Patna High Court
Asgar Ali And Anr. vs Mian Dost Mohammad And Ors. on 21 December, 1917
Equivalent citations: 44IND. CAS.354, AIR 1917 PATNA 80
JUDGMENT Jwala Prasad, J.
1. The plaintiffs are the appellants. They brought a suit in the Court of the Additional Munsif of Buxar for declaration of their title to and recovery of possession over the lands marked in the sketch attached to the plaint as K and L. The learned Munsif gave a decree to the plaintiffs in respect of both the plots.
2. On appeal the learned Subordinate Judge of Shahabad, by his judgment dated 21st September 1916, upheld the judgment of the Munsif as regards the plot marked L and dismissed the suit as regards the plot marked K, We are, therefore, concerned in this appeal only with the plot marked K.
3. The claim of the plaintiffs is based upon a sale-deed executed by one Ibrahim on the 24th of Kuar 1307, corresponding to 21st September 1900. This deed is a registered one. The plaintiffs alleged that they were in possession of the land under the kabala referred to above; that their names were entered in the Survey Record-of-Rights and that they were interfered with in their possession by the defendants trying to construct a wall upon a portion of the land which caused their dispossession in Magh 1322 Fasli. The suit is, therefore, for recovery of possession after declaration of the title of the plaintiffs.
4. The defendants, on the other hand, inter alia, contend that the vendor Ibrahim had no right to sell the disputed land to the plaintiffs and challenge the plaintiffs' sale-deed as being collusive and fraudulent, and further allege that the land in suit was purchased by Faqira, the ancestor of the defendants, from Sohait, the father of Ibrahim, on 6th Asadh 1270, corresponding to 7th June 1863, under a sale deed. The defendants' sale-deed is not a registered one. The Munsif held that the defendants' sale-deed was not executed by Sohait as alleged by them and the deed was a fraudulent one in order to defeat the title of the plaintiffs based upon the registered document. The Munsif further held that the oral evidence of possession adduced by the plaintiffs is superior to that adduced on behalf of the defendants.
5. Upon the above findings the Munsif gave decree for possession to the plaintiffs. The learned Subordinate Judge held that the sale-deed of the defendants was a genuine one and duly executed by Sohait, father of Ibrahim, and that Ibrahim had no subsisting interest in the property in 1900 when the land purports to have been sold to the plaintiffs.
6. The learned Vakil, for the appellants, contends that the finding of the Subordinate Judge is wrong in law. The defendants' sale-deed of 7th June 1863 was executed when the Registration Act XIX of 1843 was in force. Section 2 of that Act provided that a registered deed of sale or gift of real property would invalidate any other deed of sale or gift for the same property which may not have been registered, whether the second or other document was executed prior or subsequent to the registered one. It is needless to go into the history of the legislation on the point as to the various changes that took place from 1843 to the present moment. In the interval between 1864 and 1877 registration did not take priority as is provided for under Section 2 of the aforesaid Act of 1843, but thereafter the state of law as existed in 1843 was restored in Act III of 1877 and in the present Act XVI of 1908 whereby "every document shall, if duly registered, take effect as regards the property comprised therein, against every unregistered document relating to the same property." No doubt there has been some change in the expression used in Section 2 of Act XIX of 1843, namely, "invalidate" in that section has been substituted in the present section by the words: ' Shall take effect against a document." But neither under the old Act of 1843 nor under Act III of 1877, nor under the present Act of 1908, I am prepared to hold that the effect of subsequent registration of the plaintiffs' sale-deed would be to annul and invalidate the defendants' sale-deed, though unregistered, executed long prior to that of the plaintiffs, if possession was delivered to the defendants under the deed. It is a well-known principle that the title once vested by virtue of a deed, be it unregistered, cannot be divested by a subsequent registered document. It must be remembered that in this particular case the document was not compulsorily registrable, the value of the property sold being less than one hundred rupees. The principle is recognized in Section 54 of the Transfer of Property Act, IV of 1882, which provides that transfer of a property of the value of less than a hundred rupees may be made by an unregistered sale-deed provided possession is delivered under the deed. Delivery of possession has always been considered in every country as an effective mode of transfer of any property, as has been fully discussed and demonstrated in the case of Saliin Shaikh v. Boidonuth Ghuttuck 12 W.R. 217 at. p. 220 : 3 B.L.R.A.C.J. 312 It is needless to go over the ground again. Suffice it to say that I am entirely in agreement with the view expressed in that ruling. In the recent case of Sibendrapada Banerjee v. Secretary of State for India in Council 34 C. 207 : 5 C.L.J. 390 it was held that delivery of possession under an unregistered deed must be proved under Section 54 of the Transfer of Property Act. The position appears to be the same prior to the Transfer of Property Act and in respect of documents governed by the Registration Act of 1843. The case of Bhyroo Chunder Misser v. Ramchunder Bhuttacharjee 1 Hay. 261 is a direct authority on the point. The facts of that case are on all fours with the present one, I may with propriety quote the language of that ruling in support of my view:
The gift having been made seven years prior to the sale, and the gift having been fully proved, as well as the possession under it, no question arises as to which of these deeds is entitled to preference. Had these two deeds been contemporary transactions, and had evidence as to each been equally balanced, then the provisions of Act XIX of 1843 would have decided in favour of the registered deed. But in the case now actually before us, the vendor had divested himself of the proprietary right in the lands in suit seven years before he executed the deed of sale to the defendant. The mere fact of the petitioners obtaining the registration of the deed of sale cannot entitle them to annul every preceding transaction, in respect to the same property, done in good faith and carried out in its provisions years before. The sale, by reason of the prior alienation by gift, was not a valid sale, and registration can have no benefit in such a case.
7. The sale-deed in favour of the plaintiffs would not be of any avail against the sale deed in favour of the defendants though unregistered, provided effect to it was given and possession was held under it.
8. The plaintiffs alleged in the plaint that they were in possession since their purchase in 1900 and that the Survey Record-of-Rights of 1912 recorded their possession and that they were dispossessed by the defendants in 1322 (1915). The defendants on the other hand asserted their possession under their sale-deed of 1863 but did not deny that the Survey entry in respect of the land was made in favour of the plaintiffs. The Munsif held that the plaintiffs had proved their possession. The Subordinate Judge, while holding that the document in favour of the defendants was a genuine one, did not find whether the defendants' ancestor or the defendants were, in terms of the aforesaid authority, in possession of the land in dispute under that sale-deed. This brings us to the second contention of the plaintiffs, viz., that the finding of the learned Subordinate Judge that the defendants' document is genuine is not enough to give title to the defendants unless possession was delivered to the defendants under that sale deed. This contention of the plaintiffs must prevail.
9. The defendants ought, therefore, not only to prove that they had an unregistered sale-deed in their favour but that under that it was completed by delivery of the property to them. Their having obtained possession on dispossessing the plaintiffs in 1322 will not give them title. The defendants or their ancestors must show that they obtained possession under the deed. Their possession prior to the plaintiffs' deed of 1900 might afford a good presumption in their favour of having obtained possession under the deed of 1863. The finding of the Court below is, therefore, not sufficient to dispose of the appeal.
10. The case must, therefore, be remitted to the Court below in order to find whether effect was given to the transaction embodied in the sale-deed of the defendants, namely, the deed of June 1861, and whether the defendants are in possession under that deed. The finding of the Court below should be returned to this Court by the second week of February 1918. The costs will abide the result.