- (1.) THIS is a Civil Second Appeal in a suit for possession. The plaintiff-appellant filed the suit on 26th May, 1958 in the court of the Civil Judge, Gangapur alleging that the Nohra the details of which are given in para No. 1 of the plaint situated in the town of Sawai Madhopur belonged to Lahrinarain of Jaipur and that the defendant-respondent Mohanlal was in occupation thereof with the permission of Lahrinarain since Smt. 1989 or 1990. The plaintiff further alleged that he had purchased the said Nohra along with three shops from Lahrinarain for Rs. 4,500/- on 30th December 1956 under a registered sale-deed (Ex. 1 ). He asked the defendant Mohanlal to vacate the Nohra but on his refusal the suit was filed for possession of the said Nohra. Mohanlal pleaded in his written statement that the said Nohra belonged to his brother Jagdish Prasad who was in possession thereof. Jagdish Prasad was then made a defendant in the case. Jagdish Prasad pleaded that Lahri Narain had agreed to sell to him the said Nohra on 7th March, 1956, for Rs. 1,500/- and had executed an agreement of sale (Ex D/l) on the said date. He also pleaded that at the time of the agreement he had paid Rs. 1. 200/-to Lahri Narain and thereafter paid Rs. 50/- on 3rd August, 1956 and further Rs. 250/- on 3rd December 1956 to Lahri Narain. The trial court dismissed the suit accepting the pleas raised by Jagdish Prasad and giving him the benefit of sec. 53-A of the Transfer of Property Act. The plaintiff filed an appeal to the District Judge, Bharatpur. The learned District Judge dismissed the appeal and maintained the judgment and decree of the trial court. The findings of the learned District Judge are (1) that both the defendants were jointly in possession of the disputed Nohra; (2) that Rs. 1,200/- were paid by Jagdish Prasad as part of consideration to Lahri Narain on 7th March, 1956 at the time Ex. 1 was executed and that the remaining amount of Rs. 300/- was paid as alleged on the dates mentioned by Jagdish Prasad in his written statement and (3) that the plaintiff had the knowledge about the contract or sale between Lahri Narain and Jagdish Prasad and its part performance.
(2.) IN this second appeal on behalf of the plaintiff, it is contended by the learned counsel for the appellant that the finding of fact that Jagdish Prasad was jointly in possession with Mohanlal was neither pleaded by Jagdish Prasad nor proved by the evidence on record. It is contended that Mohanlal was in sole possession of the Nohra in dispute and that Jagdish Prasad never obtained the possession of the said 'nohra' either before or after the date of the execution of Ex. B/l. The lower appellate court has, after scrutinising the evidence, come to the conclusion that both Jagdish Prasad and Mohanlal who were brothers, were in occupation of the 'nohra' even before the date of the agreement. This is a finding of fact which cannot be challenged in second appeal. It may also be mentioned that in Ex. B/l it has been specifically noted that Jagdish Prasad was in occupation of the 'nohra' since a long time and that he had put up a flour mill and had also made certain constructions and carried out the repairs in the 'nohra'. It may also be mentioned that the flour mill that was run in the 'nohra' was in the name of Jagdish Prasad Radhey Shyam. It may be that Mohanlal was mostly in charge of running the flour mill but it cannot be said that the finding in this case that both Jagdish Prasad and Mohanlal were in possession of the 'nohra' in dispute was not based on any evidence on record. A finding of fact based on evidence on record cannot be upset in second appeal on the ground that this finding is based not on the proper appreciation of evidence on record. I do not find any force in this contention. It is next contended that to grant benefit of Sec. 53a to Jagdish Prasad defendant, it was necessary for him to prove that he was in possession of the 'nohra' in part performance of the contract and had done some act in furtherance of the contract. It has been contended that mere being in possession by a defendant claiming benefit of Sec. 53-A is not sufficient but there must be evidence to show that after the execution of contract for sale, he remained in possession not by virtue of any anterior right, but by virtue of that contract. This contention is correct, but in this case, it has been specifically mentioned in Ex. B-l that Lahri Narain had agreed to sell the 'nohra' to Jagdish Prasad and had further agreed to get the sale deed registered. It is further mentioned that Jagdish Prasad should remain in possession of the 'nohra' and that no interference was to be done