Section 53A of the Transfer of Property Act is not available to the plaintiff in a suit for specific performance of contract.

JUDGMENT :

D.P. Mohapatra, J. - Defendant No. 3 in the suit has filed this second appeal against the judgment and decree of the lower appellate Court reversing the decision of the trial Court and decreeing the suit for specific performance of contract of sale of the suit land. The suit land, as described in the schedule to the plaint is :

"District Cuttack, S. R. Tirtol, Touzi No. 2484 Mouza-Raypur patna, Sthitiban Khata No. 134/13 (sabak) plot No. 20, A. O. 21 dec. and plot No. 21, A. O. 20 dec. total A. 0. 41 dec. out of A. 1. 18 dec. towards east, bounded by-

N. Bira Sethi and Babaji Sethi,

S. River,

E. Dhaneswar Behera,

W. Keshab Rout."

2. Plaintiff-respondent No. 1 Duryodhan Mohapatra filed title Suit No. 68 of 1979 against Gopinath Satapathy (since deceased and substituted by defendants 1,1 /a and 1/b). Laxmidhar Satapathy and Ramachandra Swain, respondents 1, 2 and 3 respectively, with the prayers that defendants 1 and 2 be directed for executing and registering the sale deed with respect to the suit land in favour of the plaintiff after receipt of the balance consideration of Rs. 500/- within a lime fixed by the Court, otherwise the sale deed may be executed by the Court after depositing the balance consideration of Rs. 500/-; and that defendant No. 3, his men and agents be permanently restrained from interfering with the peaceful possession of the plaintiff and from coming upon the suit land.

After stating facts and findings of trial Court his Lordship found.:

7. On appeal being filed by the plaintiff (Title Appeal No. 20 of 1983), the learned Subordinate Judge. Jugatsinghpur set aside the decision of the learned Munsif, decreed the suit and directed defendants 1 and 2 to execute and register a sale deed in favour of the plaintiff on accepting the balance consideration money of Rs. 500/-within two months. As the discussion in the judgment (paragraph 5) shows, the only questions raised for determination in the appeal were whether the plaintiff has discharged his initial onus u/s 53A of the Transfer of Property Act, and whether defendant No. 3 has proved his case of being a bona fide purchaser for value without notice. The lower appellate Court believed the case of the plaintiff that he was in possession of the suit land prior to the agreement as a Bhag tenant and after the agreement as the owner. He did not believe the evidence of defendant No. 2, who was examined as DW 3. Relying on the statement of this witness that five to six days after the suit he for the first time identified the suit land to defendant No. 3, the Court below disbelieved the plea of defendant No. 3 that he was in possession of the suit land. The Court below rejected the plea taken by defendant No. 3 that he was a bona fide purchaser for value without notice. On these findings, the learned Subordinate Judge decreed the suit on setting aside the decision of the learned Munsif. Therefore, defendant No. 3 has filed this second appeal challenging the decision of the lower appellate Court.

8. Shri B. Routray appearing for the appellant contended that the plaintiff cannot avail of Section 53A of the Transfer of Property Act in a suit for specific performance of contract of sale, and the requirement of the said section is not satisfied in the case since there is neither any pleading nor any evidence to show that the plaintiff had done anything in furtherance of the contract. He submitted that even accepting the finding of possession in favour of the plaintiff recorded by the lower appellate Court, mere continuance of possession cannot be said to be an act in furtherance of the contract of sale. He cited several decisions in support of his contention. I may notice a few of them here.

The Allahabad High Court in the case of Kashi Nath Tewari and Another Vs. Makchhed Tewari and Others, ) held that Section 53A of the Transfer of Propery Act can be used only as a shield and not as a sword and it is not possible for a person who is entitled to the benefits of that Secti