Ram Labhaya, J.
1. This is an appeal from the judgment and decree of the Subordinate Judges LAD, by which the order of the Munsiff' of Gauhati decreeing plaintiff's claim was affirmed. Defendants have appealed.
2. Plaintiff's case was that he purchased the property in suit on 9-5-1933 from Bhubal Ram Kachari, its owner. He got possession also of the property sold to him and claimed that he had' been in possession of the land since then. He further averred that he had obtained a mutation on the basis of the sale in his favour. Long after the sale on 4-6-1945, the first two defendants got the land mutated in their favour as heirs of Bhubal Kachari. He objected to the mutation in favour of the defendants but he did not succeed in getting the mutation corrected. He, therefore, sued for a declaration of title to the land and confirmation of his possession. It is worthy of note that in the plaint the plaintiff did not base his title on any sale deed.
3. The contesting defendants denied that there was any sale in favour of the plaintiff. The factum of sale as distinct from its validity was thus brought into dispute. It appears that at the evidence stage, a sale deed was also produced. This was an unregistered document. It shows a sale of the land described therein to the plaintiff for Rs. 40/-. It also appears that evidence was led about the execution of the sale deed though there was no reference to the sale deed in the pleadings of either party. The learned Munsiff found that the execution of the sale deed by the vendor Bhubal Kachari had been proved. He also found that plaintiff had been in possession of the property since the date of sale. He had also a mutation in his favour. On these findings, he decreed the claim.
4. The learned Subordinate Judge agreed with these findings and dismissed the appeal.
5. The learned counsel for the appellants has raised a new question at this stage. He argues that Section 54, T. P. Act requires that in the case of tangible immoveable property, of the value of less than one hundred rupees, the sale may be made either by a registered instrument or by delivery of the property. He contends that in this case, the sale was by an unregistered document. The sale, therefore, contravenes Section 54, T. P. Act and does not confer any valid title on the plaintiff. He has relied on--'Chinnasami v. Munickammal, AIR 1937 Mad 265 (A) in support of his contention. When the document of sale was produced, its authenticity alone was challenged. The Courts below, however, found that the genuineness of the document was not open to doubt and that its execution had been proved. The contention now raised that as the sale was by an unregistered document, it did rot comply with the requirements of Section 54 was not raised at all in the Courts below.
6. In--'AIR 1937 Mad 265' (A), relied on by the learned counsel for the appellants, it was held that where the sale is for less than rupees one hundred, the non-registration of the document is not fatal to the validity of the transfer if the transferee is able to establish a
prior oral sale and delivery of possession in pursuance thereof, i.e., an oral sale sufficiently dissociated from the unregistered sale deed, that the one can be regarded as independent of the other.
7. The view taken in--'AIR 1937 Mad 265' (A) also orevailed in--'Birendra Kishore v. Naruzzaman Peada', 49 Cal WN 649 (B). In this case it was held that where there is no evidence of any separate and antecedent oral contract and a deed of transfer relating to property valued at less than Rs. 100 on a true construction, is found to constitute the transfer and alone to contain its terms, then despite delivery of possession the transfer is not one by delivery of possession but a transfer by deed and the deed in order to be effective must be registered under Section 54, T. P. Act.
8. It is clear that the objection to the validity of sale is now taken on the ground that the sale was not by delivery of possession but by an unregistered sale deed. The defendants had denied the sale. They have now abandoned that position and the case now set up is that there is no valid sale in spite of delivery of possession as the sale itself was by an unregistered sale deed. The contention is inconsistent with the defence set up in the Courts below. Besides, if the view of the law that found favour with the learned Judge in AIR 1937 Mad 265 (A) is adopted, it may not be ignored that the plaintiff, who did not rely on the unregistered sale deed, in his plaint may have tried to establish an independent oral sale if the objection had been raised in the trial Court. The fact is that the necessity for dissociating the oral sale from the unregistered document was not realised by either party at any previous stage of this litigation.
9. In--'Mahomed Yaouoob Ally v. Chhotey Lal', AIR 1939 Pat 218 (C) the contrary view was expressed. It was held there that in case of a sale of immoveable property worth not more than Rs. 100, by means of an unregistered sale deed, it is not necessary that delivery of possession should be contemporaneous with the execution of the sale deed. The sale would be valid even if possession of property is delivered in pursuance of the sale deed sometime after its execution.
