D.M. Bhandari, J.
1. This is a Civil Second Appeal in a suit under Order 21, Rule 63 C.P.C. filed by the decree-holders (sic) Govind Singh and Nahar Singh and Bhagwat Singh, sons of Ugrasingh, who was the Jagirdar of Thikana Agria in Jensu Amet. Moti Lal and Kesrimal (Defendants Nos. 1 and 2) had a decree against Shri Ugrasinghji, the amount of which had accumulated to the tune of Rs. 24,080/-/- in the year 1950. They put their decree in execution and attached disputed lands described in the list attached to the plaint. Thereupon, the plaintiffs filed an objection under Order 21, Rule 58 C.P.C. which was dismissed on the 19th of April 1955. The plaintiffs then brought the suit for declaration that the disputed land belonged to them on the 19th of way 1955 in the Court of the Civil Judge, Udaipur. The plaintiffs based their claim on two pattas both dated Kartik Badi 9, Sambat 2005 corresponding to the 26th of October 1948.
These pattas are Exhibits 11 and 12 on the record and that both the documents are unregistered. Under Ex. 11 Bapadari rights in the land measuring 170 Bighas 6 Biswas were granted to Bhagwat Singh (Plaintiff No. 3) in payment of Rs. 401/-/- while under Ex. 12 Bapadari rights in the land 169 Bighas 8 Biswas were granted in favour of Mst. Ranawatji, the second wife of the said Jagirdar in consideration of Rs. 301/-/-. it may be mentioned that all the plaintiffs are the sons of Chhoti Ranawatiji who died sometime after the grant of the said patta. The plaintiffs stated in the plaint that though both the pattas were unregistered, yet by application of the doctrine of part performance as enunciated in Section 53A of the Transfer or Property Act, they had acquired right, title and interest in the said land as mentioned in the said pattas.
2. The decree-holders contested the suit and denied that any patta was granted by Shri Ugrasinghji either to Shri Bhagwatsinghji or to Chhoti Ranawatiji. The suit was also contested on the ground that the aforesaid pattas were made in order to defeat and defraud the creditors by the said judgment-debtor. The trial Court held that the plaintiffs could take advantage of Section 53A of the Transfer of Property Act but as in this case, the pattas were granted to defeat and defraud the creditors, the suit could not be decreed. With this finding the suit was dismissed. The plaintiffs filed an appeal before the District Judge, Udaipur. The learned District Judge took the view that because of me provisions of Sections 13 and 37 of the Rajasthan Tenancy Act, 1955, the lands were not liable to be sold in execution of the decree. He also held that the pattas granted were bonafide transfers with consideration. He decreed the suit. He, however, did not decide the question whether the pattas were required to be registered or not and whether the plaintiffs were entitled to take advantage of Section 53A of the Transfer of Property Act. The decree-holders have come in the Second Appeal to this Court. During the pendency cf the appeal, Ugrasingh died and his legal representatives have been brought on record.
3. It is urged on behalf of the appellants that we aforesaid two pattas (Exhibits 11 and 12) were executed en the 27th of September 1948 after the coming into force of the United State of Rajasthan Ordinance No. 1 of 1948 (hereinafter called 'the Ordinance'). The Ordinance applied to the whole of the United State of Rajasthsn, the provisions of the Indian Registration Act with such adaptations as are mentioned in the schedule and under Section 17 of the Indian Registration Act, the pattas should have been registered.
In my opinion, this contention is sound as under Section 17(1)(b) of the Indian Registration Act, the documents which transfer any right, title or interest of the Value of Rs. 100/-/- or upwards and immovable are to be registered. In this case consideration for each of these two documents was more than Rs. 100/-/-. Certain rights in the land called 'Bapadari' rights were transferred by these two documents. Both of these pattas ought to have been registered.
4. It is, however, urged on behalf of the plaintiffs that as they had paid the consideration for the pattas, under Section 53A of the Transfer of Property Act, they could protect their rights over the land in dispute against the attaching decreeholder who must be taken to be the legal representative of the judgment-debtor.
5. In English law, the principle of part performance is available to either party to the suit but their Lordships of the Privy Council in Ariff v. Jadunath, AIR 1931 PC 79 discountenanced the adoption of English Law by Indian Courts on this point by pointing out that the statutory law in India could not be so modified. This led to the enactment of Section 53A of the Transfer of Property Act. This section clearly lays down that the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession. To my mind, the language is clear and must be construed as debarring any person coming to a Court of law from enforcing any right against the transferee. This section does not give any right to the transferee.
This view of law has been taken in a number of cases wherein it has been observed that the doctrine of part performance as embodied in Section 53A is available only to the defendant. In some cases, however, the view taken is that a suit under Order 21, Rule 63 or Order 21, Rule 103 C.P.C. filed by claimant is really protecting his right in the property which is transferred to him by the judgment debtor and as such even though such a claimant is the plaintiff he is entitled to the benefit of Section 53A of the Transfer of Property Act. In Ewaz Ali v. Mst. Firdous Jehan, AIR 1944 Oudh 212, it was held that--
'Where by the nature of tile case, as disclosed by the pleadings or otherwise, it is apparent that the transieree comes to Court to defend his possession against the invasion of it by the transferor he is entitled to invoke the aid of the equitable doctrine therein embodied.'
