D. Dash, J. - These three appeals under section 100 of the Code of Civil Procedure (herein after for short called the Code) arise out of the common judgment dated 30.07.2015 passed by the learned 3rd Additional District Judge, Cuttack in R.F.A. No. 53 of 2011 (37 of 2014) and R.F.A. No. 54 of 2011 (20 of 2014) followed by the decrees.

In both the first appeals i.e. R.F.A. No. 35 of 2011 (37 of 2014) and R.F.A. No. 54 of 2011 (20 of 2014), the challenge was to the common judgment dated 24.02.2011 passed by learned 2nd Civil Judge (Sr. Division), Cuttack in the suits i.e. T.S. No. 67 of 1992 and T.S. No. 562 of 1996, followed by the decrees.

2. This appellant as plaintiff has filed suit i.e. C.S. No. 67 of 1992 against the respondent-defendants praying for a decree of declaration of his right, title, and interest over the suit land and premises as to have been so acquired by way of adverse possession and for permanent injunction, restraining them or their agents etc from entering upon the suit land and premises.

3. The respondents as the plaintiffs have filed the suit i.e. T.S. No. 562 of 1996 with the prayers to pass a decree for eviction of the appellant (defendant therein) and damage @ Rs. 100/- per day with effect from 01.11.1996 till eviction.

4. The order which governs both the suits is as follows:-

"The plaintiff of T.S. 67-92 is entitled to get the suit property registered in his name by the defendants after payment of present market value of the suit property and house, to be assessed by the Sub-Registrar, Cuttack, to the defendants within two months from the date of this order, failing which the plaintiff is entitled to get the same executed through the court.

The defendants are injuncted from entering into the suit land and causing any disturbance in the peaceful possession of the plaintiff of T.S. 67-92."

5. Being aggrieved by the judgment and decrees passed in the suit, the unsuccessful defendants of T.S. No. 67 of 1996 preferred two first appeals under section 96 of the Code which came to be numbered as RFA No. 53 of 2011 (37 of 2014) in connection with T.S. No. 67 of 1992 and R.F.A No. 54 of 2011 (28 of 2014) in connection with T.S. No. 562 of 1996 (37 of 2014).

6. At this stage, it may be stated that this appellant (plaintiff of T.S. No. 67 of 1992 and defendant of T.S. No. 562 of 1996) had filed a cross-objection under Order 41, Rule 22 of the Code in the first appeal i.e. RFA No. 52 of 2011 (37 of 2014) arising from T.S. No. 67 of 1992 questioning the finding of the trial court recorded against him that he has not acquired the right title and interest over the suit property by adverse possession.

7. The lower appellate court has disposed of the two first appeals along with the crossobjection connected with one such appeal by passing the order which is the following:-

"Both the appeals are allowed on contest with cost. The impugned judgment and decree passed by the learned 2nd Addl. Civil Judge (Sr. Divn.), Cuttack is hereby set aside. The suit bearing T.S. No. 67 of 1992 is dismissed and T.S. No. 562 of 1996 is decreed. The cross objection of the Respondent is accordingly dismissed. The respondent-plaintiff in T.S. No. 67 of 1992 is directed to give vacant possession of the suit properties to the appellants-plaintiffs in T.S. No. 562 of 1996 within three months hence failing which they are at liberty to take recourse to law and the respondent is further directed to pay the damages of Rs. 100 per day from October, 1996 till the date of eviction."

8. To be precise, the scenario of the lis which presently stands is that this appellant is under the sufferance of a decree for eviction and damage. Therefore, these three second appeals have been filed; one against the dismissal of the suit of declaration of appellants right, title and interest; the other against the decree for eviction and damage passed against him and the third one against the rejection of cross-objection in the first appeal which had arisen from the suit filed by this appellant i.e. C.S. No. 67 of 1992.

Pertinent, it is to mention at this juncture that the original appellant i.e. the sole plaintiff of T.S. No. 562 of 1996 having died after filing of these appeals, his legal representatives have come on record and are pursuing all these appeals.

9. In the above state of affairs as regards the factual settings giving rise to these appeals; those had been taken up together for hearing on admission as agreed upon by the learned counsel for the appellants as also the respondents who have entered appearance by filing caveat being in complete agreement with the view that these three appeals have to be disposed of together and a common judgment governing all, stands as the legal need.

10. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as per their position in the original suit i.e. T.S. No. 67 of 1992 which is anterior in point of time.

