A court should not introduce a new plea for the first time in appeal, especially when it prejudices the other party and there is no foundation for such a plea in the pleadings.

R. N. MISRA, J.

( 1 ) THE plaintiff is in appeal against the reversing decision of the learned Additional subordinate Judge, Jey-pore. The plaintiff had sued for title and recovery of possession of the disputed property upon ejectment of the defendant therefrom. The disputed property admittedly belonged to one Hori Bhotra and his brother arjuna who happen to be sons of one Phagunu Bhotra. Hari and Arjuna had previously mortgaged the disputed property with one Jhitru. The land was thereafter again mortgaged and it was sold to the plaintiff for a consideration of rupees four hundred under a registered sale deed dated 8th of March, 1965. The plaintiff redeemed the mortgage and obtained possession. There was a proceeding under Section 145, Code of Criminal Procedure which terminated in favour of the defendant Hence the suit. The defendant claimed that he had purchased the disputed property from Hari and his brother for Rs. 140/- in cash and five putties of paddy in kind in 1956 and was cultivating possession since then. It was pleaded that the plaintiff had full knowledge of the prior sale in favour of the defendant as also the defendant's possession. Thus the sale did not confer any title on the plaintiff because the plaintiff's vendor had lost title by the time of sale under the registered sale deed. The learned trial Judge found that the title had vested on the plaintiff under his purchase by Ext. 1 and the story of possession by the defendant through an unregistered sale deed was not accepted. The learned appellate Judge reversed the decree of the trial Court by applying Section 53-A of the Transfer of property Act to the case. The reversing decision of the lower appellate Court is assailed in second appeal.

( 2 ) IT is contended " by Mr. Murty that the lower appellate Court was in error in applying the principles of Section 53-A of the Transfer of Property Act though such plea had not specifically been raised in the written statement and no issue had been struck. Section 53-A provides:

"53-A. Part performance-- Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken OP continued in possession, other than a right expressly provided by the terms of the contract; provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof. "

Reliance is placed in the case of (Pusaram Maniklal Jzardar v. Deorao Gopalrao mail, AIR 1947 Nag 188 where Vivian Bose, J. as his Lordship then was held:

"the section requires, in the first place, that there should be a written contract. That predicates a valid contract--a contract of a type which could be specifically enforced. It would be ridiculous to suggest that a person would have a better right under a mere equity than he would have at law--that he could acquire rights in equity under a written contract which the law would refuse to recognise. . . . . Another point as regards this is that it must be shown that the pa