JUDGMENT Tarlok Singh Chauhan, J. This regular second appeal is directed against the judgement and decree dated 3.8.2001 passed by learned Additional District Judge (2) Kangra at Dharamashala in Civil Appeal No. 76- P/XIII/97, whereby he dismissed the appeal filed by the plaintiffs- appellants and affirmed the judgement and decree dated 18.7.1997 passed by the learned Sub Judge Ist Class, Palampur in Civil Suit No. 366 of 1992. 2. Briefly stated the facts of plaintiffs’ case are that they were owners in possession of the land in dispute on the basis of an agreement dated 7.5.1983. It has been averred that Alahadin and Salamdeen sons of Lakhy had taken a loan of Rs.4,000/- and Rs.3500/- respectively, from State Bank of India, Jaisinghpur and both had agreed to sell the property to Noor Hussain the father of the appellants against the loan of Rs.11,000/-. It was further averred that after the agreement the father of the appellants would make the payments and on this condition even the possession of the suit land was delivered to the appellants. It is further claimed that the parties agreed that father of the appellants was to pay the loan to the bank and thereafter Alahadin and Salamdeen would execute the sale deed, failing which the father of the appellants would become the owner of the suit property. It was further averred that respondent being the only legal representative of Alahadin and Salamdeen had no right , title or interest in the suit land. The appellants accordingly filed the suit for declaration to the effect that they had become owners of the suit land with consequential relief of permanent injunction. 3. The suit was contested and resisted by the defendant by filing a written statement, wherein preliminary objections, as to the maintainability of the suit, non-joinder of necessary parties, limitation, estoppel and cause of action were raised. On merits, it was denied that plaintiffs were the owners in possession of the suit land. It was further stated that Alahadin and Salamdeen had never executed any agreement in favour of Noor Hussain father of the plaintiffs. Further, it was maintained that if at all, any payments had been made by the father of the plaintiffs in the loan account of State Bank of India Jaisinghpur, then the plaintiffs were not bound by these payments. It was further stated that Alahadin and Salamdeen had never executed any agreement in favour of Noor Hussain father of the plaintiffs. Further, it was maintained that if at all, any payments had been made by the father of the plaintiffs in the loan account of State Bank of India Jaisinghpur, then the plaintiffs were not bound by these payments. It was further stated that possession of the suit land was never delivered to the father of the plaintiffs. The defendant claimed that plaintiffs were stranger to the suit land and therefore, the suit should be dismissed. Replication was filed by the plaintiffs, wherein all the averments already made in the plaint, were re-asserted and reaffirmed. On the pleadings of the parties, the learned trial court on 12.4.1995 and then on 14.7.1997, framed the following issues:- 1. Whether Alahadin and Salamdeen, entered into agreement with Noordeen father of the plaintiffs for selling the suit land as alleged? OPP. 2. Whether Noor Hussain, father of the plaintiffs, paid Rs.11000/- to the State Bank of India, Jaisinghpur, as sale price of the suit land on behalf of Alahadin and Salamdeen? OPP. 3. Whether Alahadin and Salamdeen delivered possession of the suit land to Noor Hussain, the father of the plaintiffs on 7.5.1983 in lieu of the agreement and thereafter the plaintiffs are owners in possession of the suit land, as alleged? OPP. 4. Whether the plaintiffs are entitled to the relief of injunction, as prayed for? OPP. 5. Whether the suit is not maintainable in the present form? OPD. 6. Whether the plaintiffs have no locus standi and cause of action to file the suit? OPD. 7. Whether the suit is not within time, as alleged? OPD 8. Whether the act and conduct of the plaintiffs is a bar to the present suit? OPD. 9. Relief. 