JUDGMENT : Sureshwar Thakur, J. 1. The plaintiff's suit, for, rendition of a decree for possession of the suit khasra number, was, dismissed by both the learned Courts below. Both the learned Courts below, accepted, the espousals of the defendant, of, hers becoming owner of the suit land by way of adverse possession. In sequel thereto, the plaintiff/appellant herein is driven to institute the instant appeal before this Court. 2. Briefly stated the facts of the case as set up by the plaintiffs are that Ram Rattan, the late husband of the defendant, had taken the suit land from the plaintiff and in exchange had agreed to give the plaintiffs, the land comprised in khasra Nos. 350, 360 and 363. But late Ram Rattan actually did not hand over the suit possession and always put off the matter on one pretext or the other. The defendant was lastly asked in the third week of March, 1999, to handover the possession of the land as per promise. But she also did not keep the promise. Now the plaintiff wants his own land back. Hence the suit. 3. The defendant contested the suit and filed written statement, wherein, it is averred that no such agreement of exchange of land was entered into between the parties. In fact the plaintiff had taken some money from her husband. The plaintiff and her husband had been in adverse possession of the land. The plaintiff is no longer its owner and is not entitled to get back possession. The defendant has raised apple orchard and also constructed a house on this land. The plaintiff has not come to the court with clean hands. The suit was also resisted on the ground of non joinder of parties, mis-joinder of cause of action, improper valuation, estoppel etc. 4. The plaintiffs/appellants filed replication to the written statement of the defendant, wherein, they denied the contents of the written statement and re-affirmed and re-asserted the averments, made in the plaint. 5. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:- 1. Whether the plaintiff is owner of suit land, as alleged? OPP 2. If above issue is proved in affirmative, whether the plaintiff is entitled for the relief of possession? OPP. 3. Whether the suit is not maintainable, as alleged? OPD. 4. Whether the plaintiff is owner of suit land, as alleged? OPP 2. If above issue is proved in affirmative, whether the plaintiff is entitled for the relief of possession? OPP. 3. Whether the suit is not maintainable, as alleged? OPD. 4. Whether the defendant is in adverse possession of the suit land, as alleged? OPD. 5. Whether the plaintiff has not come to the court with clean hand, if so, its effect? OPD. 6. Whether the suit is bad for non joinder of the necessary parties as well as mis-joinder of cause of action, as alleged? OPD. 7. Whether the plaintiff has no locus standi to file the present suit, as alleged? OPD. 8. Whether the plaintiff is estopped to file the suit by his act, conduct and deeds etc., as alleged? OPD. 9. Whether the suit is not properly valued for the purpose of court fee and jurisdiction, if so, its effect? OPD. 10. Relief. 6. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court dismissed the suit of the plaintiffs/appellants herein. In an appeal, preferred therefrom by the plaintiffs/appellants before the learned First Appellate Court, the latter Court dismissed the appeal and affirmed the findings recorded by the learned trial Court. 7. Now the plaintiffs/appellants herein, have instituted the instant Regular Second Appeal before this Court, wherein, they assail the findings recorded in its impugned judgment and decree, by the learned first Appellate Court. When the appeal came up for admission on 25.04.2008, this Court, admitted the appeal instituted by the plaintiffs/appellants herein, against, the judgment and decree, rendered by the learned first Appellate Court, on the hereinafter extracted substantial questions of law:- 1. Whether the Courts below have erred and acted illegally in rendering a finding of adverse possession against the appellants when the admitted case of the respondent was that she was in permissive possession of the property by virtue of alleged agreement of sale exhibit DW1/A? 2. Whether the Courts below were justified in invoking the doctrine of part performance of the agreement under Section 53A of the Transfer of Property Act, 1882, when no such plea was raised by the respondent in the pleadings and if so, its effect on the judgments under appeal? Substantial question of Law No.1. 8. 2. Whether the Courts below were justified in invoking the doctrine of part performance of the agreement under Section 53A of the Transfer of Property Act, 1882, when no such plea was raised by the respondent in the pleadings and if so, its effect on the judgments under appeal? Substantial question of Law No.1. 8. The defendant's espousal, of hers, perfecting vis-a-vis the suit land, title by prescription (I) stands sparked, by elapses of the statutory periods, of, time, since hers with an animus possedendi, holding, possession of the suit land, (ii) AND was embedded in contentions, borne, in her written statement, wherein she echoed (a) of, since, times immemorial, without, any interference, hers with a hostile animus possedendi, holding possession vis-a-vis the suit land, against, the lawful entitlements thereof, of true owners thereof. The casting, of, the aforesaid contentions in the written statement, by the defendant, are, per se nebulous, vague and sketchy, (iii) thereupon, the contentions, are, infirm for capitalising any inference, of, hence theirs embodying averments, apposite, for, sustaining her espousals, of hers, becoming owner by adverse possession vis-a-vis the suit land, especially when (a) she contrarily, was enjoined to make specific echoings therein qua the specific time, whereat, she with a hostile animus possedendi, hence