JUDGMENT D.N. UPADHYAY, J. 1. This second appeal has been preferred by the appellant (Defendant No. 5) against the judgment dated 31st January, 2004 and decree dated 13th February, 2004, passed and signed by Sri Sada Sheo Rao, Additional Judicial Commissioner, Fast Track Court No. VII, Ranchi in connection with Title Appeal No. 08 of 2002, whereby learned Lower Appellate Court has been pleased to uphold the judgment dated 27th September, 1991 and decree dated 11th October, 1991, passed and signed by Sri Gorakh Nath Singh, Sub Judge-IV, Ranchi in connection with Title Suit No. 1 of 1989/35 of 1990, and dismiss the appeal. 2. The appellant was Defendant No. 5, whereas Respondent No. 1 was the plaintiff, Respondent Nos. 2, 3, 4 & 5 were defendants before the Trial Court. 3. For the sake of convenience, the parties shall be addressed as plaintiff and defendants. 4. This appeal has been admitted on 5th May, 2005 to decide the following substantial question of law:- “Whether the learned lower Appellate Court has committed an error of law in erroneously dealing with the point No.1 and not discussing and giving the finding as to whether the suit was barred by the law of limitation?” 5. The plaintiff brought a suit for specific performance of contract against the defendants, being Title Suit No. 1 of 1991. The Defendant No. 1 is the wife of Late Bhagwan Das Sidana, whereas Defendant Nos. 2 to 4 are sons and Defendant No. 5 is the daughter. Defendant Nos. 3 and 4 were minor at the time of filing of the suit, and, therefore, represented through their mother, the natural guardian and next friend, Smt. Shakuntala Devi @ Shuki (Defendant No. 1). 6. The case of the plaintiff, in brief, is that one Bhagwan Das Sidana, son of Guraya Ram Sidana, who happened to be the husband of Defendant No.1 and father of Defendant Nos. 6. The case of the plaintiff, in brief, is that one Bhagwan Das Sidana, son of Guraya Ram Sidana, who happened to be the husband of Defendant No.1 and father of Defendant Nos. 2 to 5, had entered into an agreement on 8th September, 1977 with the plaintiff to sell the land with Structure, measuring an area of 3 Kathas 12 Chhataks, standing over Survey Plot No. 1151, Sub Plot No. 248, under Khata no.122, Khewat No.4, situated at village Hesal, P.S. Ranchi, Thana No. 202, District Ranchi, together with an incomplete house except one room in the front with asbestos roof, more fully described in Schedule-A of the plaint for a total consideration amount of Rs. 26,001/- and said Bhagwan Das Sidana delivered possession of the suit property to the plaintiff by way of and in part performance of the said agreement for sale. It was further agreed by and between the parties that the plaintiff towards consideration shall transfer his land, being portion of Plot No. 1151, Sub Plot No.306/5 under Khata no.122, measuring an area of 3 Kathas, situated at village Hesal, P.S. Ranchi, Thana No. 202, District Ranchi, more fully described in Schedule-B of the plaint in favour of said Bhagwan Das Sidana in part satisfaction and the value of Schedule-B property was mutually assessed at Rs. 7,000/- only. The remaining consideration amount of Rs. 19,001/- was paid by the plaintiff on the date of agreement to Bhagwan Das Sidana and possession of Schedule-B property was also handed over. Bhagwan Das Sidana during his lifetime had constructed a residential building over Schedule-B land. 7. The terms and conditions of the said transaction were reduced into writing and finally an agreement was prepared and both the parties had acknowledged the same on 8th September, 1977. After execution of the said agreement, the plaintiff as well as defendants had exchanged the schedule property and came in possession over the respective properties i.e. Schedules-A and B as per the agreement and title deed of Schedule-A property was also handed over to the plaintiff by Bhagwan Das Sidana. 8. It was stipulated in the said agreement that the parties shall obtain necessary permission from the authority concerned for executing and registering the sale deed. 9. 