Sadanandaswamy, J.:— Appellant is defendant-1, 1st respondent is the plaintiff, respondent-2 is defendant-4 and respondents 3, 4 and 5 are defendants 5, 6 and 7. On 27th July, 1965, the plaintiff filed a suit for a declaration that the court proceedings under which the defendants have got the suit property attached before judgment and the further proceedings leading to the sale of the property in execution and delivery of possession are void and are not binding on the plaintiff's rights as a tenant. He prayed for a permanent injunction restraining the defendants from interfering with his possession of the suit property and in the alternative, for delivery of possession in case the defendants are found in possession of the suit property. The suit property in Survey No. 554 measuring 13 acres 2 guntas situate in Amminabhavi village, Dharwar taluk. Originally it was a Watan land belonging to defendants 5 to 7. On the abolition of Watans, defendants 5 to 7 became the owners of the same on a regrant by the Government. Plaintiff was admittedly a tenant of the suit property under defendants 5 to 7 prior to 1955. On 25th April, 1955, defendants 5 to 7 executed a registered agreement to sell, Exhibit P-3, agreeing to sell the suit land for Rs. 8,500 and an advance of Rs. 6,000 was paid the same day and the plaintiff was allowed to continue in possession of the property. Defendants 1, 2 and 3 obtained a money decree against the plaintiff in L.C 174/57. On 5th April, 1957, the suit property was attached before judgment. The decree was for Rs. 5,207. In execution of the decree in L.D 26/1962 the suit property was brought to sale. The plaintiff was served with notice under Order 21, Rule 66, C.P.C but no objection was filed by him. Defendant-6 filed an application on 4th September, 1962 before the execution court stating that the suit property belongs to him and that there was only an agreement of sale in favour of the plaintiff. Thereupon, the court asked defendant-1 to make a statement. Defendant-1 accordingly filed a statement on 11th September, 1972 which is Exhibit P-7. He stated therein that under Exhibit P-3, the agreement of sale, the plaintiff was put in possession and that the plaintiff has acquired rights under Section 27-A of the Specific Relief Act and that the said right, title and interest of the plaintiff are to be sold. The sale was thereafter held and defendant-1 himself purchased the suit property. The plaintiff filed an application under Order 21, Rule 90 C.P.C for setting aside the sale, but it was dismissed. The sale was confirmed. Exhibit D-7 is the sale certificate under which all the rights and title of the plaintiff are purported to have been sold. The auction-purchaser defendant-1, applied for delivery of possession in Delivery proceeding No. 25/65 and in that proceeding defendant-4 has been appointed receiver of the suit property and he has been put in possession.

2. According to the plaintiff, he continues to be a tenant inspite of the agreement of sale, Exhibit P-8 and his tenancy rights in the suit property cannot be attached and sold and he cannot be evicted from it under the Mysore Tenants (Temporary Protection From Eviction) Act, 1961. The trial court dismissed the suit as against the receiver since the required notice under Section 80, Civil Procedure Code had not been issued by the plaintiff and granted a decree declaring that the attachment before judgment and the sale in court auction and the sale certificate are illegal and void and therefore not binding on the plaintiff. The relief for permanent injunction or for possession was rejected. Defendants 1, 2 and 3 appealed and the lower appellate court dismissed the appeal. The present second appeal is by defendant-1 only.

3. The contentions urged on behalf of the appellant by Mr. B.K Ramachandra Rao are these: The tenancy right of the plaintiff was destroyed when Exhibit P-3 came into existence on 24th May, 1955 and the Tenancy Acts are not applicable, that the character of possession changed after the date of Exhibit P-3 and the plaintiff continued in possession only as owner since Exhibit P-3 amounts to an alienation of the property. What is sold in the execution sale is the right of the plaintiff under Section 53-A of the Transfer of Property Act and that is what has been purchased by defendant-1 in execution sale. The suit is barred by resjudicata since the plaintiff did not urge this contention when the property was attached before judgment and did not do so even after service of notice under Order 21 Rule 66; the sale became absolute and it is not now open to the plaintiff to raise this contention.

4. Exhibit P-3 recites that the defendants 5 to 7 have filed an application before the Deputy Commissioner for permission to sell and that after such permission was obtained, the sale deed has to be executed and the balance of sale consideration to be received by them. It also recites that the plaintiff is in possession as tenant of the suit property and that his possession is confirmed as purchaser. The previous sanction of the Deputy Commissioner is necessary for transfer under Section-1 of the Abolition of Watans Act. It is contended by Mr. Ramachandra Rao that there is merger of the interest of the lessor and lessee under Section 111(d) of the Transfer of Property Act and the tenancy rights of the plaintiff no longer are in existence after P-3 and the execution sale. It is not disputed that the sale in execution of the rights of a tenant is prohibited by Section 28 of the Bombay Tenancy and Agricultural Lands Act and if the sale is of the tenancy rights of the plaintiff, it is void. But what is contended is that the tenancy rights of the plaintiff got merged with the rights of the lessor under Exhibit P-3 by virtue of the provisions of Section 53-A of the Transfer of Property Act and on the date of the execution sale, the plaintiff was no longer a tenant of the suit property and therefore the sale is not void and defendant-1 has stepped into the shoes of the plaintiff.

