. Whether the judgment of District Judge is based on misreading and misconstruction of the basic document of title Ext.P-1 dated 27.6.82 executed between the parties on the basis of which the defendant was in possession of the property and was ready and willing to perform his part of the contract? 3. The subject matter of dispute is property known as ‘Sant Niwas’, situated in Dalhousie, District Chamba. The owner thereof was one Sant Ram. He had raised a loan from State Bank of India, Dalhousie Branch and as a security mortgaged the property in dispute vide registered mortgage deed dated 30.9.1967 with State Bank of India. Said Shri Sant Ram during his life time failed to repay the loan amount. He was survived by Smt. Bhagwanti Devi, his widow. State Bank of India filed a suit for recovery of the loan amount. Smt. Bhagwanti also died during the pendency of the suit. Said Shri Sant Ram during his life time failed to repay the loan amount. He was survived by Smt. Bhagwanti Devi, his widow. State Bank of India filed a suit for recovery of the loan amount. Smt. Bhagwanti also died during the pendency of the suit. Said Smt. Bhagwanti Devi during her life time by way of Will bequeathed the suit property to Mani Ram, respondent herein, the plaintiff in the trial Court. He was substituted as her legal representative and this Court vide judgment and decree dated 21.7.1978, directed him to dispose of the suit property and to deposit the money received towards sale consideration towards repayment of the outstanding loan amount. He, therefore, entered into an agreement Ext.P.1 on 20.6.1982 to sell the suit house to defendant for a sum of Rs.1,00,000/-. The part of the sale consideration, i.e., Rs.40,000/- was received in advance at the time of execution of the agreement. The sale deed was agreed to be executed and registered on or before 25.7.1983. On the failure of the defendant to get the sale deed executed and registered on payment of balance sale consideration, the sum of Rs.40,000/- paid in advance to the plaintiff had to be forfeited. It was further agreed that on the failure of the plaintiff to execute the sale deed on 25.7.1983, he had to pay Rs.80,000/-, i.e., double the amount he received in advance to the defendant. Said Mani Ram also died during the pendency of the appeal and survived by his legal representatives. 4. Admittedly, neither the balance sale consideration was paid nor the sale deed could be executed on or before 25.7.1983. Consequently, plaintiff Mani Ram, has instituted the present suit on 6.6.1986 in the Court of the then Senior Sub Judge, Chamba, for possession of the suit house, namely Sant Niwas against the plaintiff. While the plaintiff has claimed that the defendant failed to pay the balance sale consideration and also to get the sale deed executed, the defendant has come forward with the version that it is the plaintiff who failed to get seven rooms of the suit house in the possession of Assistant Public Prosecutor, Dalhousie on rent, vacated, obtaining income tax clearance certificate and no due certificate from State Bank of India with whom the suit house was mortgaged by late Shri Sant Ram in a loan transaction. Therefore, he being always ready and willing to perform his part of the contract on payment of balance sale consideration, the sale could not be executed. By pressing in service the default clause in the agreement Ext.P.1, he has preferred counter-claim against the plaintiff for the recovery of Rs.80,000/-. 5. Learned trial Court taking into consideration the claims and counter-claims of both sides framed the following issues in the suit: 1) Whether the plaintiff was willing and ready to perform his part of the contract dated 27.6.82 as alleged? OPP. 2) Whether the plaintiff failed to perform his part of the contract dated 27.6.82 in not executing the sale deed? OPD. 3) Whether the defendant is entitled to refund of earnest money and damages amounting to Rs.80,000/- as alleged? OPD. 4) Whether the suit is not maintainable as alleged? OPD. 5) Whether the suit is bad for non-joinder of necessary parties as alleged in para 4 of the written statement? OPD. 6) Whether the plaintiff is estopped to bring the present suit by his act and conduct? OPD. 6-A. Whether counter claim of Rs.80,000/- of the defendant is within time? OPD. 6-B. Whether counter claim of the defendant is not maintainable for want of full particulars in the written statement? OPP. 6-C. Whether the plaintiff is entitled for a decree of Rs.51,000/- for use and occupation of the disputed property? OPP. 7) Relief. 