with him by the vendor or his heirs. This only means that thenceforward Jagdish Prasad was to remain in possession as a vendee in pursuance of the contract of sale and this is also the statement of Jagdish Prasad. Thus, though outwardly there was no change in possession, yet there was the intention on the part of Jagdish Prasad to hold the 'nohra' in his possession as a vendee in pursuance of the contract embodied in Ex. B/l and not by virtue of any other right which he might have been enjoying before the execution of Ex. B/l. It is then contended that for a defendant who is already in possession, the requirement of law as laid down in sec. 53 A is that he must have done some act in furtherance of the contract. This argument was not specifically placed before the learned District Judge. But in the circumstances of the case it does not present much difficulty in decision. It is proved by the evidence on record that the defendant paid Rs. 1,200/- at the time of the execution of Ex. P/l and accepted the Patta of the Nohra handed over to him by Lahri Narain. It is further proved that thereafter he paid Rs. 300/-, which was the balance of the consideration for sale. Such a payment has been held to be an act in furtherance of contract for sale by this court in Ratanlal vs. Kishanlal (l), Mangilal vs. Gendmal (2) and Mst. Mulo vs. Gokul (:3 ). Learned counsel for the plaintiff appellant has contended that mere payment of consideration cannot be deemed to be such an act performed in furtherance of the contract as would satisfy the requirement of Para No, 2 of sec. 53-A as what is contemplated in law is an act which will give notice to the subsequent purchasers that a change in the title of the property in dispute is under contemplation. In my opinion, such does not appear to be the requirement of law because what is stated in sec. 53-A in this connection is that the defendant has done some act in furtherance of the contract and the nature of the act has not been specified or qualified. The rights of persons who had carried out a part of the agreement of transfer are sought to be protected by sec. 53-A when there is a danger that their right may not be recognized because the contract has not been registered, or the instrument of transfer has not been completed in the manner prescribed therefor by law for the time being in force. If a person who in pursuance of a contract for sale has paid a part of the consideration, it cannot be denied that he has done some act in furtherance of the contract because payment of consideration is one of the most important and valuable ingredients in the performance of a contract. Another important ingredient is change in the nature of possession. Sec. 53-A has provided that if the vendee is not already in possession, his obtaining possession should be considered to be sufficient for him to defend his right to hold possession and that if such a man is already in possession, his continuance in possession in part performance of the contract and his doing some further act in furtherance of the contract should be deemed to be to entitle him to get the benefit of S. 53-A. This being the broad principle on which sec. 53-A is based, I do not consider that payment of consideration cannot be taken to be act sufficient to satisfy the requirement of sec. 53-A in this respect. There is, of course, a difference of opinion on this point between the two learned Judges of the Assam High Court in Gopinath Sarma vs. Hangsanath Sarma (4) but it may be pointed out that the Mysore High Court in B. Chikkannaswamy vs. Hayat Khan (5) and the Rangoon High Court in Ma Thet vs. Ma Se Mai (6) have taken the view which this Court has taken in the above mentioned cases. Thus, this contention of the learned counsel for the appellant has also no force. Lastly, it was argued that the plaintiff was a transferee for consideration who had no notice of the contract or of part performance thereof. The lower appellate court has given a finding of fact that the plaintiff had a notice of the contract. There may be some controversy on the point as to on whom the burden lies to prove that the transferee had no notice of the contract or of the performance thereof. But in this case, this matter need not be discussed further as there is a clear finding of both the courts that the plaintiff had notice of the contract. In this view of the matter, this contention has got no force. The appeal, therefore, fails and is dismissed with costs. Learned counsel for the appellant prays for leave to appeal to a Division Bench. I do not think that this is a fit case for grant of leave to appeal. Leave to appeal is therefore refused. . ;