ORDER : These first appeals under Section 96 CPC arise out of the judgment and decree dated 31.05.2013 passed by Additional District Judge, Abu Road, District Sirohi, whereby, the suit filed by the plaintiffs has been dismissed as withdrawn and it has been directed that defendants shall pay a sum of Rs. 4,75,000/-within a period of two months, draft of Rs. 25,000/-lying in the record would be returned to the plaintiffs and within a period of two months plaintiffs would handover the possession of the disputed property to the defendants. A suit seeking specific performance of contract dated 17.05.1989 was filed by plaintiff – Narendra Singh on 28.09.2007 against Fateh Singh, pertaining to the property situated at Mount Abu on Oria Road, near Dilwara Temple; it was, inter alia, indicated in the plaint that the consideration agreed between the parties was Rs. 5,00,000/-and a sum of Rs. 4,75,000/-was paid as advance and possession of the property was handed over and it was also agreed that on payment of balance sum of Rs. 25,000/-and on bearing expenses pertaining to stamp, the sale deed would be executed in favour of plaintiffs; further averments were made regarding failure on part of the defendant in not doing the needful under the agreement and the plaintiff being ready and willing to perform his part of the contract. The suit was resisted by the defendant – Fateh Singh by filing written statement and the averments made in the plaint were denied. The trial court framed issues on 14.11.2008; after framing of the issues, the matter remained pending for evidence by the plaintiff and on 19.03.2010 an application was filed by the plaintiff – Narendra Singh seeking withdrawal of the suit with liberty to file fresh; the defendant filed reply to the application seeking withdrawal of the suit and another application under Sections 28-30 of the Specific Relief Act, 1963 ('the Act of 1963') read with section 151 CPC was filed. During pendency of the suit, plaintiff – Narendra Singh died on 08.09.2010 and an application under Order XXII, Rule 3 CPC was filed on 07.12.2010 for brining on record the legal representatives of plaintiff; whereon, by order dated 04.02.2011 the legal representatives of the plaintiff were taken on record. During pendency of the suit, plaintiff – Narendra Singh died on 08.09.2010 and an application under Order XXII, Rule 3 CPC was filed on 07.12.2010 for brining on record the legal representatives of plaintiff; whereon, by order dated 04.02.2011 the legal representatives of the plaintiff were taken on record. Again during the pendency of the suit, sole defendant – Fateh Singh died on 01.03.2011 and his legal representatives were also taken on record by order dated 05.05.2011. Where after, after hearing the parties on the two applications, the trial court by its impugned judgment and decree, came to the conclusion that as the plaintiff does not want decision of the suit on merits and admits that agreement dated 17.05.1989 is not enforceable, therefore, as per the principles laid down in the precedents cited, based on principles of equity, the position between the parties prior to agreement be restored and passed the decree in the terms, as noticed hereinbefore. While Civil First Appeal No. 342/2013 was initially filed by Radhika Bhati D/o late Shri Narendra Singh and she impleaded Mrigendra Singh and Jyotika, other two legal representatives of Narendra Singh as respondents, on an application filed by Jyotika, she was transposed as appellant and, therefore, now the said appeal is on behalf of Radhika and Jyotika, the two daughters of deceased late Narendra Singh. Civil First Appeal No. 349/2013 has been filed by Mrigendra Singh S/o late Shri Narendra Singh. Before hearing the parties on admission of the appeals, the record of the trial court was summoned. It may be noticed at this stage that Mrigendra Singh filed Civil Misc. Application No. 79/2013 (147/2015) before the trial court under Order IX, Rule 13 CPC seeking setting aside of the decree impugned dated 31.05.2013 in the present appeals, which application was dismissed by the trial court on 07.11.2015. Though learned counsel for the appellant – Mrigendra Singh half heartedly attempted to make submissions regarding alleged nonappearance before the trial court, however, no plea or ground has been raised in the memo of appeal and, as such, the same cannot be countenanced. Besides the above, it is