JUDGMENT : DEVAN RAMACHANDRAN, J. 1. The doctrine of part performance, which began as a principle of equity developed in England, subsequently found its way into the Transfer of Property Act, 1882 through the Amendment Act of 1929. This doctrine is embodied in Section 53A of the Act that provides a defence for one who has acted upon an agreement with another for transfer of immovable property, thereby creating an equity for himself which cannot be resisted by the transferor on grounds of technicalities and absence of formalities. It gives protection to the transferees, by allowing them to retain possession over the property, against rights of transferors, who after execution of incomplete instrument of transfer refuses to complete it in the manner specified in law without there being any fault on the part of the transferee. 2. In this case, the appellant, who is alleged to be the transferee under an agreement of sale, alleges that he is in possession under the said agreement and he seeks remedies under Section 53A against dispossession. The operational nuances of the provisions of Section 53A and that of the doctrine of part performance are called into attention in this case and what is most relevant for our consideration, in the backdrop of the facts pleaded and established, is whether the appellant can be said to be in possession of the property on the strength of the alleged agreement of sale that he claims was executed by the owner of the property. Auxiliary issues relating to the nature of possession and the validity of a claim under Section 53A when the transferee has admittedly given up such possession to other persons on arrangement of tenancy and the like have also been placed for our inspection and evaluation in this case. 3. Before we record our answer to the various issues we will state the most essential facts. 4. This appeal is at the instance of the first defendant in O.S.No.1739 of 2012 on the files of the Court of the Principal Subordinate Judge of Thrissur. The suit was filed by respondents 1, 2 and 3 against the appellant and respondents 4 and 5 herein seeking recovery of possession of the plaint schedule property which has a residential building situated therein. For the sake of convenience, we will, in this judgment, refer to the parties as per the rank obtained to them in the suit. The suit was filed by respondents 1, 2 and 3 against the appellant and respondents 4 and 5 herein seeking recovery of possession of the plaint schedule property which has a residential building situated therein. For the sake of convenience, we will, in this judgment, refer to the parties as per the rank obtained to them in the suit. 5. It is the case of the plaintiffs that the plaint schedule property (hereinafter referred to as 'the property' for ease) belonged to deceased Kalarikkal Reveendran, who is the husband of the first plaintiff and the father of plaintiffs 2 and 3. According to them, deceased Raveendran obtained the property by virtue of a sale deed, Document No.4651/1982 of S.R.O., Ollukkara and it was under his ownership and possession. They say that Raveendran died on 23.05.2003 and that since his mother had predeceased him, the plaintiffs being governed by the Hindu Succession Act, 1956, are the only legal heirs entitled to the said property. 6. The appearance of the first defendant into the scene, while matters were so, has been detailed in the plaint by the plaintiffs by saying that he was a friend of Raveendran and that since Raveendran was unable to manage the property, which was situated far away from their residential house, the first defendant was entrusted by him with the task of trying to sell it; that for such purpose, Raveendran had executed a power of attorney in his favour and further that Raveendran had handed over the original sale deed in respect of the said property to him. The plaintiffs say that Raveendran died on 23.05.2003 and that when they asked the first defendant for return of the original title deed and to give them vacant possession of the plaint schedule property, it was resisted by him and that when they visited the property and inspected the same, they found defendants 2 and 3 to be residing therein. According to them, when they requested possession of the property from defendants 2 and 3, they were greeted by violent behaviour and they allege that defendants 2 and 3 had even used vituperative laced language to mete out threats of assault to them. According to them, when they requested possession of the property from defendants 2 and 3, they were greeted by violent behaviour and they allege that defendants 2 and 3 had even used vituperative laced language to mete out threats of assault to them. They say that when they faced this repugnant behaviour from defendants 2 and 3, they were forced to make a complaint before Peechi Police Station on 10.09.2012 and that the Police had called both parties for a settlement which did not, however, fructify on account of the alleged influence of the defendants. On such allegations and asserting that the defendants have no right to continue