4. The learned trial court after recording the evidence and evaluating the same dismissed the suit of the plaintiffs. On appeal having been preferred, the suit of the plaintiffs met the same fate. This is how the matter reached before this court. On 27.9.2001, the appeal was admitted on the following substantial questions of law:- 1. Whether both the learned courts below are right in holding that agreement Exhibit PW 3/A dated 7th May, 1983 has not been proved in accordance with law? 2. This is how the matter reached before this court. On 27.9.2001, the appeal was admitted on the following substantial questions of law:- 1. Whether both the learned courts below are right in holding that agreement Exhibit PW 3/A dated 7th May, 1983 has not been proved in accordance with law? 2. Whether the impugned judgment and decree is the result of misreading, misinterpretation as well as mis- appreciating of the provisions of section 53A of the Transfer of Property Act? 3. Whether the learned courts below are right in not decreeing the suit of the appellants especially when the appellants have been able to prove that in pursuance of Ext. PW 3/A they had deposited a sum of Rs.11,000/- with the Bank which was taken as loan by the predecessor-in-interest of the respondent/ defendant? 4. Whether the impugned judgment and decree is the result of complete misreading of the provisions of Order 32 Rule 3 C.P.C.? 5. Whether the impugned judgment and decree is the result of misreading as well as mis-appreciation of Ext.P1 to P55 and Ext. DW 1/A? 6. Whether the learned courts below are right in not drawing an adverse inference against the respondent/ defendant who has not stepped into the witness box as required to be drawn under Section 114(g) of the Indian Evidence Act as well as in view of the law laid down by the Hon’ble Apex Court reported in 1999(1) SLJ 724? Substantial questions of law No. 1 to 3 and 5: 5. Since these questions are somehow inter-related and interconnected, the same are answered through common reasoning. 6. I have heard the learned counsel for the parties and meticulously gone through the records of the case. Though the learned counsel for the appellants argued strenuously regarding the applicability of section 53A of the Transfer of Property Act (hereinafter referred to as the Act). The provisions of section 53A of the Act reads as under:- “53A. Part performance. 6. I have heard the learned counsel for the parties and meticulously gone through the records of the case. Though the learned counsel for the appellants argued strenuously regarding the applicability of section 53A of the Transfer of Property Act (hereinafter referred to as the Act). The provisions of section 53A of the Act reads as under:- “53A. Part performance. – Where any person contracts to transfer forconsideration any immovable property by writing signed by him or onhis behalf from which the terms necessary to constitute the transfer canbe ascertained with reasonable certainty: and the transferee has, in part performance of the contract, takenpossession of the property or any part thereof, or the transferee, beingalready in possession, continues in possession in part performance of thecontract 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 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.” Therefore, the necessary conditions for the application of this section are:- (i) There must be contract to transfer for consideration any immovable property; (ii) the contract must be in writing, signed by the transferor or by someone on his behalf; (iii) the writing must be in such words from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty; (iv) the transferee must, in part performance of the contract take possession of the property or of any part thereof, or if the transferee is already in possession; (v) he must continues in possession in part performance of the contract’ (vi) the transferee must have done some act in furtherance of the contract; (vii) the transferee must have performed or is willing to perform his part of the contract. 7. 