6. After holding full trial and affording the parties due opportunity of being heard, learned trial Court has concluded that the plaintiff was neither ready nor willing to execute the sale deed in terms of the agreement Ext.P-1, whereas the defendant was always ready and willing to perform his part of the contract. Consequently, the suit for the recovery of possession of the suit house though was decreed, however, on payment of Rs.80,000/- and also cost of the suit to the defendant. However, on the failure of the plaintiff to pay Rs.80,000/- to the defendant, the suit for possession was ordered to be dismissed. The decree for recovery of Rs.51,000/- on account of use and occupation charges claimed by the plaintiff against the defendant was, however, declined. 7. However, on the failure of the plaintiff to pay Rs.80,000/- to the defendant, the suit for possession was ordered to be dismissed. The decree for recovery of Rs.51,000/- on account of use and occupation charges claimed by the plaintiff against the defendant was, however, declined. 7. The defendant has assailed the judgment and decree passed by learned trial Court in the Court of learned District Judge, Chamba, however, unsuccessfully, as in the opinion of learned lower appellate Court the counter-claim claiming a sum of Rs.80,000/- amounts to waiver of his right to enforce the agreement Ext.P.1 qua execution of the sale deed on payment of the balance sale consideration, learned lower appellate Court refused to interfere with the judgment and decree passed by learned trial Court. 8. The complaint before this Court in the present appeal is that once the trial Court has concluded that the defendant was ready and willing to perform his part of the contract and it is the plaintiff who is not ready and willing to do so and to get the sale deed executed, therefore, there was no occasion to both Courts below to have decreed the suit. Legal questions raised before this Court, therefore, are that in the given facts and circumstances and the findings recorded by both Courts, particularly the trial Court, the plaintiff is entitled to the decree for possession of the suit house or the possession of the defendant therein has to be protected, believing the plea of part performance as envisaged under Section 53-A of the Transfer of Property Act to be duly established. Additionally, it also needs to be determined that there is any misreading or misconstruction of the record as well as any legal provision and on account of that findings recorded by both Courts below are perverse having rendered the judgment and decree under challenge legally and factually unsustainable. 9. The facts such as, late Shri Sant Ram was owner of the suit house. 9. The facts such as, late Shri Sant Ram was owner of the suit house. He was succeeded by his wife Smt. Bhagwanti Devi, who also died during the pendency of the suit, which was filed by State Bank of India, Dalhousie Branch in this Court for recovery of the outstanding loan amount raised by Shri Sant Ram by mortgaging the suit house and that Mani Ram, the plaintiff being legal representative of deceased Smt. Bhagwanti Devi was substituted as such in the suit and permission to dispose of the suit house and to repay the outstanding loan amount vide judgment and decree Ext.P.7 are not in any controversy. 10. The execution of the agreement Ext.P.1 qua the sale of suit house, receipt of part sale consideration, i.e., Rs.40,000/- by the plaintiff from the defendant in advance, the agreed date for execution of the sale deed, on or before 25.7.1983 and there being arrangement between the parties that on the failure of the plaintiff to execute the sale deed on or before the above said date, his liability to pay Rs.80,000/-, i.e., double of the amount received in advance, whereas on the failure of the defendant to take steps for execution of the sale deed on or before 25.7.1983 would result in forfeiture of Rs.40,000/- paid in advance, are also not in any controversy. 11. It is also not disputed that the sale deed could not be executed on or before 25.7.1983. The controversy, therefore, lies in a narrow compass because it has to be determined by this Court with the help of the law and also the evidence available on record that the defendant has succeeded in making out a case qua protection of his possession under Section 53-A of the Transfer of Property Act or on account of non-execution of the sale deed on or before 25.7.1983 the plaintiff is entitled to the decree of possession of the suit house. 12. Section 53-A of the Transfer of Property Act reads as follows: “53A. 12. Section 53-A of the Transfer of Property Act reads as follows: “53A. Part performance.—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, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that 2[***] where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract: Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.” 