1. This Second Appeal is filed by original plaintiff who filed a suit for recovery of possession of suit land bearing survey number 8, known as Chikni, admeasuring 31 acres 5 gunthas to the extent of western half share situated at village Manur, taluka Manjalgaon. This Second Appeal raises interesting question of law. The plaintiffs executed Issar Pavati (agreement of sale) in favour of one Pirtaji on 22nd May 1961 for a consideration of Rs. 3,000/- and he had received Rs. 2,000/- towards earnest money from Pirtaji and had placed him in possession over the suit land. The fact regarding agreement and the possession of Pirtaji is held to be proved by the Courts below.

2. The plaintiff had filed a Regular Civil Suit number 69 of 1961 against Pirtaji for recovery of possession of the suit land. The suit was dismissed on 31st January, 1963. It was held in that suit that Pirtaji, the predecessor in title of the defendants, was entitled for possession under Section 53-A of the Transfer of Property Act on the basis of agreement of sale and his possession over the suit land. An appeal filed by Pirtaji against the decree passed by the Trial Court was dismissed. The present suit is filed by the plaintiff against the defendants who are heirs and are claiming through Pirtaji for recovery of possession of the same land which was a subject matter of Regular Civil Suit number 69 of 1961. After filing of the present suit, a counter claim is filed by the defendants under the provisions of Order VIII, Rule 6-A claiming decree for specific performance of contract for sale against the present plaintiff. The defendants also claimed the protection of Section 53-A of Transfer of Property Act on the basis of their possession under the agreement executed in favour of Pirtaji by the plaintiff, as Pirtaji was in possession of the suit land since the date of agreement, and thereafter, the present defendants continued to be in possession of the suit land till the filing of the suit.

3. The learned Trial Judge held that the judgment passed in Civil Suit number 69 of 1961 operates as res judicata between the parties. It was also held that Pirtaji was willing, and the defendants are willing, to perform their part of contract, but the plaintiff denied to perform his part of contract by refusing to execute sale-deed. It was also held that the defendants are entitled to protect their possession over the suit land on the basis of agreement of sale dated 23rd May, 1960. However, the claim of the defendants for decree for specific performance of contract for sale against the present plaintiff was not granted, on the ground that the claim is time barred in view of the provisions of Article 113 of the Limitation Act.

4. Before the learned District Judge at Beed, two Appeals came to be filed; one by the plaintiff, being Regular Civil Appeal number 118 of 1977, and another by the original defendant number 3 i.e son of Pirtaji, being Regular Civil Appeal number 166 of 1979. Learned District Judge, Beed, who heard both the Appeals simultaneously and disposed of both these appeals by a common judgment, on 6th November 1981. The lower Appellate Court also held that the present suit of the plaintiff is barred by res judicata. The original defendants are entitled for protection under Section 53-A of the Transfer of Property Act, and therefore, the plaintiff is not entitled for possession of the suit land. The lower Appellate Court also came to the conclusion that the claim of the defendant for specific performance of contract is barred by limitation. In view of the said observations, the learned District Judge dismissed both the Appeals. This Second Appeal is filed by the original plaintiff while the defendant number 3 has filed cross objections as the claim of the defendants for specific performance is rejected also by the lower Appellate Court.

5. Learned Counsel Shri P.R Deshmukh appearing for the Appellant (original plaintiff) contended that in view of the dismissal of a cross suit by way of a counter claim regarding specific performance of contract, the defendants are not entitled for any protection now under the provisions of Section 53-A of the Transfer of Property Act. According to learned Counsel, as the claim by way of cross suit for specific performance is dismissed by the decision of the Trial Court on 19th September, 1977, the defendants cannot protect their possession in the light of the provisions of Section 53-A of the Transfer of Property Act and the concurrent findings of the courts below regarding res judicata is also not proper, because the earlier suit was filed when the claim for specific performance of Pirtaji was not adjudicated on. Not only that, but in that suit, the question of specific performance did not appear for consideration.

6. Learned Counsel cited two authorities of Supreme Court to substantiate his contention. In (1982) 1 SCC 237 : AIR 1982 SC 989, Govind v. Devi Sahai, the provisions of Section 53-A of the Transfer of Property Act, are considered and what is held is that:—

“…. To qualify for the protection of the doctrine of part-performance it must be shown that there is a contract to transfer for consideration immovable property and the contract is evidenced by a writing signed by the person sought to be bound by it and from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty. These are pre-requisites to invoke the equitable doctrine of part-performances. After establishing the aforementioned circumstances it must be further shown that a transferee had in part performance of the contract, either 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 and has done some act in furtherance of the contract. There must be a real nexus between the contract and the acts done in pursuance of the contract or in furtherance of the contract and must be unequivocally referable to the contract….”

