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 53A 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 53A 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 53A 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 party relying on Section 53A has either fulfilled, or is prepared to fulfil, his part of the bargain. Now the readiness and willingness must be pleaded. It is a pre-requisite to the application of the section. Until it is pleaded no reply is possible.'
Mr. Murty also places reliance on a decision of the Madhya Pradesh High Court in the case of Bhagwandas Parsadilal v. Suraj-mal. ATR 1961 Madh Pra 237. Sharma, J. followed the aforesaid decision of Bose, J. and held that Section 53A of the Transfer of Property Act requires that the party re-tying on the section has either fulfilled or is prepared to fulfil his part of the bargain. This fact must be pleaded by him. A Full Bench of the Kerala High Court in the case of lllikkal Devaswom v. Pottakkati Narayanan Raghavan, AIR 1966 Ker 96 (FB) has indicated that in the absence of foundation laid in the pleadings the plea of Section 53A of the Transfer of Property Act cannot be invoked. I think there is good basis in the contention of Mr. Murty that in the absence of a specific plea raised in the written statement that the defendant was entitled to protection under Section 53A of the Transfer of Property Act, the lower appellate Court was not justified in applying the provision of that section. It is true that there is nothing on record to show that the defendant had yet something more to do for the performance of which his readiness and willingness had to be indicated. But if the plea had been raised it was open to the plaintiff to counteract the same by pleading the non-application of the section since dispute touching upon fact can be raised. Without such a plea being raised, to allow such a plea to be raised for the first time in appeal is certainly providing a handicap to the other party in the litigation. The learned appellate Judge was, therefore, not justified in appeal to introduce and rely upon the plea of Section 53A of the Transfer of Property Act. That plea failing, certainly the defendant would not be the holder of title under Ext. A, the unregistered sale deed admittedly for a consideration of more than rupees one hundred.
3. The appeal succeeds. The judgment of the lower appellate Court is vacated and that of the trial Court is restored. There is no appearance for the respondent in this case in spite of notice. Interest of justice would be adequately served if the parties are called upon to meet their respective costs throughout.