1. This Second appeal filed by the original Plaintiff arises from the Judgment and order dated 28-02-2002 passed by the Adhoc Additional District Judge Nagpur in Regular Civil Appeal no.254 of 1993 which was allowed by setting aside the decree for possession and damages awarded by judgment and order dated 01-02-1993 in R.C. Suit no.827 of 1986 passed by the 4th Jt. C.J. J. D. Nagpur in which counterclaim was rejected .The first appellate court negatived the claim of the plaintiff that the defendant made encroachment over the suit plot in January 1982 and held that the defendants possession was protected under Section 53-A of the Transfer of Property Act 1882.

2. The suit was instituted on 02-05-1986. The dispute relate to the land Khasra no. 6/1, a plot no 3 admeasuring 1650 Sq. Feet (30 feet X 50 feet approx.) situated at Manewada, Balaji Nagar at Nagpur which as alleged was agreed to be sold for the sum of Rs.3000/- out of which the sum of Rs.500/- earnest money was paid (vide Ex 47) and the balance amount was payable at the time of the execution and registration of the Sale deed. It was agreed to be executed within six months. The plaintiff had delivered possession on 05-09-1974 itself. The Defendant failed to pay the amount and to approach the plaintiff for the execution of the Sale deed. The defendant had avoided to pay the balance of consideration on the pretext that the Sale of land is prohibited under the Urban Lands Ceiling Act. According to the plaintiff the Agreement to sell was executed before the ULC Act came to be enforced. There was no any order from the competent authority that the land in possession of the defendant was surplus. Even assuming so it was it was never vested in the Government. The appellant (Ori. Defendant) was called upon by the Plaintiff to execute the Sale Deed. (vide Ex 52). The Defendant asked the plaintiff by notice dated 2510 1982 to vacate the possession of the suit property. (Ex 53). On 07-01-1985 the Notice was issued from the plaintiff that the Defendant avoided to execute the Sale deed. In the suit it may be noted that three years after the suit for recovery of possession was filed the counterclaim was filed, which was rejected.

3. The Trial Court held that the Plaintiff had agreed to sell the suit property to the Defendant and the Defendant committed the breach of Contract, while time was made the essence of the Contract. The entire land was declared as surplus land under the ULC Act. The possession of the Defendant was not protected under the Section 53-A of the Transfer of Property Act as it does not confer any right upon the party who is not willing to perform his part of the Contract. Thus the prospective Vendee who took possession of the suit property cannot resist the claim for possession, particularly when the defendant had not shown readiness and willingness to perform his part of the contract nor he had filed any suit to insist upon the specific performance of the Contract. The suit was thus decreed for possession and damages with direction as to the inquiry in to mesne profits.

4. Original defendant preferred appeal being RCA No.254 of 1993 challenging the judgment and decree passed by the trial Court. The 1st appellate court vide judgment and order dated 28th February 2002 held that encroachment on the part of defendant on Plot No.3 in January 1982 was not proved by plaintiff and that defendant’s possession can be protected by virtue of Section 53-A of the Transfer of Property act. 1st appellate thus allowed the appeal.

5. The second appeal was admitted upon the following substantial questions of law -

“1. Whether the First Appellate Court erred in not considering the aspect that the defendant/present respondent did not exercise his right of getting the sale-deed executed within a reasonable time ?

2. Whether the First Appellate Court erred in not considering the aspect of continuous readiness and willingness on the part of the defendant/present respondent to perfor