in possession of the plaint schedule property, the plaintiffs/ respondents 1 to 3 had filed the suit. 7. The first defendant filed a written statement contending that the suit is not maintainable and he asserted that he is in possession of the property not on the strength of the power of attorney of Raveendran but on the strength of an alleged agreement for sale that Raveendran had executed in his favour on 13.09.1983. The first defendant's specific contention is that in the said agreement for sale, under which Raveendran had agreed to sell the property to him, the total sale consideration was shown as Rs.57,000/- and that he had, on the date of agreement itself, paid an advance of Rs.5,000/- which was accepted by Raveendran. According to the first defendant, the time for performance of the agreement was fixed as six months, to expire on 13.03.1984 and he says that on 13.03.1984, Raveendran consented, by an oral agreement, to extend the period for performance of the sale agreement till 28.11.1984. The first defendant continued in his pleadings to say that he paid the balance consideration of Rs.52,000/- on 28.11.1984 and that it was in consideration of this that a power of attorney, Document No.197/1984, was executed by Raveendran in his favour, under which he was given the power to sell, mortgage or otherwise to deal with the property on Raveendran's behalf. The first defendant further avers that he took possession of the property from Raveendran on 28.11.1984, not on the strength of the power of attorney, but on the strength of the agreement dated 13.09.1983. The first defendant further avers that he took possession of the property from Raveendran on 28.11.1984, not on the strength of the power of attorney, but on the strength of the agreement dated 13.09.1983. He, therefore, maintains that he is entitled to the benefit of Section 53A of the Transfer of Property Act, his possession being pursuant to an agreement for sale between him and Raveendran and in the alternative, he also contends that his title over the property is perfected through adverse possession. 8. Defendants 2 and 3 entered appearance in the suit and filed their written statement holding over that they are tenants under the first defendant being under the bonafide impression that the first defendant is the owner of the plaint schedule property. They refuted the allegation in the plaint that they were continuing in possession of the plaint schedule property illegally and they asserted that they were in possession validly under an agreement of lease or an arrangement of tenancy they had entered into with the first defendant. They, therefore, resisted the suit saying that the plaintiffs were not entitled to seek a decree of eviction against them. 9. The court below considered various pleadings on record and raised the issues as follows: “1. Whether the 1st defendant has got any right, and title over the plaint schedule property? 2. Whether the plaintiffs are entitled to get a declaration as prayed for? 3. Whether the plaintiffs are entitled to get recovery of possession of plaint schedule property on the strength of their title? 4. Whether D2 and D3 are lawful tenants? 5. Whether the plaintiffs are entitled to get compensation for use and occupation as claimed? 6. Whether the plaintiffs are entitled to get compensation as prayed for? 7. Whether the plaintiffs are entitled to get a prohibitory injunction as prayed for? 8. whether the plaintiffs are entitled to get a mandatory injunction as prayed for? 9. What order as to relief and cost?” 10. Subsequent to the rising of the issues, the first defendant appears to have filed an application for amendment, namely, I.A.No.3692 of 2015, seeking to incorporate a counter claim on the strength of the agreement of sale allegedly entered into by Raveendran with him on 13.09.1983 and thus seeking a decree of specific performance of the said agreement. Subsequent to the rising of the issues, the first defendant appears to have filed an application for amendment, namely, I.A.No.3692 of 2015, seeking to incorporate a counter claim on the strength of the agreement of sale allegedly entered into by Raveendran with him on 13.09.1983 and thus seeking a decree of specific performance of the said agreement. This application was, however, dismissed by the court below finding that the claim of the first defendant, sought to be impelled through the amendment of the written statement, was hopelessly barred by limitation and that a completely new case was being tried to be projected by him which was not permissible in law. This order was challenged by the first defendant by filing O.P.(C)No.2874 of 2015 before this Court under Article 227 of the Constitution of India, but this Court, by judgment dated 30.11.2015, dismissed the said original petition and held that the counter claim filed on 06.08.2015 was hit by limitation and further finding that the cause of action pleaded by the first defendant being incorrect, such pleadings cannot be allowed to be brought on record. The first defendant does not appear to have challenged the judgment of this Court and it appears that it has now attained finality. 