13. It is seen that the protection as envisaged in favour of the transferee under the provisions ibid can be extended only in those cases where there is a contract and pursuant to the contract the possession of the property agreed to be sold has been delivered to the transferee and that the transferee has performed or is willing to perform his part of the contract. 14. Shri K.D. Sood, learned Senior Advocate, duly assisted by Shri Sanjeev Sood, Advocate, has argued that the defendant being in possession of the suit house cannot be dispossessed therefrom irrespective of no suit for specific performance of the contract he filed nor any question of limitation arises in view of he is in possession of the suit house and his possession is protected under Section 53-A of the Act. In support of the contentions so raised he has placed reliance on the law laid down by various High Courts including our own High Court. 15. In support of the contentions so raised he has placed reliance on the law laid down by various High Courts including our own High Court. 15. In Balasaheb Manikrao Deshmukh and another v. Rama Lingoji Warthi, AIR 2000 Bombay 337, it has been held that the protection under the doctrine of part performance is available to a purchaser even if he has filed a suit for specific performance of the contract after the expiry of period of limitation. 16. In Narasimhasetty and others v. Padmasetty, AIR 1998 Karnataka 389 (FB), it has been held that the right of transferee to defend his possession over an immoveable property acquired pursuant to a contract, is statutory in nature and cannot be taken away on the grounds of laches or limitation. Similar is the ratio of the judgment in Periasami Naicker v. Sella Pillai, 1971 Madras 466. 17. The High Court of Rajasthan in Durga Prasad and others v. Kanhiyalal and others, AIR 1979 Rajasthan 209, has held that the object of Section 53-A of the Transfer of Property Act is to prevent a transferor or his successor from taking any undue advantage of the non-registration of the sale deed even if no suit for specific performance filed by the defendant. 18. A Coordinate Bench of this Court in Bhulla Ram v. Narvir Singh, 1997 (3) Shim.L.C. 473 , a case where the defendant was found to have proved his readiness and willingness to perform his part of the contract, whereas the plaintiff was found have evaded the issue on one pretext or the other, has held that the defendant has rightly pressed into service the provisions of Section 53-A of the Act to protect his possession. 19. There is no quarrel to the legal principles settled in the judgments cited supra, however, the application of legal principles in a given case needs evidence also. Although, learned trial Judge on appreciation of the evidence has concluded that the defendant was ready and willing to perform his part of the contract, whereas the plaintiff failed to do so and the plaintiff did not assail the findings so recorded against him by way of filing appeal etc. Although, learned trial Judge on appreciation of the evidence has concluded that the defendant was ready and willing to perform his part of the contract, whereas the plaintiff failed to do so and the plaintiff did not assail the findings so recorded against him by way of filing appeal etc. yet in view of the question of application of Section 53-A of the Transfer of Property Act has been raised, therefore, I deem it appropriate to discuss the evidence to adjudge the applicability of Section 53-A of the Transfer of Property Act in this case. 20. The plaintiff before the crucial date, i.e., 25.7.1983 served the defendant with notice Ext.P.3 and called upon him to come forward with the balance sale consideration so that the sale deed could be executed within the stipulated period. The defendant, as per his own version, left for Norway on 19.7.1983, i.e., few days before the date of execution of the sale deed. He has himself admitted so in his statement in the cross-examination. The plaintiff has examined Shri Ravinder Kumar (PW-4) in rebuttal. He produced the record pertaining to the accounts of the defendant in Punjab National Bank, Dalhousie branch. The statement of account for the relevant period, i.e., 1983 reveals that in this account he had never Rs.60,000/- in balance. Though it is stated that he has his account in State Bank of India also, however, failed to produce any evidence including the statement of account to show that he had sufficient funds in the said account. On the other hand, Rs.62,000/- available in cash with him, which he allegedly obtained from the assets of joint Hindu family and this amount he having given to his brother Kamal Kant (DW-3), no doubt DW-3 states that before proceeding to Norway the defendant