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12. Plaintifs have examined one Balasaheb Devram Gaikwad, who is the brother of plaintif No.1. He claims that, he was present at the time of the transaction as per the plaintif, but in his cross- examination he claimed ignorance of the contents of the document. He was not aware about the contents of the suit also. Therefore, it can be stated that, his testimony is in any way helpful to the plaintifs. Per contra, the evidence led by the defendant is in the form of examining himself as well as one of the attesting witness. Though the document was not compulsorily attestable document, yet parties had opted for having signatures of the witnesses, and therefore, when D.W.2 Popat Dhiwar has supported the evidence of the defendant, his evidence carries more importance. When two documents were got executed by defendant, in the cross- examination the plaintif could have asked, as to why two documents were got executed. The cross is very much silent on the point, however the point is therefore required to be considered taking into consideration all these aspects that, the said agreement to sell though taken as executed by plaintifs, so also the possession 12 SA 145-2016 receipt, whether the defendant could have taken defence under Section 53A of the Transfer of Property Act to protect his possession. Admittedly, no sale-deed has been got executed by defendant in his favour from plaintifs in respect of suit property in pursuant to said agreement to sell. Unfortunately no specifc issue is framed to that efect by the learned Trial Court so also by the First Appellate Court. When the evidence has been adduced by both the parties is before this Court, it is not necessary for to remand the matter for adjudicating the point in respect of Section 53A of the Transfer of Property Act. The said point can be considered in this appeal also accordingly, that is the only substantial question of law which is arising in this case.

15. The natural corollary of the fnding that, plaintifs had executed documents Exhibit 30 and 31 would make it clear that, plaintifs had entered into an agreement to sell the suit property to defendant and then handed over the possession of the suit land to him by a separate document. It can be seen from the written statement fled by the defendant that, he has not specifcally taken a contention that, he is entitled to protect the possession under Section 53A of the Transfer of Property Act. Plaintifs might have failed to prove that, their signatures were obtained on three blank stamp papers and possession was forcibly taken by the defendant in 2009, yet the question remains as to whether now defendant can protect his possession by invoking Section 53A of the Transfer of Property Act. It can also be considered that, even if it is taken that, plaintifs had handed over voluntarily the possession of the suit land to defendant, yet when they have fled the suit seeking possession of the property, defendant can only take legal defences to protect his possession. In order to take that defence, as per the ratio laid down in, Nanjegowda And Another Versus Gangamma And Others, reported in (2011f 13 Supreme Court Cases 232, the defendant will have to prove following conditions :

contract or is willing to perform his part of the contract." It has been observed in the above said case that, "A party can take advantage of this provision only when it satisfes all the conditions aforesaid. All the postulate are sine qua non and a party cannot derive beneft by fulflling one or more conditions."

Section 53A of Transfer of Property Act was amended on 24-09-2001 and thereby a further condition has been imposed that, such agreement to sell should be a registered one. The documents in present case are admittedly on insufficiently stamped paper and the document is not registered. As regards point of insufficiency of stamp is concerned, it appears that, when the documents were exhibited, no objection was raised on behalf of the present plaintifs, and therefore, in view of Section 35 of the Bombay Stamp Act, plaintifs cannot now, in appeal, take a plea that, the documents are on insufficiently stamped paper. When no such objection was taken at the trial stage in the process of the documents being exhibited, and the law contemplates that, such objection will have to be raised at the particular point of time then it was not open for the plaintifs 16 SA 145-2016 to agitate the point of insufficiency of stamp at the stage of second appeal. Reliance can be placed on the decision in, R.V.E. Venkatachala Gounder Versus Arulmigu Viswesaraswami and V.P. Temple and another, reported in AIR 2003 Supreme Court 4548, wherein it has been held that, "Ordinarily an objection to the admissibility of evidence of the document should be raised before such endorsement is made and the court is obliged to form its opinion on the question of admissibility and express the same on which opinion would depend the document being endorsed as 'admitted' or 'not admitted' in evidence............ The objections as to admissibility of documents in evidence may be classifed into two classes : (if an objection that the document which is sought to be proved is itself inadmissible in evidence : and (iif where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the frst case, merely because a document has been marked as 'an exhibit,' an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken before the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any subsequent stage." Here by law itself, i.e. by Section 35 of the Bombay Stamp Act, the party challenging the document is estopped from taking plea 17 SA 145-2016 that, it is on an insufficiently stamped paper if it does not objects to the act of exhibiting the document at trial stage. Now the only question is in respect of the fact that, it was not registered also. By way of the said amendment with efect from 24-09-2001 words "the contract, though required to be registered, has not been registered, or," have been omitted. The efect of the omission of these words and at the same time making amendment in Section 17 of the Indian Registration Act on the same day regarding compulsory registration of the agreement to sell where it is coupled with possession; the intention of the legislature was that, unless the agreement to sell wherein possession has been handed over is registered then only the protection under Section 53A of the Transfer of Property Act would be available to the person who intends to invoke the same. In this case, both these documents i.e. Exhibits 30 and 31 have come into existence after the said amendment to the Transfer of Property Act Section 53A and Section 17 of the Indian Registration Act had come into force. Therefore, when by the said separate document, on the same day possession is stated to have been handed over to the defendant, it was mandatory to register the said document Ex. 30 and 31. As aforesaid, no explanation has been given by the defendant, as to why it was not registered also and why two separate documents were required to be executed. Therefore, the main condition of the said protection to be available under Section 53A of the Transfer of Property Act, has not been fulflled by the 18 SA 145-2016 defendant.

16. The defendant has not explained as to why he had not fled suit for specifc performance against the plaintifs. Contents of the written statement especially later part of para 10 would show that, defendant contended that by fling suit the plaintifs have in a way refused to perform their part of the contract, and therefore, the defendant has expressed that he would fle suit for specifc performance. In fact he could have fled counter claim in the suit itself for specifc performance of the contract, but he did not do that. In his cross-examination specifc question was put to him as to whether he has fled suit for specifc performance because his cross- examination was taken on 11-04-2012, the answer was in the negative. It was also asked that, since he is in possession, he has no intention to lodge any suit for specifc performance of the contract, he has answered it in the negative. It appears that, there was no dispute on a fact when agreement to sell was executed that, prior to the execution of the sale deed, it was necessary for the party executing the document, to bring the permission from the requisite authority. In Exhibit 30 there are specifc recitals to that efect. Plaintifs had undertaken to bring the said permission, but further stipulation was also made that, if permission is not obtained, it could have been got done by the defendant by expending on the same. In other words it was stated that, the present defendant would incur the expenditure for bringing permission and then a right was given 19 SA 145-2016 to him to recover the amount, which he would have spent on bringing the said permission. The testimony of defendant is totally silent as to what steps he had taken after a months period from the date of the execution of the agreement to sell. Unless he shows readiness and willingness to perform his part of the contract, he could not have got the protection under Section 53A of the Transfer of Property Act. The conduct of the defendant is not up to that mark. Therefore, from any angle if we consider the facts of the case then though there is concurrent fnding of both the Courts below, yet it can be said that, the defendant had failed to prove that, his possession over the suit land can be protected under Section 53A of the transfer of Property Act. He can not be allowed to remain in possession of the suit land without paying balance amount of consideration and without getting sale-deed executed in his favour. No doubt, a person can protect his possession over a land by taking defence under Section 53 A of Transfer of Property Act, even though his suit for specifc performance of contract would have been barred by limitation; but in this case one of the main ingredient of seeking such protection i.e. compulsory registration of the document is not fulflled.