11. Case of the plaintiff is that Janaki Sundari, mother of these defendants was one of the owners of the property. She during her life time for legal necessary having decided and declared to sale the suit property, the plaintiff offered to pay the maximum consideration of Rs. 30,000/- which was accordingly settled. Pursuant to the same, Janaki Sundari executed an agreement for sale of the suit land to the plaintiff. It is said that the agreement was executed by Janaki for self and on behalf of her minor children i.e. two sons, one of whom is defendant no. 1 and the other one namely, Prakash, not a party and two daughters who are defendant no. 2 and 3. At the time of execution of said agreement on 09.02.1972, there was payment of advance consideration in part amounting to Rs. 15,000/- which Janaki Sundari had accepted and since then the plaintiff was allowed to possess the suit land and building as its owner. The agreement was that the sale deed would be executed within two years i.e. by 09.02.1974 on payment of the balance consideration.

The subject matter of the agreement and the suit is the land measuring Ac.0.47 decimals in Cuttack city under Unit No. 25, Jobra within the jurisdiction of Malgodown Police Station and the building standing over there, assigned with the municipal holding number. Next, it is stated that because of the coming into force of the Urban Land (Ceiling & Regulation) Act, 1976 (for short, called as the ULC Act) and for the legal rider contained therein, the sale-deed could not come into being. When that state of affair was prevailing, the elder son of Janaki Sundari namely Prakash attained majority and he having taken up the management of the joint family properties and the connected affairs, demanded the payment of balance consideration of Rs. 15,000/- from the plaintiff. So, on 27.11.1978, Prakash was paid with the balance consideration and at that time, he promised to comply all such legal formalities for permission for the said sale from the competent authority under the ULC Act. However, Prakash did not apply for permission nor the other son and the daughter of Janaki made any such application before the competent authority. So the time period agreed upon for the purpose of execution of sale-deed elapsed, as also said period being reckoned from the time of receipt of balance consideration of Rs. 15,000/- by Prakash subsequently stood elapsed.

It is stated by the plaintiff that he has been continuing to possess the suit land and premises on his own since the time of execution of the agreement for sale by Janaki Sundari and after the expiry of the subsequent time period as agreed upon by the children of Janaki Sundari at the time of receipt of balance consideration of Rs. 15,000/-with effect from 27.11.1978. He further asserts to be in open, peaceful and uninterrupted possession as the owner of the property and claiming as such with hostile animus to the knowledge of the defendants. Thus, it is stated that the plaintiff has acquired right, title and interest over the suit properties by way of adverse possession. It is, further stated that the plaintiff has met all the expenses every month for the repair and maintenance of the building and had paid other necessary charges with respect to the said properties. As on 04.01.1992 and 13.01.1992, the defendants with ulterior motive created disturbance in the possession of the suit land and premises by the plaintiff, first of all a proceeding under section 144 Cr.P.C., 1973 was initiated; and subsequently the suit has been filed.

12. The defendants in their written statement while traversing the plaint averments have specifically denied about the execution of any such deed of agreement for sale by Janaki Sundari in favour of the plaintiff. The document, if any, is said to be forged, fabricated and created one for the purpose. They assert that Janaki Sundari had never executed any such un-registered deed of agreement in favour of the plaintiff nor she or her son Prakash had ever received any amount towards the consideration for sale of the suit properties as alleged and that occasion had never arisen. The document is said to be a created one. Further the facts in support of the same as pleaded are said to be for the purpose, and therefore some close relations of the plaintiff have been made to sign as witnesses to such fabricated agreement, being scribed by plaintiffs own man chosen for the purpose who is used to dance according to his tune. It is stated that the plaintiff was a tenant all along, in so far as the suit properties are concerned and thus there stood all through the relationship of landlord and tenant between Janaki Sundari and plaintiff and thereafter between the defendants and the plaintiff.

13. It is the case of the defendants as narrated in the plaint of the suit i.e. T.S. No. 562 of 1996 filed by them that the plaintiff is a monthly tenant in respect of the said house since the year 1964 and at the time of induction as tenant he was paying rent of Rs. 80/-per month which has subsequently been enhanced from time to time and has stood at Rs. 500/- per month. It is stated that the tenancy has been terminated on 07.10.1996 by serving notice under section 106 of the T.P. Act giving 15 clear days for vacation of the suit premises but the response in denial of the title of the defendant has come, though law frowns upon such denial of title of the landlord by a tenant and the tenant is estopped in saying so.

The plaintiff in the written statement filed in the suit i.e. T.S. No. 562 of 1996 has taken the stands which have been described in the plaint presented by him giving rise to T.S. No. 67 of 1992.