did hand over Rs.62,000-63,000/- to him for payment to the plaintiff, if he approaches to him for the execution of the sale deed, however, as per his further version, from where the defendant arranged this amount is not known to him. He, however, states that this was neither given by his father nor by him to the defendant meaning thereby that the story about the defendant had Rs.60,000/- or Rs.62,000/- with him is doubtful and the possibility of same having been invented falsely to persuade the Court to form an opinion that he was ready and willing to perform his part of the contract, cannot be ruled out. There being no evidence qua the source from where the sum of Rs.60,000/- was generated by him, it cannot be believed that this amount was available with him in cash, as he stated while in the witness box. Otherwise also, instead of insisting upon the plaintiff to procure income tax certificate or get the rooms vacated and that it is thereafter he will come forward with the balance sale consideration, he should have paid the balance sale consideration by way of cheque or bank draft and then called upon the plaintiff to execute the sale deed. True it is that the balance sale consideration was to be paid at the time of execution of the sale deed, but in order to show his bonafide he would have prepared a bank draft in the name of the plaintiff payable only on the execution of the sale deed. No doubt, there was requirement of production of income tax clearance certificate at the time of execution of the sale of the property worth Rs.50,000/-, as has come in the statement of DW-2 Chet Singh, Naib Tehsildar, however, the plaintiff would have been held liable on this score had such certificate been not procured by him even if after coming to know that the balance sale consideration was kept ready by the defendant for payment to him. No doubt, the defendant was delivered the possession of a portion of the suit house at the time of execution of the agreement Ext.P.1, however, a portion thereof was still on rent with Assistant Public Prosecutor, Dalhousie. 21. In view of the law laid down in the judgments supra, the protection of Section 53-A of the Act is available only where it is proved that the transferee has done some act in furtherance of the contract or ready and willing to perform his part of the contract. 21. In view of the law laid down in the judgments supra, the protection of Section 53-A of the Act is available only where it is proved that the transferee has done some act in furtherance of the contract or ready and willing to perform his part of the contract. The trial Court has decreed the suit for the relief of possession of the suit house while arriving at a conclusion that the defendant had abandoned his claim qua his readiness and willingness to perform his part of the contract, i.e., execution of the sale deed on payment of the balance sale consideration and set up the counter claim qua the recovery of Rs.80,000/- from the plaintiff. The defendant cannot wriggle out from this legal hurdle for the reason that he has claimed the decree of Rs.80,000/- from the plaintiff in terms of contract agreement Ext.P.1. The decree for counter-claim has not been sought to be passed in the alternative because in the written statement irrespective of there being passing reference qua his readiness and willingness to perform his part of the contract, he has not sought any relief in this behalf. True it is that in the lower appellate Court he has filed an application for amendment of the written statement to the following extent: “(i) That the defendant is in possession of the property in pursuance to the agreement of sale. After the defendant has come into possession of the property by paying Rs.40,000/- as earnest money advance the defendant has effected considerable improvements on the property by spending over more than Rs.1,50,000/-, the defendant has been always ready and willing to perform his part of the agreement. The plaintiff is, therefore, not entitled to claim reliefs claimed in the suit. (ii) That the defendant being in possession of the property in part performance of the contract and has always been and is still ready and willing to perform his part of the contract entered into in writing b y the plaintiff with the defendant, the plaintiff is not entitled to the possession of the property or damages from the defendant in view of the provisions of Section 53-A of the Transfer of Property Act. (iii) That the plaintiff is estopped from filing the suit on account of his acts, deeds and conduct. (iii) That the plaintiff is estopped from filing the suit on account of his acts, deeds and conduct. The plaintiff having put the defendant in possession of the property after receiving Rs.40,000/-, and having permitted him to carry out extensive repairs and renovations and improvements of the property is now estopped from seeking possession of or mesne profits from the defendant. The defendant is prepared to pay the balance of Rs.60,000/- and the plaintiff should transfer the title in favour of the defendant. The plaintiff should also hand over the possession of the property which he is unauthorisedly keeping with him. The only remedy which is available to the plaintiff is to seek specific performance of the agreement and not the suit for possession and damages. More so when the plaintiff is at fault.” 