11. The court below, on the basis of the pleadings on record, took the suit to trial and the first plaintiff examined herself as PW1 and she marked Exts.A1 to A8 on the side of the plaintiffs. On behalf of the defendants, DW1, namely, the first defendant was examined and Exts.B1 and B2 were marked. The court below also marked Exts.C1 and C1(a), which are the report of an Advocate Commissioner and the sketch prepared by him respectively. Defendants 2 and 3, however, remained ex parte during the trial. 12. The court below, after assessment of the evidence on record, decreed the suit declaring the plaintiffs to be the owners of the property, thus concluding that the defendants have no right or title over the same and the defendants were thus directed to vacate from the property within one month from the date of decree. 12. The court below, after assessment of the evidence on record, decreed the suit declaring the plaintiffs to be the owners of the property, thus concluding that the defendants have no right or title over the same and the defendants were thus directed to vacate from the property within one month from the date of decree. The court below has also restrained the defendants by way of a permanent prohibitory injunction from entering into the plaint schedule property or committing waste thereon and the first defendant has been directed to return the original of the title deed, tax receipts and the power of attorney to the plaintiffs within one month from the date of the decree. The appellant/first defendant has assailed the judgment and decree of the court below in this appeal on various grounds. 13. We have heard Sri. P.B. Krishnan, learned counsel for the appellant and Sri. T. Sethumadhavan, learned senior counsel assisted by Sri. P.K. Madhusoodhanan, learned counsel appearing for respondents 1 to 3. 14. The hypostatis of the submissions of the appellant in this appeal appears to be that he is in possession of the plaint schedule property on the strength of an agreement entered into by Raveendran in his favour on 13.09.1983. This agreement has been produced and marked as Ext.B1. According to the appellant, the total sale consideration shown in Ext.B1 agreement was Rs.57,000/-, out of which Rs.5,000/-was paid on the date of the agreement and the balance on 28.11.1984. He concedes that the original period shown in Ext.B1 for performance of the contract was only till 13.03.1984, but he states was extended until 28.11.1984 by the oral consent of Raveendran. He thus predicates that he had paid the balance consideration of Rs.52,000/- on 28.11.1984, being within the period of the agreement and then asserts that on that day, Raveendran executed a power of attorney, namely, Document No.197/1984 in his favour. It is his specific claim that he took possession of the property on 28.11.1984 on the strength of such power of attorney. 15. It is his specific claim that he took possession of the property on 28.11.1984 on the strength of such power of attorney. 15. Sri.P.B.Krishnan, learned counsel appearing for the appellant, on the apparent strength of the above factual assertions contends, with great force, that since his client was in possession of the property ever since 28.11.1984 on the singular strength of Ext.B1 agreement, the provisions of Section 53A would apply and that he would be entitled to retain possession of the property against the plaintiffs. When we reminded Sri.P.B.Krishnan about the rejection of the amendments sought by his client in the court below and confirmed by this Court regarding the claims for specific performance of the alleged agreement, he submitted that even though the amendments sought by his client in the written statement were found not tenable, he would still be entitled to argue before us that the orders of the court below rejecting such amendment was incorrect and improper. For this purpose, Sri.P.B.Krishnan relied on the judgment of the Madras High Court in T.S.Pichu Ayyangar v. Ramanuja (AIR 1940 Madras 756) and the judgment of this Court in Kerala State Electricity Board v. Pylee ( 1979 KLT 647 ). The essential ratio of these judgments is that when an interlocutory application is filed before a court below and decided by it in a particular manner which is then assailed or challenged before this Court, either by filing an application under Section 115 of the Code of the Civil Procedure or under Article 227 of the Constitution of India, such decision of the appellate or the superior court would be only in the nature of an interlocutory order. Sri.P.B.Krishnan relying on the aforementioned judgments submits vociferously that he is, therefore, entitled to raise all contentions regarding the validity of the order of the court below in rejecting the application for amendment, which then gives him the option of contesting the claim of the plaintiffs by way of a counter claim on the strength of Section 53A of the Transfer of Property Act. We are in complete agreement with the ratio of the judgments relied on by Sri.P.B.Krishnan and we feel it indubitable that the validity of the order of the court below rejecting the application for amendment filed by his client can also be tested in this appeal. We are in complete agreement with the ratio of the judgments relied on by Sri.P.B.Krishnan and we feel it indubitable that the validity of the order of the court below rejecting the application for amendment filed by his client can also be tested in this appeal. We, therefore, find no reason to deny him the opportunity of making submissions on these lines. 