1. This appeal arises out of a suit filed by the plaintiff to recover possession of a land which he claimed to have given into the defendant's possession to be enjoyed for six years towards the satisfaction of a loan of Rs. 330 borrowed by him on February 10, 1932, The defendant denied that he had given a loan to the plaintiff and contended that he had purchased the land for Rs. 660, that the plaintiff had recovered the price and put him into possession and that he was entitled to resist the, plaintiff's claim for possession under Section 53A of the Transfer of Property Act, 1882. The trial Court did not believe the plaintiff's version regarding the loan of Rs. 330 and found that the plaintiff had orally sold the land to the defendant, had received at least Rs. 580 from him and had put him in possession of the land. But it decreed the plaintiff's claim for possession as the agreement of sale was not in writing signed by him or on his behalf. The decree was confirmed in appeal, and the original defendant having died, his sons have presented this second appeal.
2. The defence of part performance as embodied in Section 53A of the Transfer of Property Act requires four conditions to be fulfilled, viz. (1) that there should be a contract to transfer for consideration any immoveable property by writing signed by the transferor or on his behalf, from which the terms] necessary to constitute the transfer can be ascertained with reasonable certainty, (2) that the transferee should in part performance of the contract have taken possession of the property or any part thereof, or, if already in possession, should have continued in possession in part performance of the contract and should have done some act in furtherance of the contract (3) that the transferee should have performed or should be willing to perform his part of the contract and (4) that the rights of any other transferee for consideration without notice should not be affected. It is conceded that in this case the last three conditions are fulfilled. But there is no contract of transfer by writing signed by the plaintiff or on his behalf. This deficiency is sought to be removed by an application said to have been made by the plaintiff to the village officers requesting that in the mutation register the defendant's name should be entered against the land as it had been sold to him for Rs. 660 and he had been put in possession of it. The original document is not forthcoming, but a certified extract from the vardi register has been produced. The trial Court doubts whether it amounts to an application by the plaintiff to the village officers or is a notice by the village officers to the plaintiff regarding the mutation entry already made. Assuming that it was an application signed by the plaintiff as alleged, the contract of sale must have preceded it. The entry contains a recital of a past event and requests that it should be entered in the mutation register. It is not itself the contract or agreement of sale. A contract in writing or a written agreement is a sine qua non under Section 53A of the Transfer of Property Act, 1 that is to say, the writing relied upon must itself be the contract, It is true that such written agreement may be the embodiment of what has already been agreed upon by the parties, but what is written must be the agreement itself. As pointed out by Dunkley J. in Maung Ohn v. Maung PO Kwe 1  Ran. 692. a distinction must be drawn between a writing, which is a reduction into writing of a previous oral agreement, which would fall within the provisions of Section 53A, and a writing in which there is a mere reference to a previous oral agreement. The document relied upon in this case is not the contract but only an application and it expressly mentions that the land had been orally sold to the defendant, thus showing that the contract of sale was oral and not in writing. Mr. Jahagirdar, the learned advocate for the appellant, argues that as it sets out the terms of the sale and those terms can be ascertained from it with reasonable certainty, the requirement of an agreement in writing is satisfied. Referring to paragraph 12 on p. 262 of Mulla's Transfer of Property Act, (second edition), he says that the object of the requirement of a contract in writing is to avoid 'the risk of perjuries if an oral contract could be set up as a defence after limitation for a suit for specific performance had expired,' and that there would be no such risk where, from a written application like the present, the terms of the contract can be reasonably ascertained. That may be one of the objects, but the section as it is worded clearly contemplates that the contract itself shall be in writing signed by or on behalf of the transferor and not that there shall be a writing mentioning some part or parts of a previous contract which may have been oral. The plaintiff's application to the village officers may be good evidence of the terms of the contract of sale, but it cannot be said to be the contract itself, which must have pre-existed that application and was expressly described as an oral sale. Such an application is not sufficient to satisfy the requirements of Section 53A of the Transfer of Property Act, and the defence must, therefore, fail.
3. It is next contended that at least the amount received by the plaintiff as consideration for the sale should be ordered to be refunded before the defendant is deprived of his possession. It is not necessary to decide in this case whether such a refund can be ordered in a case like this, as the defendant did not ask for it in his written statements. He put in two written statements, exhibits 10 and 20, and in neither of them did he claim a refund in case he was to be deprived of his possession. Had he made such a claim, proper issues would have been framed and findings recorded. The lower appellate Court has not even considered the amount of the consideration received by the plaintiff or what income was realised by the defendant from the usufruct of the land. It seems that the request was made only at the time of the argument in the trial Court and only the point of law as to Whether such a refund could be decreed was considered. If so advised, the defendant will be at liberty to file a separate suit to recover the amount paid by him to the plaintiff, but he cannot get that relief in this suit.
4. The appeal is, therefore, dismissed with costs.