well settled that an appeal under Section 96 CPC can only be filed on the merits of suit/decree. Further, the appellant has already taken steps for setting aside the decree and has failed. Consequently, the submissions made in this regard are rejected. Besides the above, it is well settled that an appeal under Section 96 CPC can only be filed on the merits of suit/decree. Further, the appellant has already taken steps for setting aside the decree and has failed. Consequently, the submissions made in this regard are rejected. It is submitted by learned counsel for the appellant – Mrigendra Singh that the trial court committed grave error of law in partly dismissing the application filed by the plaintiffs and in accepting the application filed by the respondents; it was submitted that the plaintiffs filed application for withdrawal of the suit with liberty to file fresh suit on account of the fact that after filing of the suit, based on report of the Forensic Science Laboratory ('FSL') it was proved that the Will dated 02.01.1982 by Ms. Diana did not bear her signatures and, therefore, the agreement dated 17.05.1989 was proved to be unauthorized by way of cheating and, therefore, the defendant was not authorized to specifically perform the contract and, therefore, the prayer was made to permit withdrawal of the suit with liberty to file a fresh suit for appropriate relief; however, though the suit was dismissed as withdrawn, the prayer to permit filing of a fresh suit was wrongly declined; the provisions of Sections 28-30 of the Act of 1963 are not at all attracted in the circumstances of the case as the said provisions are only attracted in case where a decree for specific performance is granted by the Court and the directions contained therein are not followed by the plaintiff, however, as in the present case no decree for specific performance of the contract was passed, the provisions are wholly inapplicable; the defendants neither filed any counter claim nor paid any Court fee and despite that a decree of possession has been granted in their favour, which is not permissible in law. Further submissions were made that under the provisions of Section 53A of the Transfer of Property Act, 1882 ('TP Act'), the appellant is entitled to protect his possession, which aspect has not at all been taken into consideration; the agreement entered into between the plaintiff and the defendant is void as the defendant had no right to execute the agreement and in fact the withdrawal with liberty to file a fresh suit for appropriate relief was being sought by the plaintiff as he wanted to file a fresh suit based on adverse possession; it was submitted that the trial court committed serious error of law and fact in passing the decree impugned and, therefore, the same deserves to be set aside and application filed by the plaintiff for withdrawal of the suit with liberty to institute a fresh suit be granted. Learned counsel appearing for the appellants in Civil First Appeal No. 342/2013 on behalf of Radhika and Jyotika, the daughters of late Narendra Singh, adopted the arguments made by learned counsel for the appellant Mrigendra Singh. Vehemently opposing the submissions made by learned counsel for the appellants, learned counsel for the respondents submitted that the entire conduct of the plaintiff from the very beginning, has been dubious and filing of the application itself was mala fide, inasmuch as, plaintiff – Narendra Singh during pendency of the suit for specific performance of contract, filed a suit against the State Government, District Collector and Tehsildar, Abu Road for declaration and cancellation of judgment dated 18.05.2006, wherein, escheat proceedings initiated qua the property in question was challenged by him without impleading the defendants as party and the said suit was decreed by the Court of Additional District Judge (Fast Track), Abu Road on 10.02.2009, whereby, the escheat proceedings were quashed and injunction was granted. Where after the plaintiff by filing Revenue Suit No. 26/2009 before the Sub Divisional Officer, Abu Road against the State, without impleading the defendants as party, obtained a decree based on adverse possession on 28.05.2009. The said decree was set aside by the Revenue Appellate Authority, Pali camp Sirohi by its judgment dated 07.11.2014 on an appeal filed by the defendants and the matter has been remanded back to the Court