1. This is an appeal from the appellate judgment of the District Judge of Cuttack reversing the judgment of the Munsif of Jaipur and dismissing the appellants-plaintiffs suit for ejeatment of the defendant-respondent horn a house in village Rebana in Jaipur sub division.
2. It is an unchallenged fact that the disputed property consists of survey plot Nos. 416 and 447 having an area of .09 decimals and .04 decimals respectively and recorded in Khata No. 8 in the last settlement operations. The Khatian, however, was not exhibited in the lower Court but the statement in the plaint giving the aforesaid plot numbers, area and khata number have not been controverted in the written statement. It is also an unchallenged fact that the said two plots lie in the Basti of the village and at present there is a house standing thereon with its appurtenant Bari. It is further admitted by the parties that the previous owner of the property was one Rukuni Bewa. The plaintiffs claimed to have purchased the property from her by two kabalas dated 8-4-1943 and 25-6-1943. They alleged that the defendant was occupying the house as a tenant-at-will of Rukuni Bewa at a monthly rental of Rs. 1-8-0 and that after the plaintiffs' purchase the defendant was asked to vacate the house but he refused. Thereupon, the plaintiffs issued a notice to quit on 2.9-1943 and then instituted the present suit for declaration of their title, recovery of possession after eviction of the defendant therefrom and also for consequential reliefs such as recovery of arrear rental due from the defendant. The defendant contended that he had purchased the same property from Rukuni Bewa by an oral sale sometime in 1942 and that at that time there was no house standing on the plots. He claimed to have constructed a building thereon and to be staying there in his own light. He therefore challenged the title of the plaintiffs on the ground of prior sale from the original owner. The trial Court disbelieved the defendant's story of oral sale and held that the plaintiffs acquired valid title to the property by the two registered kabalas executed in their favour by Rukuni. But he disbelieved the plaintiffs' story of the defendant occupying the house as a tenant and consequently while decreeing the plaintiffs' suit for ejectment and recovery of possession he disallowed their claim for arrears of rent. The lower appellate Court however accepted the defendant's story of prior oral sale accompanied by delivery of possession from Rukuni Bewa and held that the defendant's title to the property must prevail over the subsequent sale by Rukuni Bewa in favour of the plaintiffs even though the latter might have been made by registered documents. As the value of the property was admittedly below Rs. 100 he held that under Schedule 4, Transfer of Property Act, title validly passed by oral sale accompanied by delivery of possession. One of the points taken up before appellate Court was that notwithstanding anything contained in Section 54, T. P. Act, all transfers of occupancy holdings or portions of the same, irrespective of their value, should be made by registered instruments as expressly provided in Section 81 -(l), Orissa Tenancy Act, as amended by Orissa Act VIII  of 1938, and that consequently the oral sale in favour of the defendant could not convey any title. The learned lower appellate Court has not dealt with this question in a satisfactory manner. It is difficult to say what exactly his decision is on this question. He seems to have held that Section 54, T. P. Act, would prevail and that the defendant acquired good title by oral sale accompanied by delivery of possession.
3. In the second appeal the findings on facts of the lower appellate Court were not challenged but the following two questions of law were argued at great length (i) Section 81 (1), Orissa Tenancy Act, should prevail over Schedule 4, T. P. Act, and consequently the sale of an. occupancy holding or a portion thereof without a registered instrument would not convey any title; and (ii) the suit was for ejectment of the defendant on the ground that he was a tenant and when the story (as?) to tenancy was disbelieved by both the lower Courts it wag not open to this Court to grant relief to the plaintiffs on the ground that the defendant was a trespasser, thereby completely changing the nature of the suit.
4. The first point involves an interpretation of the provisions of the Government of India Act, 1986, under which the Orissa Legislature passed the Orissa Tenancy (Amendment) Act of 1938 (Orissa Act (VII  of 1938), and inserted Schedule 1 (1) which runs as follows:
'Every transfer of an occupancy holding or a portion or share thereof whether by sale, exchange or gift' shall be made by registered instrument except in the case of a sale in execution of a decree or of a certificate signed under the Bihar and Orissa Public Demands Recovery Act, 1914.'
