Manojit Bhuyan, J.:-- The plaintiff Madhab Ch. Das, the respondent herein, instituted Title Suit No. 170/2006 praying for declaration of right, title and interest, khas possession, eviction and permanent injunction in respect of the Schedule 'A' land of the plaint. The respondent/plaintiff had contended that the suit land was purchased by him in the year 1987 by a registered sale deed and thereafter got his name mutated in the revenue records and also had been paying land revenue to the Government from time to time. In the year 1993, the respondent/plaintiff offered to sell the said land to the appellants/defendants and had also received token money, where after the appellants/defendants were allowed to reside on the land. This position continued until the year 2006 with intermittent visits by the respondent/plaintiff - initially asking for the balance amount and thereafter asking the defendants to vacate the house and move away from the land. The defendants having threatened the plaintiff with dire consequences, the suit came to be instituted. 2. The original defendant Upananda Gogoi and on his death the defendant Nos. 1 to 4, who are the various sons and daughters of Upananda Gogoi, contested the suit by filing written statement. They contended that their father had purchased the land from the plaintiff by executing an unregistered Sale Deed on 21.11.1993 and had also paid Rs.50,000/- by way of advance consideration. The defendants also pleaded that the plaintiff tried to back out from his promise time and again and taking advantage of the sudden demise of Upananda Gogoi filed the suit for wrongful gain. The defendants stated that they have been in actual physical possession over the suit land since the year 1993 and the plaintiff has no right, title and interest over the land in question. 3. Upon the pleadings of the parties, the Trial Court framed as many as six Issues and judgment and decree in the said suit in favour of the respondent/plaintiff was delivered on 31.08.2010. 4. The learned Trial Court held that the unregistered sale deed which had been produced and exhibited as Ext- 'ka' could not confer title over the land, inasmuch as, no sale had been effected in terms of Section 54 of the Transfer of Property Act. The learned Trial Court held that the occupation over the suit land by the defendants is illegal and therefore, are liable to be evicted there from. The learned Trial Court held that the occupation over the suit land by the defendants is illegal and therefore, are liable to be evicted there from. On this premise, the Trial Court decreed the suit by declaring the right, title and interest of the plaintiff over the suit land with further direction that the defendants are liable to be evicted and the plaintiff is entitled to recover vacant possession of the suit property. 5. In Title Appeal No.22/2010, filed by Sanjoy Gogoi and others, discussion was confined to the grounds urged in the memo of the title appeal-the moot question being as to whether the appellant, i.e. Sanjoy Gogoi and others can be presumed to be the owners on the strength of their possession in view of the provision of Section 110 of the Evidence Act and whether the learned lower court had overlooked the said provision while passing the impugned judgment The First Appellate Court held that the presumption of ownership under Section 110 of the Evidence Act is rebuttable and it is attracted when possession is prima facie lawful and when the contesting party has no title. The First Appellate Court held that admittedly the title of the plaintiff was not in dispute, therefore, the claim put up by Sanjoy Gogoi and others under Section 110 of the Evidence Act was not acceptable. As regards the document at Ext- 'ka', the First Appellate Court agreed with the findings and decisions of the trial Court. Accordingly, the appeal was dismissed vide judgment and decree dated 25.08,2011. 6. Being aggrieved, the defendants Sanjoy Gogoi and others have filed the instant second appeal. 7. On 12.12.2012, this Court while admitting the appeal for hearing, had formulated the following substantial question of law; "Whether the courts below have committed error of law in not considering the protection available to the transferee of an immovable property under Section 53 A of the Transfer of Property Act, 1882 ?" 8. To determine this question and at the very outset it is placed on record that the applicability of Section 53 A of the Transfer of Property Act had not been raised before any of the courts below. It is entirely a new point raised for the first time in second appeal. To determine this question and at the very outset it is placed on record that the applicability of Section 53 A of the Transfer of Property Act had not been raised before any of the courts below. It is entirely a new point raised for the first time in second appeal. Be that as it may, before proceeding to determine this substantial question of law so formulated, it would be necessary to look at Section 53 A of the Transfer of Property Act. "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, 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 there for 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; Provide 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." 