A.N. Venugopala Gowda, J.

This is a plaintiffs' second appeal. Suit filed to pass a decree for possession was contested. The written statement and an additional written statement was filed. 8 issues and 4 additional issues was raised. P.Ws. 1 and 2 deposed in support of the plaintiffs' case and marked Exs. P. 1 to P. 5. For the defendant, D.Ws. 1 and 2 deposed and marked Exs. D. 1 to D. 11. Learned Trial Judge entered findings 'in the negative' on issues 1, 3 and 5 and additional issues 1, 2 and 4. He entered 'affirmative' findings on issues 2, 4 and 6 and additional issue 3. A finding was entered, that the defendant is entitled to protect its possession over the suit schedule property by way of part performance of the contract under Section 53-A of the Transfer of Property Act, 1882 (for short 'the Act'). As a result, the suit was dismissed.

2. Feeling aggrieved, an appeal having been filed by the plaintiffs, learned Appellate Judge raised the following point for determination:

"Whether the findings of the Trial Court in dismissing the suit of the plaintiffs in O.S. No. 97 of 1980, dated 9-6-2000 with observations that the defendant is entitled to protract its possession over the suit schedule properties by way of part performance of contract under Section 53-A of T.P. Act and the said findings of the Court below is illegal, perverse, capricious and not based on the sound reasonings in accordance with the pleadings and the evidence of the respective parties and the same is not sustainable and liable to be set aside by interfering in this appeal?"

3. The defendant had instituted O.S. No. 321 of 1972 for specific performance of contract against Sri Rachappa Gachchi (father of plaintiffs 1 to 3), on the basis of an agreement of sale dated 22-7-1963. The sole defendant died and the suit abated. Despite entering the finding that Rabkavi Banahatti City Municipal Council is debarred from bringing a fresh suit as per the proviso to Order 22, Rule 9 of Civil Procedure Code, 1908, placing reliance on the decision in the case of Shrimant Shamrao Suryavanshi and Another v. Prahlad Bhairoba Suryavanshi (dead) by L.Rs and Others AIR 2002 SC 960 : I (2002) SLT 778 : ILR 2003 Kar. 503 (SC), held that the defendant being an agreement holder is entitled to protect the possession of the property in part performance of the contract as per Section 53-A of the Act. As a result, the appeal was dismissed.

4. Sri M.G. Naganuri, learned Advocate mainly contended as follows:

(a) That the Courts below have not considered the material fact that O.S. No. 321 of 1972 filed by the respondent for passing a decree of specific performance stood abated, with which the claim for specific performance of the agreement of sale dated 22-7-1963 ended and thus, there is no chance for specific performance of the contract.

(b) The Courts below have not considered the undisputed fact of abatement of O.S. No. 321 of 1972 and no further proceeding for specific performance of the contract being permissible, the attraction of bar for the respondent to invoke the benefit of Section 53-A of the Act.

(c) On wrong application of Section 53-A of the Act, Courts below have illegally dismissed the suit and the appeal respectively.

(d) Record of the suit was not considered in the correct perspective and the findings entered are perverse.

(e) Several binding precedents not taken note of and the judgments passed being vitiated, the impugned decrees as unsustainable.

(f) Not analysing the record of the case by placing the burden of proof on the respondent.

(g) The conditions appearing in Section 53-A of the Act being mandatory and the need that all of them must be fulfilled simultaneously and also to be read conjunctively and not disjunctively and that even if one of the conditions is not fulfilled, the benefit of Section 53-A as not extendable.

(h) That the respondent in the written statement having not pleaded that it has been ever ready and willing to perform its part of the contract a