As already pointed out, the disputed plots are in Khata No. 8 and consequently they form part of an occupancy holding. The aforesaid section of the O. T. Act would therefore, apply unless it can be said that Schedule 4, T. P. Act would override the provisions of that section of the Orissa Act. Under the Government of India Act, 1935, legislation in respect of 'transfer of property other than agricultural land' was dealt with in item 8, Concurrent List, and the Centre as well as the Province had concurrent powers to legislate on the subject. But under item 21, Provincial legislative list (List II), 'transfer, alienation and devolution of agricultural land' was a subject exclusively in the Provincial field. Doubtless, Schedule 4, T. P. Act, would ordinarily apply to agricultural as well as non-agricultural land. But that Act was 'an existing Indian law' under the Government of India Act (see Schedule 11 (2) and in respect of) matters included in the Provincial legislative list (List II) the Provincial Government had lull powers to legislate even though that legislation may have the effect of amending, modifying or repealing any of the provisions of such a law in respect of that subject. This follows as a necessary result from a construction of Sub-section (3) of Schedule 00 read with Schedule 92 of the Government of India Act, 1935. When the Orissa Legislature passed the Orissa Tenancy (Amendment) Act, 1938, it purported to legislate in respect of matters covered by item 21, List II, which may be quoted in full:
'Land, that is to say, rights in or over land, land tenures, including the relation of landlord and tenant, and the collection of rents; transfer, alienation and devolution of agricultural land; land improvement and agricultural loans; colonization; Courts of Wards; en cumbered and attached estates; treasure trove.'
The subject-matter of Sub-section (l) of Section 30 of the Orissa Act, is relatable to 'transfer of agricultural land' as specified in that item. Therefore there seems to be no doubt that so far as transfer of agricultural land is concerned, the Provincial Legislature had exclusive jurisdiction and the provisions of Section 31 (l) would necessarily override the provisions of Section 54, T. P. Act.
5. It was, however, contended that the main object of insisting on registration of transfers of occupancy holdings Under Section 31 of the Orissa Act was to provide for automatic service of notice on the landlord through the Registration Officer as provided in Sub-sections (2) and (3) of that section and that the only result of non -registration of such transfers would be to make if them not binding on the landlord. But so far as the validity of the transfer was concerned, it was urged that the general law as laid down in the T. P. Act should prevail and that where the property is less than Rs. 100 in value transfer by sale can be effected even without a registered instrument. This argument, however, is not sound. Prior to the passing of the O. T. (Amendment) Act of 1938, transfers of occupancy holdings required the consent of the landlord and also the payment of mutation fees. These were abolished by the Amending Act but with a view to give notice to the landlord of transfers so as to enable him to make necessary corrections in his rent-roll, elaborate provisions were made in Schedule 1 requiring compulsory registration irrespective of the value and making adequate provisions for service of notice on the landlord through the Registration Officer. The whole object of the amending Act was therefore to give complete freedom to the occupancy raiyats to transfer their holdings or portions of the same subject only to compulsory registration so as to ensure automatic service of notice on the landlord. There is nothing in Schedule 1, 0. T. Act, to indicate that registration was necessary only for the limited purposes of making such transfers binding on the landlord. On the other hand, a fair construction of Sub-section (l) makes it clear that registration was made mandatory. The Legislature was fully aware of the provisions of Schedule 4, T. P. Act, and when they, while purporting to legislate on a subject which was in their exclusive legislative field, expressly made registration of transfers of occupancy holdings compulsory the reasonable inference is that Section 31 (l) would override Section 54, T. P. Act. I have, therefore, no hesitation in holding that notwithstanding the provisions of Schedule 4, T. P. Act, every transfer of an occupancy holding or a portion thereof by sale irrespective of the' value of the property transferred is compulsorily registrable under Section 31 (l), O. T. Act, subject, of, course, to the exceptions provided in that sub-section. In the absence of such registration title cannot pass by such transfer.
6. Mr. Mohapatra thereupon contended that there was no clear evidence on record to show that the disputed property was 'agricultural land' and that consequently the case should be remanded to the lower Court with a view to enable the parties to adduce clear evidence as regards the nature of the land. He urged that if he could succeed in showing that the disputed property was not 'agricultural land', then the transfer of such land would be relatable to item 8, List III, (concurrent legislative list). In such a case even though the Provincial Legislature has concurrent powers of legislation, any provision repugnant to Section 54, T. P. Act, would be viod unless the assent of the Governor-General was obtained as provided in Sub-section (2,) of Schedule 07, Government of India Act, 1936. Prom a perusal of the Gazette notification publishing the O. T. (Amendment) Act, 1938, it appears that that Act was assented to by the Governor and not by the Governor-General. Mr. Mohapatra, therefore, contended that in so far as Section 31 (l) of the Orissa Act purported to deal with transfers of non-agricultural lands it would be inconsistent with Schedule 1, T. P. Act, and that the latter section would prevail in view of 8.107 (2), Government of India Act.
