Jagat Narayan, J. - (1.) THIS is a second appeal by Shiv Dayal defendant against a decree for ejectment which was passed against him by the two courts below in a suit brought by Smt. Sumitra Devi plaintiff in respect of a house situated at Kotah.
(2.) THE house was formerly owned by Narshi Karamshi and was occupied by Shiv Dayal as his tenant. A registered sale-deed in respect of it was executed by Narshi Karamshi on 7. 9. 55 in favour of Smt. Sumitra Devi plaintiff. THE house was sold for Rs. 3300/ -. At the time of the sale Shiv Dayal was in the occupation of the house. THE present suit for ejectment was brought on the allegation that he was in possession as a tenant of Narshi Karamshi and became a tenant of the plaintiff under sec. 109 of the Transfer of Property Act. It was alleged that the tenancy was determined by means of a notice under sec. 106 of the Transfer of Property Act and that the house was needed by the plaintiff for her own residence. THE suit was resisted by the defendant on the ground that Narshi Karamshi had agreed to sell it to him for Rs. 1800/- under an oral agreement and that a sum of Rs. 300/- was advanced by him as part payment of the price to the owner. Further it was alleged that the tenancy was no longer subsisting. THE receipt of the notice under sec. 106 of the Transfer of Property Act was denied. The defendant relied on sec. 53-A of the Transfer of Property Act for defending his possession against the plaintiff. He filed two documents Ex. A-l and Ex. A-2 purporting to have been executed by Narshi Karamshi in support of his case. These documents run as follows - (1) Receipt Ex. A-l dated 2. 5. 54 which is worded as undet:- KARAMSHI BHAI KHODA BHAI No. 181 Kotah Jn. 2. 5. 1954 Received with thanks from Shivdayal Saxena Kotah Jn. the sum of Rs. 300/- Advance money for purchasing the house Kotah Jn. in cash. "sd/- Narshi Karamshi, 2. 5. 54 for Karamshi Bhai Khoda Bhai Proprietor (2) Letter Ex. A-2 dated 2. 5. 54 from Narshi Karamshi addressed to the Electrical Engineer, Kotah Jn. in the following words : - Ref.- Water connection No. 1072/68 I shall be much thankful if you kindly arrange my above water connection in name of Mr. Shiv Daval Saxena, because I have disposed of this house to him for Rs. 1800/ -. Please arrange as early as possible. Sd/- Narshi Karamshi 2. 5. 54 Narshi Karamshi appeared as a witness on behalf of the plaintiff. He admitted his signature on the above two documents but alleged that something else was written on the papers when he affirmed, his signatures to them. He denied having agreed to sell the house to the defendant. Both the courts below held that the allegation made by Narshi Karamshi was incorrect. They accordingly took the two documents to have been duly proved. The lower appellate court appears to have been under the impression that there was evidence on record to show that the water connection in the house was transferred to the name of Shiv Dayal in pursuance of letter Ex A-2. In fact there is no such evidence on record. Shiv Dayal defendant was cross-examined on the point and he said that letter Ex. A-2 Was not meant to be sent to the Electrical Engineer. He did not say that any duplicate of that letter was sent to him or that the connection was transferred on the authority of letter Ex. A-2. The lower appellate court however held that as the alleged contract of sale or the alleged agreement to sell was not reduced to writing, sec. 53-A of the Transfer of Property Act was not applicable. The defendant admitted that there was no written agreement of sale. The argument of the learned counsel for the appellant is that the documents Ex. A-l and A-2 read together constitute an agreement to sell in writing. It has been held in a number of cases that a contract in writing or a written agreement is a sine qua non under sec. 53-A, that is to say, the writing relied upon must itself be the contract. In Shravan Jayaram vs. Garbad Ukha (1) an application by the plaintiff to have the defendant's name entered in the mutation register in respect of certain land on the ground that it had been sold by him to the defendant orally and setting out the terms of the sale was held to be not sufficient to satisfy the requirements of sec. 53-A because it contained only a recital of a past event and was not itself a contract or agreement of sale. The same view was taken in Shira Khatoan vs. Maung Pan (2), Katai Mia vs. Sukhamayee Chaudhurani (3), Katihar Jute Mills Ltd. vs. Calcutta Hatch Works (4) and Narasayya vs. Ramchandrayya (5 ). In the Andhra case it was held that the doctrine of part performance as obtaining in England is not available in India by way of defence to a suit for eviction except as provided in sec. 53-A. The same view was taken in the Patna case referred to above and it was held that any other defence based on equitable consideration which does not fall under sec. 53-A cannot succeed. I am accordingly of the opinion that the lower appellate court rightly held that sec 53-A of the Transfer of Property Act is not applicable to the present case. It was contended on behalf of the appellant that he was unreasonably prevented from adducing his evidence by the trial court. The plaintiff closed her evidence on 20. 