- (1.)JANARDAN Sahai, J. This application for amendment of the written statement has been filed in the present revision directed against a decree of the Judge Small Causes Court in a suit for rent and ejectment filed by the respondent Raj Narain Chaudhury against the applicant and proforma defendants respondents Shashi Kala and others. In para 1 of the plaint it is alleged that the defendant applicant Kashi Naresh Mehrotra is a tenant of the premises on behalf of the plaintiff. In para 3 of the plaint it is stated that the plaintiff got the property in dispute in a family settlement dated 3-8-1988. In the written statement the family settlement has been denied. What has been admitted is that the defendant applicant was a tenant of the plaintiff's father but it has been denied that there was relationship of landlord and tenant between the plaintiff and the defendant. It was alleged that an agreement of sale of the disputed shop was executed by Raj Narain Chaudhury plaintiff's father in favour of one D. R. Basudeva on 17-10-1984 and that D. R. Basudeva transferred his rights under the agreement of sale in favour of the defendant applicant Kashi Naresh Mehrotra by a deed dated 31- 5-1988. The suit was decreed and the finding is that there is a relationship of landlord and tenant between the parties. Although the amendment application seeks to incorporate several pleas but the plea for the addition of which the arguments centred is one relating to Section 53-A of the Transfer of Property Act that the plaintiff's father as karta of the Hindu Undivided Family had executed a contract of sale transferring all ownership rights, possession and landlordship rights in favour of one D. R. Basudeva and that D. R. Vasudeva executed a registered agreement dated 31-5-1988 by which he on receiving payment of Rs. 1 lac from the defendant allowed the defendant to continue in possession in part performance of the contract. The original pleading did not contain any averment that possession was transferred in part performance to D. R. Vasudeva or by D. R. Vasudeva to the applicant.
(2.)I have heard Sri Ajit Kumar Counsel for the applicant and Sri Vinod Sinha Counsel for the respondents.
It was submitted by Counsel for the applicant that the amendment is to incorporate the plea of Section 53-A of the Transfer of Property Act which is only clarificatory in nature. It is meant to elaborate the plea which was already taken in the written statement that there was an agreement of sale in favour of D. R. Basudeva who had transferred his rights in favour of the applicant Kashi Naresh Mehrotra. In support of his contention Counsel for the applicant has relied upon a large number of authorities on the point that the amendment can be allowed at any stage of the proceedings; that delay in seeking the amendment by itself is no ground for rejection of the amendment and in case the amendment does not bring about any change in the nature of the case the amendment ought to be allowed. It is submitted that apart from his tenancy rights the applicant's possession is additionally protected under Section 53-A of the Transfer of Property Act.

On the other hand it is contended by Sri Vinod Sinha the landlord's Counsel that neither on the terms contained in the two agreements nor under the original pleadings the plea of Section 53-A of the Transfer of Property Act is available to the applicant. He also submits that the applicant entered into possession as a tenant and is estopped from taking the plea of Section 53-A of the Act and the amendment has been sought to delay the proceedings for if allowed adducing of evidence in proof of the plea newly incorporated would have to be permitted.

(3.)THE copy of the agreement of sale is Annexure 5 to the stay application. It bears a recital that the shop in dispute was in the tenancy of the applicant Kashi Naresh Mehrotra. THEre is no term in the agreement of sale transferring the possession of the shop in dispute to D. R. Basudeva. THE copy of the deed by which D. R. Basudeva transferred his rights to the applicant is Annexure 3 to the stay application. This deed also does not contain any term transferring possession to the applicant. Apparently, therefore, the plea of Section 53-A does not arise. THE original written statement also does not contain any plea that possession was transferred either to D. R. Basudeva or by D. R. Basudeva to the applicant.
Sri Ajit Kumar Counsel for the applicant however placed reliance upon the language of Section 53-A of the Transfer of Property Act and submitted that it is not the requirement of that Section that the possession be transferred to the prospective purchaser in case the prospective purchaser is already in possession. Undoubtedly the Section also applies if '"the transferee being already in possession continues in possession in part performance of the contract. . . . ". The words "continues in possession in part performance indicate' that the continuance in possession should be attributable to the part performance of the contract. " The language of the Section makes it implicit that continuity of possession of the transferee contemplated in the Section must be agreed upon as a term of the contract for then alone would the possession be attributable to the part performance of the contract. In absence of any such term in the agreement of sale in favour of D. R. Basudeva or in the assignment made by D. R. Basudeva in favour of the applicant, it cannot be said that the possession of the applicant is continuing in part performance of the contract. Sri Ajit Kumar however relied upon a decision of the Patna High Court in AIR 1976 Pat 2, Nagar Khan & Ors. v. G. R. Agarwala. In that case one Lakhan Sau owner of the property had executed an agreement of sale in favour of the defendant. Subsequently Lakhan Sau transferred the property to the plaintiff by two sale-deeds. The defendant resorted to the protection under Section 53-A of the Transfer of Property Act. The plaintiff resisted the plea alleging that possession was not delivered by the owner of the property to the defendant but rather was taken by the defendant forcibly. From the facts stated in the judgment it appears that in pursuance of the agreement the defendant had obtained two sale-deeds from the other owners but Lakhan Sau who subsequently sold the property to the plaintiff did not turn up to get the sale-deed executed by him in favour of the defendant registered on the appointed date. It was held that Section 53-A was intended to prevent fraud and therefore, if the possession was taken over by the defendant independently and not from the owner, the requirement of the Section was nevertheless complete. From the facts stated in the judgment it is not clear whether there was any agreement between the parties for transfer of possession in part performance before the sale-deed. The case appears to have been decided on its own facts. However if the Patna High Court meant to take the view that a purchaser is entitled to the protection of Section 53-A of the Act against the vendor even though the contract of sale does not contemplate delivery of possession before the sale-deed in part performance, I am in respectful disagreement with the view. What is sought to be protected by Section 53-A of the Act is the possession which the prospective purchaser takes from the vendor in part performance of the agreement of sale. The implied pre-condition for the application of the Section is an agreement between the parties providing for delivery of possession or for the continuance in possession of the transferee in part performance. In quite similar circumstances, the matter has been considered by this Court. In M. K. Gupta & Ors. v. Special Judge, Allahabad & Ors. , 2000 (1) ARC 589, the petitioners were tenants. The owners sold the building and proceedings for eviction were brought by the purchasers under Section 21 of U. P. Act No. 13 of 1972 on the basis that the petitioners had become their tenants. The petitioners denied the relationship of landlord and tenant and claimed to be in possession on the basis of an agreement of sale executed by the erstwhile owners. It was found that the agreement of sale did not contain any recital that the petitioners were being put into possession or that they may continue in possession. It was held that in the absence of such a term in the agreement, the protection of Section 53-A was not available to the petitioners. In A. K. Dwivedi v. VIIIth Additional District Judge, Kanpur Nagar & Ors. , 2005 (6) ALR 228, it was held that if the possession was not delivered by the landlord in part performance of the agreement but was taken illegally the protection of Section 53-A of the Act is not available.