9. Mr. S. Ali, learned counsel for the appellants by referring to the provision under Section 53 A of the Act submits that the case of the defendants vis-a-vis Ext. 'ka' falls within the scope and ambit of the said provision and to that extent also places reliance upon the decision in the case of Shrimant Shamrao Suryavanshi and Another vs. Pralhad Bhairoba Suryavanshi (dead) by LRS. and Others, reported in (2002) 3 SCC 676 , to drive home the point that the defendants as transferees are entitled to defend or protect their possession under Section 53A of the Act. Md. Ali also contends that the defendants fulfilled the required conditions as enumerated in paragraph 16 of the reported decision to claim protection under Section 53 A of the Act. For ready reference, paragraph 16 of the judgment is reproduced hereunder; "16. Md. Ali also contends that the defendants fulfilled the required conditions as enumerated in paragraph 16 of the reported decision to claim protection under Section 53 A of the Act. For ready reference, paragraph 16 of the judgment is reproduced hereunder; "16. But there are certain conditions which are required to be fulfilled if a transferee wants to defend or protect his possession under Section 53-A of the Act. The necessary conditions are: (1) there must be a contract or transfer for consideration of any immovable property; (2) the contract must be in writing, signed by the transferor, or by someone on his behalf; (3) the writing must be in such words from which the terms necessary to construe the transfer can be ascertained; (4) the transferee must in part-performance of the contract take possession of the property, or of any part thereof: (5) the transferee must have done act in furtherance of the contract; and (6) the transferee must have performed or be willing to perform his part of the contract." 10. Mr. K.K. Mahanta, learned Senior counsel opens his argument by saying that new point cannot be urged in the second appellate stage, more particularly, when there is absolutely no foundation in the pleadings before the courts below. As such Mr. Mahanta, learned Senior counsel submits that the applicability of Section 53 A cannot be looked into by this Court at this stage. To reinforce his argument. Mr. Mahanta, places reliance on the decision rendered in Chittoori Subbanna vs. Kudappa Subbanna and Others, reported in AIR 1965 SC1325. Mr. Mahanta relies upon paragraph 4 thereof to say that although pure questions of law can be allowed to be taken up at later stages too, the said question is to be a pure question of law and not dependent on the determination of any question of fact. To this end, Mr. Mahanta submits that there is absolutely no pleadings before the courts below to bring home or generate any discussion with regard to the applicability of section 53 A of the Act. 11. Mr. To this end, Mr. Mahanta submits that there is absolutely no pleadings before the courts below to bring home or generate any discussion with regard to the applicability of section 53 A of the Act. 11. Mr. K.K. Mahanta, learned senior counsel referring to paragraph-16 of the written statement submits that condition precedent to use the shield of Section 53 A of the Transfer of Property Act are non-existent, in that, there are no pleadings on behalf of the appellant/defendant that anything had been done in furtherance of the contract or that the appellant/defendant is willing to perform part of the contract. Taking it further, Mr. Mahanta refers to paragraphs-9,10 and 11 of the plaint to say that the averments made therein, not having been specifically denied as required under the law, the appellant/defendant has farther failed to seek any protection under section 53 A of the Transfer of Property Act. In fact, no pleadings, no evidence and no arguments have been advanced by the appellant/defendant before the courts below to take shelter under the said Section 53 A. Mr. Mahanta relies upon the case of Union of India vs. Ibrahim Uddin and Another reported in (2012) 8 SCC148 (paragraph 77) to say that relief not founded on the pleadings cannot be granted. Also, in absence of pleadings, the appellant/defendant cannot take any benefit from the case of Shrimant Shamrao Suryavanshi and another (supra). According to Mr. Mahanta, there is no case for remand, more so, when there are concurrent findings of facts by the courts below. 12. In reply, Mr. S. Ali submits that a question of law can be pleaded at any stage. On facts. Mr. Ali submits that the statement made in paragraph-7 of the plaint as well as in paragraph 16(b) of the written statement brings the appellant/defendant's case under the scope of the said Section 53 A. Relying upon the proviso to Section 49 of the Registration Act, 1908, Mr. Ali submits that irrespective of fact that Ext. 