S.D. Singh, J.
1. This is a defendants' appeal arising out of suit No. 308 of 1950 of the Court of Munsif Muzaffarnagar.
2. The suit was filed by one Chhajju who purchased a house for a sum of Rs. 400/- under a sale dead date 1-7-1949 from Baldewa, defendant NO. 1. Baldewa and defendant No. 2, Mahu, were brothers, Mahu having died since then. The plaintiff's contention was that although he purchased the house from defendant No. 1, his brother Mahu had taken possession over the same-and that Mahu was asserting that it was he who was the owner of the house and not Baldewa. The plaintiff therefore, filed the suit for recovery of possessor over the house and in the alternative he claimed refund of Rs. 400/- against defendant No. 1. Baldewa admitted that he had sold the house to the plaintiff. The real contest in the suit was between the plaintiff and Mahu Mahu alleged that he was doing contract business at Jagadhri and had sent Rs. 1440/- from there to his brother Baldewa at different times for purchase of a house for him and that this house had been purchasel by Bal-dewa from one Piarey Lal for him, though he got the sale deed executed in his own favour. Mahu's contention, therefore, was that Baldewa was a 'Benamidar' and he himself was the real purchaser under the sale deed.
It appears that sometime in 1949 Baldewa filed a suit for possession in respect of this house against Mahu, but this suit was dismissed for default of parties. Mahu, therefore, alleged that Baldewal's suit against him having been dismissed, he could not claim any title to the-house thereafter, nor could his transferee the present plaintiff. It was further alleged that the plaintiff purchased the house from Baldewa during the pendency of the aforesaid suit and that, therefore, the transfer in his, favour was invalid even on that account. Another plea raised by Mahu was that during the pendency of the suit between him and Baldewa, there was a Panchayat iin respect of this very dispute and the Panchayat decided that he, i. e, Mahu, should retain the house. Mahu further alleged that he had spent about Rs. 200/- in making, improvements in the house believing that he was the owner of the house and that in any case the suit could not be decreed unless he was compensated to that ex-tent.
3. The Munsif held that Baldewa was a mere Be-namidar, the real purchaser under the sale deed being Mahu. The sale deed in favour of the plaintiff was held to have been executed during the pendency of the previous litigation between Batdewa and Mahu. It was, therefore, held to be ineffective the plaintiff having been heid not to be a purchaser in good faith. A plea under section 41 of the Transfer of Property Act was raised oil behalf of the plaintiff, but it was decided against him.
Mahu was also found to have spent Rs. 2OO/- in making the additional constructions in the house. As a result of these findings the suit was dismissed against Mahu, but was decreed for the recovery of Rs. 400/- the amount of consideration paid by the plaintiff, against Baldewa.
4. The plaintiff Chajju went up in appeal, which was allowed by the Civil Judge. It was held by him that the purchase of the house by Baldewa was not Benami for Mahu but in his own right. He held that there was no Panchayat and no transfer of interest in the house by Baldewa to Mahu and that Baldewa having sold the house to the plaintiff, the latter was entitled to obtain possession over the same. The defendants have now come up in appeal.
(4a) The question whether the house was purchased by Baldewa for his own self or Benami for his brother Mahu is a question of fact and so are the questions whether any Panchayat was held during the pendency of the previous litigation between Baldewa and Mahu and if in that Panchayat Mahu was allowed to retain the house as full owner. The Civil Judge has given his reasons for arriving at the findings which are against Mahu. These findings are based on evidence. It is not open to the appellants to challenge the correctness of these findings in this second appeal.
5. What was urged on behalf of the appellants was that there was, independently of the holding of the panchayat, a transfer of this house by Baldewa in favour of Mahu. The contention in effect was that there was an oral sale of the property for a sum of Rs. 500/-. The allegation has not been made in the writtten statement in so many words, nor is there any oral evidence about it. Mahu gave his statement on oath. He referred to the benami character of the sale deed and then alleged that when the Panchayat was held, he was allowed to retain the house as owner there of There is no reference in his statement to any oral sale after the house had been purchased by Baldewa and before the holding of the Panchayat.
6. Reliance was, however, placed upon a postcard, Ex. A-2, which was written by Baldewa to Mahu sometime in the year 1948. In this postcard there is reference that the house had been given to Mahu for a consideration of Rs. 500/-. The Hindi words used in the postcard are 'De diya gaya hai'. These words do indicate that the house had been given sometime earlier than the writing of the postcard. Mahu did not, as has teen mentioned earlier, allege in the written statement any such oral sale, nor did he make any reference to it in his statement on oath. The reference to any such transaction in this postcard may have corroborated any direct evidence, if produced, on behalf of the appellants, but in the absence of any such evidence, this reference in the postcard does not mean anything, particularly when there is no allegation even about such oral sale in the written statement. Apart from this, a sale of immovable property whose value is Rs. 100/- or upwards, is to be made by a registered document under Section 54 of the Transfer of Property Act, and even if the reference in the postcard is relied upon as evidence of an oral transaction of sale, the sale would remain ineffective.
7. It was then contended on behalf of the appellants that Baldewa having filed the suit for possession against Mahu and the suit having been dismissed for default, neither he nor his successor-in-interest could maintain a second suit for the same relief. This contention has, however, no force. The formal order in the suit, Ex. A-1, shows that suit No. 435 of 1949 was dismissed for default of parties. Where a suit is dismissed for default of parties under Order IX, R. 3 C. P.C. Rule 4 provides that the plaintiff may, subject to the law of limitation, bring a fresh suit on the same cause of action. A fresh suit for the same relief was not, therefore, barred.
