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Kelu Rout Vs. Jayananda Rout and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 420 of 1973
Judge
Reported inAIR1977Ori167; 44(1977)CLT186
ActsTransfer of Property Act, 1882 - Sections 54; Registration Act, 1908 - Sections 17 and 49
AppellantKelu Rout
RespondentJayananda Rout and anr.
Appellant AdvocateA.K. Padhi, Adv.
Respondent AdvocateR.N. Das, Adv.
DispositionAppeal allowed
Cases Referred(Keshwar Mahton v. Sheonandan Mahton).
Excerpt:
.....of sale the plaintiff would possess the land as an absolute owner and get his name recorded in the revenue record-of-rights as a raiyat in respect of the suit land......suit for declaration of title to, confirmation or in the alternative recovery of possession of the suit land and for issue of permanent injunction restraining the defendants from interfering with the plaintiff's possession.2. the plaintiff's case runs thus: one hari bhoi was the recorded raiyat in respect of the suit land. the land was lying fallow and the plaintiff, after constructing a small thatched hut, began to live there. subsequently, the said hari bhoi sold the land to the plaintiff for a sum of rs. 95/- under an unregistered sale deed dated 18-3-65 and gave formal delivery of possession thereof to him. the plaintiff, after his purchase, improved the suit land, constructed a two-roomed house thereon and possessed the same on payment of rent to the landlord. on 8-2-63 the.....
Judgment:

P.K. Mohanty, J.

1. This is a plaintiff's appeal against a reversing decree arising out of a suit for declaration of title to, confirmation or in the alternative recovery of possession of the suit land and for issue of permanent injunction restraining the defendants from interfering with the plaintiff's possession.

2. The plaintiff's case runs thus: One Hari Bhoi was the recorded raiyat in respect of the suit land. The land was lying fallow and the plaintiff, after constructing a small thatched hut, began to live there. Subsequently, the said Hari Bhoi sold the land to the plaintiff for a sum of Rs. 95/- under an unregistered sale deed dated 18-3-65 and gave formal delivery of possession thereof to him. The plaintiff, after his purchase, improved the suit land, constructed a two-roomed house thereon and possessed the same on payment of rent to the landlord. On 8-2-63 the defendants 1 and 2 obtained a fraudulent sale deed from the said Hari Bhoi and got their names mutated in respect thereof by practising fraud on the Revenue Authorities.

3. Defendants 1 and 2 denied the plaint allegations and contended that Hari Bhoi, the recorded tenant, while in actual possession of the suit land, sold the same in their favour under the registered sale deed dated 9-2-63 on receipt of cash consideration and put them in possession. They further contended that before their purchase, Hari Bhoi was residing in a two-roomed house standing on the suit land which had become dilapidated for want of repairs and after their purchase they repaired the same. The plaintiff approached them for permission to occupy the house temporarily during the rainy season of 1963-64 and on such permission being given verbally, he occupied it. But subsequently at the instigation of the enemies of the defendants he created false documents in collusion with Hari Bhoi.

4. The learned Munsif came to the findings that the unregistered sale deed dated 18-3-60 executed by Hari Bhoi in favour of the plaintiff is genuine but the sale deeds in favour of both the parties were void for want of prior permission of the Revenue authorities. He however decreed the suit on the basis of the plaintiff's admitted possession.

5. On appeal, the learned Additional District Judge held that no permission was necessary for transfer of the suit land. He however held, relying on a decision reported in (1953) 19 Cut LT 278 (Sudarsan Rout v. Jairam Sahu) that the plaintiff acquired no title to the suit land under the unregistered sale deed and as he was already in possession, there could not be any delivery of the property to him within the meaning of Section 54, Transfer of Property Act. Accordingly he dismissed the suit.

6. It is conceded by the learned counsel appearing for both the parties that no permission was necessary for transfer of the suit land. The real controversy in this appeal is whether the oral sale can be held to be valid when the plaintiff was already in possession of the suit land prior to the sale and there was no delivery of possession at the time of sale.

7. The plaintiff proved the unregistered sale deed -- Ext. 1/d and led evidence to the effect that by the date of the oral sale he was staying on the land with the permission of Hari Bhoi after constructing a thatched shed thereon and that after execution of the sale deed he continued to possess the land as before. He also stated that after purchase he remodelled the house and constructed big rooms after dismantling the old shed. The recitals in the unregistered sale deed -- Ext. 1/d are to the effect that from the date of sale the vendee would possess the land on his own right as absolute owner and would get his name mutated as a raiyat in the revenue records. There are also other recitals regarding default clause, the clause for damages in case of dispossession etc.

8. Section 54 of the T.P. Act provides, inter alia, that the sale of tangible immovable property of the value of less than Rs. 100/- can be effected either by a registered instrument or by delivery of the property. The legal position is well settled that if the vendee is already in possession of the land and if a declaration is made by the vendor at the time of sale that he ceased to have any interest in the property and that previous possession of the vendee would be treated as possession of an absolute owner, this may be taken to be substantial compliance with the provisions of Section 54 of the T.P. Act.

