JUDGMENT : The present second appeal is filed by plaintiff under Section 100 of Code of Civil Procedure, 1908[Hereinafter referred to as ‘CPC’] challenging the judgment and decree dated 20.01.2010 passed in R.A No.70/2005 by the Fast Track Court-I, Chikodi[Hereinafter referred to as the ‘first appellate Court’] and the judgment and decree dated 10.06.2005 passed in O.S No.69/1999 by the Additional Civil Judge (Jr.Dn.), Nipani Hereinafter referred to as the ‘Trial Court’, whereunder, the suit for specific performance has been partly decreed by the Trial Court, wherein, refund of the advance amount and redelivery of possession have been ordered, which has been affirmed by the First Appellate Court. 2. The parties will be referred to as per their ranking before the Trial Court, for the sake of convenience. 3. The relevant facts leading to the present appeal are that the defendant being the owner of the suit property, had executed an agreement of sale dated 26.05.1982[Hereinafter referred to as ‘the said agreement’], agreeing to sell the agricultural land bearing R.S Nos.20/5 and 20/2, measuring 13 guntas and 1 acre - 06 guntas respectively situated at Adi village in Chikodi[Hereinafter referred to as the ‘suit property’], for a total sale consideration of Rs.12,000/-. That on the date of the agreement, the plaintiff paid the defendant an earnest money of Rs.5,350/-, and the defendant put the plaintiff in possession of the suit property in part performance of the agreement. That the sale transaction was required to be completed in one year. The defendant having failed to complete the sale transaction, the plaintiff filed the suit for specific performance. 4. The defendant entered appearance in the said suit and denied the case of the plaintiff. The defendant also denied the execution of the agreement and receipt of the earnest money. It was contended by the defendant that his son was ill during the year 1982 and that he was in need of money to meet the medical expenses of his son. As such, the defendant requested the plaintiff for a hand loan, when the plaintiff insisted on execution of a sale agreement for sale of the property owned by the defendant. 5. It is the further contention of the defendant that on payment of the loan amount, the plaintiff had agreed to hand over possession of the suit property. That the defendant never agreed to sell the suit property to the plaintiff. 5. It is the further contention of the defendant that on payment of the loan amount, the plaintiff had agreed to hand over possession of the suit property. That the defendant never agreed to sell the suit property to the plaintiff. It is further contended that the suit agreement having been executed in the year 1982, and the suit having been filed in the year 1999, the said fact itself demonstrates that the said document dated 26.05.1982 is a document of security and not intended to be acted upon. 6. The defendant further contends that the suit of the plaintiff is barred by time, and the alleged agreement dated 26.05.82, cannot be enforced after long time of 19 years. That the defendant has no other source of income except the agricultural land and on the account of good relationship, the defendant executed the document as an agreement of sale. Hence, the defendant sought for dismissal of the suit. 7. Consequent to the pleadings of the parties, the Trial Court framed the following issues: i. “Whether the plaintiff proves that the defendant has executed agreement of sale dt.26.5.1982 in respect of the suit property, for total consideration amount of Rs.12,000/- and received Rs.5350/- as earnest money? ii. Whether the plaintiff proves that, the defendant in pursuance of part performance handed over the possession of the suit property in his favour? iii. Whether the plaintiff proves that, he is ready and willing to perform his part of contract as per the agreement dt: 26.5.1982? iv. Whether the defendant proves that, the alleged agreement of sale is in the form of security for the handloan advanced by the plaintiff? v. Whether the suit barred by limitation? vi. Whether the plaintiff is entitle for the relief as prayed for? vii. What order or decree?” 8. The plaintiff examined himself as PW.1 and a witness as PW.2. Ex.P1 to Ex.P24 have been marked in evidence. The defendant examined himself as DW.1. No documents were marked in evidence. 9. The Trial Court by its judgment and decree dated 10.06.2005, decreed the suit and passed the following order: “The suit of the plaintiff is decree against the defendant with cost. Ex.P1 to Ex.P24 have been marked in evidence. The defendant examined himself as DW.1. No documents were marked in evidence. 9. The Trial Court by its judgment and decree dated 10.06.2005, decreed the suit and passed the following order: “The suit of the plaintiff is decree against the defendant with cost. It is further ordered and decree that plaintiff is entitle to recovery a sum of Rs.5350/- along with the interest at the rate of 9% p.a. on the above amount, from the date of agreement till the entire amount realization against the defendant. Further the plaintiff is directed to hand over the possession of suit properties to defendant, after the entire amount recovered from him. Draw the decree accordingly.” 