commenced her possession vis-a-vis the suit khasra numbers, importantly also against the rights, title or interest, of, specific named true owners, (b) besides where against whom she with an animus possedendi, held possession thereof; (c) AND of, her apposite contentions carrying ascriptions, with, precise delineations vis-a-vis, whereat, hers with an animus possedendi, hence commencing possession vis-a-vis the suit khasra numbers, AND since commencements thereof, imperatively more than 12 years, elapsing upto the institution of the suit, (d) even though, immemorialilty of time, since, hers purportedly commencing possession, with a hostile animus vis-a-vis the suit kahsra numbers, AND against the lawful entitlements of true owners thereof, does per se prima facie rear an inference, of, the defendant, hence, completing the statutorily prescribed period of time, upto the date of institution of the suit, thereupon, she may be entitled, to, obtain findings, of hers, perfecting title vis-a-vis the suit land, by way of adverse possession. (f) Nonetheless, re-iteratedly the apt precise averments, of, hers, rather making ascriptions with specificity vis-a-vis the exact time, whereat, overt acts hence occurred, whereby, the possession of the true owners vis-a-vis the suit land, hence, stood dislodged, was, rather the apt apposite averment, wherefrom, rather the computations of commencements of or openings, of, period, whereat, she with a hostile animus, began possession vis-a-vis the suit land, was thereupon imperatively reckonable. However, the aforesaid precise time, whereat, the defendant, commenced her possession, with, an animus possedendi vis-a-vis the suit land, is grossly amiss nor there is any ascription, with specificity in timing qua, whereat, she performed any overt act, upon, the suit land, whereby she dislodged the true owners, of, their lawful possessions vis-a-vis the suit khasra numbers. Corollary whereof, is, of with visibly all the aforesaid reckonable para meters, for making the necessary computations vis-a-vis the commencements of possession, with, a hostile animus by the defendant, hence remaining both un-pleaded besides unproven, thereupon, an inference is garnered, of both the learned Courts below in accepting the aforesaid plea, hence, committing gross errors. 9. Be that as it may, the defendant had tendered into evidence Ex.DW4/A. A closest reading thereof reveals (i) of, the defendant thereunder obtaining possession, of, the suit land. (ii) With the defendant tendering into evidence Ex.DW4/A, the counsel for the plaintiff contended, that with the last portion thereof, embodying recitals of its executants, owing to certain constraints, not, in simultaneity thereof, hence, executing a registered deed of conveyance, (iii) whereas, there occurring recitals therein, of, theirs contracting, to execute a registered deed, of conveyance in future, renders, the possessions taken thereunder, of the suit land, being construable, to be, a permissive possession of the suit khasra numbers, (iv) hence, disabling besides estopping the defendant to contend, of hers adversely possessing the suit land, against, the rights, title or interest of true owners thereof. The aforesaid espousal, is well founded AND is amenable to acceptance, thereupon, the affirmative findings recorded by both the learned courts below, upon, the issue appertaining to acquisitions of title, by the defendant vis-a-vis the suit khasra numbers, imperatively, by adverse possession are quashed and set aside. 10. Even though, the learned counsel appearing, for the defendant, contends with vigour, that, with Ex. 10. Even though, the learned counsel appearing, for the defendant, contends with vigour, that, with Ex. DW4/A being not registered, whereas, it being statutorily enjoined to be compulsorily registered, hence, it being unreadable in evidence for any purpose, conspicuously for drawing inferences, of, thereunder the defendant acquiring permissive possession of the suit land. Nonetheless, the aforesaid contentions is wanting in vigour, for the reasons, (a) of, there being a clear display in the afore referred Ex.DW4/A, of the executants thereof, agreeing, in future to execute a registered deed of conveyance qua the land mentioned therein; (b) hence, when Ex.DW4/A, is amenable to a construction, of, it being an executory contract of sale inter se the executants thereof, hence, dehors, its being not registered, would render, it to be readable, emphatically also for leveraging, the contention of the appellants, of the defendant/respondent, holding, thereunder hence permissive possession, of the suit khasra number; (c) also the defendant/respondent being precluded to rear a plea of hers acquiring title by adverse possession vis-avis the suit land. The aforesaid view finds support, from, a judgment of the Hon'ble Apex Court reported in AIR 1990 SC 553 rendered in a case titled as Achal Reddi v. Ramakrishan Reddiar and others, the relevant paragraph No.8 whereof stands extracted hereinafter:- “8. There is no controversy that the plaintiff has to establish subsisting title by proving possession within 12 years prior to the suit when the plaintiff alleged dispossession while in possession of the suit property. The first appellate court as well as the second appellate court proceeded on the basis that the plaintiff is not entitled to succeed as such possession has not been proved. The concur-rent findings that the plaintiff had title inspite of the decree for specific performance obtained against him, when that decree had not been executed are not assailed by the appellant in the High Court. The appellant cannot, there- fore, urge before us on the basis of the findings in the earlier suit to which he was not a party that Ex. A. 1 sale deed is one without consideration and does not