Important Point: The defendant has failed to discharge the burden of proving readiness and willingness on his part to perform the contract by making payment of balance amount on the date agreed for execution of sale deed or thereafter till the filing of the suit. The provision of Section 53A of the Transfer of Property Act is not at all attracted in the present case.

1. The trial Court partly decreed the Special Civil Suit No. 63 of 1988 on 30.06.1994 for possession of the suit field and enquiry into the mesne profit. The lower appellate Court has dismissed the Regular Civil Appeal No. 190 of 1994 on 07.12.2001. Hence, the original defendant is before this Court in this second appeal.

2. Undisputedly, the plaintiffs were the owners of the suit property and the defendant claimed protection of possession on the basis of the agreement to sell dated 22.12.1975 at Exh.39. The Courts below are concurrent in holding that the defendant has failed to establish the possession over the suit property by way of part performance of contract. According to the Courts below, the defendant was in possession of the suit property on the basis of the orders dated 17.05.1978 and 31.08.1978 at Exh.45. The Courts have held that the defendant has failed to establish readiness and willingness on his part to perform the contract by making payment of balance amount of consideration of Rs.12,250/- to get the sale deed executed.

3. On 15.07.2005, this Court passed a reasoned order framing two substantial questions of law, which are reproduced below.

[1] Whether the possession of present appellant of suit field is or is not in pursuance of agreement for sale dated 22.12.1975 and therefore, in part performance of the said agreement?

[2] Whether provisions of Section 53A of Transfer of Property Act are attracted in such circumstances?

4. Shri Khapre, the learned counsel appearing for the appellant has invited my attention to the agreement dated 22.12.1975 at Exh.39, which contains a recital that the defendant was put in possession of the suit property, which is 3 acres and 18R of land in Survey No. 28. According to him, though the total consideration payable was shown in the agreement to be of Rs.17,250/-, it was at the rate of Rs.5,000/- per acre, intending thereby to work out the total consideration actually payable upon the actual area in possession of the defendant. He submits that the Court Commissioner was appointed who has measured the land and it is found that the defendant was in possession of 2 acres 18R of land and not 3 acres and 18R of land, as was stipulated in the agreement.

5. Shri Khapre further submits that the agreement itself recites the payment of earnest amount of Rs.5,000/- to the plaintiffs and the balance, therefore, remained to be paid was of Rs.4,250/- on the basis of area of 2 acres and 18R of land actually found in possession of the defendant. He submits that the Courts have wrongly rejected a plea raised by the defendant that an amount of Rs.5,000/- was paid from time to time to the plaintiffs and the defendant had incurred expenditure of Rs.2,000/- for recovering possession of the suit property from the tenants. He, therefore, submits that out of total consideration payable of Rs.12,250/-, the defendant had actually paid an amount of Rs.12,000/- and he was ready and willing to pay the balance amount of consideration to get the sale deed executed. He submits that the Courts below ought to have, therefore, held that the defendant is entitled to protection of possession under Section 53A of the Transfer of Property Act.

6. Coming to the substantial question of law at Sr.No.[1] framed by this Court, the perusal of the agreement at Exh.39 shows that the defendant was put in possession of 3 acres and 18R of land, which defendant had agreed to purchase it from the plaintiffs. In para 2 of the written statement, the specific stand taken by the defendant is reproduced below;-

"2.............................. It is denied that the suit land was in possession of the plaintiff Umabai on 22.12.75. The price of the land was to be paid by this defendant as per the exact measurement of the area that would be available at the time of execution of the sale deed. It is denied that the defendant was placed in possession of that land by the plaintiff Umabai on 22.12.1975. The recital in the agreement of sale