Mr. Rajive Bhalla, J.: - A reference relating to the apparent conflict between two Single Bench judgments titled as Gurbachan Singh vs. Raghubir Singh, 2010(2) Punjab Law Reporter 511 and Birham Pal and others vs. Niranjan Singh and another, 2011 (2) Law Herald (Punjab and Haryana) 1136, has been placed before us. The questions that require to be answered are whether an unregistered agreement to sell, accompanied by delivery of possession or executed in favour of a person in possession, i.e. an agreement that envisages part performance, of an agreement to sell as envisaged by Section 53-A of the Transfer of Property Act, can be received in evidence as proof of the agreement and as a natural corollary whether a suit for specific performance would lie on the basis of such an unregistered agreement to sell.

2. A relevant extract from the reference order reads as follows:-

“However, since there is a conflict regarding the legal position as to whether the suit for specific performance can be decreed on the basis of unregistered agreement to sell in view of Section 17(1A) of the Registration Act, 1908 and the other provisions referred to above, if the plaintiffs claim to be in possession in part performance of the agreement. Therefore, it would be appropriate, if the matter is referred to the Division Bench to decide the said issue of law.”

3. Any answer to the questions posed, would necessarily require an appraisal of Section 17(1A) and 49 of the Registration Act, 1908 (hereinafter referred to as ‘the 1908 Act’) and Section 53A of the Transfer of Property Act, 1882 (hereinafter referred to as ‘the 1882 Act’) and the the opinion recorded in Gurbachan Singh vs. Raghubir Singh, 2010(2) Punjab Law Reporter 511 and Birham Pal and others vs. Niranjan Singh and another, 2011 (2) Law Herald (Punjab and Haryana) 1136, which are in apparent conflict.

4. The judgment in Gurbachan Singh vs. Raghubir Singh (supra), holds that an agreement to sell accompanied by delivery of possession is inadmissible in evidence if it is not registered and, therefore, a suit for specific performance based upon such an unregistered agreement, is not maintainable. The opinion recorded in Birham Pal and others vs. Niranjan Singh and another (supra), is to contrary as it has been held on the basis of the proviso to Section 49 of the Indian Registration Act and such an agreement can form the basis of a suit for specific performance

5. We have heard counsel for the parties.

6. An agreement to sell does not confer any right, title or interest, except to the extent of conferring a right to seek enforcement of the agreement, by filing a suit for specific performance, under the Specific Relief Act, 1963. Where, however, an agreement to sell is accompanied by delivery of possession or is executed in favour of a person already in possession and if such person has performed or is willing to perform his part of the contract then whether the contract reaches fruition as a final instrument of transfer or not, Section 53 of the 1882 Act provides that the transferor shall be prohibited from enforcing any right in respect of property, which is subject matter of the contract other than rights expressly provided by the terms of the contract, even if the contract is not registered. Section 53A of the 1882 Act reads as follows:-

“Section 53A of Transfer of Property Act, 1882. Part performance-Where any person contracts to transfer for consideration any immovable 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, n