5. In Sakalaguna v. Munuswami(1) on the same day on which the sale was executed, the parties executed a counter-part document under which it was provided that the purchaser should reconvey the property to the vendor after the period of 30 years in case the vendor so wished. It was held that the transaction of reconveyance amounted to a completed contract and that the benefit of the contract for reconveyance could be assigned. In (Nochat Kizhakke Madathil Venkateswara Aiyar v. Kalloor Illath Raman Nambudri)(2) there was a dispute with regard to the validity of an execution sale. The parties compromised and the sale was confirmed on terms which the parties reduced to writing in a registered karar. It was agreed that within tea years the judgment-debtor should be entitled, on payment of the price of the property, to have the property reconveyed to him. The judgment-debtor assigned his interest under the karar to various persons and even mortgaged it to one of them. It was held that the judgment-debtor's rights under the karar were capable of being assigned in law and were validly assigned. It was also held that since a merely executory contract for the sale of immovable property does not create any interest in such property, the mere right to specific performance cannot be the subject of a mortgage. Under Section 60 of the Code of Civil Procedure, property over which the judgment-debtor has a disposing power can be sold. The order of attachment in the present case states that the entire property is attached. The sale certificate also does not state that the rights of tenancy of the plaintiff in the suit property are sold. Under Section 54 of the Transfer of Property Act, it is made clear that an agreement to sell does not create any interest in immovable property. Hence, the rights which the plaintiff acquired in Exhibit P-3, the agreement to sell, have been sold and purchased by defendant-1. But since those rights do not constitute any interest in immovable property, it cannot be said that there is a merger of the rights of the plaintiff as a tenant.

6. It is the contention of the appellant that apart from the rights under Exhibit P-3, plaintiff also acquired rights under Section 53-A of the Transfer of Property Act and therefore, there was a merger of the tenancy rights of the plaintiff and that on the date of the execution sale, the tenancy rights of the plaintiff in the suit property were no longer subsisting and therefore, the sale is valid. The conditions necessary for making out the defence of part performance to an action in ejectment by the owner as held by the Supreme Court in Nathulal v. Phoolchand(3) are:—

(1) that the transferor has contracted 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;

(2) that 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;

(3) that the transferee has done some act in furtherance of the contract; and

(4) that the transferee has performed or is willing to perform his part of the contract.

On these conditions being satisfied, the transferor or any person claiming under him is debarred from enforcing against the transferee 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. In the present case, the first three conditions may be said to have been satisfied. Under the 4th condition, the transferee must have performed or be willing to perform his part of the contract. Under the terms of the contract, P-3, the permission of the Deputy Commissioner for transfer had to be obtained and thereafter 30 days' notice had to be given to the plaintiff. It is then that the plaintiff had to perform his part of the contract, namely, payment of the balance of the purchase price of Rs. 2,500. The question whether the plaintiff was ready to perform his part of the contract is a question of fact. In the written statement what was urged was that under the transaction Exhibit P-3, the plaintiff had become the owner of the suit property. There was no allegation that the plaintiff had acquired the rights of a transferee under Section 58-A of the Transfer of Property Act. It is no doubt alleged in the written statement that the rights of tenancy of the plaintiff had been destroyed, but that statement must be read in conjunction with the plea that the plaintiff had become the owner of the property. There is no plea that because the plaintiff acquired the rights of a transferee under Section 58-A of the Transfer of Property Act, his rights of tenancy in the suit land became merged in the said rights. In Champalal v. Sumitramma(4) it has been held that the question of merger is a mixed question of fact and law and cannot be urged for the first time in second appeal. The question whether the plaintiff's rights of tenancy in the suit land got merged in the rights acquired by the plaintiff under Section 53-A of the Transfer of Property Act was not urged in either of the courts below. There was also no issue in that regard. Hence, that question cannot be urged at this stage. It is therefore not necessary to decide the question whether the rights of a tenant became merged in case the tenant acquires rights of a transferee under Section 53-A of the Transfer of Property Act. Since only the right to ask for specific performance had been acquired by the plaintiff under Exhibit P-3 and since such a right does not constitute an interest in immovable property, there was no merger of the tenancy rights of the plaintiff under Section 111(d) of the Transfer of Property Act. Hence, on the date of the execution sale, the plaintiff was possessed of his rights as a tenant to the suit property apart from the rights acquired by him under Exhibit P-3. In the execution sale what was attached and sold was only the rights of the plaintiff acquired by him under Exhibit P-3. They were distinct and separate rights as there was no merger. The statement of the decree-holder prior to sale, Exhibit P-7, shows that it is plaintiff's rights under Exhibit P-3 which were brought to sale. It is not disputed by the appellants that the sale of the tenancy rights of the plaintiff would be void under the provisions of the Bombay Tenancy and Agricultural Lands Act. But, what they contend is that the tenancy rights of the plaintiff did not exist on the date of the sale as they had got merged into his rights under Exhibit P-3. But as stated above, there was no merger of the rights of the plaintiff as tenant with his rights under Exhibit P-3. Therefore, there is no bar of constructive resjudicata to the present suit which is in respect of plaintiff's rights as tenant and which rights were not brought to sale.

7. It is contended by Mr. Ramachandra Rao that the consequential relief of possession which had been asked for by the plaintiff in the suit has been negatived and that the plaintiff is therefore not entitled to a mere declaration under Section 34 of the Specific Relief Act. The bar under Section 34 applies when the plaintiff is entitled to ask for consequential relief but abstains from doing so. In the present case, the plaintiff did ask for the consequential relief of possession but the court has found that he is not entitled to it. Hence, the bar under Section 34 does not apply to the present case and the plaintiff is therefore entitled to a declaration that the execution sale is void so far as his rights as a tenant in the suit property is concerned.

8. This appeal is therefore dismissed. Parties shall bear their own costs.