P.K. Mohanti, J.
1. The second appeal is by the defendants against a decree of affirmance passed by the learned Subordinate Judge of Bargarh in a suit for declaration of title to and recovery of possession of 4.60 acres of land described in Schedule 'B' of the plaint.
2. The plaintiff's case was that Lax-man Bag, the father of defendants 1 and 2, was an occupancy raiyat in respect of the suit land. He surrendered the same in favour of the village Gountia (P.W. 3) by an unregistered deed of surrender dated 22-8-1932 (Ext. 13) and on the same day Mohan Misra, the predecessor-in-interest of the plaintiffs, acquired the same by a registered deed of permanent lease (Ext. 11) granted by the Gountia. Two days prior to the surrender, i.e. on 20-8-1932 Laxman Bag had executed an unregistered sale deed (Ext. 12) in favour of Mohan Misra in satisfaction of a decretal debt outstanding against him. Plaintiff No. 1 is the son and plaintiff No. 2 is the widow of a predeceased son of the said Mohan Misra. Their contention was that after the death of Mohan Misra they inherited the suit land and wore in possession till 24-7-1963 when the defendants trespassed over the same.
3. Defendants 1 and 2, who are the daughters of the said Laxman Bag, filed a joint written statement. They claimed to have been in possession of the suit land and denied the plaint allegations about surrender and lease. They also made an allegation about vagueness of the description of the suit land in the plaint.
4. In the trial court a survey knowing Commissioner was appointed to demarcate the suit land and the report submitted by him was accepted. The trial court found that the surrender by Laxman Bag in favour of the Gountia and the lease in favour of Mohan Misra were genuine. It further found that the plaintiffs were the owners of the suit land and were in possession of the same till they were dispossessed Accordingly, it passed a decree declaring the plaintiffs' title to the suit land and directing delivery of possession in their favour.
On appeal by the defendants, the learned Subordinate Judge held that the deed of surrender (Ext. 13) and the permanent lease deed (Ext. 11) were not genuine and the plaintiffs had no title or possession over the suit property. He also held that the map prepared by the survey knowing Commissioner did not remove the vagueness of the description of the suit land. He accordingly reversed the decree of the trial court and dismissed the suit.
5. In second appeal No. 649 of 1966 preferred by the plaintiffs this Court set aside the decree of the learned Subordinate Judge and remanded the appeal for a fresh disposal.
After remand, the learned Subordinate Judge agreed with the findings of the trial court and dismissed the appeal. Aggrieved by this decision, the defendants have come up in second appeal.
6. The suit land is situate at that part of Sambalpur district where the Central Provinces Tenancy Act of 1898 is in force. Admittedly the suit land is an occupancy holdings. Section 46 of the Act prohibits transfer of an occupancy holding or a portion thereof to any person other than the next heir of the transferor or his co-sharer. Sub-section (5) of Section 46 is in the following terms:
'(5) Notwithstanding anything contained in the Indian Registration Act, 1877, no officer empowered to register documents shall admit to registration any document which purports to transfer the right of an occupancy tenant in his holding or in any portion thereof unless the document recites that the transferee is a person who if he survived the tenant, would inherit the right of occupancy or is a person in favour of whom as a co-sharer the right of occupancy originally arose or who became by succession a co-sharer therein.'
7. It is urged in this appeal that no decree could be passed in favour of the plaintiffs in view of the restrictions imposed by Section 46, C. P. Tenancy Act, Elaborating the point it is argued by Mr. Mohapatra appearing for the defendants-appellants that the three transactions under Exts. 11, 12 and 13 constitute only parts of one transaction of sale as between Mohan Misra and Laxman Bag and the sale being for a value of more than Rs. 100/- no title could pass in favour of Mohan Misra without a registered sale deed.