2. 57 and 6. 5. 57 was fixed for the defendant's evidence. He-did not get any witness summoned through the court. On 22. 4. 57 he filed an application alleging that his mother-in-law had died in Jaipur and he had to go there and prayed for an adjournment. This application was considered on 6. 5. 5 7. The plaintiff filed an affidavit that the allegation made by the defendant was false and that he was at Kotah all along. An adjournment was granted on payment of Rs. 12/- as costs to the plaintiff and 8. 7. 57 was fixed for hearing. On 8. 7. 57 neither the defendant nor his witnesses were present. The learned counsel for the defendant filed an application for an adjournment on the ground that he was down with influenza. This application was not supported by any medical certificate. No witness had been summoned for that date. Taking into consideration the earlier conduct of the defendant the trial court adjourned the case for recording the evidence of the defendant only and passed an order that the statements of his witnesses, if any, will not be recorded. When the case was taken up on 25. 7. 57 the defendant filed an application that he had brought two witnesses with himself and prayed that their statements be recorded. The learned Civil Judge recorded the statement of the defendant and declined to record the statements of his witnesses. It is urged that no further adjournment would have been necessary in order to record the statements of the witnesses and the court erred in not granting the prayer of the defendant. In my opinion in the circumstances of the case the court was justified in refusing to record the statements of the witnesses of the defendant. If it had recorded them on that date it would amount to setting at naught its previous order of 8. 7. 57. In this connection the Division Bench decision of this Court in Mohanmal vs. Indermal (6) may be referred to. It may be mentioned here that this point does not appear to have been raised before the first appellate court as there is no mention of it in its judgment which is fairly a comprehensive one. The next contention on behalf of the appellant is that the service of notice under sec. 1. 06 of the Transfer of Property Act on 16. 10. 55 has not been proved. The plaintiff's lawyer Shri Birdhi Lal stated that he sent the notice to the defendant in a registered cover on 14th or 15th October, 1955 and received acknowledgment receipt Ex. 1 in due course. Mohammad Idris postman who was examined as a witness for the plaintiff stated that he delivered a registered letter to Shiv Dayal on 16. 10. 55, that he knew Shiv Dayal personally and that Shiv Dayal affixed his signatures on acknowledgment receipt Ex. 1 in his presence. In cross-examination he stated that he delivered the letter on 16. 10. 55 and got postal mark of 17. 10. 55 affixed on the acknowledgment receipt. He further stated that he delivered the letter before 11 am. to Shiv Dayal and delivered acknowledgment receipt to the post office before 3 p. m. Shiv Dayal defendant when he entered the witness box did not say that acknowledgment receipt Ex. 1 did not bear his signatures. He said that he did not receive any notice from the plaintiff asking him to vacate the house. He did not however explain what communication from the plaintiff was delivered by Mohammad Idris to him for which he signed acknowledgment receipt Ex. 1. Upon this evidence the trial court held that notice under sec. 106 of the Transfer of Property Act was delivered to the defendant personally on 16. 10. 55. Before the lower appellate court it was not argued on behalf of the appellant that the service of the notice on 16. 10. 55 was not proved. Before me it is argued for the first time that 16th October, 1955 was a Sunday and Mohammed Idris could not serve the notice on that date as post offices remain closed on Sundays. It was for the defendant to have put a question to Mohammad Idris in cross-examination as to how he delivered the letter on a Sunday. Further Mohammad Idris was not asked as to why the acknowledgment receipt bore the postal mark dated 17. 10. 55 and 18. 10. 55. My attention has not been drawn to any rule which lays down that registered letters cannot be delivered on a Sunday. 