14. Learned counsel for the appellants submitted that the finding of the lower appellate court that the agreement for sale in the instant case is not enforceable runs contrary to the evidence on record, and the outcome of non-application for settled principle of law holding the field without appreciation of evidence on record in a just and proper manner and had it been so done side by side placing the settled principle of law on the table while shuffling all the cards for examination, the result would have been completely different and in favour of the plaintiff. He, therefore, submits that all the three second appeals be admitted upon formulation of the substantial questions of law in the light of aforesaid for being answered at the end.

He further submitted that the lower appellate court has completely erred in law by setting aside the trial courts decree for specific performance of contract by which the defendants had been directed to execute the registered sale-deed in favour of the plaintiff on receipt of the present market value of the suit properties in rightly exercising the power as contained order-7 rule -7 of the Code which have been meant to be pressed into service by the court in appropriate cases like the given one in the interest of justice.

15. Learned counsel for the respondents who has entered appearance by filing caveat in assisting the Court submitted that if one reads the judgment passed in the suit by the trial court, the error committed by the trial court at every step is quite apparent.

According to him, the suit being one for declaration of right, title and interest in respect of the land in suit filed by the plaintiff, the only scope is there to examine the matter from the angle as to if the plaintiff has proved the agreement for sale purported to have been executed by the Janaki Sundari, for self and on behalf of her minor children and then giving all the relaxations and good bye to the technicalities and even in the absence of prayer in that light, whether the plaintiffs possession is on the basis of that agreement for sale; and if so, as to whether he has fulfilled all the legal requirements of law by remaining in possession having performed all stated particulars as obligated under the contract being always ready and willing to perform all those all along, only leaving the performance of such parts by the defendants for which the final transaction has not seen the light of the day i.e. solely for the default of the proposed vendees. He further submitted that in case of finding all the above in favour of the plaintiff the trial court ought to have accordingly gone to finally rule as to whether said possession is to receive the protection as provided under section 53(A) of the T.P. Act.

He vehemently submitted that the trial court under no circumstance in the present case could have passed a decree for specific performance of contract, directing the defendants to execute the registered sale-deed in respect of the suit properties on receipt of the present market value of such properties, leaving it to be so determined by the registering authority which is again impermissible rendering the decree as indefinite.

He further submitted that the lower appellate court by passing the impugned judgment has rectified the grave errors committed by the trial court both on facts and law. And, therefore even though, it is a case of reversal of the findings of the trial court by the first appellate court and reversal of the ultimate result of the two suits coming out just the contrary; there arises no substantial question of law so as to be formulated for being answered in this case meriting the admission of these appeals. The lower appellate court when having properly put the undisputed facts to tests in the touchstone of the settled principles of law has given the verdict, in upsetting the results of the suit, the same should not weigh in the mind of this court in searching out the existence of substantial question of law.

16. Before going to address the submissions undertaking the task of simultaneous examination of the facts and circumstances of the case together with other material connected thereto, let us keep in view the admitted factual settings.

Successors of one Gajendra Behera partitioned their properties by a registered deed of partition dated 17.12.1971. The suit properties came to the hands of Dibakar Behera, the husband of Janaki Sundari and the father of these defendants. The properties allotted to the Dibakar were inherited by them and that includes the suit properties which is the land inside the Cuttack City under Unit No. 25 near Jobra under the jurisdiction of Malgodown Police Station of the extent of Ac.0.47 decimals over which there stands a building.

17. The trial court besides formulating some issues on the technical objections raised from both sides, has framed the issues as regards the main claim of the plaintiff for the declaration of his right, title and interest in respect of the suit properties as said to have been acquired by adverse possession and similarly in so far as prayer made in the other suit filed by the defendants is concerned; as to their entitlement to an order of eviction as also the consequential claim of damage.