8. It appears from the averments made in paragraph 4 of the plaint that prior to the execution of the deed of surrender, Laxman Bag had entered into a contract with Mohan Misra for sale of the suit lands along with certain other lands on receipt of advance consideration. As he failed to execute the sale deed, Mohan Misra filed a civil suit against him and got a decree for Rupees 483-2-0. Being unable to pay the decretal dues Laxman Bag executed an unregistered sale deed (Ext. 12) on 20-8-1932 in favour of Mohan Misra in respect of the suit lands. Two days thereafter Laxman executed an unregistered deed of surrender (Ext. 13) in favour of the Gountia (P. W. 3) and on the same day the Gountia executed a registered deed of permanent lease (Ext. 11) in favour of Mohan Misra. In paragraph 4 of the plaint it was also averred that the surrender was effected 'to make good the decretal amount' and that the deed of surrender was executed just 'to save the transaction from the mischief of the then prevailing tenancy law.' During his evidence in Court plaintiff No. 1 Kanhei Misra who was examined as P. W. 1 stated as follows:
'In 1932 my father obtained a decree against Lakhman. The decree was for Rs. 482-13-0. Therefore, he surrendered Ac. 4-60 decimals of lands to Gountia who granted (reg.) patta in the name of my father in discharge of the decretal amount.'
The Gountia who was examined as P. W. 3 stated:
'I cannot say what lands were surrendered to me by Lakhana. I have given patta according to plot numbers brought by the parties. I have not possessed the patta lands at any time. I did (not?) deliver possession of the lands given under patta. Lakhana also did not give delivery of possession to me when he surrendered.'
Ext. 12 though described as a Kararnama is essentially a document of sale. The recitals of the document clearly show that the suit lands were sold by Lakhana Bag to Mohan Misra and possession was delivered to him in discharge of the decretal debt. The averments made in the plaint and the statement of plaintiff No. 1 in the box leave no room for doubt that the three transactions under Exts. 11, 12 and 13 were entered into with the sole object of wiping out the decretal debt of Laxman Bag and the documents were executed piecemeal only to serve as a device for avoiding the restrictions under Section 46 of the C. P. Tenancy Act. The agnates of Laxman Bag have been made to execute the sale deed (Ext. 12) along with him so as to prevent them from challenging the transaction under Section 47 of the C. P. Tenancy Act. Similarly, the consent of the Gountia has been purchased under the lease deed (Ext. 13) on payment of a sum of Rs. 170/- as Nazarana. Thus, it is clear that this is a case of transfer of an occupancy holding in favour of Mohan Misra. Such a transaction is to be evidenced by a registered document. In the absence of a registered sale deed, the sale had no effect in law and did not convey any title in favour of Mohan Misra.
9. A similar question arose in the case of Padmanabha Gountia v. Dalganjan Patel, (1959) 25 Cut LT 147. In that case the plaintiffs and his brother obtained a decree for a sum of Rs. 1,364/- against defendant No. 1, the recorded tenant. Execution was levied for realisation of the decretal amount. With the consent of agnates, the defendant No. 1, to discharge the debt, surrendered the holding in favour of the Gountia on 20th April, 1932 by an unregistered deed of surrender. On that very day the Gountia executed an unregistered lease deed in favour of the plaintiff and his brother on receipt of Nazarana of Rs. 351/-. A third document, that is a Kararnama, was executed on that very day between the plaintiff and his brother and defendant No. 1. Their Lordships held that all the three transactions constituted one transaction and that was a transaction of sale which was intended to serve as a device for avoiding the provisions of Section 46 of the C. P. Tenancy Act and in the absence of a registered document, the sale had no effect in law and did not confer any title in favour of the plaintiff. No doubt, in the instant case, the unregistered sale deed (Ext. 12) was executed two days before the surrender. But the pleadings and the recorded evidence make it absolutely clear that the dominating object behind the three transactions was to wipe out the decretal debt. I would accordingly hold that all the three transactions in the instant case constitute parts of one transaction of sale and in the absence of a registered document Mohan Misra, the predecessor-in-interest of the plaintiffs did not acquire any title in respect of the suit lands.