16. The facts available before us, as are pleaded and proved in evidence, would make it limpid that the case of the first defendant is that Ext.B1 agreement was entered into by him with Raveendran on 13.09.1983. We notice the plaintiffs contesting this by alleging that the agreement is not genuine and that they were not aware of it at all. Even assuming that Ext.B1 agreement can be treated, notwithstanding the contentions raised on behalf of the plaintiffs, to have been one executed by Raveendran, there are several suspicious circumstances shrouding it and which require to be cleared before we can act upon it. 17. The first defendant alleges, as can be seen from it that the agreement is dated 13.09.1983 and he says that he had paid Rs.5,000/- on 13.09.1983 itself, the balance having been paid by him only on 28.11.1984. However, after saying that it is conceded by him that on 28.11.1984, Raveendran had gone to the Sub Registrar's Office for the purpose of execution of a power of attorney in his favour instead of executing a sale deed. He asserts that a power of attorney was thus executed on 28.11.1984 as document No.197/1984 and that he was thus authorized to be in possession of the property and to deal with it in any manner that he desired. We notice that Raveendran died only on 23.05.2003 and we are also certain, from the pleadings and the materials available on record, that Raveendran had not, at any point of time until his death, cancelled the power of attorney that was given by him in favour of the first defendant. It is, therefore, inscrutable as to why the first defendant did not execute the sale deed in his or his nominee's name for a period of 19 years after the power of attorney was admittedly executed by Raveendran. 18. It is, therefore, inscrutable as to why the first defendant did not execute the sale deed in his or his nominee's name for a period of 19 years after the power of attorney was admittedly executed by Raveendran. 18. The answer of the appellant to this is that since he is in possession of the property on the strength of Ext.B1 agreement, he is entitled to hold such possession ad infinitum and to deal with it in any manner, since Section 53A of the Act would protect such possession. We are afraid that this submission made by the learned counsel for the appellant may appear to obtain some lustre at first glance but soon looses its sheen when Section 53A of the Act is read carefully. 19. Since the whole case of the appellant in its essentia pivots on the rights available to him under Section 53A of the Act, it becomes compelling to read it, for which purpose we extract it as under: “Section 53A. Part performance.-Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that 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.” 20. It is now an accepted premise that Section 53A of the Act protects only that possession of a transferee who had obtained such on the strength of the contract between him and the transferor and where he has performed or is willing to perform his part of the contract. It is, therefore, imperative for the appellant to demonstrate and establish that he was in put in possession of the plaint schedule property under Exhibit B1 agreement and that he continued to be in possession ever since that date. 21. In the facts available before us certain things are glaring. The first is that there is no certainty as to when the appellant came to be in possession of the property. He asserts that he took possession only on 28.11.1984, the date on which the power of attorney was executed, but he does not have a case that he was in possession ever since 13.09.1983, the date of Exhibit B1 agreement. If that be so, for that reason alone the submissions of the learned counsel for the appellant built on Section 53A would appear to be on shaky grounds. We say this because had the appellant been put in possession under the power of attorney, then that possession would not construed to be a possession under Section 53A of the Act. In such a case, the possession in the hands of the appellant would only be possession of an agent or a power holder under a power of attorney granted in his favour by the owner of the property. This would not vest him with the dividends or the benefits under Section 53A of the Act. On the facts, unfortunately, we do not find any certainty regarding the actual date on which the first defendant was put in possession and we are, therefore, virtually left with surmises and conjunctures while considering as to whether the possession, pleaded by the appellant, is protected by Section 53A or if is in the nature of possession in the hands of an agent holding the property on behalf of his principal. 