7. The plaintiffs have based their claim on the premises of having become owners of the property in dispute and not on part performance, as would be clear from the head-note and other averments of the plaint, which reads as under: “SUIT FOR DECLARATION TO THE EFFECT THAT PLAINTIFFS HAVE BECOME OWNER IN POSSESSION OF LAND BEARING KHATA NO. 50 KHATONI NO. 109 KHASRA NOs. 215, 227, 383, 384, 479, 488 KHASRA KITA 6 LAND MEASURING 0-50-78 HECTS AND LAND BEARING KHATA NO. 51 KHATONI NO. 110 KHASRA NO. 469 LAND MEASURING 0-29-33 HECTS OF ¼ SHARES 0-07-33 HECTS TOTAL LAND 0-58-11 HECTS SITUATED IN MOHAL CHALAH MAUZA-THURAL TEH- PALAMPUR DISTT-KANGRA (H.P.) VIDE AGREEMENT DATED 7TH MAY 1983 AND DEFENDANT HAS NO RIGHT, TITLE OR INTEREST IN THE SUIT LAND, WITH PERMANENT INJUNCTION, RESTRAINING FROM INTERFERING WITH THE SUIT LAND IN ANY MANNER WHATSOEVER. Sir, The plaintiffs respectfully submit as under:- 1. That plaintiffs have become owners in possession of land bearing Khata No. 50, Khatoni No. 109, Khasra Nos. 215, 227, 383, 384, 479, 488 Khasra Kita 6, land measuring 0-5-78 Hects and land bearing Khata No. 110, Khasra No. 469 land measuring 0- 29-33 of 1/4th share i.e. 0-07-33 Hects total land 0-58-11 Hects situated in Mohal Chalah Mauza Thural Teh.. Palampur Distt. Kangra vide agreement dated 7 May 83. 2. That Shri Aladeen and Salman deen sons of Lakhy son of Ruldu had taken loan from S.B.I, Jaisinghpur, Rs.4000/- and Rs.3,500/- respectively to purchase buffaloes and they have entered into agreement with Shri Noor Hussain father of the plaintiffs Alladeen and Salam Deen agreed to sell the land against loan i.e. Rs.11,000/- which was paid by the father of the plaintiff to S.B.I. Jaisinghpur. The letter of Branch Manager, S.B.I, Jaisinghpur is attached. 3. That the Aladeen and Salamdeen had delivered possession to the father of the plaintiffs on 7 May 1983 and they were agreed to execute a sale deed in favour of father of the plaintiffs after the payment of loan. The father of the plaintiffs paid loan to S.B.I. Jaisinghpur. Aladeen and Salamdeen were agreed in case they failed to execute the sale deed in favour of the father of the plaintiff, the father of the plaintiff will become owner of suit property, Agreement attached. 4. The father of the plaintiffs paid loan to S.B.I. Jaisinghpur. Aladeen and Salamdeen were agreed in case they failed to execute the sale deed in favour of the father of the plaintiff, the father of the plaintiff will become owner of suit property, Agreement attached. 4. That Shri Aladeen and Salam Deen had died and Defendant is the only legal heir of them and She has inherited their property. 5. That the defendant is minor and she is being sued through Nani Natural Guardian and she has no adverse interest to that of minor. 6. That Noor Hussain has died on 6.3.1992 and the plaintiffs are his legal heirs. 7. That the plaintiffs requested the Defendant to admit the claim of the plaintiffs but defendant is adamant; hence this suit. 8. That the defendant has no right, title or interest in the suit land. 9. That the value of the suit for the purposes of court fee and jurisdiction as given in the heading of the plaint. 10. That the cause of action arose to the plaintiffs on 7 May 1983 and on 20.7.1992 at Mohal Chalah Mauza- Thural Tehsil Palampur Distt. Kangra (H.P.), within the jurisdiction of this Hon’ble Court, hence this court has jurisdiction to try the suit. It is, therefore, prayed that suit of the plaintiffs may be decreed as prayed for in the heading of the plaint.” 8. Once the appellants have claimed themselves as owners then in the teeth of such pleadings, the plea of part performance cannot be invoked that too for the first time before this court. This would be further clear in case we glance over the issue framed in this case, as no issue regarding part performance was ever framed by the learned trial court or claimed by the appellants. Even in the grounds of appeal preferred before the learned lower appellate court, there is no plea set up by the appellants regarding non-framing of proper issue, or in particular the issue relating to part performance. Therefore, this plea is not open to the appellants in this appeal. 9. Even otherwise, the learned counsel for the appellants has not been able to show how the suit for declaration was maintainable rather it was fairly conceded that the suit in the present form for declaration may not be maintainable. Therefore, this plea is not open to the appellants in this appeal. 9. Even otherwise, the learned counsel for the appellants has not been able to show how the suit for declaration was maintainable rather it was fairly conceded that the suit in the present form for declaration may not be maintainable. However, it is claimed that the appellants were still entitled to protect their possession on the strength of the agreement. At this stage, it may be observed that in so far as the agreement dated 7.5.1983 Ext. PW 3/A is concerned, the learned courts below have after taking into consideration the evidence on record come to a firm conclusion that due execution of this agreement has not been established. 