22. The relief so claimed, however, was declined by the lower appellate Court. Order passed by the lower appellate Court has been upheld by this Court also in Civil Revision No.354 of 1999. Against the order passed by this Court, the defendant filed Special Leave to Appeal (Civil) CC 2552/2002 in the Hon’ble Supreme Court, which has been disposed of with the following observations: “Delay condoned. The prayer for amendment in the written statement made at the stage of first appeal has been refused and refusal upheld by the High Court in Civil Revision. The rejection of prayer for amendment in the written statement does not debar the petitioner herein from urging and pressing for decision the pleas already raised in the written statement. The Special Leave Petition is dismissed.” 23. In the written statement the plea that he is still ready and willing to perform his part of the contract is merely a passing reference for the reasons that had it been so, in the counter-claim he should have claimed the decree for specific performance of the contract, i.e., the execution of the sale deed of the suit house on payment of balance sale consideration to the plaintiff and the relief qua the decree of Rs.80,000/- against the plaintiff would have been sought in the alternative. He, however, in the counter-claim has claimed the decree for recovery of Rs.80,000/- the only relief meaning thereby that he has waived off his right to enforce the agreement to sell and execution of the sale deed by the plaintiff on payment of balance sale consideration. He, however, in the counter-claim has claimed the decree for recovery of Rs.80,000/- the only relief meaning thereby that he has waived off his right to enforce the agreement to sell and execution of the sale deed by the plaintiff on payment of balance sale consideration. No case that his possession over the suit house is protected under Section 53-A of the Transfer of Property Act is also made out from the pleadings of the defendants. In Nigamananda Patra and others v. Sarat Chandra Patra and others, 1998 Orissa 19, it has been held as under: “9. The contention raised by Sri Maliik in regard to the protection under S.53-A of the Transfer of Property does not merit consideration inasmuch as such a plea was not taken in the written statement. That apart, S.53-A of the Transfer of Property Act contemplates a contract in writing which is absent in the present case. Moreover, once the defendants denied the contract, the relief claimed under the said provision is absolutely untenable. In this regard, reference may be made to the decision in the case of Baruna Giri (and after him) Purendra Giri v. Raja Kishore Giri, (1983) 55 Cut LT 77: (AIR 1983 Orissa 107), wherein this Court held as follows: “One of the essential conditions for the application of S.53-A is that the transferee must plea and prove that he has performed or is willing to perform his part of the contract.” Again in the case of Ramachandra Swain v. Duryodhan Mahapatra, 1996(1) Ori LR 124, this Court dealing with S.53-A of the Transfer of Property Act has expressed as follows: “… Further, in order to avail of the benefit of the said statutory provision, the party concerned has to establish that he has done something in furtherance of the contract and is always ready and willing to perform his part of the contract...” Scrutinized on the ambit of law enunciated above, when there is denial of contract, benefit as contemplated under S.53-A of the Transfer of Property Act cannot be extended to defendants.” 