1. Defendants Nos. 3(a) and 4 originally were appellants against an affirming judgment in a suit for specific performance of contract and in the alternative for recovery of possession. During pendency of the appeal, due to death of defendant No. 4 (appellant No. 2) his legal representatives being substituted have prosecuted the present appeal.

2. The case of the plaintiffs is that they are the owners of ‘B’ schedule property measuring Ac. 1.45 decimals and the defendants are, the owners of ‘A’ schedule property measuring Ac. 0.34 decimals. As shown in the plaint genealogy the defendants are the descendants of a common ancestor. Defendant No. 1 represents one branch, defendant No. 2 the second and defendants Nos. 3 and 4, the third branch. In the year 1971, the defendants approached the plaintiffs to give them ‘B’ schedule properties in exchange of ‘A’ schedule properties. The plaintiffs agreed and an oral contract was effected on 24-8-71.

In part performance of the contract, the defendants 2, 3 and 4 shifted to the ‘B’ schedule land. It was only defendant No. 1 who did not comply with the terms of the contract. As the defendant No. 1 did not shift, 1/4th of the ‘B’ schedule property was left vacant. The defendants 2 to 4 constructed their residential houses and delivered possession of their respective shares in the ‘A’ schedule land and bari. Defendant No. 2 gave delivery of possession of his portion of ‘A’ schedule homestead land. When the plaintiff wanted to possess the same, defendant No. 1 created disturbance which led defendant Nos. 3 and 4 not to deliver possession of their portion of the homestead. Later on, defendant No. 1 wanted to back out from the agreement on the allegation that defendant Nos. 3 and 4 had no interest in the suit schedule land. Defendant No. 1 dispossessed the plaintiff from an approximately 1/4th of the ‘A’ schedule bari land. The further case of the plaintiff is that the defendant Nos. 2 to 4 while constructing their residential houses over ‘B’ schedule land had cut trees valued at Rs. 95/- and, therefore, the said amount was recoverable as damages. With the aforesaid averments the plaintiff prayed for the reliefs as indicated earlier.

3. The defendants 1, 2 and 4 filed a joint written statement. The original defendant No. 3 having died during pendency of the suit his legal heirs were brought on record, as defendant Nos. 3, 3.a and 3.b. The case of defendant Nos. 1, 2 and 4 is that the father of the defendants No. 3 and 4 was given in adoption to one Chintamani and he inherited the properties of the said Chintamani. As their father was adopted by Chintamani they had no title in respect of ‘A’ schedule homestead and, therefore, they were incapable of validly entering into any agreement concerning the said land. They have further pleaded that the fathers of defendant Nos. 1 and 2 were the only owners of ‘A’ schedule land and the same was apparent from the settlement record of rights of 1923-1924. These defendants have also disputed the existence of the alleged agreement referred to in the plaint and questioned its validity. They have disputed the fact of delivery of possession. Their positive case is that the defendant Nos. 2 to 4 have made constructions over the ‘B’ schedule Bagayat. To justify the said construction, they have indicated that the father of the plaintiffs encroached six decimals out of homestead plot No. 2429 and for that reason the fathers of defendant Nos. 1 and 2 came to possess half of the Bagayat land, and later on there was an agreement in 1973 to exchange the other half of the Bagayat of the land with the half of the bari of defendant Nos. 1 and 2. After this agreement was entered into the defendant Nos. 1 and 2 came to be the owners of the entire Bagayat but however the plaintiffs fraudulently transferred a portion of that Bagayat in favour of one Bijoy. Defendant Nos. 2 to 4 constructed their residential houses on the rest portion of ‘B’ schedule Bagayat land. Thus, according to defendant Nos. 1, 2 and 4 they came to possess the ‘B’ schedule Bagayat land under an agreement of the year 1973 and the plaintiff began to possess half of the ‘A’ schedule bari under the said agreement. The agreement of the year 1971 has been totally denied. The legal heirs of defendant No. 3, filed a joint written statement echoing the stand of the other defendants.