of S.D.O., Abu Road, against which, the revision petition filed by the plaintiffs has been rejected by the Board of Revenue on 14.11.2014. The said decree was set aside by the Revenue Appellate Authority, Pali camp Sirohi by its judgment dated 07.11.2014 on an appeal filed by the defendants and the matter has been remanded back to the Court of S.D.O., Abu Road, against which, the revision petition filed by the plaintiffs has been rejected by the Board of Revenue on 14.11.2014. Filing of the application dated 19.03.2010 was part of the same conduct, wherein, after obtaining the ex parte decree declaring plaintiff's right based on adverse possession against the State, the present application was filed seeking to withdraw the suit with liberty to file a fresh and the trial court was perfectly justified on noticing the above conduct of the appellant in dismissing the prayer for filing the fresh suit, granting the prayer for withdrawal of the suit and, as such, no interference is called for in the judgment impugned. Regarding the relief of possession granted to the defendants-respondents, it was submitted that admittedly the suit was for specific performance and plaintiff – Narendra Singh rescinded the contract during his life time by filing the application for withdrawal based on the allegations as contained therein and once the contract is rescinded, the plaintiff cannot seek any legal right qua the property, which is the subject matter of the suit and it was submitted that this appeal itself is not maintainable as the appellants are left with no right so as to seek its enforcement in the present appeal. With reference to the provisions of Sections 64 and 65 of the Contract Act, 1872 ('the Contract Act') it was submitted that the trial court was perfectly justified in granting the relief of restitution to the defendants and no interference is called for in the present appeals. With reference to the provisions of Sections 64 and 65 of the Contract Act, 1872 ('the Contract Act') it was submitted that the trial court was perfectly justified in granting the relief of restitution to the defendants and no interference is called for in the present appeals. It was sought to be emphasized that the law of specific relief is based on justice, equity and good conscience and the provisions of Sections 27-30 of the Act of 1963, specifically require a justice oriented approach while dealing with rescission of a contract and, therefore, as admittedly the plaintiff by his conduct unequivocally rescinded the contract; the court while exercising the powers under Section 30 of the Act of 1963 was justified in passing the decree; the trial court has directed refund of the sum advanced, which has been deposited by the defendants in the trial court and the plaintiffs cannot claim any right under any provision of law to continue to remain in possession of the land in dispute; the provisions of Section 53A of the TP Act have no application to the facts of the present case. It was prayed that appeals have no substance and the same deserve to be dismissed. Reliance was placed on Hungerford Investment Trust Ltd. v. Haridas Mundhra & Ors. : AIR 1972 SC 1826 . I have considered the submissions made by learned counsel for the parties and have perused the material available on record along with record of the trial court. The execution of the agreement to sale dated 17.05.1989 between plaintiff – Narendra Singh – vendee and defendant – Fateh Singh – vendor is not in dispute; the natural consequence of such execution of agreement to sale is that the plaintiff – vendee has accepted the ownership of the vendor and has entered into agreement for sale of the suit property and under the agreement received possession of the land in question on payment of the advance sum of Rs. 4,75,000/- out of total consideration of Rs. 5,00,000/-. 