24. Similar is the ratio of the law laid down in Smt. Sunder Bai and others v. Nonit Ram, 2004(1) Civil Court Cases 173 (MP). The Apex Court in Raheja Universal Limited v. NRC Limited and others, (2012) 4 SCC 148 has held as under: “106. Similar is the ratio of the law laid down in Smt. Sunder Bai and others v. Nonit Ram, 2004(1) Civil Court Cases 173 (MP). The Apex Court in Raheja Universal Limited v. NRC Limited and others, (2012) 4 SCC 148 has held as under: “106. The provisions of Section 53A of 1882 Act recognize a right of a transferee, where a transferor has given and the transferee has taken possession of the property or any part thereof. Even this provision does not create title of the transferee in the property in question but gives him a very limited right, that too, subject to the satisfaction of the conditions as stated in Section 53A of the Act of 1882 itself. Xxx xxx xxx 108. Thus, even if the part performance of the agreement is accepted, still no title is created in favour of the Respondent- Company. Provisions of Section 53A would also not, in any way, alter the position of the Act of 1985 having an overriding effect vis-a-vis the provisions of the Act of 1882. We have already held that the provisions of Act of 1985 shall have precedence and overriding effect over the provisions of the Act of 1882.” 25. This Court in Sham Lal v. Smt. Mathi, AIR 2002 HP 66 , has held that the question of applicability of Section 53-A of the Act cannot be raised in second appeal. This judgment reads as follows: “18. This Court in Sham Lal v. Smt. Mathi, AIR 2002 HP 66 , has held that the question of applicability of Section 53-A of the Act cannot be raised in second appeal. This judgment reads as follows: “18. The conditions necessary for making out the defence of part perform to an action brought by the owner for possession of the property are: (i) 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; (ii) 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; (iii) that the transferee has done some act in furtherance of the contract; and (iv) that the transferee has performed or is willing to perform his part of the contract: A person seeking protection of doctrine of part performance as enunciated in Section 53-A of the transfer of Property Act has thus to plead and prove inter alia that he has in part performance of the contract taken possession of the property or any part thereof and in case he was already in possession, he continues to be in such possession in part performance of the contract and has done some act in furtherance of the contract. In addition he has also to allege and prove that he has performed or is willing to perform his part of the contract. Now these pleas do involve questions of fact and if they had been raised by the defendant before the trial Court, it was open to the plaintiff to counteract them by pleading and proving that the defendant had not taken possession of the property in part performance of the contract or if he was already in possession, he had done no act in furtherance of the contract and that the defendant had neither performed nor was willing to perform his part of the contract. In the absence of such pleas having been raised by the defendant, the plaintiff had been allowed no opportunity to counteract such pleas and under the circumstances if the defendant-appellant is now allowed for the first time in this second appeal to raise such pleas it would certainly amount to providing a handicap to the opposite party. The plea that the defendant is protected by the doctrine of part performance, therefore, cannot be allowed to be raised at this stage. 19. In the present case no case seeking protection under Section 53-A. Transfer of Property Act, 1882 was set up by the defendant in his written j statement. Nor such a plea was raised before the first appellate court. The plea is sought to be raised for the first time before this court in second appeal. Being pleas involving questions of fact, cannot be permitted to be raised for the first time in the present second appeal.” 26. The protection envisaged under Section 53-A of the Transfer of Property Act otherwise also is not available to the defendant for the reasons that the plea to this effect is raised by him for the first time in the application under Order 6 Rule 17 of the Code of Civil Procedure filed in the lower appellate Court on 30.10.1999, i.e., beyond the period of limitation because as per the agreement Ext.P.1, the sale deed was to be executed on or before 25.7.1983 and the application having been filed on 30.10.1999 being beyond the period of three years, therefore, no such plea could have been raised by the defendant on this score also because on the expiry of the period of three years the defendant had lost his right under the agreement. I draw support in this behalf from the judgment of Karnataka High Court in Azmathaulla Khan v. Thankamma Methews, 1995(1) Civil Court Cases 34 (Karnataka). 27. In view of appraisal of the given facts and circumstances and also the evidence available on record as well as the law cited at the Bar no question of law muchless to speak the substantial question of law framed in this appeal arises for determination, rather there is no merit in the appeal and the same is accordingly dismissed. Parties to bear their own costs.