confer valid title on the plaintiff. The sole question that has been considered by the High Court is that of subsisting title. We have to consider whether the question of law as to the character of the possession Varada Reddi had between 10.7.1946 and 17.7.1947 is adverse or only permissive. The sole question that has been considered by the High Court is that of subsisting title. We have to consider whether the question of law as to the character of the possession Varada Reddi had between 10.7.1946 and 17.7.1947 is adverse or only permissive. In the case of an agreement of sale the party who obtains possession, acknowledges title of the vendor even though the agreement of sale may be invalid. It is an acknowledgement and recognition of the title of the vendor which excludes the theory of adverse possession. The well-settled rule of law is that if person is in actual possession and has a right to possession under a title involving a due recognition of the owner's title his possession will not be regarded as adverse in law, even though he claims under another title having regard to the well recognised policy of law that possession is never considered adverse if it is referable to a lawful title. The purchaser who got toto possession under an executory contract of sale in a permissible character cannot be heard to contend that his possession was adverse. In the conception of adverse possession there is an essential and basic difference between a case in which the other party is put in possession of property by an outright transfer, both parties stipulating for a total divestiture of all the rights of the transferor in the property, and in case in which, there is a mere executory agreement of trans-fer both parties contemplating a deed of transfer to be executed at a later point of time. In the latter case the principle of estoppel applies estopping the transferee from contending that his possession, while the contract remained executory in stage, was in his own right and adversely against the transferor. Adverse possession implies that it commenced in wrong and is maintained against right. When the commencement and continuance of possession is legal and proper, referable to a contract, it cannot be adverse.” (p.555) Consequently, substantial question of law No.1 is answered in favour of the plaintiffs/appellants and against the defendant/respondent herein. 10. Adverse possession implies that it commenced in wrong and is maintained against right. When the commencement and continuance of possession is legal and proper, referable to a contract, it cannot be adverse.” (p.555) Consequently, substantial question of law No.1 is answered in favour of the plaintiffs/appellants and against the defendant/respondent herein. 10. The defendant in her written statement, had apart from, raising the plea of hers acquiring title, of, the suit land by adverse possession, HAD also in the alternative, for resisting the suit of the plaintiff, also reared a contention, anvilled, upon, the statutory provisions engrafted in Section 53 of the Transfer of Property Act AND has claimed satiations thereof, especially, when Ex.DW1/A reveals, (i) of in simultaneity thereof, the entire sale consideration being liquidated by the vendee vis-a-vis the vendor, (ii) possession of the suit land also being in simultaneity , of execution thereof, being delivered by the vendee vis-a-vis the vendor , thereupon, hers being entitled to the benefits thereof. Apparently the bedrock of the aforesaid contention was anvilled Ex. DW1/A, exhibit whereof, stood during the course of her testification, tendered besides exhibited. However, the learned trial Court, despite, the aforesaid contention, being pointedly, reared by the defendant in her written statement, it omitted to fame any issue in respect thereof, whereas, it was both a material and an imperative issue, for, resting the respective contested entitlements, of the litigants concerned vis-a-vis the suit khasra numbers. The apt omission, of, striking of the aforesaid material issue, obviously also precluded the plaintiff, to adduce cogent evidence in rebuttal thereof. Even though, Ex.DW1/A stood adduced into evidence, hence with both the parties, being, aware of its apposite probative worth, thereupon, when both are not taken by surprise, thereupon, it may be, prima faice inferable, of any non striking, of any issue, appertaining thereto, not vitiating trial of the suit. Nonetheless, for want of its striking besides want of any renditions thereon, it would be grossly in-sagacious, at this stage, to either accept any contention apposite thereto, reared before this court by the counsel for the defendant/respondent. Consequently, this Court hereinafter frames apposite issue No. 9-A, in respect thereto:- “9-A Whether the defendant is entitled to protection of Section 53-A of the Transfer of Property Act on anvil of Ex.DW1/A? OPD” 11. Consequently, this Court hereinafter frames apposite issue No. 9-A, in respect thereto:- “9-A Whether the defendant is entitled to protection of Section 53-A of the Transfer of Property Act on anvil of Ex.DW1/A? OPD” 11. Consequently, this Court deems it fit to remand the matter to the learned trial Court, to, receive the respective evidences of the parties at contest, upon, the aforesaid issue, whereafter, it is directed to render its findings, only, in respect thereof. The learned trial Court is directed to upon its receiving the instant suit on remand, from this Court, for rendering findings, upon, the aforesaid issue, to, within five months from today, hereafter render its findings thereon. In case any litigant is aggrieved therefrom, he/she is at liberty to, in accordance with law, to, assail it. The parties are directed to appear before the learned trial Court on 26th February, 2018. Records be sent back forthwith.