8. It was then urged that the plaintiff is a transferee pendente lite, and that the suit having been dismissed, the plaintiff's title was barred under Section 52 of the Transfer of Property Act. Even this contention has no force. If the plaintiff purchased the, property during the pendency of the suit, he purchased the same subject to the result of the suit. If the same had not been dismissed for default, the plaintiff would have been entitled to get his name recorded in place of the plaintiff of that suit. As the suit was dismissed for default of parties, the plaintiff will have the same rights as Baldewa had, and since Baldewa would have been entitled to file a, fresh suit on the same cause of action, the plaintiff will also be entitled to do the same.
9. It was contended on the authority of Section 33-A of the Transfer of Property Act, that the doctrine of part performance would apply and the rights of the defendant would be protected under that section. That provision would apply only if there had been a contract to transfer property in favour of the appellant. It has already been pointed out that there has been no transfer of property in his favour. In fact there has been no contract to transfer even, and if there has been no contract to transfer immovable property in his favour, the question of part performance of the contract would not arise.
Apart from this the plea under Section 53-A would fail on another ground. The proviso to Section 53-A says that nothing in that section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof. The plea of part performance was not raised either in the trial court or in first appeal. The plaintiff respondent had, therefore, no occasion to urge that he is a transferee without notice of any transfer in favour of Mahu or of part performance of any contract. These are questions which cannot be allowed to be raised in second appeal. This plea of part performance will have, therefore, to be disallowed on that ground as well.
10. It was then urged that in any case under section 51 of that Transfer of Property Act, the Appellants should be reimbursed to the extent of the sum spent by Mahu in making improvements in the house. This plea, it was contended on behalf of the contesting respondent, was not raised in the first appeal. The judgment of the Civil Judge is silent about it and that fact, therefore, supports the contention of the respondent. But even if the plea is allowed to be raised, it would be difficult to accept the same.
11. Section 51 provides that when the transferee of immovable property makes any improvement on the property, believing in good faith that he is absolutely entitled thereto, and he is subsequently evicted there from by any person having a better title, the transferee has a right to require the person causing the eviction either to make payment for the improvements made or to sell his own interest to him. In order that this section may apply, the appellant must be shown to be a transferee of immovable property, and then ho must show that he made the improvements behaving in good faith that he was absolutely entitled thereto. As has been pointed out earlier, the appellant has failed to prove that he is a transferee. Even if his contention that there was an oral agreement were believed, the oral agreement to transfer or transferring property would not be a transfer within the meaning of Section 5 of the Transfer of Property Act, inasmuch as the transfer by way of sale must satisfy the requirements of Section 54 of the aforesaid Act.
12. Reliance was placed upon a Full Bench decision of the Madras High Court in Ramanathan Chetty v. Ranganathan Chetty AIR 1919 Mad 1083. In that case two persons had exchanged their properties by means of two unregistered leases. One of them raised a building over the land transferred to him and spent a large sum over the same. After this had been done, the other party made a dishonest attempt to resile from the agreement and challenged the validity of the exchange. It was held that the plaintiff was entitled to recover possession of the land on payment of compensation to the defendant. The case is, therefore, an authority for the proposition that a transferee under an unregistered document may be treated as a transferee for purposes of Section 51 of the Transfer of Property Act
As against this, there Is a Single Bench decision of the Rangoon High Court reported in Madan Gopal Bagla v. P. V. S. Sundaran AIR 1940 Rang 172 in which it has been held that section 51 applies only when the transferee believes that he is absolutely entitled to the property and that where the lessee entered into possession of leasehold property valued at Rs. 100/-under an oral agreement, Section 51 of the Transfer of Property Act could have no application whatever for two reasons: firstly that he is not a transferee as the oral agreement could not be enforced and secondly, the property being leasehold, he could never at any time be said to have believed that he was absolutely entitled thereto. The oral lease was, therefore, not held to be a transfer and a transferee under such a transfer was held not to be a transferee' within the meaning of Section 51 of the Transfer of Property Act.
When Section 51 speaks of a transferee, it appears to me that it must refer to a transferee within the meaning of the Act itself. The word transferee has not been defined anywhere, but the word 'transfer' is defined under Section 5. Under that section transfer of property means an act by which a living person conveys property, in present or in future, to one or more other living persons or to himself, and one or more other living persons. No act of a party can convey property, where the property is immovable property worth Rs. 100/-. or more, unless it satisfies the requirements of law in that respect. In the case of a sale, if the property is worth Rs. 100/- or more, the sale must be by a registered document under Section 54 of the Act, and if, therefore, a person desires to transfer such property by sale, he can be deemed to convey property to the purchaser only when he has executed a registered document To my mind, therefore, the appellant cannot be said to be a transferee of the property nor could the appellant believe in good faith that he was absolutely entitled to the property when the sale deed did not stand in his favour; his title to the property was denied in the previous suit and no sale deed was executed in his favour by Baldewa either before or after the filing of the previous suit.
13. Section 51 of the Transfer of Property Act would not apply in this case even on the ground that no transfer in favour of the appellant has been established as a fact.
14. In any view of the case, the appeal has no force and is consequently dismissed with costs to the contesting respondent. Leave to appeal is refused.