10. Being aggrieved, the plaintiff preferred R.A No.70/2005. The defendant entered appearance in the said appeal and contested the same. During pendency of the appeal, the original plaintiff died and his legal representatives have come on record and have pursued the said appeal. 11. The First Appellate Court framed the following point for consideration: “Whether the impugned judgment and decree requires the interference of this Court and that the appeal is fit to be allowed?” 12. The First Appellate Court, by its judgment and decree dated 20.01.2010, dismissed the appeal. Being aggrieved, the present second appeal is filed. 13. This Court, by its order dated 12.08.2013, admitted the above appeal and framed the following substantial question of law: “Whether in the facts and circumstances of the case the Courts below were justified in denying the relief of specific performance having held that Ex.P1 sale agreement has been duly proved and directing the appellant to hand over possession without there being a counter claim for possession by the respondent?” 14. Learned counsel for the appellant, Sri.C.V.Angadi assailing the judgment of the Trial Court and the First Appellate Court, submits that the Trial Court has directed the plaintiff to hand over possession of the suit property to the defendant, after the entire amount is recovered from him, without the defendant having made any counter claim for redelivery of possession in the suit for specific performance filed by the plaintiff. It is further contended that the defendant who is the respondent No.1 in the present appeal, has sold the suit property to the respondent No.2 on 13.07.2018, and hence, the respondent No.1 who is contesting the above appeal has no locus standi to oppose the appeal. 15. It is further contended the finding that the plaintiff is not ready and willing to complete the sale transaction, is also erroneous. Since the letters dated 07.09.86 (Ex.P23) and 07.02.88 (Ex.P24), returned by the defendant to the plaintiff itself is indicative of the efforts made by the plaintiff, to complete the sale transaction. It is further contended that the possession of the plaintiff over the suit property is protected under Section 53A of the Transfer of Property Act, 1882[Hereinafter referred to as the ‘T.P. Act’], and hence, the order of the Trial Court directing recovery of possession is erroneous. Hence, he seeks for allowing of the above appeal. In support of his contention, he relies on a judgment of the full Bench of this Court in the case of Narasimhasetty Vs. Padmasetty, ILR 1998 KAR 3230. 16. Per contra, learned counsel for respondent No.1, Sri.Ramesh.I.Zirali contends that the plaintiff was not ready and willing to perform his part of the contract and complete the sale transaction and the findings recorded by the Trial Court and First Appellate Court are just and proper, having regard to the fact that the suit is filed 17 years after the date of the agreement. It is further contended that Section 53A of the T.P. Act will not enure to the benefit of the plaintiff to retain possession, since the finding that he has not in ready and willing to complete the sale transaction disentitles him from the protection of the said provision of law. 17. Learned counsel justifies the order passed by the Trial Court for redelivery of possession and submits that the plaintiff having sought for the alternative relief of refund of the earnest money paid and having regard to Section 29 of the Specific Relief Act, 1963[Hereinafter referred to as the “S.R. Act”], the order passed by the Trial Court and as affirmed by the First Appellate Court is not liable to be interfered. Hence, he seeks for dismissal of the appeal. In support of his contention, he relies on the judgment of the Hon’ble Supreme Court in the case of A. Lewis and Ors. Hence, he seeks for dismissal of the appeal. In support of his contention, he relies on the judgment of the Hon’ble Supreme Court in the case of A. Lewis and Ors. Vs. M.T.Ramamurthy and Ors., AIR 2008 SC 493 . 18. The submissions of both the learned counsels have been considered and material on record has been perused. 19. It is relevant to note that the Trial Court has answered Issue No.I, regarding the plaintiff having proved the execution of the agreement of sale and payment of an earnest money of Rs.5,350/- in the affirmative. Issue No.II, regarding the plaintiff being put in possession of the suit property in part performance, has also been answered in the affirmative. The Trial Court has answered Issue No.III, regarding readiness and willingness in the negative, while ordering for refund of advance amount. The Trial Court has answered Issue No.IV in the negative, that the defendant has failed to prove that the alleged agreement of sale is in the form of a security for hand loan advance, and Issue No.V regarding limitation has also been answered in the negative. The defendant has not challenged the judgment and decree passed by the Trial Court. Hence, the aspects regarding execution of the agreement, and the defendant having received earnest money of Rs.5,350/-, as also that the defendant has put the plaintiff in possession of the suit property in part performance of the agreement as also regarding limitation has not been challenged by the defendant. 