4,75,000/- out of total consideration of Rs. 5,00,000/-. During pendency of the suit an application dated 19.03.2010 was filed by the plaintiff seeking withdrawal of the suit; it would be appropriate to reproduce the contents of the said application, which read as under:- ^^izkFkZuk i= okLr foMªks djus okn &&&&&&&&&&&&&&& mijksDr vuokuh izdj.k es oknh dh vksj ls fuosnu fuEu izdkj gS %& 1- ;g fd oknh }kjk izLrqr okn] izfroknh Qrsgflag }kjk oknh ds i{k esa fu”ikfnr cspku bdjkj fnuakd 17&5&1989 dks fofufn”V ikyuk gsrq is’k fd;k x;k gSA mDr cspku bdjkj] Qrsgflag }kjk Lo;a dks Jhefr ,fyl Mk;uk oMZ&loa/kZd }kjk rFkkdfFkr :Ik ls fu”ikfnr olh;rukek fnukad 02&1&1982 ds vk/kkj ij Lokeh crkrs gq, fd;k x;k FkkA 2- ;g fd orZeku okn izLrqfrdj.k ds mijkar fnukad 16&10&2008 dks fof/k foKkuiz;ksx’kkyk }kjk okn tkap tkjh fjiksVZ esa mDr olh;rukek fnukad 2&1&1982 o fMDysjs’ku ij mDr Jhefr Mk;uk ds gLrk{kj ugh gksuk ik;k x;k gSA ,oe bl dkj.k mDr olh;r o fMDysjs’ku QthZ fl) gks x;h gSA bl izdkj mDr Qrsg flag }kjk oknh ds i{k esa fu”ikfnr bdjkj fnukad 17&5&1989 Hkh izfroknh }kjk oknh ls /kks[kk/kM+h dj] vukf/kd`r :Ik ls fd;k x;k gksuk lkfcr gks pqdk gSA oknh }kjk bl laca/k esa izfroknh o vU; ds fo:) ,d QkStnkjh izdj.k Hkh ntZ djk;k x;k gS] ftlesa vuqla/kku tkjh gSA 3- fd mDr ifjfLFkfr es] izfroknh lafonk dh LIksf’kfQd ijQksjsesUl djokus esa l{ke ugh gSA mDr rF;ks ds izdk’k es izfroknh esa mDr laink ckcr~ dHkh dksbZ vf/kdkj fufgr gh ugh gq, gSA vr% og mls VªkUlQj djus dk iz’u gh mRiUu ugh gksrk gSA 4- fd izfroknh ds mijksDr vkpj.k o fEkF;k o nqO;ns’ku ds dkj.k oknh dsk Hkkjh vkfFkZd {kfr] ekufld ruko o ‘kkfjfjd ihM+k dk lkeuk djuk iM+k gS] lkFk gh oknh ds eku&lEeku o izfr”Bk dks xgjk vk?kkr yxk gSA mDr laca/k esa oknh] izfroknh ds fo:) gtkZus dk nkok is’k djus dk mldk vf/kdkj lqjf{kr j[krk gSA 5- fd mijksDr reke ifjfLFkfr;ks es] orZeku okn esa izfroknh }kjk ¼LisflfQd ijQksjesal vkQ dkUVªsDV½ fnuakd 17&5&89 djk;k tkuk laHko ugh gSA bl dkj.k oknh ;g okn foMªks dj mfpr vuqrks”k gsrq u;k okn is’k djuk pkgrk gS] ftl ckcr~ vuqefr izkIr djus gsrq izkFkZuk i= lknj izLrqr gSA vr% Jheku ls izkFkZuk gS fd oknh dks u;k okn is’k djus dh vuqefr ds lkFk ;g okn foMªks djus dh vuqKk iznku dj vuqxghr djkosA vf/koDrk okLrs oknh^^ (emphasis supplied) A bare perusal of the above application would reveal that the plaintiff based on the submission that report on 16.10.2008 has been given by the FSL, wherein, it has been found that the Will dated 02.01.1982 and declaration given by Ms. Diana does not bear her signatures and, therefore, the Will and declaration have been proved as forged and, therefore, the agreement executed by defendant – Fateh Singh dated 17.05.1989 has been executed by him by committing fraud and unauthorizedly; it was further indicated that in the above circumstances the defendant is not capable of specifically performing the contract and on account of the conduct and misrepresentation by the defendant, the petitioner has suffered heavy mandatory losses, mental and physical stress and in the present suit specific performance of contract dated 17.05.1989 by the defendant was not possible; ultimately a prayer was made by the plaintiff seeking withdrawal of the suit with liberty to file fresh. On filing of the application on 19.03.2010, the defendant filed a response to the application on 24.03.2010 and also filed application on the same day purportedly under Sections 28-30 of the Act of 1963; it was, inter alia, claimed in the application as under:- ^^2- ;g fd oknh djkj dh fofufn”V vuqikyuk ugh pkgdj nkok [kkfjt djkuk pkgrk gS tks djkj dks fo[kf.r djus dk vk’k; izdV djrh gSA blfy, djkj dks fo[kf.Mr fd;k tkdj oknh ls izfroknh dks dCtk eqrnkfo;k vkjkth;kr ij ikus dk vf/kdkj izkIr gksrk gS blfy, izkFkZuk i= gktk is’k djuk ykteh vk;k gSA 3- ;g fd oknh ls izfroknh dks eqrnkfo;k vkjkth;kr lEifr dk dCtk okil fnyk;s tkus dk vkns’k Qjek;k tkdj oknh }kjk bl nkSjku eqrnkfo;k lEifr ls izkIr vk; o ykHk dks oknh ls izfroknh dks fnyok;s tkus dk vkns’k iznku fd;k tkuk vU;Ur vko’;d gSA 4- ;g fd okn xzLr lEifr ij izfroknhiwoZ [kkrsnkj Mk;uk oqM+loFkZ ds nsgkUrkUrquqlkjijkUr i`rdk Mk;jk oqM+loFkZ dk olh;rh gksus ls dkfcts dk’r [kkrsnkj gqvk ftls oknh us Lohdkj fd;k gSA oknh gh ;g LohdkjksfDr oknh ds okn i= ds en uaŒ4 esa dfFkRk gSA 5- ;g fd oknh us okni= ds en uacj 4 esa Jhefr Mk;uk dh e`R;q mijkar oknxzLr lEifRk izzfroknh dk CkgSfl;r ij ekfyd dkfct gksuk Lohd`r fd;k gSA vkSj okni= ds en uaŒ5 esa ;g dFku fd;k gS fd izfroknh }kjk dCtk oknh dks fn;k x;k gSA bl izdkj oknh oknxzLr lEifr ij izfroknh ls dCtk izkIr dj dkfct gqvk gSA oknh vius dFku ls foijhr vkpj.k djus ls dkuwuu focfU/kr gSaA ^^vr% izkFkZuki=izLrqr dj vtZ gS fd izkFkZuk i= izfroknh Lohdkj fd;k tkdj eqrnkfo;k vkjkth;kr lEifr ij dCtk oknh ls izfroknh dks fnyok;k tkos vksj oknh }kjk bl nkSjku eqrnkfo;k lEifr vkjkth;kr ls izkIr vk; o ykHk dks oknh ls izfroknh dks fnyk;k tkos vU; equkflc vkns’k tks enns utj ifjfLFkfrd cgd izfroknh ykteh gks iznku fd;k tkosA izkFkhZ Qrsgflag iq= LoŒ Jh lxr flaag jkBkSM tkfr jktiwr