R.K. Das, J.
1. This appeal is by defendant No. 1 directed against an order dated 5-2-1960 passed by Sri B.K. Misra, Additional Subordinate Judge, Sambalpur, in Title Appeal No. 7 of 1960, confirming an order dated 5-8-1957 of Sri K.C. Kar Munsif of Deogarh in Title suit No. 13 of 1956.
2. Respondents 1 to 3 are the legal representatives of the original plaintiff Dasarathi Sahu who died after the judgment in the lower appellate Court. This is a suit for declaration of plaintiff's title and recovery of possession in respect of house property situate in the Deogarh town in the Ex-State of Bamra. Kunjabehari Majhi, defendant No. 3, owned some rooms standing on plot No. 1368 in Khata No. 296 with an area Order 19 in mouza Deogarh. By a registered sale deed dated 27-9-1949 (Ex. 1) he sold the suit rooms and the said plot to the plaintiff for a sum of Rs. 1200/- and gave formal delivery of possession by asking defendants 1 and 2, who were occupying different portions of the said houses as monthly tenants, to pay the rent therefor to the plaintiff. Defendants 1 and 2 consented to the arrangement and agreed to pay to the plaintiff the same monthly rent as was settled between them and the original landlord, defendant No. 3.
Thereafter the plaintiff filed an application for mutation of his name. At that stage defendant No. 1 objected to such mutation and contended that there was a previous agreement dated 20-8-1949 (Ex. D) between him and defendant No. 3 whereby the latter agreed to sell the very same property for a sum of Rs. 1000/- and received Rs. 300/- as part consideration and in furtherance of the contract defendant No. 3 asked defendant No. 1 to continue in possession of the house and directed defendant No. 2 to pay his portion of the rent to defendant No. 1. Thus according to defendant No. 1, he was protected under Section 53A of the Transfer of Property Act In view of this controversy, the Mutation Officer could not decide in whose favour the mutation had to be made and directed the parties to go to the Civil Court.
3. Thereafter the plaintiff issued registered notices to defendants 1 and 2 to vacate the house and to pay arrears of rent, but they having failed to do so the plaintiff filed Title Suit No. 9 of 1950 in the court of the Munsif of Bamra against defendants 1 and 2 and the present defendant No. 3 was also made a party in that suit. The plaintiff was unsuccessful both in the trial court as well as in the lower appellate court whereafter he filed Second Appeal No. 43 of 1954 in the High Court. At the time of hearing of that second appeal, the plaintiff put in an application for permission to withdraw the suit with liberty to file a fresh suit. The application was disposed of in the following terms by the High Court:
'4. Both the lower courts came to the conclusion that the defendants 1 and 2 took possession of the house in pursuance of the agreement and as the suit was filed only on the basis of the existence of a tenancy and court-fee also was paid accordingly they could not decide the question of title of the respective parties.
5. When the appeal came up before me for bearing, Mr. G.B. Mohanty, the learned counsel for the appellant, conceded that he could not contend that the plaintiff's title be found and possession given to him, and therefore, wanted permission to withdraw the suit with the liberty to file afresh one. Mr. G.K. Misra the learned counsel for the respondents has no objection. The appellant is allowed to withdraw the suit, but he is directed to pay the costs of defendants 1 and 2 incurred by them in all the three courts'.
4. Thereafter the present suit was filed on 11-4-1956 by the plaintiff for declaration of title in respect of the suit property and for ejectment of defendants 1 and 2 and for recovery of possession.
5. The present suit is contested by defendant No. 1 alone who resisted the claim of the plaintiff on the ground that the suit was not maintainable without the deposit of the costs as directed by the High Court in S. A. No. 43 of 1954. Here also defendant No. 1 took the plea that defendant No. 3 entered into an agreement with him On 20-8-49 (Ex. D) agreeing to sell the very property for a sum of Rs. 1000/- and received a sura of Rs. 300/-by way of advancement and in part performance of the agreement authorised him to continue in possession and directed defendant No. 2 to pay rent to him. Accordingly he urged that he was protected under the provisions of Section 53A of the T. P. Act.
6. Defendant No. 3, who appeared as a witness On behalf of the plaintiff, repudiated the contention of defendant No. 1 and said that no agreement was made with him on 20-8-1949 but in fact an agreement was taken from him on the evening of 27-9-49 after the registration of Ex. 1. He contended that this agreement Ex. D though executed on 27-9-1949 was ante-dated as 20-8-1949 at the persuation of Banarsilal the brother of defendant No. 1.