7. It is true that there is no finding by the lower Courts to the effect that the disputed property is 'agricultural land'. But I do not think there was any doubt on this question at all, (After discussing the evidence the judgment proceeded:) On these materials it cannot be said that the disputed property is not 'agricultural land'. The very fact that the settlement authorities entered it in a separate Khata as 'Sthitiban' would indicate that they recognised it as agricultural land because by virtue of the definition of the expression 'raiyat' in Schedule (2), O. T. Act, the primary purpose for which the right to hold the land wa3 obtained was for the purpose of cultivation.
8. The expression 'agricultural land' occurring in item 21, List II, has not been defined in the Government of India Act but there are by now several decisions explaining the same. In the case of Megh Raj v. Allah Rakhia, the first decided by the Federal Court in (1942) 5 P. L. J. 33 : (A. I. R. (29) 1942 F. C. 27) the said expression was not fully explained though there ate some observations to the effect that the general character of the land and not the use to which it may be put at a particular point of time would be one of the factors in deciding whether a piece of land is agricultural land or otherwise. That case went up to the Privy Council (See Megh Raj v. Allah Rakhia, A. I. R. (34) 1947 P. C. 72 : (74 I. A. 12) and though their Lordships also did not attempt at an exhaustive definition of the expression 'agricultural land' they held that Schedule (l), Punjab Restitution of Mortgaged Lands Act, which defined 'land' as including the sites of buildings and other structures on a land that is occupied for agricultural purpose; applied to agricultural land. This seems to be an implied decision to the effect that even sites of buildings if occupied for the purpose of agriculture would be agricultural land even though no operation of agriculture may be done thereon. In Sarojini Devi v. Sri Kristna, A. I. R. (31) 1944 Mad. 401 : (I. L. R. (1945) Mad. 61), Patanjali J. made the following observations :
'We are of opinion that for the purposes of the relevant entries in Lists II and III of Schedule 7 the, expression 'agricultural lands' must be taken to include lands which are used or are capable of being used for raising any valuable plant or trees or for any other purpose of husbandry.'
Similarly in Nil Govinda v. Rukhmini Deby, A. I. R. (31) 1944 Cal. 421 : (48 C. W. N. 739), it was held that any land though lying unused, but capable of being used, for raising crops, vegetables etc. and also the land used as the site for the farmer's residences should be regarded as agricultural lands.
9. Judged by the aforesaid decisions I do not think that there can be any doubt that the disputed plots are agricultural lands. They are entered in a raiyati Khata by the settlement authorities which itself raised a presumption to the effect that they were meant either for the residence of a raiyat for facilitating agriculture or else they were unused lands that may be used for growing vegetables or other crops. The mere fact that the plots lie in the middle of a basti will not make them non-agricultural so long as they are capable of being used for the aforesaid purposes. Moreover the defendant himself admitted that he was using a portion of the plot as his cattle-shed which' shows that the plot is used for a purpose subservient to agriculture. In this state of the evidence it seems unnecessary to remand the case with a view to enable the parties to adduce further evidence to prove the nature of the land. That the land is capable of producing vegetables seems to be clear because it was elicited during the cross-examination of' the plaintiffs that the defendant has been growing vegetables by fencing it all round.
10. I would, therefore, hold that the fact that the disputed property is agricultural land was practically unchallenged in the lower Courts and that consequently the provisions of Schedule 1 (l), O. T. Act, would apply to the transfer of such land notwithstanding any of the provisions of Schedule 4, T. P. Act. The oral purchase of the defendant cannot therefore confer any valid title.
