( 1 ) THIS Civil Revision Petition is referred to a Division Bench by Puttaswamy, j. as there is conflict of judicial opinion in the pronouncements on the point. Though the point is somewhat differently formulated in the order of reference, the question really is whether an intending-transferee under a contract for sale of immoveable property, who is put in possession of the property in part-performance of the contract, can, as plaintiff, bring an action for the 'possessory remedy of an injunction in protection of his possession against the transferor. In Shankargouda Hanumantha gowdav. Fatesab (1) and Muniyamma v. G. Channaiah (2) learned Single judges subscribe to the view that such an action cannot be maintained. But in Devaraja Mudaliar v. S. D. Lakshminagappa (3) another learned judge has held in favour of main- tainability of such an action.

( 2 ) THE relevant and material facts are these: petitioner is defendant-1 in O. S. 46 of 1979 on the file of the Civil judge, Madikeri. Respondents plaintiffs brought the suit for the specific enforcement of an agreement for sale dated 5:1. 79 allegedly executed by petitioner and her sons in their favour agreeing to convey the suit-property for a price of Rs. 10,000. It was further alleged that a sum of Rs. 5,000 was paid to the defendants under the agreement and that plaintiffs-respondents were put in possession of the property, pursuant to and in part performance of the said agreement for sale. In addition to seeking specific performance, plaintiffs also sought the relief of permanent injunction in protection of their alleged possession. The suit was, thus, for the said two reliefs. On an application, I. A. I. , filed by by the plaintiffs for a temporary injunction the trial Court granted the temporary injunction sought. The lower appellate Court has affirmed the injunction in appeal. We have beared Sri U. L. Narayana rao for petitioner and Sri H. B. Datar, learned senior counsel for respondents plaintiffs.

( 3 ) ONE of the contentions urged in this petition is that the equity of part performance under S. 53a of the transfer of Property Act , being a passive equity-figuratively expressed as a shield and not a sword the person claiming its benefit cannot as plaintiff, institute a suit even if it be merely to protect his possession. Pronouncements of two learned Single Judges support this view.

( 4 ) THE Doctrine of part performance in England has its origin in Equity, when the common law remedy of damages was found inadequate. It was an innovation to relieve the hardship of the provisions of the statute of Frauds which by its 4th section provided that no action could be brought upon a contract for the sale of land unless the contract was in writing and signed by the party to be charged. Though the salutary object of the provision was to eliminate parol evidence and thus obviate the dangers of perjured evidence, the provision itself became an instrument of fraud by lending itself to the possibility of a vendor, who orally agreed to sell property, received the price and put the vendee in possession, himself later ejecting from the property the vendee who, in the absence of a written instrument, was helpless. S. 4 of the statute of Frauds was later repealed by S. 40 of the Law of Property Act, 1925. Sub-section (2) of that section gave statutory recognition to the doctrine of part performance. The doctrine as so statutorily assimilated is to the effect that though, owing to the absence of a written instrument the agreement cannot be relied on in a Court of Law, it is nevertheless enforceable specifically in equity by admitting parol evidence of the contract, provided the party has acted in part performance of the agreement. In England this equity is an 'active' equity and could be invoked in aid of a parol contract, and the acts of part performance need not necessarily consist of taking possession but included "any act".

( 5 ) IN India, before the amending act of 1929, the doctrine wa

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