7. Both the Courts below came to the concurrent finding that the agreement Ex. D was not executed on 20-8-1949 but was executed on 27-9-1949 and was antedated as 20-8-1949 and that there was no delivery of possession of the suit property or any part performance of the said contract. They further found that the plaintiff was a purchaser for consideration without any notice of any previous contract between defendant No. 1 and defendant No. 3. Thus they declared possession in favour of the plaintiff and directed recovery of possession through court, and decreed the plaintiff's suit in full. It is against this decision the present second appeal has been filed.
8. Mr. Asok Das, learned counsel for the appellant raised the following contentions :
(i) that the suit is not maintainable as no leave has been granted by the High Court in S. A. 43 of 1954 authorising the plaintiff to file a fresh suit but the plaintiff was directed only to withdraw the suit:
(ii) that the plaintiff is deemed to have notice of the possession of defendant No. 1 within the meaning of Section 3 of the Transfer of Property Act:
(iii) that there having been a previous contract between defendant No. 1 and defendant No. 3, a part consideration money having been received and possession having been delivered in pursuance of the contract dated 20-8-1949, defendant No. 1 is protected by the provisions of Section 53A of the Transfer of Property Act, particularly when the plaintiff had notice of such a contract.
9. I will now take up the first contention. It appears, it was conceded before the lower appellate Court that the deposit of costs by the plaintiff as directed by the High Court in S. A. 43 ot 1954 was not a condition precedent to the tiling of the present suit. Moreover it appears from the; order of the lower appellate Court that the costs have been deposited during the pendency of the suit. It was argued that since the order of the High Court in Section A. No. 43 of 1954 only permitted to withdrawal of the suit but did not expressly grant leave to the plaintiff to file a fresh suit, the present suit is not maintainable.
In support of his contention Mr. Das relied upon a decision reported in Mt. Deoki v. Jwala Prasad, AIR 1928 All 679. The facts of that case are quite different and all that was laid down by their Lordships in that case is that granting of permission to withdraw an appeal is not a decree confinning the decision appealed from. The Allahabad decision has, therefore, no application to the present case. From the order of the High Court in Section A. 43 of 1954 it appears that the plaintiff made an application to withdraw the suit with liberty to file a fresh suit to which the learned counsel for the respondent-defendant had no objection. But instead of mentioning anything specifically about the filing of a fresh suit, his Lordship simply ordered: that the appellant-plaintiff was allowed to withdraw the suit but he was directed to pay the costs of the defendant etc.
In this connection a decision reported in Khudi Rai v. Lalo Rai, AIR 1926 Pat 259 may be seen, which is a direct authority on the point. In that case their Lordships held:
''Where an application is made by a plaintiff ,to withdraw from a suit with liberty to bring a fresh suit on which an order is passed giving the permission to withdraw from the suit although nothing is said in the order as to the plaintiffs liberty to institute a fresh suit on the same cause of action, that order ought to be read along with the petition and construed as granting permission to file a fresh suit.'
Their Lordships followed a decision reported in Golam Mohammad v. Shibendra Pada ILR 35 Cal 990. . The provisions of order XXXIII, Rule 1(1), Civil Procedure Code, give the plaintiff the liberty to withdraw from a suit unconditionally for any reason whatsoever. In such a case no leave or order is necessary from the Court and the plaintiff need not assign any reason for such unconditional withdrawal. But the provisions of Order XXIII, Rule 1(2) contemplate withdrawal of a suit with liberty to bring a fresh suit. Hence the plaintiff must ask for the leave of the Court and must make out a case for that purpose under clause (a) Or (b) of Order XXIII, Rule 1(2). Thus mere non-mention of the permission, to file a fresh suit in the said order of the High Court, though such prayer was made in the application of the plaintiff, will not affect the maintainability of the present suit and the present suit is in order.
10. With respect to the second contention it was argued that when defendants 1 and 2 were admitted in possession of the suit house as monthly tenants the plaintiff was bound to have taken notice of the title or equities if any, of the defendants, particularly of defendant no. 1, and as such was bound to inquire from defendant no. 1 as to the nature of his possession. In the absence of such an inquiry the plaintiff cannot claim any title which would affect the interests of defendant No. 1. In this connection Mr. Das relied upon the provisions of Section 3 of the Transfer of Property Act. The relevant portions of section 3 run thus:-
''3. In this Act, unless there is .something repugnant in the subject or context-
x x x x x x 'a person is said to have notice of a factwhen he actually knows that fact, or when, but forwilful abstention from an enquiry Or search whichhe ought to have made, or gross negligence, liewould have known it.
x x x x x x Explanation II--. Any person acquiring anyimmoveable property or any share or interest inany such property shall be deemed to have noticeof the title, if any, of any person who' is for thetime being in actual possession thereof.''