8. It was stipulated in the said agreement that the parties shall obtain necessary permission from the authority concerned for executing and registering the sale deed. 9. Since the plaintiff had started enjoying possession over Schedule-A property, he had obtained electric connection in the premises in his name and some portion of the house was also given on rent. 10. It is contended in the plaint that the plaintiff had been requesting and insisting Bhagwan Das Sidana for execution and registration of sale deed in favour of the plaintiff with respect to Schedule-A property, but the plaintiff was always assured that he need not have to worry or suffer with any apprehension because the possession of Schedule-A property has already been given to him. 11. Bhagwan Das Sidana, however, died sometimes in the month of January, 1988, leaving behind his wife (Defendant No.1), three sons (Defendant Nos. 2 to 4) and one daughter (Defendant No.5) as his legal heirs and successors. At the time of transaction held between the parties, permission under Section 27 of the Urban Land (Ceiling & Regulation) Act, 1976 was mandatory and it was already indicated that the parties shall obtain permission from the competent authority and then sale deed shall be executed. It is further pointed out in the plaint that by the order of the Hon’ble Supreme Court, said provision of Urban Land (Ceiling & Regulation) Act, 1976 had been declared ultra vires and, therefore, permission was not needed for execution of sale deed. Since no sale deed was executed with regard to Schedule-A property, the plaintiff served a registered notice dated 18th May, 1988 sent on 22nd May, 1988 through his lawyer and called upon the defendants to execute and register the deed of sale in favour of the plaintiff with respect to the property, described in Schedule-A of the plaint. No heed was paid by the defendants even after service of notice. The plaintiff could further learn that Bhagwan Das Sidana during his lifetime surreptitiously executed and registered a sale deed on 8th October, 1987 with respect to Schedule-A property in favour of his daughter (Defendant No.5). The execution of the agreement dated 8th September, 1977 was well within the knowledge of Bhagwan Das Sidana and Defendant No.5, but collusively to flout the claim of the plaintiff, aforesaid sale deed was brought in existence. The execution of the agreement dated 8th September, 1977 was well within the knowledge of Bhagwan Das Sidana and Defendant No.5, but collusively to flout the claim of the plaintiff, aforesaid sale deed was brought in existence. The sale deed so executed in favour of the Defendant No.5 is, thus, on the face of it, collusive and without any consideration whatsoever and the defendants, including Defendant No.5 are fully bound by the aforesaid agreement for sale in part performance whereof the plaintiff has been coming in possession of the property mentioned in Schedule-A. In any view of the matter, the right of the Defendant No.5, if any, must necessarily be subordinate and subject to the plaintiff’s right over Schedule-A property. 12. In the facts and circumstances of the case, the plaintiff had left no option but to file a suit for specific performance of agreement for sale dated 8th September, 1977. 13. Notices were served against the defendants. The Defendant Nos. 1, 3 & 4 appeared and filed written statement, admitting the claim of the plaintiff and, therefore, the suit against them stood decreed on admission under Order 12 Rule 6 of the Code of Civil Procedure. The Defendant Nos. 2 and 5 did not file their written statement even after adjournments and, therefore, the suit against Defendant Nos. 2 and 5 proceeded ex parte. 14. The plaintiff had examined witnesses to prove the documents in support of his contentions made in the plaint. Finally the suit was decree ex parte as against Defendant Nos.2 and 5 and they were directed to execute sale deed with respect to the suit property, described under Schedule-A of the plaint to the extent of their share in the property in favour of the plaintiff within three months failing which the plaintiff shall be entitled for execution of sale deed through process of Court. 15. Being aggrieved, the Defendant No.5 preferred Title Appeal No.8 of 2002 before the learned Judicial Commissioner, which was transferred to the Court of learned Additional Judicial Commissioner, Fast Track Court No. VII, Ranchi. The aforesaid appeal was filed against the judgment and decree passed and signed on 27th September, 1991 and 11th October, 1991, respectively, after lapse of about ten years. The aforesaid appeal was filed against the judgment and decree passed and signed on 27th September, 1991 and 11th October, 1991, respectively, after lapse of about ten years. Learned Additional Judicial Commissioner, Fast Track Court, has decided the issue against the appellant (Defendant No.5) by rejecting the petition dated 12th June, 2002 filed for condonation of delay and it was held that the appeal is hopelessly barred by Law of Limitation. So far merit of the case is concerned, it was also decided in favour of the plaintiff/Respondent no.1 and the judgment and decree passed and signed in connection with Title Suit No.1 of 1989/35 of 1990 have been upheld. 16. This Court has admitted the instant appeal to decide a substantial question of law, whether the suit filed by the plaintiff was barred by Law of Limitation and the issue has not properly been addressed by the learned Lower Appellate Court? 