fuŒ eks QkeZ j.kFkEHkksj jksM+ lokbZ ek/kksiqj^^ In the application it was submitted that the prayer made in the application dated 19.03.2010 clearly indicates the intention to rescind the contract and, therefore, the defendant was entitled to receive back the possession of the land in question and based on the submissions prayer was made for restoration of possession of the land and profits earned out of the said amount. As noticed, the trial court though granted the permission to withdraw the suit, it declined permission to grant liberty to file fresh suit and also ordered for restoration of possession based on principles of equity. So far as prayer for withdrawal of the suit with liberty to file fresh is concerned, the said aspect is governed by provisions of Order XXIII, Rule 1(3) CPC, which in so far as the same is relevant, read as under:- “1. Withdrawal of suit or abandonment of part of claim. -(1) At any time after, the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim: (2) ...... ...... ...... ...... (3) Where the Court is satisfied, - (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim.” The principal requirement for grant of permission to file a fresh suit, under the provisions is that a suit must fail by reason of some formal defect or if there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of suit or part of a claim. In the present case, a bare look at the application reveals that no case has been pleaded or made out regarding the suit failing by reason of some formal defect and so far as the plea regarding institution of a fresh suit for the subject matter of the suit is concerned, the subject matter of the present suit pertains to the specific performance of the contract dated 17.05.1989 and once the same was sought to be withdrawn on the ground that the defendant had no right to execute and/or enter into any agreement to sale qua the land in question, there is no question of granting liberty to institute a fresh suit in respect of the subject matter of such suit. So far as the prayer made in the application seeking to file a suit for compensation against the defendant was concerned, the said aspect could only be determined in the suit in question in view of express provisions of the Act of 1963, wherein, all the plea pertaining to the subject matter has to be raised in the same suit. Learned counsel for the appellant – Mrigendra Singh contended that in fact the plaintiff had sought liberty to file a fresh suit, which pertained to seeking a declaration based on adverse possession; besides the fact that there is no such indication in the application, the said plea in view of submissions made by learned counsel for the respondents and as noticed by the trial court, appears to be only an after thought, inasmuch as, the plaintiff had already obtained a decree from the Revenue Court before filing application for withdrawal against the State based on adverse possession without impleading the defendants as party and, therefore, the plea raised in this regard is wholly incorrect and against the record. In view of the above, the rejection of prayer by the trial court for liberty to file a fresh suit cannot be faulted. Coming to the crucial issue pertaining to the grant of relief of possession by the trial court on the application filed by the defendants, it is well settled that the Act of 1963 is an Act to define and amend the law relating to certain kinds of specific relief and from the preamble itself it is clear that the Act is not exhaustive and certain specific remedies can be granted under other statutes too. Hon'ble Supreme Court in Hungerford Investment Trust Ltd. (supra) observed as under:- “21. The question then is whether the application was maintainable under any other provision of the law. The Specific Relief Act, 1963, is not an exhaustive enactment. It does not consolidate the whole law on the subject. As the preamble would indicate, it is an Act “to define and amend the law relating to certain kinds of specific relief”. It does not purport to lay down the law relating to specific relief in all its ramifications. In Ramdas Khatu and Co. v. Atlas Mills Co., Ltd., AIR 1931 Bom 151 it was held that the Specific Relief Act 1877, was not exhaustive. It does not purport to lay down the law relating to specific relief in all its ramifications. In Ramdas Khatu and Co. v. Atlas Mills Co., Ltd., AIR 1931 Bom 151 it was held that the