On the basis of this provision it is argued that defendants 1 and 2 being actually in possession, the plaintiff should have made inquiries from them as to the nature of their possession. In this connection reliance was placed on a decision reported in Balchand v. Bulaki, AIR 1929 Pat 284. where their Lordships, relying upon the well known decision of Daniels v. Davison, (1809) 16 Ves 249 held:
''If the property to be sold is not in the possession of the vendor but of another person it is the duty of the purchaser to make enquiries from that person, and that he is bound by all the equities which the party in possession may have in th property.''
In that case their Lordships have observed:
'It is true that the case of (1809) 16 Ves. 249 has been held to be an extreme case beyond which the doctrine of constructive notice ought not to be extended but at the same time it has been followed by the Indian Courts in a number of cases.'
In this connection however a Full Bench decision reported in Hari Charan v. Kaula Rai, AIR ,1917 Pat 478 may be seen. There the principle of law laid down in the case of (1809) 16 Ves 249 and some of the Indian decisions that followed it was discussed. Chamier, C.J. who gave the leading judgment, observed:
'Assuming that the rule in (1809) 16 Ves 249 is applicable to Indian Cases, I would point out that notice has been defined in more than one Indian Act in terms which do not go so far as the English cases and that both here and in England it has been repeatedly said by judges that (1809) 16 Ves 249 was an extreme case beyond which the doctrine of notice ought not to be extended and the case of Panny v. Watts, (1849) 1 Mac and G- 150 suggests a doubt whether the mere occupation by a person of property would be notice of an agreement not connected with his occupation, though the case was disposed of on other grounds. There appears to be no case in the books in which the Courts have been asked to apply the doctrine of Daniels v. Davison, (1809) 16 Ves 249, to a case like the one before us, in which the person who had the contract to purchase in his pocket was in possession not of the entire property sold to another but only a small portion of that property'.
In the Full Bench case the plaintiffs and defendants lived in the same village. The plaintiffs four years before the contract had been in possession, as mortgagee of a few plots of land belonging to the family of defendants 1 to 5. The nature and origin of their possession were known to everyone in the village including defendants 14 and 15 who obtained a registered sale-deed from defendants 1 to 5. The plaintiffs contended that defendants 14 and 15 had taken the sale-deed with full notice of their previous agreement for sale made in favour of the plaintiffs. Chamier, C.J. further held:
'In my opinion it would be a great extension of the doctrine of (1809) 16 Ves 249 to hold that ill this case defendants 14 and 15 had constructive notice of the agreement to sell nine bighas ten cottahs to the plaintiffs.''
This Full Bench decision is a complete answer to the second point raised on behalf of the appellant. Defendant No. 1, was admittedly in possession only of a portion of the suit property and the plaintiff knew as everybody in Deogarh must have known, that defendant No. 1 was in possession of a portion of the suit house merely on the basis of a monthly tenant. The plaintiff had no reason to believe that defendant No. 1 was in possession of the same on the basis of any title or on any other basis excepting as a monthly tenant. This contention must therefore fail.
11. So far as the third contention is concerned both the courts below have found as a fact that the agreement Ex. D was ante-dated as 20-8-1949 but it was in fact executed on the evening of 27-9-1949 on which date the sale-deed Ex. 1 was registered and as such there was no previous contract between defendant No. 1 and defendant No. 3. They have further found that there had been no part performance of the contract nor was there any delivery of possession in furtherance of the contract and the plaintiff had no notice of any contract between defendant No. 1 and defendant No. 3. The concurrent findings of fact of both the courts below are sufficient to dispose of this contention. Moreover there are no materials to show that defendant No. 1 was in possession as a vendee in respect of the suit house. It has been held in a case reported in Sashirekhamma v. Garbham Suramma. 17 Cut LT 62 : (AIR 1952 Orissa 163) that the mere fact of continuance of possession is not enough to charge the transferee with notice of the contract to sell. If the character of the possession changes from that of a tenant to that of a vendee in part performance of the contract, it must be proved that the subsequent transferee had notice thereof. This contention of the appellant must therefore fail.
12. In the result, therefore, there is no meritin this second appeal which is dismissed with costs.