K.S. Menon, J.
1. The first contention in this appeal is that the defendant must be deemed to have admitted the title set up by the plaintiff. Paragraph 4 of the written statement is relied on for this purpose. No doubt, the defendant pleads a subsequent exchange between him and the plaintiff to explain his possession. But in paragraphs 2 and 8, it is specifically alleged that if the exchange set up by him is not accepted, the plaintiff has to prove his title to evict. Further in both the Courts below, it was not even suggested that the defendant had admitted the plaintiff's title. There is therefore no force in this contention.
2. It is next urged that, though the exchange under which the plaintiff is alleged to have obtained title to the property in dispute was in 1926, still as the trespass by the defendant was on 3rd September, 1930, that is, after the date on which Section 53-A of the Transfer of Property Act came into force, namely (1st April, 1930), the defendant is estopped from questioning the plaintiff's title and asserting his own. The exchange was in 1926, and it was under an unregistered document (Ex. A). It may also be taken that the plaintiff was put in possession in pursuance thereof. It is this exchange deed, coupled with the possession given as a token of part performance that the plaintiff puts forward as his title. It is this title, according to the plaintiff, that the defendant is said to be estopped from disputing, by reason of Section 53-A of the Transfer of Property Act. The question is whether when the transfer relied on is prior to the date when Section 53-A came into force, the provisions of that section are applicable. This question has been answered in the negative by a Division Bench of this Court (The Chief Justice and Cornish, J.) in the case reported in Kanji and Moolji Bros. v. Shanmugam Pillai : AIR1932Mad734 . It was held in that case that:
Section 53-A is applicable only to transfers of immovable property made after 1st April, 1930.
3. As Section 53-A is not retrospective in effect, its provisions are not applicable to this CS.SC. MS the transfer to be dealt with here was made in 1926. The fact that the cause of action alleged is after Section 53-A came into force does not make it applicable, nor the fact that plea is raised after such a date. This contention too must therefore be overruled.
4. As the plaintiff did not prove a title to evict the defendant, the suit was rightly dismissed.
5. The second appeal is therefore dismissed with costs.
(Leave to appeal applied for, is refused.)