20. It is relevant to note that the Trial Court while considering the aspect of readiness and willingness has recorded the following finding: “19. It is obvious to note that the alleged agreement of sale executed in the year 1982. The present suit filed on 16.4.99. It is obvious to note that the present suit filed by the plaintiff after lapse of 17 years. But he further contended that the defendant had wrote the letter by showing the willingness. The defendant contended that the agreement of sale-deed was executed only for collateral security purpose. The plaintiff and defendant themselves agreeing to left (leave) the suit property after receiving of loan amount. More over it is obvious to note that the plaintiff has not issued any notice on defendant within prescribed time, for showing his ready and willingness to perform his part of contract. The plaintiff and defendant themselves agreeing to left (leave) the suit property after receiving of loan amount. More over it is obvious to note that the plaintiff has not issued any notice on defendant within prescribed time, for showing his ready and willingness to perform his part of contract. There are no documents to prove ready and willingness of plaintiff. These facts are clearly goes to show that the plaintiff has not approached the defendant with proper manner. More over the defendant also trying to prolong the execution of documents. These facts are clearly goes to show that the plaintiff has not shown his ready and willingness to perform his part of contract through the proper channel. Therefore there are no documents to show the ready and willingness of plaintiff. For the foregoing reasons and discussion I answer Issue No.3 in the Negative.” (emphasis supplied) 21. The First Appellate Court, while considering the appeal of the plaintiff, has affirmed the finding with regard to readiness and willingness and recorded the following findings: “17. The documents produced by the plaintiff clearly shows that though the agreement of sale at Ex.P1 was executed on 25.06.1982, the plaintiff has not made any efforts by issuing the legal notice to the defendant asking him to execute the sale deed. Further filing of the suit for injunction in O.S No.190/95 on the basis of allege agreement and entries made in ROR and making publication as per Ex.P23 in the daily news paper is not sufficient and proper and in the said suit the defendant has not filed the written statement and not contested properly. More ever the plaintiff cannot make the said judgment and decree as base to establish his right and to seek the reliefs in this suit. So also the copy of order at Ex.P.16 shows that the defendant has resisted for the entry of name of plaintiff to the suit land and obtained the stay order for revenue court. Further the letters at Ex.P.21 and 22 shows that defendant was in financial difficulty and he was in need of money for treatment of his son. 18. Under the circumstances execution of agreement of sale as security for the loan cannot be ruled out and the consideration amount shown in the agreement is Rs.12,000/- for an area of 1 acr 19 gnt which is rather inadequate. 18. Under the circumstances execution of agreement of sale as security for the loan cannot be ruled out and the consideration amount shown in the agreement is Rs.12,000/- for an area of 1 acr 19 gnt which is rather inadequate. Mere payment of revenue by the plaintiff as shown in the revenue receipt will not create right in his favour and the documents like record of rights are not the documents of title and plaintiff has already enjoyed the suit land for more than 19 years. So also the plaintiff is not entitle for produced section 53 of the Transfer of Property Act, since there is no evidence of issuance of legal notice and the provisions of article 54 of Limitation Act prescribes limitation of three years for execution of the sale deed from the date of execution of agreement of sale and even if the said period is calculated after laps of one year as mentioned in the agreement of sale, the relief is sought is barred by time and therefore the trial court by observing all these aspects has rightly decree the suit in part and directed the plaintiff to hand over the possession of the suit land to the defendant to the defendant. Thus I don’t find any reason to interfere with the findings of the trial court and the appeal is liable to be dismissed. Accordingly I answer this point in negative.” (emphasis supplied) 22. While considering the aspect of readiness and willingness, it is relevant to note that the agreement was executed on 26.05.1982, and the suit was filed on 16.04.1999, after lapse of nearly 17 years. The reliance placed by