4. On the pleadings of the parties, the learned trial Judge framed as many as six issues and on consideration of the materials before him held that though Judhisthir might have been given in adoption, the possession of defendant Nos. 3 and 4 in respect of a portion of ‘A’ schedule land was on their own right, and they being in possession for more than the statutory period of 12 years, they have the title to the same. He further held that there was an agreement, as claimed by the plaintiffs for exchange of ‘B’ schedule Bagayat land for ‘A’ schedule land. However, the learned trial Judge refused to pass a decree for specific performance of oral contract because he held that the plaintiffs have not expressed willingness and readiness to perform their part of the contract. He, however, allowed the prayer of the plaintiffs for recovery of possession and realisation of Rs. 95/- towards the price of the trees. The trial Judge also directed the plaintiffs to give vacant possession of ‘A’ schedule bari which they are in possession. An appeal was carried by the defendant Nos. 2, 3.a, 3.b and 4. During the pendency of the appeal, the plaintiffs prayed for amendment of the plaint seeking abandonment of relief relating to specific performance of contract by deleting paragraphs 20.a and 20.h of the plaint. The appellate court allowed the amendment. The learned appellate Judge analysing the materials on record came to hold that defendants were not entitled to the protection provided under S. 53-A of the Transfer of Property Act as their possession was purely permissive and they were not the owners of the ‘A’ schedule property on their own showing. The learned appellate Judge also did not accept the contention of the appellants that the plaintiffs were estopped for claiming ownership of ‘B’ schedule property. On the basis of the aforesaid conclusions, the appellate court concurred with the findings of the lower court and dismissed the appeal.

5. At the time of admission of the second appeal, this Court framed the substantial question of law in the following manner:—

“The substantial question of law which arises for determination in this appeal is whether it is open to the plaintiff to have given up the relief of specific performance of contract by amendment of the plaint at the appellate stage and pursue the relief against the appellant for recovery of possession.”

6. Apart from the aforesaid ground, Sri P.K Mallik has also challenged the judgments on the grounds that the appreciation of the courts below with regard to estoppel under S. 115 of the Evidence Act, 1972 is perverse and illegal and the finding should have been recorded in favour of the defendants-appellants. He has also canvassed that the courts below should have conferred the equitable relief as enjoined under S. 53-A of the Transfer of Property Act to the present appellants, and as the same has not been done the judgments of the courts below are vulnerable in the eye of law. It is relevant to note here that the last contention has not been raised before the lower appellate court.

7. Sri B.B Misra, the learned counsel for the respondents, has supported the judgments of the court below. His submission is that the findings recorded by the courts below are based on proper appreciation of facts and there is no substantial error or defect in the procedure in arriving at the said conclusions. He has also contended that the plaintiffs had two prayers and during the appellate stage, he chose to delete one and by permitting such deletion, no error has been committed. He has also submitted that in the facts and circumstances of the case the stand of the plaintiff cannot be faulted with. He has further canvassed that the contention of the learned counsel for the appellant seeking benefit under S. 115 of the Evidence Act is absolutely misconceived. He has highlighted that the submission with regard to the applicability of S. 53-A of Transfer of Property Act is absolutely unacceptable.

8. On perusal of the judgments of the courts below I find in the appeal preferred by legal representatives of original defendant No. 3 and the defendant No. 4 a ground was taken that the learned trial Judge should have allowed the relief of specific performance of the oral agreement of the year 1971. This stand is contrary to the plea taken in the written statement as the said defendants had categorically denied the existence of the agreement of 1971. The plaintiffs' amendment did not change the nature and character of the suit and there is nothing erroneous in allowing the amendment at the appellate stage as that did not cause any prejudice to the defendants.

9. The contention raised by Sri Mallik in regard to the protection under S. 53-A of the Transfer of Property Act does not merit consideration inasmuch as such a plea was not taken in the written statement. That apart, S. 53-A of the Transfer of Property Act contemplates a contract in writing which is absent in the present case. Moreover, once the defendants denied the contract, the relief claimed under the said provision is absolutely untenable. In this regard, reference may be made to the decision in the case of Baruna Giri (and after him) Purendra Giri v. Raja Kishore Giri, (1983) 55 Cut LT 77 : (AIR 1983 Orissa 107), wherein this Court has held as follows:—

“One of the essential conditions for the application of S. 53-A is that the transferee must plea and prove that he has performed or is willing to perform his part of the contract.”

Again in the case of Ramachandra Swain v. Duryodhan Mohapatra. 1996 (1) Ori LR 124, this Court dealing with S. 53-A of the Transfer of Property Act has expressed as follows:—

“….. Further, in order to avail of the benefit of the said statutory provision, the party concerned has to establish that, he has done something in furtherance of the contract and is always ready and willing to perform his part of the contract …..”

Scrutinised on the ambit of law enunciated above, when there is denial of contract, benefit as contemplated under S. 53-A of the Transfer of Property Act cannot be extended to defendants.

9A. The contention of the learned counsel for the appellants with regard to the estoppel is to be noted to be rejected as the defendants-appellants knew very well that they were not the owners of the land. The ingredients of S. 115 of the Evidence Act are really not satisfied and, therefore, relief claimed on this score is not allowable.

10. Thus, the findings of the courts below are absolutely correct and acceptable and I do not find any infirmity with the same. Resultantly, the appeal fails and the same is dismissed leaving the parties to bear their own costs of this appeal.

Appeal dismissed.