There should be necessary pleadings regarding part performance.

A plea of part-performance is raised for the first time in Second Appeal, when there are no pleadings to that effect, nor evidence and the appellants want to assert a right over

3.30 acres of valuable land having paid just Rs.4,000/-.

2. The defendants are the appellants. The first respondent filed O.S.No.208 of 1991 for declaration and recovery of possession from the third defendant. The third defendant expired pending the suit. His wife and children were brought on record and are the appellants in the present second appeal. The fifth appellant has since attained majority and the learned counsel for the appellant undertakes to file vakalat for her.

3. The plaint averments are as follows:

The suit property originally belonged to one Chinna Kannammal. The plaintiff purchased the property from the successors-in-interest of Chinna Kannammal and has been in possession. There was an agreement with the third defendant on 24. 1983 agreeing to purchase the property for a sum of Rs.7,920/-, after paying an advance of Rs.4000/-. When the plaintiff asked him to pay the balance, the third defendant refused to pay and asked for return of the advance. Since the contract was breached, this advance was forfeited. Thereafter, the third defendant has entered the suit land by force and has been in unlawful possession from 23.09.1983. The suit property was classified as Tharisu poramboke without notice to the first respondent and therefore, the plaintiff issued a notice to respondents 2 and 3 to restore the suit land under its original patta and the suit was filed for declaration of the plaintiffs title and recovery of possession from the third defendant.

4. The second defendant filed a written statement in which the knowledge about the agreement between the plaintiff and the third defendant was denied. According to the second defendant, the suit property was a dry assessed waste. It was also denied that the reclassification was done without notice to the plaintiff.

5. The fourth defendant, the third defendants father filed a written statement denying the plaintiffs right. The sixth defendant, who is the wife of the third defendant filed a written statement on behalf of the other legal representatives. She admitted that there was an agreement but contended that the plaintiff had misrepresented that the suit property was punjai land and that the third defendant verified with the revenue records and found out that it was Punjai Tharisu. and had also planted Eucalyptus and Casuarina trees, in his own right. It was also alleged that the suit was barred by limitation. The trial court decreed the suit as prayed for and the Appellate Court confirmed the judgment.

6. The second appeal was admitted on the following questions of law:

"1. Whether the appellants are entitled to be in possession of the suit property though their limitation for instituting the suit for specific performance has already expired?

2. Whether the Courts below were correct in holding that the suit property is a tharisu land?"

7. Learned counsel for the appellants admitted that the appellants are not denying the title of the first respondent, but the appellants are entitled to be in possession and to invoke the provisions of Section 53 A of the Transfer of Property Act as a shield to protect their possession. Learned counsel submitted that the first respondent had come to Court with a case that there was forceful and illegal dispossession in 1983 and having failed to prove the same, it is not open to him to take possession from the appellants. Learned counsel submitted that this is not a case where possession should follow title, in view of the peculiar circumstances where both the sides admit the existence of an agreement. According to the learned counsel, once an agreement is admitted, the presumption is, the possession of the appellants is legal until the contrary is proved. Learned counsel submitted that huge improvements have been made in the property and