'Ka' is not a registered document, the same ought to have been received as evidence of a contract or evidence of any collateral transaction not required to be effected by registered instrument. Alleging total non-application of mind on the part of the Courts below, Mr. Ali submits that on this count alone, the decisions of the Courts below are liable to be set aside. Alleging total non-application of mind on the part of the Courts below, Mr. Ali submits that on this count alone, the decisions of the Courts below are liable to be set aside. On this account, Mr. Ali places reliances upon the case of Rattan Dev vs. Pasam Devi, reported in (2002) 7 SCC 441 (para-4) to say that the non-application of mind by the First Appellate Court to Ext’Ka' is a failure to discharge its judicial obligation, thereby raising a question of law having substantial impact on the rights of the appellant/defendant. Lastly, Mr. Ali, relies upon the decision of Mohammad Laiquiddin and another vs. Kamala Devi Misra (dead) by LRS and Others, reported in (2010) 2 SCC 407 to say that when a question of law is raised on the basis of the pleadings and evidence on record which might not have been raised before the Courts below, such question of law can be permitted for the first time before the High Court. 13. Having noticed the facts and rival submission of the parties in lis as well as the decisions relied upon, the endeavour would be as to whether there are pleadings and evidence in order that the appellant/defendant can seek protection under section 53 A and if so whether the Courts below have committed error in law. In fact, an answer to this will go to answer the substantial question of law so formulated in this appeal. 14. Admittedly, Ex. 'Ka' is a document evidencing a contract to transfer the suit land for consideration received, signed by the respondent/plaintiff. In furtherance of the part performance of the contract, the respondent/plaintiff allowed the original defendant i.e. Upananda Gogoi to remain in possession of the suit land. At paragraph-16(b) of the written statement there is a specific plea that it is to the knowledge of the appellant/defendant that during the life time of his father i.e. Upananda Gogoi, the respondent/plaintiff was approached on many occasions to get the suit land registered in favour of the defendant by taking permission from the competent authority. However, the respondent-plaintiff backed out on every occasion by showing some pretexts. 15. This is not a case where the applicability of Section 53A could be totally ignored when there are pleadings and evidence on record, primarily Ext'Ka' disclosing part performance of a contract prima facie. However, the respondent-plaintiff backed out on every occasion by showing some pretexts. 15. This is not a case where the applicability of Section 53A could be totally ignored when there are pleadings and evidence on record, primarily Ext'Ka' disclosing part performance of a contract prima facie. It is not a case where there are altogether no pleadings and evidence on record so as to bring the embargo of paragraph-77 of the case reported in Union of India vs. Ibrahim Uddin case (supra). 16. It is trite to say that decision of the Courts below must reflect its conscious application of mind and pleadings and evidence must equally weigh upon it. Although a decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal, here is a case where no decision have been rendered on the applicability or otherwise of Section 53A of the Transfer of Property Act, the foundation of which could be had from the pleadings and evidence on record as aforestated. 17. The non-application of mind in respect of the materials available on record, primarily Ext. 'Ka' in the context of Section 53 A of the Transfer of Property Act and the proviso to Section 49 of the Registration Act, have raised a substantial question of law. It also cannot be comprehended as to how the respondent/plaintiff would be aggrieved by any finding of this court on the scope and applicability of said section 53 A, even assuming that this Court had formulated a new question of law which was not raised before the Courts below. 18. Relying upon the case of Santosh Hazari vs. Purushottam Tiwari (deceased) by LRS, reported in (2001) 3 SCC 179 , the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any Ms, justice would be met by directing the First Appellate Court to frame an additional issue as to whether the appellant defendant is entitled to seek protection under section 53 A of the Transfer of Property Act and decide the same in accordance with law. Needless to say that the decision on the additional issue would decide the merits of the title suit. 19. Needless to say that the decision on the additional issue would decide the merits of the title suit. 19. As a result, this appeal succeeds and the substantial question of law so formulated is answered in terms of the above. The judgment and decree of the Court of first instance as well as the judgment of First Appellate Court are set aside and the matter is remanded to the First Appellate Court in terms of the above. Parties are directed to appear before the First Appellate Court on 30.03.2015 for the purpose of receiving direction of that Court as to the further proceedings of the case. The appeal stands allowed, however, without any order as to costs. --