22. This issue becomes more pertinent because it is admitted, even by the appellant, that he is not in possession of the property today. 22. This issue becomes more pertinent because it is admitted, even by the appellant, that he is not in possession of the property today. He admits that he had been leasing out the property to various persons and institutions in the past and that finally he has leased the property to defendants 2 and 3, who are now holding possession. We are unable to understand how a person who claims possession under Section 53A would be entitled to give that possession to some one else by arrangement of tenancy or otherwise. 23. This is pertinently because Section 53A is designed to protect the transferees who are in possession and it is often said that the right under it cannot be used as a sword but only as a shield. The transferees are, of course, entitled to resist any attempt on the part of the transferor to disturb his lawful possession and in that view he can use the said shield to sue as well as to defend when any attempt is taken to dispossess him from such possession. Even though the spirit of Section 53A is that of the English doctrine of part performance, there are marked differences between the way it is applied in both the countries. Under the English Law, the doctrine is an equitable right and it creates a title in favour of the transferee. However, under Section 53A, it is a statutory right which can be used to defend possession of the transferee but does not create a title in him. It is, therefore, that seminal importance is given to actual possession when the rights of a transferee is considered under Section 53A. In this case when the appellant/transferee admits that he is no longer in possession of the property and that such possession is with respondents 2 and 3, then it would be difficult to concede that he would still continue to be under the protective shield of the provisions of Section 53A of the Act. 24. This guides us to a suspicion, which we believe is completely fortified, that the appellant was acting as an agent and exercising possession over the property only under the power of attorney on behalf of Raveendran in creating arrangements of tenancy with tenants, including defendants 2 and 3. 24. This guides us to a suspicion, which we believe is completely fortified, that the appellant was acting as an agent and exercising possession over the property only under the power of attorney on behalf of Raveendran in creating arrangements of tenancy with tenants, including defendants 2 and 3. When the possession of the appellant is thus found not be physical possession over the property but that he has actually executed arrangements or agreements with third parties, thus transferring possession under a lease or otherwise, we are unable to countenance in law the submissions of the learned counsel for the appellant that he should be allowed the benefit of Section 53A of the Act. 25. While remaining on considerations of Section 53A, there is yet another issue that we believe is worthy of examination. The said Section affords certain benefits to a person who obtains possession under a contract as long as he has performed or he is willing to perform his part of the contract. A Division Bench of this Court has already spoken in some detail the operational ambit of the Section in paragraph 28 of the decision in St. John's Welfare Centre v. Eastern Province of Sisters of St.Charles ( 2015 (3) KHC 428 ), which is as follows: “Under Section 53A of the Act, a transferee seeking protection under that section has to establish first, not only an agreement in writing, which is signed by the transferor, or by some one in his behalf., on which the claim for protection is founded (which is required to be a registered agreement with effect from 24/09/2001), in such words from which the terms necessary to construe the transfer can be ascertained, but also the other elements required on his part for attracting that section, i.e., its main part as distinguished from its proviso, viz., that he has taken possession of the property, in whole or in part, in part performance of the contract; or that if he was already in such possession, he has continued in possession in part of performance of the said agreement; that he has done some act in furtherance of the contract and further, he has either performed his part of the contract, or is willing to perform the same. It is only when these facts are established, a transferee can be said to have established his claim for protection under Section 53A of the Act.” 26. Even assuming that Exhibit B1 agreement is valid, it is ineluctable that the agreement was entered into on 13.09.1983. The period fixed, according to the appellant, was till 13.03.1984, which was allegedly extended by an oral arrangement till 28.11.1984. The question is whether Raveendran was willing to perform his part of the contract on 28.11.1984. It was