16th October, 1955 was the last date on which the notice under sec. 106 of the Transfer of Property Act should have been served on the defendant. It may be that a request was made on behalf of the plaintiff to the postman asking him to deliver the letter on Sunday. I accordingly do not see sufficient reason to hold that the notice was not delivered on 16 10-55 as was held by the trial court. In the written statement it was alleged by the defendant that the plaintiff had notice of the alleged agreement of sale entered into by Narshi Karamshi with him. It was not specifically stated in the written statement how the plaintiff got notice apart from the constructive notice which could be imputed under sec. 3 of the Transfer of Property Act. The plaintiff's husband appeared in the witness box. He was merely asked whether he had notice of the alleged agreement of sale. It was not put to him how he was alleged to have got this notice. The defendant stated in his deposition that when the plaintiff's husband came to see the house he had told him that he had already entered into an agreement about purchasing it with the owner and showed him documents Ex. A-l and A-2. This allegation was not put to the plaintiff's husband. On this evidence the courts below rightly held that the plaintiff had no express notice of the alleged agreement of sale. The lower appellate court held that the plaintiff did not have constructive notice either, as the position of the defendant was sufficiently explained by the fact that he was living in the same house as a tenant. Reliance was placed by him on Sasirekhamma vs. Suramma (7) and Bapuji vs. Kukaji (8 ). On behalf of the appellant it is argued that the burden of proving want of notice lay on the plaintiff and the trial court erred in placing the burden of proving notice on the defendant. Reliance was placed on the decision of the Privy Council in Bhup Narain vs. Gokul Chand (9 ). On behalf of the respondent two decisions of the Madhya Bharat High Court in Bapuji vs. Kukaji (8) and Kukaji vs. Basantilal (10) were relied upon. So far as the burden of proof is concerned I am of the opinion that it was for the plaintiff to have proved want of notice in case the defendant had succeeded in proving that the case* otherwise fell under sec. 53-A of the Transfer of Property Act. In the Madhya Bharat cases the question of burden of proof was not elaborately considered. As for the question of constructive notice the learned counsel for the appellant relied on the following cases: - Baburam vs. Madbab Chandra (11), Tiloke Chand vs. Beattie & Co. (12), Faki Ibrahim vs. Faki Gulam (13), Balchand Mahtab vs. Bulaki Singh (14 ). All these cases were decided prior to the amendment of the Transfer of Property Act, on the basis of English decisions. It has been held in England that notice by possession is not only notice of the title of the person in possession, but extends also to the interests of such person under collateral agreements. Thus, where a tenant in possession has obtained from the landlord an agreement to, sell the land to him, a subsequent transferee -from the landlord would be charged with the notice of the agreement to sell. This view was followed in this country also. Prior to the amendment of the Transfer of Property Act in 1929 the definition of notice was as follows: - A person is said to have notice of a fact when he actually knows that fact or when, but for wilful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known, it, or when information of the fact is given to or obtained by his agent under the circumstances mentioned in the Indian Contract Act, 1872, sec. 229. Explanation II of the amended sec. 3 runs as follows : - Any person acquiring any immovable property or any share or interest in any such property shall be deemed to have notice of the title, if any person who is for the time being in actual possession thereof. Under the present Explanation II notice is limited to the title of the person in possession and does not extend to the interest of such person under collateral agreement. I am accordingly in respectful agreement with the view taken in Sasirekbamma vs. Suramma (7 ). Mere agreement to sell does not confer any title on the tenant. It does not terminate his tenancy. Nor does failure to pay rent terminate the tenancy. The tenancy would only have been extinguished if a completed sale had taken place in favour of the defendant. Another contention put forward on behalf of the appellant was that his tenancy ceased by mutual agreement with Narshi Karamshi. No such case was pleaded in the written statement. Whether or not there was a mutual agreement between the defendant and Narshi Karamshi is a question of fact which has to be raised and pleaded. It cannot be raised in second appeal for the first time. I accordingly find that there is no force in the appeal and dismiss it with costs. Leave to file special appeal was sought. This judgment is primarily based on the non-applicability of sec. 53-A Transfer of Property Act to the facts of the present case. The law on the point is well settled. Leave to file appeal is accordingly refused. . ;