Section 53-A of the Transfer of Property Act protects the possession of a defendant against whom a suit in ejectment has been filed, even if the defendant's right to obtain specific performance of the agreement has been barred by time.

1. This second appeal has been referred for decision to a Division Bench by Mr. Justice Shah. The ground upon which the case was referred to this Bench was the ground that the case reported in Tribhovan Havgovan v. Shankar Desai, 45 Bom LR 866: (AIR 1943 Bom 431) (A), does not seem to have been correctly decided.

2. The suit giving rise to the appeal was filed by the plaintiff Appa to recover, from the defendants, possession of the suit property which consists of two fields hearing S. No. 22/1-B and S. No. 22/I2-B. It appears that the plaintiff left for Karachi in or about the year 1925 from where he returned in the year 1947. The plaintiffs case is that when he went to Karachi, he left defendant No. 1 in possession of the suit property as the agent of the plaintiff. On the 1st of July 1939, the plaintiff executed a sale-deed in relation to these lands in favour of defendant No. 2 who is defendant No. 1s cousin for the consideration of Rs. 99-15-0. At the date of the sale-deed, the fields were in the possession of the father of defendant No. 4 as a tenant. The plaintiffs case, however, is that defendant No. 1 obtained the signature of the plaintiff upon a blank paper and used that paper for the purpose of the sale-deed of 1st of July 1939. In other words, the plaintiffs case is that the sale-deed of the 1st July 1939 is not a genuine transaction, but it was a fraudulent one. On the 1st of August 1947, defendant No. 2 sold the suit property to defendant No. 3 for Rs. 200 and the case of the plaintiff, again, is that this was a bogus transaction.

3. On 2nd March 1951, the plaintiff commenced this suit against the four defendants upon the allegation that the sale-deed of the 1st of July 1939 was a fabricated document and that neither defendant No. 2 nor defendant No. 3 got any interest in the suit property. Defendant No. 1 remained absent and the suit proceeded against him ex parts. Defendant No. 2 filed a written statement and disputed the plaintiffs claim. He denied that the sale-deed of the 1st of July 1939 was a fraudulent transaction. The contentions of defendant No. 3 were substantially the same as those of defendant No. 2. Defendant No. 4, who is the son of the original tenant, raised similar contentions and added that his father was a tenant of the suit lands since a long lime and that his father continued on the suit lands as a tenant of defendant No. 2 and then as a tenant of defendant No. 3.

4. The learned trial Judge raised several issues and upon the principal issue, he held that the plaintiff did not prove his title to the suit lands and, holding as ho did in that sense upon issue No. 1, ho dismissed the plaintiffs suit. Feeling aggrieved by the decree, the plaintiff went in appeal before the District Court, Poona, and the learned District Judge, Poona, allowed the plaintiffs appeal and passed in favour of the plaintiff a decree for possession against defendants Nos. 2 and 3 upon the plaintiff paying defendant No. 3 a sum of Rs. 99-15-0 and granted a declaration that defendant No. 4 was in possession of the suit property as the plaintiffs tenant. From the appellate decree, the third defendant has come up in appeal.

5. At the outset, it may not be out of place to say that this case has gone through, as it were, vicissitudes of several contentions taken up by the parties. In the trial Court, the simple issue was whether the plaintiffs title was proved and the trial Court held that the plaintiffs title had not been proved. In the lower appellate Court, that Court came to the conclusion that the sale-deed of the 1st of July 1939 was a genuine sale-deed and not a fraudulent sale-deed as alleged by the plaintiff. The lower appellate Court also held that, although no actual possession was given to defendant No. 2 pursuant to the sale-deed of the 1st of July 1939, defendant 2 obtained constructive possession of the suit lands because of an attornment made by the tenant who was in actual possession. The position, t