10. PW 3 is the alleged scribe of the agreement and had stated that both Alahadin and Salamdeen had appended their thumb impressions with blue ink, but when the original agreement is seen the thumb impressions of Alahadin and Salamdeen are in black ink. This witness had claimed that the marginal witnesses were Dhogru and Rattan Chand, but the agreement reveals that there is one more marginal witness named Amir Hussain. The perusal of the agreement shows that words Amir Hussain are written in different ink and pen and appear to have been scribed later on. This witness has feigned ignorance regarding the identity of Amir Hussain and also expressed his ignorance when questioned as to who may have written the said words. Thus it cannot be said that document Ex. PW 3/A has been duly proved on record in accordance with law. Once it is concluded that document Ex. PW 3/A has not been proved on record, the question regarding misreading and mis-appreciation of Ex. P1 to P-55 and Ex. DW 1/A only becomes academic. The aforesaid substantial questions of law are accordingly answered. Substantial question of law No. 4: 11. It is stated by the learned counsel for the respondent that provisions of Order 32 Rule 3 CPC could not have been invoked by the learned lower appellate court to non-suit the plaintiffs. This question is accordingly answered in favour of the appellants. Substantial question of law No. 6: 12. The learned counsel for the appellants has strenuously argued that learned courts below were required to draw an adverse inference against the defendant- respondent, since she had failed to appear in the witness box. This question is accordingly answered in favour of the appellants. Substantial question of law No. 6: 12. The learned counsel for the appellants has strenuously argued that learned courts below were required to draw an adverse inference against the defendant- respondent, since she had failed to appear in the witness box. For this purpose, the appellant has placed reliance on Iswar Bhai C. Patel @ Bachu Bhai Patel vs. Harihar Behera & Anr. 1999 (1) SLJ 724, the Hon’ble Supreme Court has held as under: - “15. Admittedly defendant No.1 had an account in the Central Bank of India Limited, Sambalpur Branch which his father, namely, respondent No.2, was authorised to operate. It is also an admitted fact that it was from this account that the amount was advanced to the appellant by respondent No.2. It has been given out in the statement of respondent No.2 that when the appellant had approached him for a loan of Rs.7,000/-, he had explicitly told him that he had no money to lend whereupon the appellant had himself suggested to advance the loan from the account of respondent No.1 and it was on his suggestion that the respondent No.2 issued the cheque to the appellant which the appellant, admittedly, encashed. This fact has not been controverted by the appellant who did not enter the witness box to make a statement on oath denying the statement of defendant (respondent) No.2 that it was at his instance that respondent No.2 had advanced the amount of Rs. 7,000/- to the appellant by issuing a cheque on the account of defendant (respondent) No.1. Having not entered into the witness box and having not presented himself for cross-examination, an adverse presumption has to be drawn against him on the basis of principles contained in illustration (g) of Section 114 of the Evidence Act.” 13. Further in Man Kaur (Dead) by LRs. Vs. Hartar Singh Sangha (2010) 10 SCC 512 , the Hon’ble Supreme Court has held as follows:- “14. In Vidhyadhar vs. Manikrao (1999) 3 SCC 573 this Court reiterated the following well-recognised legal position: (SCC pp. 583-84, para 17) `17. Where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct……’ 14. 583-84, para 17) `17. Where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct……’ 14. There is no quarrel with the aforesaid proposition of law, but the question as to whether the ratio of the said judgements is attracted to the facts of the present case. It is settled law that plaintiff has to stand on his own legs and cannot derive any strength from the weakness of the defence. Once the plaintiff has failed to prove on record the agreement Ex. PW 3/A dated 7.5.1983, the mere fact that defendant has not appeared in the witness box would be of no avail as it was the plaintiffs who are required to establish their case by leading clear, cogent and convincing evidence. This substantial question of law is answered accordingly. 