1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR Second Appeal No. 357 of 2011 Abdul Aziz s/o Abdul Sattar & ors. ...Versus... Prabhakar Shankarrao Bandre Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Mr. N.A. Vyawahare Advocate for appellants. … CORAM : A.B. CHAUDHARI, J. DATED : 08.09.2011. Heard. In support of the present second appeal, Mr.Vyawahare, learned counsel for the appellant, submitted that there are substantial questions of law involved in the present appeal. Corroborating his submissions, he submitted that the dispute between landlord and tenant should not have been adjudicated upon by the normal Civil Court but the same would have been entertained by Small Causes Court. He then argued that there was an agreement of sale in writing, i.e. 19.7.1976 and, therefore, the appellants were entitled to protection as contemplated by Section 53A of The Transfer of Property Act, 1882. 2 I have heard learned counsel for the appellants. I have also gone through the judgments and orders passed by the courts below. At the outset, from perusal of the issues framed by the trial Court, I find that there is no issue regarding jurisdiction of the Court framed by him. Learned counsel contended that the issue of jurisdiction goes to the root of the matter and it was the duty of the trial Court to frame an issue to that effect and it is no answer to say that the appellants should have applied for recasting the issues. I do not agree. There is a history of litigation between the parties, inasmuch as three suits were filed and adjudicated. That apart, if the appellants, at all, wanted to raise the issue regarding jurisdiction, they ought to have raised the same for the first time in the trial Court. Such issue cannot be allowed to be raised in the second appellate jurisdiction since the appellants submitted to the jurisdiction of the trial Court and did not object to it. The appellants were equally under a duty to apply for framing an issue to the said effect as provided by Code of Civil Procedure. They did not do it. The appellants cannot be allowed to take advantage of their own wrong. Hence, I am not inclined to entertain the first submission made by learned counsel for the appellants regarding jurisdiction. 3 As regards the second submission. I find from the facts that admittedly the appellants claimed that they were in possession right from the beginning and the agreement aforesaid was entered into subsequently, i.e. during the tenure of occupation as tenants. Section 53A of the Transfer of Property Act reads thus : “53A. 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 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 contemplated 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 him 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 4 part performance thereof.” In other words, it is clear that the appellants were not in possession of the property pursuant to the agreement as contemplated by Section 53-A. Hence, I do not find any merit in the second submission made by learned counsel for the appellants. There is no merit in this Appeal. No substantial question of law is involved in this appeal. S.A. No. 357 of 2011 is dismissed. Judge /TA/