Specific Relief Act 1877, was not exhaustive. In Rahmath Unnissa Begum v. Shimoga Cooperative Bank Ltd., AIR 1951 Mys 59 the Court said that the Specific Relief Act, 1877, if founded on English equity jurisprudence and that it is permissible to refer to English Law on the subject wherever the Act did not deal specifically with any topic (See also Firm Kishore Chand Shiva Charan Lal v. Budaun Electric Supply Co. Ltd., AIR 1944 All 66 at p. 77. Although a matter on which the Act defines the law it might generally be exhaustive, the Act as a whole cannot be considered as exhaustive of the whole branch of the law of specific performance” The application was filed by the defendant under Sections 28-30 of the Act of 1963; the said provisions, which are part of Chapter-IV deal with rescission of contracts and, wherein, Section 27 provides for filing a suit for rescinding a contract, Section 28 provides for rescission in certain circumstances, where the specific performance of an agreement has been decreed, Section 29 provides for alternative prayer for rescission in suit for specific performance and Section 30 provides for requiring a party to do equity while rescinding a contract. Section 19 of the Contract Act, which deals with void ability of agreements without free consent, in so far as relevant, reads as under:- “19. Viodability of agreements without free consent. When consent to an agreement is caused by coercion, fraud or misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so caused. A party to contract, whose consent was caused by fraud or misrepresentation, may, if he things fit, insist that the contract shall be performed, and that he shall be put in the position in which he would have been if the representation made had been true.” In view of the allegations of fraud and misrepresentation made by the plaintiff in the application seeking withdrawal of the suit, the agreement in the submission of the plaintiff was voidable and by filing the application in question, the plaintiff unequivocally rescinded the contract on account of alleged fraud and misrepresentation, which the plaintiff was entitled. The submissions made by learned counsel for the appellants that no proceedings were initiated as contemplated by Section 27 of the Act of 1963, is also baseless as it is well settled that a plea of rescission can be raised by the defendant as well by way of defence as held by Calcutta High Court in Baroda Prasad v. Gajendra : 13 CWN 557 and in those circumstances once the rescission of the contract by the plaintiff is apparent, the consequences are bound to follow. At this stage, it would be appropriate to notice the provisions of Section 30 of the Act of 1963 and Sections 64 and 65 of the Contract Act, which read as under:- “30. Court may require parties rescinding to do equity. On adjudging the rescission of a contract, the court may require the party to whom such relief is granted to restore, so far as may be, any benefit which he may have received from the other party and to make any compensation to him which justice may require.” “64. Consequences of rescission of a voidable contract. When a person at whose option a contract is voidable rescinds it, the other party thereto need not perform any promise therein contained in which he is promisor. The party rescinding a voidable contract shall, if he has received any benefit there under from another party to such contract, restore such benefit, so far as may be, to the person from whom it was received.” “65. Obligation of person who has received advantage under void agreement, or contract that becomes void. When an agreement is discovered to be void, or when a contract becomes void, any person who has received any advantage under such agreement or contract is bound to restore it, or to make compensation for it, to the person from whom he received it.” A bare look at the above provisions reveals that the benefits received under an agreement, which is rescinded for any reason, are bound to be restored back to the other party irrespective of the fact that the contract is either rescinded on account of the agreement having been found voidable or discovered to be void. In the present case as noticed hereinbefore, the undisputed facts are receipt of a part consideration of a sum of Rs. In the present case as noticed hereinbefore, the undisputed facts are receipt of a part consideration of a sum of Rs. 4,75,000/-by