18. Coming to answer the issue relating to acquisition of title by way of adverse possession, the trial court first of all has found the plaintiff to be an erstwhile tenant. Accordingly, the nature of the possession has been held to be permissive. To this extent its faultless. But then in answering the other two issues as to the entitlement of the defendants for an order of eviction and damage, the trial court in view of the purported agreement for sale as pressed into service by going through the evidence has found that there was payment of consideration of Rs. 15,000/- by the plaintiff to the defendants and thus, the plaintiff was the intended owner (which has no legal foundation) and after the part performance of the contract at his end, his possession no more remained as the tenant with effect from 09.02.1997. In that view of the matter, the plaintiff having not been found to be a trespasser, the prayer for passing a decree for eviction from the properties and damage have been refused. With this finding, the trial court is seen to have provided the protection to the possession of the plaintiff in so far as the suit property is concerned without even going to decide the survival of said agreement for sale and all other legal aspects connected thereto for the purpose of giving such finding in extending the protection under section 53- A of the T.P. Act. In clearly appears that the trial court has not been able to correctly prepare the road map in proceeding to decide the suit so as to travel across and arrive at the right destination. The court below first of all ought to have considered the matter relating to specific performance of contract, if it is so permissible in the suit and on failure to record the finding as to the enforceability of contract, the matter of protection of possession aspect ought to have been gone into.

Be that as it may, next it is seen that going to decide the issue as to the entitlement of the plaintiff to an order of injunction and the issue under the heading of "Any other relief or reliefs to the which the parties are entitled to" the trial court has granted the relief to the plaintiff by directing the defendants to execute sale-deed in respect of the suit properties in the name of the plaintiff by the defendants on receipt of market price of the property as would be so determined by the concerned sub-registrar that too even without any stipulation as to the time period for its registration. A decree for permanent injunction restraining the defendants from causing any disturbance in possession of the plaintiff in respect of the suit property has also been passed.

19. The lower appellate court having agreed upon the finding of the trial court that the plaintiff has failed to establish a case of acquisition of right, title and interest over the suit property by adverse possession, has negated all other findings which has ultimately resulted the dismissal of the suit filed by the plaintiff and thus has led for passing of a decree in favour of the defendants in the suit filed by them as the plaintiffs who are the appellants of R.F.A. No. 53 of 2011/37 of 2014 for eviction and damage.

20. The plaintiffs suit is for declaration of the right, title and interest over the suit properties said to have been acquired by adverse possession. The prayers are the followings:-

(a) Let it be declared that the plaintiff has acquired right, title and interest over the suit properties through adverse possession since 05.12.1978 a decree declaring the right, title, interest and possession of the plaintiff in respect of the suit property exclusively be passed.

(b) Let the defendants themselves or their agents and servants be permanently restrained from entering into the suit land and building and from doing any loss and damage to the same.

(c) Let the cost of the suit be decreed in favour of the plaintiff and against the defendants.

(d) Let the plaintiff get any other relief which he entitled to under the law.

During pendency of the suit, the plaintiff had filed an application under order-6 rule -17 of the Code so as to introduce certain averments there in the plaint as regards the readiness and willingness to perform his part of the contract and for a decree for specific performance of contract. The trial court rejected the petition and the order has attained its finality. The plaintiff still has opted to pursue the suit as laid for its conclusion.

Induction of the plaintiff as the tenant in respect of the suit properties stands admitted. An unregistered deed of agreement for sale is said to have been executed by Janaki Sundari for self and on behalf of her minor children Ext.1 expressing therein the desire and decision to sale the properties to the plaintiff for a consideration of Rs. 30,000/- on receipt of advance consideration of Rs. 15,000/- as finds mention with the stipulation as to the period of the execution of the sale-deed to be within two years upon further receipt of balance consideration of Rs. 15,000/-. This agreement is attacked by the defendant no. 1 as forged and fabricated one. The lower appellate court has found the evidence let in by the plaintiff so as to prove the agreement-Ext.1 by leading oral evidence in support of the same to be wholly inconsistent with the pleadings, as also contrary on the material aspects finding mention in its body of the said agreement. The discussion has been made in paragraph -19 at page -13 of the judgment. The trial court perhaps had forgotten this aspect that the first duty is to ascertain that if all such factual settings for the agreement were then in existence and next the execution of the agreement when that has been denied. Moreover, the agreement is stated to have been executed by Janaki Sundari for self and on behalf of her minor children, lets say expressing therein her unequivocal intention to sale the properties to the plaintiff on receipt of consideration of Rs. 30,000/-. No doubt Janaki Sundari is the mother-guardian of these defendants, but the agreement for sale in order to sustain as one in so far as the interest of her minor children are concerned with eighty percent interest in the property, first of all there is absolutely no evidence with regard to the fact as to if it is for the benefit of those minors and for legal necessity on the part of the mother guardian compelling her to enter into such agreement creating an encumbrance over the property so as to finally part with said property forever. That apart, it is neither pleaded nor proved that by said receipt of advance consideration, the minor children have in any way been benefited so as to say that said agreement on receipt of part agreed consideration and delivery of possession in pursuance of the same was for the benefit of the minor children of Janaki Sundari. The required permission in such a case whether is necessary or not has then of course having not been examined by the courts below, as this stage this court refrains from proceeding with said exercise.