7. Supreme Court has considered the ratio laid down in its earlier judgment reported in (1969) 3 SCC 120 : AIR 1970 SC 546, Nathulal v. Phulchand. The above tests which qualify for the protection provided under Section 53-A are also mentioned in the earlier judgment of the Supreme Court. Learned Counsel Shri Mundhe, appearing for some of the respondents, contended that even though the counter claim by way of cross suit for specific performance of contract is not granted in favour of the defendants, they are still entitled for protection under Section 53-A of the Transfer of Property Act. Learned Counsel relied upon the judgment of this Court reported in 1966 Mh. L.J 24 : AIR 1967 Bom. 34, Maruti Gurappa v. Krishna Bala*. The ratio laid down in that decision is to the effect that the remedy for specific performance of contract barred by limitation, still protection under Section 53-A can be held good. There is also another judgment of our High Court reported in 1959 BLR 303, Nanasaheb Gujaba Bankar v. Appa. In that decision also, it is held that if the remedy to enforce specific performance of agreement is barred by limitation, still the protection under Section 53-A of the Transfer of Property Act is available to the defendants as the question in the suit relates not to the title, but to the possession.

8. There is no dispute that the protection under Section 53-A of the part of performance is to use as a shield and not as a sword. It can only be used by way of defence to protect the possession. In none of the cases cited by both the Counsel, the point which is necessary to decide the present case came for consideration because in all these cases, bar of limitation is considered in the absence of a suit filed for specific performance. In the present case, the defendants are seeking not merely the protection of Section 53-A of the Transfer of Property Act by way of defence, but they have claimed execution of sale-deed in their favour by specific performance, and that is why, they have filed a counter claim under provisions of Order VIII, Rule 6-A for specific performance and both the Courts have denied the claim for specific performance by the defendants. In the cases which were cited before me, the claim for specific performance was not made by the defendants at all. Therefore, the protection of Section 53-A was considered without there being any claim for specific performance by the transferees. On the facts of the present case, the ratio laid down in the earlier decision is required to be distinguished.

9. If we consider the provision of order VIII, Rule 6-A of the Civil Procedure Code, which provides for counter claim by defendants; sub-rule 2 of Rule 6-A provides as under:

“….(2) Such counter claim shall have the same effect as a cross-suit so as to enable the court to pronounce a final judgment in the same suit, both on the original claim and on the counter claim….”

10. Such counter claim, shall for the same, is a cross suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter claim. Therefore, the claim made by way of counter claim amounts to the claim in a suit as if filed by the defendants. The claim for specific performance is not granted by the Courts below on the ground of limitation, but the fact remains that specific performance was claimed by the defendants and was not granted by the Courts. Therefore, in view of this factual aspect, the ratio laid down in the earlier decisions have no application in the present case. I am of the opinion, therefore, that once the claim or suit for specific performance is denied to the defendants, the agreement of which the specific performance was sought, therefore, be deemed to be annulled and the rights created by such agreement, are not enforceable. Learned Counsel for the respondent contended that the decision in the earlier suit i.e 69 of 1961 will operate as res judicata; in spite of the fact that the claim for specific performance is rejected in the present suit. I am unable to appreciate this contention. In the earlier suit, the protection was available to the defendants under Section 53-A because the rights under the agreement had not come to an end and they were still enforceable. But in view of the decree passed in the present case, the right under the agreement cannot be enforced. Therefore, there is no question of res judicata by virtue of the decision in the earlier suit. The question of specific performance was not before the Court then for consideration. Therefore, the lower Appellate Court has committed an error in consideration that the decision in the earlier suit operates as res judicata.

11. Learned Counsel for the respondents further argued that he has filed cross objections in this Appeal challenging that part of the decree by which the claim of defendants for specific performance is refused. Both the Courts found that the claim for specific performance of contract is time barred. I do not find any reason to come to a different conclusion on the question of limitation, as admittedly, the claim is time barred. Learned Counsel relying on certain observation of this Court reported in the above cited two cases that even though the claim for specific performance, is time barred, it is held that the defendants are entitled for protection under Section 53-A. I am unable to appreciate this contention also because in those two reported decisions, the claim for specific performance was not agitated before the Courts, and there was, therefore, no question of considering the fact of dismissal of suit for specific performance on the agreement of sale as there was no suit filed for specific performance of contract in those two cases; the agreement in those cases was enforceable agreement, but the distinguishing feature in the present case is that the claim for specific performance is rejected and the consequence of dismissal of the claim for specific performance is that the rights accrued under the agreement cannot be enforceable thereafter. The third contention which the learned counsel for the respondents agitated is that the suit is filed prior to dismissal of the claim for specific performance. So the decisions of the Courts below are right in view of the fact that on the date of the suit, the rights under the agreement were enforceable, and if at all plaintiff wants to claim on the basis of the dismissal of the suit for specific performance, he could file a fresh suit thereafter for possession, but the claim of the plaintiff for recovery of the possession in the present suit which is filed in the year 1971, cannot be considered as the defendants claim for specific performance is rejected by the Trial Court on 19th September, 1977. I do not think it possible to accept the contention of the learned counsel because when there is a judicial pronouncement on the enforceability of the agreement, the parties need not be dragged again to a further litigation, and in my opinion, the plaintiff can be granted the relief of possession in the suit itself. I, therefore, hold that the defendants are not entitled for protection under Section 53-A of the Transfer of Property Act. The plaintiff is entitled for possession of the suit land. The claim of the defendant for refund of an amount of Rs. 2,000/- need not be considered as defendants are in possession of the suit land for more than 25 years. This Second Appeal is allowed. There shall be no orders as to costs. The cross objections are dismissed. At this stage, learned Counsel for respondent asked for leave to Supreme Court orally. Leave is rejected. He also requested, for time for delivery of possession for execution. That is also rejected.

Appeal allowed.