17. Before giving conclusive finding, certain facts available on record are required to be reiterated herein. The property described under Schedule-A of the plaint was to be transferred in favour of the plaintiff, whereas the property under Schedule-B was to be transferred in favour of the defendants. According to terms of the agreement dated 8th September, 1977, possession of Schedule-A property with title deed was handed over to the plaintiff by the executant-Bhagwan Das Sidana. As per the terms of the agreement, Bhagwan Das Sidana had to seek permission under Urban Land (Ceiling & Regulation) Act, 1976. After the provision of Land ceiling Act stood declared ultra vires by the order of the Hon’ble Supreme Court, the plaintiff had requested Bhagwan Das Sidana to execute and register sale deed with respect to Schedule-A property in favour of the plaintiff, but he was assured and told not to worry. Bhagwan Das Sidana before his death executed a sale deed with respect to Schedule-A property in favour of Defendant No.5 on 8th October, 1987. The plaintiff served a legal notice and called upon the defendants to execute sale deed but no heed was paid and then Title Suit No.1 of 1989/35 of 1990 was filed for specific performance of agreement of sale dated 8th September, 1977. Admittedly, the Defendant No.5/appellant did not file written statement in support of her claim before the Trial Court. The plaintiff served a legal notice and called upon the defendants to execute sale deed but no heed was paid and then Title Suit No.1 of 1989/35 of 1990 was filed for specific performance of agreement of sale dated 8th September, 1977. Admittedly, the Defendant No.5/appellant did not file written statement in support of her claim before the Trial Court. The Defendant No.5 had preferred title appeal, being Title Appeal No.8 of 2002 against the judgment and decree passed in Title Suit No.1 of 1989/35 of 1990 after lapse of ten years. The petition filed for condonation of delay was rejected and the Lower Appellate Court had held that the appeal preferred by the Defendant No.5 is hopelessly barred by Law of Limitation and dismissed the appeal even on merit, dealing with other issues and points. 18. In the facts and circumstances of the case, as stated above, and also in view of concurrent findings of both the courts below, there was no merit but this Court has admitted the appeal to decide legal question, as aforesaid. 19. In the above backdrop of the facts of the case, right of the plaintiff appears to be protected squarely by Section 53(A) of the Transfer of Properties Act, 1882, which reads as under:- “53A. 19. In the above backdrop of the facts of the case, right of the plaintiff appears to be protected squarely by Section 53(A) of the Transfer of Properties Act, 1882, which reads as under:- “53A. Part performance - Where any person contracts 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, 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 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.” 20. It is not disputed that the possession of Schedule-A property was not transferred in favour of the plaintiff pursuant to the agreement dated 8th September, 1977 as part performance. Not only that title deed relating to Schedule-A property was also handed over to the plaintiff by said executant-Bhagwan Das Sidana. The possession of plaintiff over Schedule-A property was well within the knowledge of legal heirs of Bhagwan Das Sidana. The plaintiff had inducted a tenant in a portion of said property and also got electric connection in his name. Not only that title deed relating to Schedule-A property was also handed over to the plaintiff by said executant-Bhagwan Das Sidana. The possession of plaintiff over Schedule-A property was well within the knowledge of legal heirs of Bhagwan Das Sidana. The plaintiff had inducted a tenant in a portion of said property and also got electric connection in his name. The documents and evidence brought on record are conclusive on the point that after execution of said agreement, the plaintiff has been started enjoying peaceful possession over Schedule-A property and, therefore, Defendant No.5 by virtue of sale deed dated 8th October, 1987 executed by Bhagwan Das Sidana in her favour with respect to Schedule-A property cannot make any claim and that too when she did not file any written statement before the Trial Court in support of any such claim whatsoever. 