H. R. KRISHNAN, J.

( 1 ) THIS is a second appeal by the plaintiff whose suit for the declaration of title and recovery of possession of a house in Mahidpur (about the identity of which there is no dispute) has been dismissed by both the lower Courts by judgments whose effect is concurrent though the emphasis is somewhat different. The points for decision before us are, firstly, whether all the relevant facts are so clearly on the record that the contesting defendant may be permitted to support the decision on the principle of part of performance under Section 53-A of the Transfer of Property act though he had not expressly pleaded it in either of the two lower Courts. Secondly, if the contesting defendant is not permitted to invoke Section 53-A of the Transfer of Property Act, whether he has proved that his transferor Shafi mohammad has got the house from the plaintiff by gift which need not be evidenced by a registered deed when it is by a Muslim. Thirdly, whether the plaintiff can be held to be barred by estoppel of out: of the two kinds (a) under section 41 of the Transfer of Property Act by her having acquissed in Shafi mohammad transferring the properly as the ostensible owner

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