9. In (1953) 19 Cut LT 278 (Sudaraan Rout v. Jairam Sahu), relied upon by the lower appellate court, there was no actual delivery of possession on the date of the alleged oral sale but the vendee was already in possession of the land prior to the date of sale. There was no sale deed evidencing the transaction. There was no evidence about any declaration or renouncement by the vendor. There was also no evidence to show that the vendor did any overt act by which he got the name of the vendee recorded in any of the public papers. The only evidence led by the plaintiff and accepted by the courts of facts was that the plaintiff was already in possession of the land prior to the alleged sale. There being no registered document, nor any actual delivery of possession nor any other overt act, the learned single judge held the sale to be invalid. The lower appellate court did not enter into these questions and did not refer to the recitals in Ext. 1 (d) and made its task simple by saying:

'... in his evidence, plaintiff, deposing as P.W. 2, admitted in clear terms that after his purchase, he continued to possess the suit land as before, which negatives his plea of any formal delivery of possession of the suit land being given to him after his purchase. In this view, plaintiff acquired no title over the suit land by virtue of his purchase under Ext. 1 (d) the unregistered sale deed. This position is concluded by the decision reported in (1953) 19 Cut LT 278 (Sudarsan Rout v. Jairam Sahu), which was a case of an oral purchase with similar facts.'

10. In (1959) 25 Cut LT 281 (Bihari Padhan v. Daitari Dash) a Division Bench of this Court followed a decision of the Calcutta High Court reported in AIR 1933 Cal 411 (Kulachandra Ghosh v. Jogendra Chandra Ghosh) wherein it was held that the essence of delivery of possession for a sale is no doubt that possession should change, but where the vendee is already in permissive possession of the property on the date of sale, it is enough for such delivery of possession to be sufficient within the meaning of Section 54 of the Transfer of Property Act if the character of his possession changes, and this can be effected if the vendor converts by appropriate declaration or acts the previous permissive possession of the vendee into possession as that of a vendee.

Their Lordships also followed the principles laid down in AIR 1937 Pat 178 (Pheku Mian v. Syed Ali) wherein a Division Bench of the Patna High Court held that when the property sold is already in possession of the vendee, a renunciation by the vendor of all his rights therein and mutation of the vendee's name in the record-of-rights, made at the instance of the vendor are sufficient compliance with the provisions of Section 54 of the Transfer of Property Act. The principle underlying this decision was adopted in a Full Bench decision of the Patna High Court in the case of Suraj Prasad v. Mt. Aguta Devi, AIR 1959 Pat 153 (FB).

11. In AIR 1964 Andh Pra 21 (Sreeram Venkatasubbamma v. Subbayya) a Division Bench of the Andhra Pradesh High Court held that delivery in Section 54 meant such delivery as the property is capable of. If the animus of the mortgagor, viz. to pass title and also possession as owner, is disclosed by appropriate declarations, delivery would be effective within the scope of Section 54. There would be delivery of property within the purview of Section 54 to usufructuary mortgagee to satisfy the requirements of Section 54 of the Transfer of Property Act if there is agreement between the parties that after the sale the possession of the mortgagee should be that of an absolute owner and if such intention of the mortgagor was made clear by appropriate acts or declarations.

12. In AIR 1957 Mad 209 (Swaminatha Udayar v. Mottaya Padayachi) a learned single judge of the Madras High Court held that where the property which is the subject of a usufructuary mortgage is sold to the mortgagee in discharge of the mortgage a direction by the vendor to the vendee to keep the property as absolute owner amounts to delivery of possession, within the meaning of Section 54 of the Transfer of Property Act.

13. In AIR 1954 Nag 109, (Ghanaram v. Paltoo) it, was held that where the purchaser was already in possession as an adhia under a lease it was not necessary that he should have first handed over possession of the property to the seller who should then have redelivered the property to the purchaser in order to constitute delivery of possession within the meaning of Section 54, T.P. Act.

14. In the case of Trilochan v. Bamadev Pradhan, (1971) 37 Cut LT 1114: (AIR 1972 Orissa 136), a learned single judge of this Court held:

'If Section 54 is construed so rigidly the benefit that the legislature wants to confer on the parties in case of sale of properties of smaller value will in a large number of cases become illusory. If oral sale accompanied by delivery of possession is one of the modes in which the sale of tangible immoveable property of the value less than Rs. 100/- can be effected, there appears to be no valid reason why this mode of transfer should net be available, simply because the vendee is already in possession of the property under some legal right on the date of sale provided that the vendor does all that is possible for him to indicate his intention to part with title. This can be done by the vendor making appropriate declarations or by doing such acts as are necessary......'.

15. I am in respectful agreement with the views expressed in the decisions referred to above.

16. The next question that arises for consideration is whether in the facts and circumstances of the present case it can be held that the vendor made any declaration that from the ,date of sale the permissive possession of the plaintiff would be converted into possession as absolute owner. For determination of this question one has to refer to the recitals in the unregistered sale deed-Ext. 1 (d). This document is admissible for the collateral purpose of showing the terms of agreement between the parties and the nature and character of possession--vide AIR 1929 Pat 620 (Keshwar Mahton v. Sheonandan Mahton).

The recitals in the document clearly show that the vendor completely relinquished his right and made a declaration that from the date of sale the plaintiff would possess the land as an absolute owner and get his name recorded in the revenue record-of-rights as a raiyat in respect of the suit land. Thus it would appear that the character of possession of the plaintiff changed as the vendor made it clear by his declaration that from the date of sale the permissive possession of the plaintiff was converted into possession as that of an absolute owner and hence there was sufficient compliance with the provisions of Section 54, Transfer of Property Act. I hold that the plaintiff acquired a valid title to the suit land by reason of his purchase made on 18-3-60 and that the subsequent purchase by the defendants cannot prevail over the plaintiff's purchase.

17. The result therefore is that the appeal is allowed and the decision of the lower appellate court is set aside. The plaintiff's title to the suit land is declared and his possession over the same is confirmed. The defendants are permanently restrained from interfering with the plaintiff's possession over the suit land in any manner. Parties to bear their own costs throughout.


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