21. It is admitted that no time within which sale deed is to be executed find mentioned in the aforesaid agreement dated 8th September, 1977. It is stipulated in the agreement that Bhagwan Das Sidana will have to obtain permission from the competent authority under Land Ceiling Act and after getting permission, sale deed shall be executed within next three months. It is no where pleaded by any of the parties that Bhagwan Das Sidana either applied or obtained any such permission under Land Ceiling Act. The execution of sale deed by Bhagwan Das Sidana in favour of his daughter, Defendant No.5, with respect to Schedule-A property is hit by Section 53(A) of the Transfer of Properties Act, 1882 and the right of plaintiff is fully protected. 22. The plaintiff has proved the notice dated 18th May, 1988 (Ext.1) sent through his lawyer by which the defendants were called upon to execute and register a sale deed with respect to Schedule-A property. It was indicated in the notice that the plaintiff is ready and willing to perform his part of obligation mentioned in the agreement dated 8th September, 1977 (Ext.4). When the refusal became apparent from the conduct of the defendants, the plaintiff brought the suit for the cause of action arose. 23. Now the question of limitation arises. It was indicated in the notice that the plaintiff is ready and willing to perform his part of obligation mentioned in the agreement dated 8th September, 1977 (Ext.4). When the refusal became apparent from the conduct of the defendants, the plaintiff brought the suit for the cause of action arose. 23. Now the question of limitation arises. Article 54 of the Limitation Act deals with the suit for specific performance of contract and the period of limitation is three years if the date fixed for performance or if no such date is fixed, when the plaintiff has noticed that performance is refused. Therefore, it is clear that if any date is fixed for performance, the period for filing a suit is three years from the date of agreement and if no date is fixed, the suit can be filed within three years from the date on which refusal of performance could notice by the plaintiff. In the case at hand notice dated 18th May, 1988 was issued on 22nd May, 1988 but the defendant did not comply the instruction and then the plaintiff had reason to believe that they are not willing to perform their part of application indicated in the agreement and the suit was filed within three years from the date of notice served. 24. In context of the above, the plaintiff/respondent has relied upon following judgments: (i) AIR 1977 SC 1005 (ii) AIR 1973 SC 559 (iii) AIR 2000 SC 191 (iv) AIR 1997 (Pat.) 10 (v) (2006) 2 SCC 428 25. Paragraphs-16 to 19 of the judgment rendered in the case of R.K. Parvatharaj Gupta vs. K.C. Jayadeva Reddy, (2006) 2 SCC 428 , are relevant, which read as under:- “16. The appellant, therefore, had good reasons to serve the aforementioned notice calling upon the respondent to deposit the entire amount to the Bank. There is nothing on record to show that despite receipt of the said notice dated 24-4-1984, the respondent took any step to deposit the said amount. He was, thus, not ready and willing to perform his part of the contract. He has, as noticed hereinbefore, deposited a sum of Rs. 10,000 only in the year 1985 i.e. after more than one year thereafter. 17. He was, thus, not ready and willing to perform his part of the contract. He has, as noticed hereinbefore, deposited a sum of Rs. 10,000 only in the year 1985 i.e. after more than one year thereafter. 17. Evidently, he was not interested in payment of the loan amount to the Bank on behalf of the appellant as he was appropriating the usufructs from the land as he was in possession thereof. 18. Thus, even though the time for performance was not fixed in the agreement for sale, on receipt of the notice, the respondent had notice that the performance was being refused, if he failed to fulfil his obligation under the contract within 15 days of receipt of the notice. 19. The suit, therefore, in terms of the requirement of Article 54 of the Limitation Act, should have been filed within a period of three years from the date of expiry of fifteen days from the date of receipt of the said notice.” 26. The Issue No.1 has been decided by the Lower Appellate Court along with the issue of limitation in presenting the appeal. Therefore, the question raised by learned counsel for the appellant does not appear to be tenable that the suit was not brought by the plaintiff within three years from the date of execution of agreement and hence it is time barred as indicated in the former part of Article 54 of the Limitation Act, rather from the judgments cited by counsel for the plaintiff/Respondent no.1 it is clear that later part of Article 54 of the Limitation Act shall be applicable in the case at hand. 27. In the result, I find no merit in this appeal and the same stands dismissed.