Moreover, there is no evidence with regard to the then prevailing market value of the property in question. When it is said that Prakash was paid with a sum of Rs. 15,000/-towards the balance consideration as agreed upon by the Janaki Sundari and that to in the year 1978 as against the agreement said to have been executed in the year, 1972, the defendants explanation is that the same has been paid towards the house rent. The document exhibited in that connection i.e. Ext. 2 has been examined and found by the lower appellate court to be simply a money receipt having no nexus with the so called agreement, Ext.1. This aspect is not refuted by the plaintiff leading evidence to counter. The stray statements of the witness with regard to legal necessity have also been discussed by the lower appellate court and has been found to be unacceptable. It has taken the pain of examining the oral and documentary evidence in great detail, in ultimately coming to the conclusion that agreement even if was there, has lost its enforceability in the eye of law. The lower appellate court by discussing the evidence has also found, this Ext. 1 to be an invalid document and as such, not enforceable.

In this suit, which is for declaration of right, title and interest as to have been so acquired by adverse possession, wherein the prayer for grant of a decree for specific performance of contract has been declined to be introduced by amendment which has attained finality by now; in my considered view, it is not permissible to pass a decree for specific performance of contract by moulding the relief in exercise of power under order-7 rule7 of the Code which is not meant to be pressed into service in such eventuality, causing total surprise to the defendants to their utter prejudice. The trial court since had committed grave error in passing the decree, the lower appellate court had rightly set it aside so as to put the matter in order.

Then it has also been discussed that the plaintiff in order to get the relief of protection of his possession in consonance with the provision of section 53(A) of the T.P. Act, has failed to establish the legal requirements by pleading and proving all such required facts. The categorical finding is that the suit suffers from the infirmity so as to overcome the personal bars provided in section 16 of the Specific Relief Act.

21. Section 53-A of the T.P. Act and section 16 of the Specific Relief Act, 1964, being of significant relevance, for proper appreciation, are extracted hereunder:-

"53-A. Part-Performance. - Where any person contracts to transfer for consideration any immovable 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 o 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, 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 his any right in respect of the property of which the transferee has taken or 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."

"16. Personal bars to relief. - Specific performance of a contract cannot be enforced in favour of a person-

(a) who would not be entitled to recover compensation for its breach; or

(b) who has become incapable of performing, or violates any essential term of, the contract that on his part remains to be performed, or acts in fraud or the contract, or willfully acts at variance with, or in subversion of, the relation intended to be established by the contract; or

(c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant.

Explanation. - For the purposes of clause(c)"-

(i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court;

(ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction.

22. As would be patent from the above quotes, the protection of a prospective purchaser/transferee of his possession of the property involved is available subject to the following prerequisites:

(a) there is a contract in writing by the transferor for transfer for consideration of any immovable property signed by him or on his behalf, from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty;

(b) 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;

(c) the transferee has done some act in furtherance of the contract and has performed or is willing to perform his part of the contract.

23. In terms of this provision, if the above preconditions stand complied with, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons(s) claiming under him, any right in respect of the property of which the transferee has been or continue in possession, other than a right expressly provided by the terms of the contract, notwithstanding the fact, that the transfer, as contemplated, had not been completed in the manner prescribed therefor by the law for the time being in force."

On a bare perusal of the evidence adduced and the same being cumulatively viewed with the surrounding circumstances and conduct of the plaintiff leads this Court to wholly agree with the view taken by the lower appellate court that in the case on hand the plaintiff has failed to show that he has, in part performance of the contract done some act and has performed and was ready and willing to perform his part of the contract all along. The very conduct of silence for a long time and filing the suit with the reliefs claimed rather go to stand as the circumstance standing against the case of plaintiff in exposing malafides. For all these aforesaid, the question of the plaintiffs receiving the protection to his possession with the aid of section 53-A of the T.P. Act does not arise at all.

24. Now coming to the question of acquisition of title by adverse possession on the basis of an agreement for sale, the law is no more res-integra that the nature of possession being permissive all through said claim is unsustainable. In this case, accepting the plaintiffs case, the nature of possession clearly remains permissive.

25. In the wake of aforesaid, the submission of the learned counsel for the appellants that there arises the substantial question of law in the case so as to be formulated for their answer, meriting admission of these appeals fails. Accordingly, the three appeals stand dismissed and in the facts and circumstances without cost.