certain from the available material that Raveendran was so willing because on that day, instead of executing a sale deed, he had concededly executed a power of attorney virtually entrusting all his powers over the property to the appellant, thus empowering him to have thereafter sold the property, mortgage it or deal with it in any manner. Interestingly, that power of attorney also has a clause authorising the appellant to deal with third persons and accept sale consideration on behalf of Raveendran and to execute sale deed and to present it for registration. When the conduct of Raveendran in having executed a power of attorney, which is indubitably to afford every opportunity and possibility to the appellant to execute the sale deed in terms of Ext.B1 agreement, we cannot find that there was any refusal on the part of Raveendran in performing his part of the contract. That be so, we can only infer, which we think we will not be found fault with, that it was the appellant herein who did not execute the sale deed even for a period of nineteen years until Raveendran was alive. We do not see any palpable reason being even contended by the appellant in his pleadings nor do we see anything on record to show why this was not done. If that be so, obviously a suit for specific performance of the agreement dated 13.09.1983, which even conceding that time for performance was extended until 28.11.1984, could have been filed by the appellant only within a period of three years from that day. 27. If that be so, obviously a suit for specific performance of the agreement dated 13.09.1983, which even conceding that time for performance was extended until 28.11.1984, could have been filed by the appellant only within a period of three years from that day. 27. Faced with the above, the learned counsel for the appellant contends that the amendment of the written statement, by which he attempted to raise a counter claim, was filed on 06.08.2015 and that it could have only been done then, because the legal heirs of Raveendran, the plaintiffs, had refused to register the documents when his client came to know that Raveendran was not alive any more. According to him, it was only when the appellant became aware that Raveendran had demised on 12.09.2012, that he made a request to the legal heirs, the plaintiffs, for execution of the sale deed which was refused by them. The learned counsel thus asserts that going by the second limb of Article 54 of the Limitation Act 1963, the period of limitation would start only when performance is refused. He says that his client's cause of action to seek specific performance arose only after the legal heirs of Raveendran had refused performance and he therefore justifies the appellant's stand that the cause of action arose only after 05.09.2012. We are afraid that we cannot find favour with this submission at all for the reasons that we have already recorded above. It is obvious and it is perspicuous that Raveendran had never refused to perform his part of the contract and that he was always willing, which is apparent from the fact that he had executed a power of attorney in favour of the appellant on 28.11.1984. The appellant himself admits that Raveendran had not cancelled the power of attorney until his death till 23.05.2003. It, therefore, requires no further expatiation for us to hold that there was no question of refusal by Raveendran until his death to perform his part of the contract. That be so, it is certain that the court below was right in refusing to allow the application for amendment so as to bring in a counter claim in favour of the appellant in the suit. 28. We say the above also because it is the case of the appellant that he knew about the death of Raveendran only 12.09.2012. That be so, it is certain that the court below was right in refusing to allow the application for amendment so as to bring in a counter claim in favour of the appellant in the suit. 28. We say the above also because it is the case of the appellant that he knew about the death of Raveendran only 12.09.2012. This is completely unbelievable and it does not inspire confidence in us because it is seen from the pleadings that they were living close to each other in the same Village and the appellant has not even pleaded as to how he was unaware of the death of Raveendran for over nine years. We can only, therefore, infer that he was aware of the death of Raveendran but that he refused to do anything because he was fearful that his possession of the property would be then questioned by the legal heirs. 29. In view of the above, we are certain in our mind that the possession now asserted over the property by defendants 2 and 3 through the first defendant is completely illegal and contrary to the interest of the plaintiffs. The plaintiffs are not bound by any such possession and they are certainly entitled in law to seek recovery of possession and we are of the opinion that the court below has acted correctly and justifiably in decreeing the suit in the manner it has done. We thus dismiss this appeal with costs to the plaintiffs.