10. The Patna view is shared by the High Courts of Allahabad and Oudh: vide--'Kunjbehari Lal v. Kashi Prasad', AIR 1944 All 236 (D) and--'Kunj Behari Lal v. Fateh Chand', 1944 Oudh WN 64 (66) (E). In--'Abdul Alim v. Abdul Sattar', AIR 1936 Cal 130 (F), it was held that an unregistered kabala purporting to transfer immoveable property of value of less than Rs. 100, does not come within the terms of Section 17, Registration Act and the provisions of Section 49 of the Act do not apply to such a case. Such a document, therefore, although it does not confer title, is admissible in evidence for the collateral purposes of showing the nature of possession.
11. Section 54 no doubt provides two methods of sale of tangible immoveable property of a value of less than Rs. 100/-. The sale can be either by a registered instrument or by delivery of property. A mere unregistered sale deed without delivery of property is not enough. Where, therefore, a document unaccompanied by delivery of possession is executed for the purpose of conveying the property, it is necessary that the document should be registered. A registered document need not be accompanied by delivery of possession. If
there is an unregistered instrument and also delivery of possession, the question arises whether the transferee claiming on the basis of both may not fall back on the delivery of possession. An unregistered sale deed, though valid under the Registration Act, cannot confer title on the purchaser under Section 54. The purchaser may have his claim to title on the oral agreement of sale preceding the execution of an unregistered document and on the delivery of possession. The unregistered sale deed which is unnecessary may be left out of consideration for where an unregistered deed of sale is followed by delivery of possession, it may well be argued that the sale is not by an unregistered document alone. The delivery of possession is also a part of the sale transaction. The registered sale deed may be regarded as a surplusage, delivery of possession alone being, sufficient to confer title. It may therefore be urged that the requirements of Section 54 are satisfied if delivery of property takes place. Section 54 insists on certain formalities. Where sale of tangible immovable property takes place and the value of the property is Rs. 100/- or upwards, the sale has to be by a registered deed. Where the value of the property is less than Rs. 100/-, it may be by a registered deed or by delivery of the property. The idea is to give publicity to the transaction. The execution of an unregistered sale deed where property is delivered should not have the effect of vitiating the transaction merely on the ground that it has not been proved that an oral sale accompanied by delivery of possession preceded the execution of the document. If oral sale and delivery of possession are there, the transaction may be regarded as complete. This is a possible view of the matter. But the question is not free from difficulty and I do not think that it is necessary to resolve the conflict of authority noticed above for the purposes of this case. The two Courts below have concurrently found that plaintiff has been in possession since 1933. There was a mutation of sale in his favour. He has been in possession of the property in his own right. According to the view taken in AIR 1936 Cal 130 (F), the document of sale could be utilised for the purpose of showing the nature of his possession. This view receives support from 43 Mad 244 (PC) (G) also. In these circumstances even if the unregistered sale deed combined with delivery of possession could not confer title on him as urged by Mr. Deb, the learned counsel for the appellants, plaintiff did acquire title in the property by possession as owner for over 12 years. The finding on the question of possession is not open to challenge. During the life time of Bhubal Kachari, the vendor, no objection was taken to plaintiffs' possession. At the time of the suit, his possession was more than 12 years old. He has, therefore, acquired good title to the property. The plaintiff no doubt based his case on sale. He did not rely on adverse possession specifically or as a distinct basis but it was necessarily implied in the case he set up. If it is found that he came in possession of the property and was in possession as an owner, he must be held to have acquired title by efflux of time. At least for the limited purpose of showing the nature of plaintiffs' possession the sale deed is admissible. There is also the mutation in his favour which indicates the character of his possession. In these circumstances I see no reason to differ from the conclusion arrived at by the
Courts below. The appeal, therefore, must fail on the merits.
12. The learned Munsiff in this case direct
ed when decreeing the claim that a precept
should issue to the Revenue authorities for the
correction of the records. The appeal was dismissed and this direction about the precept
remained. It has been argued that the Courts
below had no jurisdiction to issue such a precept; nor was such a precept necessary. This
contention appears to be correct. The direction
regarding the issue of a precept, therefore,
cannot stand. I, therefore, allow the appeal
only to this extent that the direction as to the
issue of a precept is cancelled. The decree
for declaration of plaintiff's title to and confirmation of possession to the property in suit
13. Parties shall bear their own costs throughout the litigation.