It was further laid down that the suit under Order 21, Rule 103 C.P.C. is for protecting possession and the capacity in which the plaintiff comes to the Court in such a case is in reality one of defence and the plaintiff can take advantage of Section 53A. In Gulab Chand v. Madholal, AIR 1953 Ajmer 47, it was pointed out that a suit under Order 21, Rule 63 C.P.C. should be deemed to be a defensive proceeding in continuation of the proceeding under Order 21, Rule 58 C.P.C. and the plaintiff in such a suit can invoke the aid of Section 53A. In Achayya v. Venkata Subba Rao, AIR 1957 Andh Pra 854 Subha Rao, C. J. as he then was, observed, as follows:
'The section does not either expressly or by necessary implication indicate that the rights conferred on the transferee thereunder can only be invoked as a defendant and not as a plaintiff. Under the terms of the section the transferor is debarred from enforcing against the transferee only rights in respect of the property and this bar does not depend upon the array of the parties. The transferee can resist any attempt on the part of the transferor to enforce his rights in respect of the property whatever position he may occupy in the field of litigation. In one sense, it is a statutory recognition of the defensive equity. It enables the transferee to use it as a shield against any attempt on the part of the transferor to enforce his rights against the property.
Whore the transferee occupies ths position of a plaintiff or a defendant, he can resist the transferor's claim against the property. Conversely, whether the transferor is the plaintiff or the defendant, he cannot enforce his rights in respect of the property against the transferee. The utility of the section or the rights conferred thereunder should not be made to depend on the mandeuvering for positions in a Court of law, otherwise a powerful transferor can always defeat the salutary provisions of the section by dispossessing the transferee by force and compelling him to go to a Court as a plaintiff. Doubtless, the right conveyed under the section can be relied upon only as a shield and not as a sword but the protection is available to the transferee both as a plaintiff and as a defendant so lone as he uses it as a shield.'
6. Contrary to these decisions is the Division Bench judgment of the Orissa High Court in Padmalabha Panda v. Appalanarasamma, AIR 1952 Orissa 143. The Bench consisted of Ray, C. J. and Jagannadhadas, J. It was pointed out by the learned Chief Justice that--
'Every action, more or less, presupposes some sort of invasion or interference with the plaintiff's right and every suit of a plaintiff, therefore, can be said to be defensive. To accede to this contention would amount to a misuse of the statute by extending its application to cases outside its ambits.'
Their Lordships refused to construe this section in such a manner as to give advantage cf it to a plaintiff in a suit under Order 21 Rule 63 C.P.C. Their lordships further pointes out that the attaching creditor cannot be said to be the legal representative of the judgment-debtor. Leaving this aspect of the matter apart, I am of the view that on the construction of Section 53A the view taken by the Orissa High Court is sound. One has to slretch the plain meaning of the section in order to uphold ths view that a particular plaintiff is really defending his right to the property as against the transferor. It cannot be denied that if without filing an objection under Order 21 Rule 58 C.P.C. the transferee comes in a Court of law to seek a declaration of the title to his property, he cannot take advantage of Section 53A, is the position in any way different if he happens to file an objection under Order 21, Rule 58 C.P.C. and that objection is dismissed
Essentially in both the cases the transferee is seeking to get a decision of his rights in the property and it is a matter of no consequence if he comes after filing an objection petition under Order 21, Rule 58 CPC. Nor are the provisions of Section 53A to be construed differently in these two cases. Whatever be the nature of the cause of action, Section 53A is applicable only when the defendant seeks to debar the transferor from enforcing his right against the transferee in the property which he has transferred with consideration and has parted with possession but has not executed a registered document. In this view of the matter, I am of the opinion that the plaintiffs in this case cannot be granted advantage of Section 53A of the Transfer of Property Act.
7. The plaintiffs have claimed title in the lands on the basis of the pattas Exhibits 11 and 12, Their suit for declaration must fail as these two pattas are unregistered.
8. It has been urged that the plaintiffs have acquired khatedari rights in the land in dispute. This point has not been specifically raised in the plaint and it cannot be heard for the first time in the Second Appeal.
9. It is also urged that even if the property belonged to Shri Ugrasingh, now that he is dead, the lands vested in the plaintiffs and they cannot be attached under Section 37 of the Rajasthan Tenancy Act. This objection can properly be raised by the plaintiffs as judgment debtors under Section 47 C.P.C. The lower appellate Court should not have decided this point, in an appeal in a suit filed under Order 21, Rule 63 C.P.C. This point is left open and the executing Court may decide this point if it thinks proper as and when an objection is filed by the plaintiffs as judgment-debtors,
10 In this view of the matter, the appeal is allowed and the judgment and decree of the District Judge, Udaipur dated 18th of July 1957 are set aside and the plaintiffs' suit is dismissed with costs in all the three Courts.
11. Counsel for the respondent prays for leave to appeal to a Division Bench. This prayer is refused.