the learned counsel for the appellant/plaintiff on the letters dated 07.09.86 (Ex.P23) and 07.02.88 (Ex.P24), will not aid the case of the plaintiff, since the said letters have been returned to the plaintiff. There is no communication available on record which has been received by the defendant, wherein, the plaintiff has called upon the defendant to come and execute the Sale Deed and complete the sale transaction. Even if Ex.P23 and Ex.P24 are taken into consideration, the plaintiff has failed to explain as to what steps have been taken by him for nearly 11 years after the said letters for the purpose of demonstrating his readiness and willingness. Even if Ex.P23 and Ex.P24 are taken into consideration, the plaintiff has failed to explain as to what steps have been taken by him for nearly 11 years after the said letters for the purpose of demonstrating his readiness and willingness. In view of the aforementioned, the finding of readiness and willingness, recorded by the Trial Court and as affirmed by the First Appellate Court is just and proper. 23. It is the contention of the learned counsel for the appellant that having regard to Section 53A of the T.P. Act, the order directing redelivery of possession passed by the Trial Court, and as affirmed by the First Appellate Court are erroneous. In order to consider the said contention, it is relevant to note Section 53A of the T.P. Act, which reads as follows: “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 [The words “the contract, though required to be registered, has not been registered, or,” omitted by Act 48 of 2001, sec.10 (w.e.f. 24-9-2001).][***] 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.” (emphasis supplied) 24. A full Bench of this Court in the case of Narasimhasetty, ILR 1998 KAR 3230, relied upon by the learned counsel for the appellant, while considering the scope and effect of Section 53A has recorded the following findings: “26. From the above authoritative pronouncements of the Privy Council and the Supreme Court, it can unhesitatingly be held that Section 53A of the Act creates a statutory right in favour of transferee though the inspiration for incorporating the same might have been derived from the English equitable doctrine or part performance. But, it is now more than settled that in India the right of a transferee to defend his possession over a immovable property acquired pursuant to a contract and subject to fulfillment of statutory conditions contained in the said section is statutory in nature and cannot be whistled down on the equitable concept of latches or implied limitation. 35. In our opinion, the first aspect to be attended to is as to whether only because of failure on the part of the transferee to bring a suit for specific performance of the contract within the period of limitation prescribed therefore under the Limitation Act, 1963 leads to extinction of his statutory right created by the legislature by incorporating Section 53A in the Act. The answer to this question need not detain us too long since it is well settled that the right and the remedy for enforcement therefore are mutually exclusive jurisprudential concepts. Remedies are availed for exercise or enforcement of legal rights. There are authoritative judicial pronouncement to substantiate that even if a statutory remedy is lost because of limitation or some other procedural bar, the right subsists. 37. From the above pronouncement and discussion it is quite clear to us that notwithstanding the fact that a transferee in possession pursuant to a contract of sale fails to file a suit for specific performance within the prescribed period of limitation, still in law, the contract remains valid and operative entitling him to exert his right to retain the possession over the property in exercise of his statutory right conferred by Section 53A of the Act by way of defence in a suit brought against his by his transferor for recovery of possession. 39. 39. It is also now a well settled principle that the law of limitation does not apply to a defence raised under Section 53A of the Act since the Section does not provide for any limitation on expiry whereof the defence contemplated in the Section will be lost or will extinguish. 40. Therefore, keeping in view the pre-enactment history of Section 53A of the Act and the binding judicial pronouncements of Privy Council and the Supreme Court, one has to concede that the right of the transferee to defend his possession envisaged under the above provision is statutory in nature and it has not been subjected to any limitation either express or implied. In that view of the matter, the Division Bench decisions of this Court noticed in the opening paragraph of this judgment cannot be said to have laid down a good law and are accordingly overruled on the legal issue involved herein.” (emphasis supplied) 25. The Hon’ble Supreme Court in the case of A. Lewis and Ors. Vs. M.T.Ramamurthy and Ors., AIR 2008 SC 493 relied on by the learned counsel for the respondent No.1, considering the protection granted under Section 53A of the T.P. Act, as held has follows: “6. As rightly pointed out by the High Court, the existence of right to claim protection under Section 53A of the Transfer of Property Act would not be available if the transferee just kept quiet and remained passive without taking effective steps. Further, he must also perform his part of the contract and convey his willingness. On the other hand, the factual finding is that there was no intimation by defendant Nos.3 and 4 to perform their part of contract to claim protection of Section 53A of the Transfer of Property Act.”