15. The learned counsel for the appellants would then contend that judgement and decree passed by the learned courts below are based on perversity whereby the learned courts below have ignored, misconstrued, misinterpreted the pleadings as also the oral and documentary evidence available on the record calling for interference by this court. In support of her contention, the learned counsel has placed reliance on Sebastiao Luis Fernandes (dead) through LRs and others vs. K.V.P. Shastri (Dead) through LRs and others 2014(1) Shim. L.C. 515, wherein, it has been held as under: “24.The learned counsel for the defendants relied on the judgment of this Court in Hero Vinoth (minor) v. Seshammal, (2006) 5 SCC 545 ,, wherein the principles relating to Section 100 of the CPC were summarized in para 24, which is extracted below : “24. The principles relating to Section 100 CPC relevant for this case may be summarized thus: (i) An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law. (ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law. (iii) The general rule is that High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to “decision based on no evidence”, it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.” 16. Further, the learned counsel has placed reliance on Rajasthan State Road Transport Corporation and another vs. Bajrang Lal (2014) 4 SCC 693, wherein, it has been held as under:- “20. In Ibrahim Uddin (Supra), this Court held: â€oe65. In Suwalal Chhogalal v. CIT, (1949) 17 ITR 269 (Nag) the Court held as under: (ITR p. 277) `……….…A fact is a fact irrespective of evidence by which it is proved. In Ibrahim Uddin (Supra), this Court held: â€oe65. In Suwalal Chhogalal v. CIT, (1949) 17 ITR 269 (Nag) the Court held as under: (ITR p. 277) `……….…A fact is a fact irrespective of evidence by which it is proved. The only time a question of law can arise in such a case is when it is alleged that there is no material on which the conclusion can be based or no sufficient material.’ 67. There is no prohibition to entertain a second appeal even on question of fact provided the Court is satisfied that the findings of the courts below were vitiated by non-consideration of relevant evidence or by showing erroneous approach to the matter and findings recorded in the court below are perverse. [Vide Jagdish Singh v. Natthu Singh, (1992)1 SCC 647 , Prativa Devi v. T.V. Krishnan, (1996) 5 SCC 353 , Satya Gupta v. Brijesh Kumar, (1998) 6 SCC 423 , Ragavendra Kumar v. Firm Prem Machinery & Co., (2000) 1 SCC 679 , Molar Mal v. Kay Iron Works (P) Ltd., (2000) 4SCC 285, Bharatha Matha v. R. Vijaya Renganathan, (2010) 11 SCC 483 and Dinesh Kumar v. Yusuf Ali, (2010) 12 SCC 740 ] 68. In Jai Singh v. Shakuntala, (2002) 3 SCC 634 , this Court held that (SCC p. 638, para 6) it is permissible to interfere even on question of fact but it may be only in exceptional cases and on extreme perversity that the authority to examine the same in extenso stands permissible ”it is a rarity rather than a regularity and thus in fine it can be safely concluded that while there is no prohibition as such, but the power to scrutiny can only be had in very exceptional circumstances and upon proper circumspection. Similar view has been taken in Kashmir Singh v. Harnam Singh, (2008) 12 SCC 796 .” 17. This court has already dealt with the substantial questions of law as framed by this court and I find that there is no question formulated by this court regarding perversity of findings at the time of admission of the appeal. Yet it may be reiterated that after going through the pleadings of the parties as also the statements of the witnesses and documents exhibited on record, it cannot be said that findings recorded by the learned courts below are perverse in any manner. Yet it may be reiterated that after going through the pleadings of the parties as also the statements of the witnesses and documents exhibited on record, it cannot be said that findings recorded by the learned courts below are perverse in any manner. Accordingly, I find no merit in the appeal and the same is accordingly dismissed, leaving the parties to bear their own costs. The judgments and decrees of learned courts below are affirmed.