10. The next question that arises for consideration is whether the plaintiffs have perfected their title to the suit lands by adverse possession. Both the courts below have concurrently held that Mohan Misra and after his death the plaintiffs were in possession of the suit lands till they were dispossessed. The learned counsel for the appellants contended that the case of the plaintiffs' adverse possession was not specifically pleaded in the plaint and therefore no issue was raised nor any evidence given On this point and as such the plea cannot be entertained by this Court. In my opinion, this contention is not well founded. In paragraph 6 of the plaint it was stated that Mohan Misra effected a partition in the family and in such partition the suit lands fell to the share of Krupa, the late husband of plaintiff No. 2. It was also contended that Mohan, the joint family and thereafter Krupa and plaintiff No. 2 through plaintiff No. 1 have been possessing the suit lands and have amalgamated portions of their own ancestral land with the suit lands. Similarly in paragraph 7 of the plaint it was alleged that in the year 1933 Laxman Bag and his wife Sebati had stolen paddy from the suit lands and in a case under Section 379, I. P. C. Laxman was convicted and that in the same year there was a proceeding under Section 145, Cr. P. C. which ended in a compromise and Mohan Misra got the suit lands. It was specifically alleged that since then the plaintiffs were in possession of the suit lands till the defendants trespassed over the same on 24-7-1963. Besides, it was alleged in paragraph 4 of the plaint that the Gountia collected rent from Mohan Misra and also filed certain rent suits against him and his sons. In these circumstances, it cannot be said that the plea of adverse possession was not specifically averred in the plaint. The defendants-appellants were aware of the above averments in the plaint and, therefore, they alleged in para 3 of their written statement that the story of possession and dispossession as alleged in the plaint was false. In para 4 of the written statement they stated that the payment of rent, if any, to the landlord was unauthorised and that the defendants were all along possessing the suit lands as of right without interruption continuously since the lifetime of Lakhman Bag. On the above contentions of the parties, issue No. 1 was framed in the following terms :
'Issue No. 1 :-- Have the plaintiffs right, title and interest to the suit lands and whether they were in possession within 12 years next before the suit'
The trial court, on a consideration of the evidence of P. Ws. 2, 4 and 5, who are neighbouring tenants, and the documents proved by the plaintiffs held that possession of 'B' schedule lands was delivered by Laxman Bag to the plaintiffs' father under the sale deed Ext. 12 and that the plaintiffs remained in exclusive possession of the same till they were dispossessed. The report of the civil court commissioner indicates that portions of suit lands have been amalgamated with the other ancestral lands of the plaintiffs. It also appears that there was a partition of suit lands in the family of the plaintiffs as evidenced by the partition deed dated 23-5-1942. The defendants did not lead any evidence to show that they paid rent for the suit lands at any time. The plaintiffs have led evidence -- both oral and documentary -- to show that they were all along paying the rents for the suit lands. The appellate court rightly discarded the oral evidence of possession on the side of the defendants as unworthy of credit. I see no cogent ground to differ from the concurrent finding of the courts below on the question of possession. The finding is based on appreciation of the oral and documentary evidence and the circumstances and the probabilities of the case that the plaintiffs were in possession of the suit lands from 1932 till they were dispossessed in 1963. Although the sale by Laxman Bag under the unregistered sale deed (Ext. 12) was an invalid sale, it can be relied upon as explaining the nature and character of the possession since 1932. Therefore, in my opinion, the plaintiffs' possession continuously from 1932 to 1963 on the strength of an unregistered sale deed amounted in law to their adverse possession and they perfected their title to the suit lands by adverse possession.
11. In view of my foregoing findings, I would maintain the decree passed by the courts below and dismiss the appeal, but in the circumstances I direct the parties to bear their own costs in this appeal.