11. Mr. Mohapatra thereupon contended that in view of the frame of the suit for ejectment of a tenant of the termination of his tenancy by a notice to quit, a decree for ejectment of a trespasser cannot be passed. He relied on Seetha Beherani v. A. Jagannath, 9 cut. L. T. 32: (A. I. R. (31) 1944 Pat. 312). That ease is, however, distinguishable on facts from the present case. Here the relief claimed by the plaintiffs was for confirmation of their title and recovery of possession after declaring that the defendant had no title to the same. Doubtless there was a consequential prayer for arrears of rent on the ground that the defendant was a monthly tenant in possession of the house from the previous owner, namely, Rukuni Bewa. But the plaintiffs had no personal knowledge of this tenancy. When, they purchased the land from Rukuni Bewa they found the defendant in possession of the same and seem to have inferred the existence of the relationship of landlord and tenant between Rukuni and the defendant. The plaintiffs might have failed to show that the defendant was a monthly tenant from the time of Rukuni Bewa but if they could prove their title they are still entitled to a decree for ejectment because their suit was, in essence, a suit for declaration of title and recovery of possession. In cases of this type the main point to consider is whether any prejudice was caused to the defendant. As pointed out by Banarji J. in the Full Bench of the Allahabad High Court reported in Balmakund V. Dalu, 25 ALL. 498: (1903 A. W. N. 112 F. B):
'If a Court sees that the plaintiff is entitled to the relief which he claims, although on grounds other than those put lorward in his claim, the Court should grant that relief, if the defendants were not thereby taken by surprise. This is not a case in which the defendant was, or could be, taken by surprise if the question of the title set up by the plaintiff in his plaint was determined. The claim for the ejectment of the defendant from the cattle-shed in question was baaed upon two grounds -(1) that the plaintiff was the owner of it that the defendant had no title to it, and that he had wrongly withheld possession from the plaintiff; and (2) that the defendant had been the plaintiff's tenant and the tenancy had been determined by notice. If the plaintiff could succeed in proving either of the two grounds set up by him he would be entitled to a decree for ejectment; but his failure to prove the second ground would not preclude him from asking the Court to try the other ground put forward in the plaint.'
These observations apply with full force to the present case. One of the issues raised was issue No. 2 which runs as follow:
'Assuming plaintiffs' Kabala bona fide and for consideration can it prevail over the oral sale of the defendant?'
This issue is a clear issue on the question of the relative strength of the title claimed by the real parties and it has nothing to do with the question of tenancy. Both parties led evidence to prove their respective title and no prejudice was caused to the defendant nor was he taken by surprise. I think the plaintiffs are clearly entitled to a decree for ejectment of the defendant as a trespasser even though' the relationship of landlord and tenant might not have been established.
12. For the aforesaid reasons I would set aside the judgment of the lower appellate Court and restore the judgment and decree of the Munsif with cost,
13. I agree entirely with my learned brother on the various points dealt with in his judgment.
14. As a matter of construction of Schedule 1 (1), O. T. Act, it appears to me to be quite clear that an unregistered private sale of agricultural land is ineffective to pass title irrespective of the value thereof. If the section had merely said that 'every sale etc, shall be registered' it might have been possible to contend that registration is superimposed on a sale, whose validity must depend on other legal provisions-and that non-compliance with registration, while it may have been so superimposed to provide for ipso facto notice to the landlord, does not vitiate the sale itself, if otherwise valid. The section, however, says that 'transfer by sale shall be made by registered instrument'. This language is similar to that in Schedule 4, T. P. Act which in respect of property of the value of rupees one hundred and upwards says 'that the 'transfer can be made only by a registered instrument.' I have, therefore, no doubt that the effect of Schedule 1 (l), O. T. Act, as of Section 51, T. P. Act, is to invalidate the transfer which offends against it.
15. It does appear rather anomalous that while non-agricultural property of value less than rupees one hundred can be transferred without a registered instrument, occupancy holding in Orissa of whatever insignificant value can be transferred only by a registered instrument. This apparent anomaly is, however, intelligible with reference to the conditions,-prevailing at the time when this Schedule 1 (I) was introduced with the O. T. Act by way of an amendment by Act VIII  of 1938. By the same amending Act, the occupancy holding of a raiyat which was hitherto non-transferable except by consent of landlord was made statutorily transferable and the tenant was relieved of the liability to pay heavy mutation fee which was usually 25 per cent, of the sale consideration to the land lord to obtain his consent (Section 30-A, O. T. Act) The incurring of some expense for stamp and registration by the raiyat was a comparatively light burden and was probably required for the purposes of providing a dependable machinery for the information of the landlord. It would be defeating the intention of the legislature to construe the provision as merely directory and not mandatory.
16. In the result, I agree with the order proposed by my learned brother.