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17. Section 53A of the Transfer of Property Act provides that 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 transfer has not been completed in the manner prescribed therefor by the law, the transferor shall be debarred from enforcing against the transferee 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. It is thus evident that for Section 53A of the Transfer of Property Act to be invoked, the transferee should have in part performance of the contract of transfer taken possession of the property or if already in possession of the property should after the contract of transfer continue in possession in part performance of the contract of transfer. Section 53A cannot be invoked wherever there is an agreement of sale of immovable property, unless possession of the property has been taken/delivered in part performance of agreement to sell.

25. That takes me to the aspect of effect of the order dated 27.07.2007 in CM(M) No.1418/2007 supra. In the written statement as originally filed in the suit for ejectment from which this appeal arises, again there is no plea of appellant / defendant having been delivered possession of the property in part performance of the Agreement to Sell or continuing in possession of the property in part performance of the Agreement to Sell. The Division Benches of this Court in Kanhya Lal Vs. Birdhi Chand Girdhari Lal MANU/DE/0333/1972 and in State Bank of India Vs. Pushpa Arora 64 (1996) DLT 557 have held that a plea of part performance which necessarily involves questions of fact cannot be permitted to be raised in appeal, when it was not taken in the written statement in the Trial Court though when a defendant in the written statement states all the essential facts without stating the effect of those facts, the benefit of Section 53A of the Transfer of Property Act cannot be denied to him merely on the ground that there is no specific mention of Section 53A of the Transfer of Property Act. The Supreme Court also in Williams Vs. Lourdusamy (2008) 5 SCC 647 held that it is one thing to say that a person is in possession of the property and it is another thing to say that he has a right to possess pursuant to or in furtherance of an agreement for sale and that for application of Section 53A of the Transfer of Property Act, requisite ingredients must be pleaded.

26. The filing of the application by the appellant / defendant for amendment of the written statement to take the plea of Section 53A of the Transfer of Property Act is also an admission of the said plea being non existent in the written statement as originally filed. The said application for amendment was dismissed by the learned ADJ and though the appellant / defendant preferred the CM(M) No.1418/2007 supra but the end result thereof was also of dismissal. Undoubtedly, this Court while dismissing the CM(M) No.1418/2007 observed that the said plea would be available to the appellant / defendant if established. The said observations appear to have come to be made in the light of the dictas aforesaid of the Division Benches of this Court laying down that even without naming Section 53A, if the necessary ingredients thereof are pleaded, the said plea would be available. However the appellant / defendant in the present case has not only not pleaded the necessary ingredients of Section 53A of the Transfer of Property Act but as aforesaid admitted other facts which run counter to the possession of the premises having been delivered to the appellant / defendant in part performance of the Agreement to Sell.

29. Undoubtedly, the plea under Section 53A of the Transfer of Property Act is a mixed question of law and fact but the question of adjudication of such question of fact by giving an opportunity to lead evidence arises only when the plea is taken or the ingredients thereof pleaded and which is not the case in the present case. A mere plea of having agreed to purchase the property does not tantamount to taking the plea under Section 53A.

30. The Supreme Court in D.S. Parvathamma Vs. A. Srinivasan (2003) 4 SCC 705 was concerned with whether the appellant in that case was entitled to protect his possession under Section 53A and hence not liable to suffer eviction based on landlord-tenant relationship which had ceased to exist on account of subsequent events. It was held that one of the essential features of the equitable doctrine of part performance as statutorily modified and incorporated in Section 53A is that 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. It was further held that since the appellant had failed to allege that he was delivered possession in part performance of the contract or having already been in possession as lessee, continued in possession in part performance of the agreement to purchase i.e. by mutual agreement between the parties, his possession as lessee ceased and commenced as that of a transferee under the contract and further since the appellant inspite of entering into a contract of purchase had not disowned his character as lessee and was treated as such by the parties, the defence of Section 53A was not available to him. It was yet yet further held that when a person already in possession of the property in some other capacity enters into a contract to purchase the property, to confer the benefit of protecting possession under the plea of part performance, his act effective from that day must be consistent with the contract alleged and also such as cannot be referred to the preceding title. The Supreme Court further held that the appellant having entered into possession as a tenant and having continued to remain in possession in that capacity, cannot be heard to say that by reason of agreement to sell his possession was not that of a tenant.