Sukhdev Singh Kang, J. - (1.) THIS Regular Second Appeal by Deputy Lal is directed against the judgment and decree, dated January 20, 1978 of the learned Additional District Judge, Gurdaspur, whereby he set aside the judgment and decree, dated September 30, 1977 passed by the Subordinate Judge III Class Gurdaspur, decreeing the suit of the Plaintiff -Appellant for possession of the suit land.
(2.) FIRST the factual matrix: Deputy Lal was the mortgagee in possession of the land in dispute. He entered into an agreement with Defendant -Respondents to mortgage his rights in this land with them for a consideration of Rs. 1,800/. The agreement to this effect was executed on August 3, 1969. The Defendants paid Rs. 1,000/ - to Deputy Lal -as part performance of the contract and were put in possession of the land. However, the balance amount of Rs. 800/ - was not paid by the mortgagees and Mortgage Deed was not executed within the stipulated period. The Defendants continued to be in possession of the land. Consequently, Deputy Lal filed the present suit for possession. The suit was contested by the Defendants. They inter alia pleaded that they had entered into an agreement to mortgage 'Deputy Lal's mortgagee rights in the land in dispute for Rs. 1,800/. They had been put in possession as part of performance of the agreement ; that they had several times asked the Plaintiff to execute the Mortgage Deed in their favour, but he failed to do so. Various other objections were taken in the written statement. The learned trial Judge framed the following issues: 1. Whether the Plaintiff was in possession of the suit land at the time of execution of agreement dated 3.8.69 and delivered possession of the same to the Defendant ? 2. Whether the Defendant paid the entire mortgage money viz. Rs. 1800/ - to the Plaintiff ? ... Whether the Defendants failed to perform their part of contract and are in illegal possession of the suit land ? ... Later on, two additional issues were framed: 1. Whether the suit is not maintainable in the present form ? 2, Whether the suit of the Plaintiff is barred by the time of limitation ? 3. The learned trial Judge decided Issue No. 1 and Additional Issue No. 2 in favour of the Plaintiff. Under Issue No, 2, he held that the Defendants had paid Rs. 1,000/ - to the Plaintiff. Issue No. 3 was decided against the Defendants and it was held that they were in illegal possession of the suit land and could not use the shield of Section 53 -A of the Transfer of Property Act. Consequently, he decreed the suit for possession.
(3.) DISSATISFIED , the Defendants went up in appeal which was allowed by the learned Additional District Judge. He upset the material findings of the trial Court He came to the conclusion that parties had entered into an agreement and executed a writing from which the terms can be ascertained with reasonable certainty. The Defendants had in part performance of the contract taken possession of the suit land. The transferees had done something in furtherance of the contract and that the transferees had performed or were willing to perform their part of the contract. The two factors which had weighed with the trial Court, namely, the conduct of the Defendants in not replying to the noticed issued by the Plaintiff and the non -payment of the balance amount of Rs. 800/ - were considered to be of no consequence by the learned lower Appellate Court He recorded the firm finding that all the four requirements of Section 53A of the Transfer of Property Act were satisfied by the Defendants. They had entered into an agreement for the transfer of the mortgagee rights and had entered into possession as part performance of this contract and had taken steps in furtherance of this contract by paying Rs. 1,000/ - to the Plaintiff and they had been and were ever ready to perform their part of the contract. After recording these findings, he allowed the appeal, set aside the judgment and decree of the learned trial Judge. Aggrieved, the Plaintiff has come up in second appeal.;