(emphasis supplied) 26. It is forthcoming from the aforementioned that although the full Bench of this Court in the case of Narasimhasetty[ILR 1998 KAR 3230] has authoritatively pronounced regarding the protection granted by Section 53A of the T.P. Act upon a plain reading of Section 53A of the T.P. Act and as noticed by the Hon’ble Supreme Court in the case of A. Lewis and Ors. Vs. Vs. M.T.Ramamurthy and Ors., AIR 2008 SC 493 in order to claim the protection under Section 53A, the factual finding as to the plaintiff having performed or willing to perform his part of the contract is required to be answered in his favour. 27. In the present case, the finding of readiness and willingness having been held against the plaintiff by both the Courts, and the same having been affirmed by this Court as noticed above, the question of the plaintiff taking the benefit of Section 53A of the T.P. Act to remain in possession of the suit property does not arise. Hence, the said contention put forth by the plaintiff is untenable and liable to be rejected. 28. With regard to the contention by the learned counsel for the appellant that without a prayer seeking recovery of possession made by the defendant, the Trial Court ought not to have granted the same, the learned counsel for the respondent has pointed out that the plaintiff in the plaint has sought for the alternative relief of refund of the earnest money paid with interest vide prayer (c) made in the plaint. Further, it is contended that having regard to Section 29, the granting of the said relief by the Trial Court is proper. 29. It is relevant to notice Section 29 of the S.R. Act reads as follows: “29. Alternative prayer for rescission in suit for specific performance.- A plaintiff instituting a suit for the specific performance of a contract in writing may pray in the alternative that, if the contract cannot be specifically enforced, it may be rescinded and delivered up to be cancelled; and the court, if it refuses to enforce the contract specifically, may direct it to be rescinded and delivered up accordingly.”(emphasis supplied) 30. It is forthcoming from Section 29 of the S.R. Act that the plaintiff having sought for refund of the earnest money and the Trial Court having granted the said order of refund, the same tantamounts to the contract being “rescinded” and “delivered up to be cancelled”. In other words, the suit having been filed for specific performance of the said agreement and the same having been adjudicated upon, and the Trial Court having ordered for the alternative relief of refund of the earnest money, it is clear that the rights of the parties under the said agreement has been adjudicated. In other words, the suit having been filed for specific performance of the said agreement and the same having been adjudicated upon, and the Trial Court having ordered for the alternative relief of refund of the earnest money, it is clear that the rights of the parties under the said agreement has been adjudicated. When the rights of the parties under the said agreement have been adjudicated, the plaintiff who is admittedly in possession of the property under the said agreement cannot be permitted to retain possession of the property under the very agreement in respect of which rights of parties have been adjudicated and is hence required to return possession of the same, when the refund of the earnest money has been ordered upon. 31. In view of the clear wording of Section 29 of the S.R. Act, the Trial Court was justified in ordering the plaintiff to return the possession of the suit property upon the payment of the earnest money by the plaintiff and the said finding cannot be said to be erroneous. 32. In view of the discussion made above, the substantial question of law framed by this Court is answered in the affirmative. 33. However, it is relevant to note that the Trial Court has granted the relief of possession without the defendant having paid the requisite court fee for the same and hence suitable orders is required to be passed for the said purpose. 34. Hence, the following: ORDER i. The above appeal is dismissed; ii. The judgment and decree dated 20.01.2010 passed in R.A No.70/2005 by the Fast Track Court-I, Chikodi, confirming the judgment and decree dated 10.06.2005 passed in O.S No.69/1999 by the Additional Civil Judge (Jr.Dn.), Nipani, are affirmed, subject to the defendant to paying requisite court fee for the relief of possession of the suit property by valuing the suit property as on date of the suit.