the vendor – defendant and handing over of possession of the land in question to the plaintiff – vendee under the agreement on 17.05.1989 and unequivocal rescission of the agreement by the plaintiff and consequently provisions of Sections 64 and 65 of the Contract Act will immediately come into play, irrespective of the allegations made by the plaintiff regarding the title of the defendant, who entered into an agreement to sale with regard to the land in question, the fact of the matter is that possession was indeed received by the plaintiff from defendant – Fateh Singh. If possession is given by a person under an agreement, which is rescinded, irrespective of the nature of right of the defendant, the possession has to be returned to the person from whom possession was received. In view thereof, the plaintiff having obtained the benefit of possession of the land in question, was bound to restore back the possession to the defendant and the directions given by the trial court in this regad cannot be faulted in the circumstances of the case. The submissions made by learned counsel for the appellants that appellants can protect their possession under Section 53A of the TP Act are whollely baseless. The provisions of Section 53A of the TP Act read as under:- “53A. Part performance. The submissions made by learned counsel for the appellants that appellants can protect their possession under Section 53A of the TP Act are whollely baseless. The provisions of Section 53A of the TP Act read 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 therefore 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.” A perusal of the above provisions reveals that same bundle of facts constitute a valid defence under Section 53A, which pertains to the right to seek specific performance of the contract under the Act of 1963. In both the cases, the two requisites are the existence of contract between the parties and readiness and willingness on part of the person, who wants to avail the benefit under the said provisions, it is only when it is established on the basis of acceptable and cogent evidence that the party was ready and willing to perform his part of the contract that the benefit under the relevant provisions can be extended. Further both the reliefs being equitable in nature, any lapse or lack of bona fides in the matter would enable the Court to refuse the relief. Further both the reliefs being equitable in nature, any lapse or lack of bona fides in the matter would enable the Court to refuse the relief. From what has been held hereinbefore, appellants-plaintiffs have rescinded the contract and consequently are not ready and willing to perform their part of the contract and, therefore, there is no question of applicability of provisions of Section 53A of the TP Act and submissions in this regard are, therefore, baseless. The other submissions made by learned counsel for the appellants that the respondents had neither filed any counter claim nor paid the court fees for seeking the relief of possession as granted by the trial court, suffice it to notice that in the suit for specific performance, once the Court has noticed the rescission on part of the plaintiff and a prayer was made for grant of relief of possession based on the principles enshrined in Sections 64/65 of the Contract Act and Section 30 of the Act of 1963, there was no requirement for the defendants to file a counter claim and/or pay court fees in this regard. As already noticed hereinbefore, the rescission can be set up by way of defence and consequences under the Act of 1963 and Sections 64 and 65 of the Contract Act would follow. There is substance in the submissions made by learned counsel for the defendants that the appellants have failed to indicate any right under any provision of law to retain the possession of the land in question after having rescinded the contract dated 17.05.1989 and terming the same as voidable/void. A specific query was also put to counsel for the appellants in this regard, which went unanswered except of course the standard plea that the appellants are in possession for a long time, which could not be a valid reason for continuing to retain possession after having rescinded the contract. In view of the above discussion, there is no substance in the appeals filed by the appellants and, consequently, the same are dismissed under Order XLI, Rule 11 CPC. No order as to costs.