S.N. Modi, J.
1. This second appeal by the plaintiffs arises out of a suit for possesetion.
2. The plaintiffs filed a suit alleging that a plot of land belonging to Veerchand Lakhaji, existed towards the south of their house situate at village Nadol. The plaintiffs obtained patta of their house on 15-2-50 from the erstwhile thikan Ganarao as village Nadol was one of the Jagir village of thikana Genarao in the Former State of Marwar. The plaintiffs further alleged that the defendants purchased the plot belonging to Veerchand Lakhiji and thereafter illegally encroached upon the land adjacent to the plaintiff's land measuring 6 1/2' x 12 1/4' marked EFGH in the site-plan Ex. P.2. The plaintiffs therefore prayed for decree for possession of the land marked EFGH in the site-plan Ex. P. 2 The defendants admitted having purchased the plot of land from the successor of Veerchand Likhaji, namely, Himmatmal on 31-1-50 for Rs. 651/-. They further pleaded that the land marked as EFGH in EX. P.2 was part and parcel of the land purchased by them, from Himmat Mal. Some more pleas were ralsed by the detendants which would be clear from the following issues framed by the trial court:
1 vk;k eqnbZ;u dh feydh;r dk ,d dCtk lqnk IykWV ftldh eqnbZ;ku us vius uD'ks es ,-ch-lh-Mh-b-,Q-th-,p-vkbZ- ls cryk;k gS vthZnkos dk fQdjk uEcj 1 es crk;s x;s iMkslh;ks ds chp fLFkr gS A
2 vk;k eqnbZ;u us Hkknok lwn 2]3 dks ok mlds vklikl IykWV ,-ch-lh-Mh-b-,Q-th-,p- es ls b-,Q-th-,p- ekdZM IykWV 6 11 QhV bUVw 12 11 QhV tehu ij uktk;t rkSj ls dCtk dj eqnb;ku dh csn[ky dj fn;k ihj
4 vxj ,slk gS rks D;k tehu ftldks eqnbZ;ku us uD'ks es b-,Q-th-,p- ekdZ ls cukbZ gS] [kqnk;ysfge dks fgEerey ls [kjhn lqnk fgLlk gS Mh
5 vk;k rk- 17&7&61 dks eqn;ysfge us viuh feyfd;r dh dCtk lwn tehu ij eqnb;ku dh ,DokslsUl ls jkaxs [kqnokbZ ftles eqnb;ku vius uD'ks es crkbZ ekdZM+ b-,Q-th-,p- tehu ds fu[cr dksbZ nknjlh ikus ds eqlrbd ugh gS Mh&
6vk;k iujkt dsoyey] eueksgupUn ,oa foeypan us lsljh ifVZt Vwnks lwV gS ftudks Qjhd ugh cukus dh otg ls nkok dkfcys b[kjkt ds gS Mh
7 nknjlh D;k gksxh
The trial court on consideration of the evideace led by the parties decided J issues Nos. 1 to 4 against the plaintiffs and issues Nos. 5 and 6 in favour of the plaintiffs. In the result, the trial court dismissed the suit. On appeal by the plaintiffs, the learned Senior Civil Judge, Sirohi. affirmed the finding of issues Nos. 1, 2, 3 and 4 and dismissed the appeal. Hence this second appeal.
2. I have heard learned counsel for both the parties and gone through the record of the case, The man contention on behalf of the plaintiff appellant is that both the courts below committed gross error in holding the defendants to be the owner of the land in dispute on the basis of the patta Ex. D/2. It may be stated at the outset that no other document of title was produced by the defendants except the patta Ex. D/2 showing dimensions of the land. The patta Ex. D/2 is dated Jeth Badi 3, Smt. 1914 Admittedly, it is a document which is over 30 years old and has been produced from the proper custody provided it refers to the land purchased by the defendants from Himmatmal. Both 'he courts below have presumed the genuineness of the document Ex. D/2 under Section 90 of the Evidence Act. It is urged on behalf of the plaintiff appellants that the document Ex. D/2 being an anonymous document Section 90 is wholly inapplicable and no presumption of genulneness arises under that section In my opinion, this contention is well-founded A bare perusal of the document Ex. D/2 shows that it is unsigned and unattested document. It is also not known in whose handwriting its contents are written Under Section 90 of the Evidence Act, a court may presume that the signature and every other part of such document which purports to be in the handwriting of any particular person is in that person's handwriting, and in the case of document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested Ex. D/2 being an unsigned document i.e. undoubtedly anonymous document and no presumption of its genuineness can be raised under Section 90 of the Evidence Act The learned counsel for the defendants invited my attention to the following words appearing at the end of the document Ex. D/2
'kkg f'kodk.k th yksk lEcr 1 14 jk tsB on 3
From the above words, the learned counsel persuaded me to infer that the document was in the hand writing of Shah Sheo Karanji Lodha. In my opinion, no such inference can be drawn in the present case It is highly improbable for a scribe to use 'ji' for himself at the end of his name. Since the words used are Sheokaranji Lodha, the scribe of this document cannot be Shah Sheokaran.
3. The learned counsel for the respondents has next drawn my attention to the seal affixed on the patta Ex. D/2. It is argued that this seal was of thikana Gaoarao and it can be regarded as signature of the then jagirdar who issued the patta. I find no substance in the above contention. Under the General Glauses Act' the word 'sign' includes mark with reference to a person who is unable to write his name. Section 90 of the Evidence Act makes no provision for any presumption in regard to seals nor can a seal be regarded as a signature under the definition contained in the General Clauses Act. There is also no evidence to show that the then Jagirdar of Ganaro who is said to have issued the patta Ex. D/2 was unable to write his name. The existence of the sea! on the patta Ex. D/2 therefore cannot be regarded as signature of the executant. I am supported in my view by a decision of this Court in 1962 Rajasthan Law Weekly 478.
4. The learned counsel for the respondents has next urged that the discretion exercised by the trial Court and the first appellate court in presuming the genuineness of the paeta Ex. D/2 under Section 90 of the Evidence Act should not be interfered with in this second appeal. It is true that ordinarily the High Court in Second appeal would be slow to interfere with the discretion exercised by the lower courts in the matter of presumption under Section 90 of the Evidence Act, but the discretion allowed by this section is a judicial discretion which has to be exercised on sound legal. principles Since, in the Present case the discretion has been exercised perversely without due consideration of the facts and circumstances of the case, the High Court has in my opinion, the right to interfere with the exercise of such discretion in second appeal. Instances are not lacking when in suitable cases the High Court in second appeal has so interfered with the exercise of discretion raising presumption under Section 90 of the Evidence Act by the courts below.
5. The learned counsel for the respondents then contended that both the courts below have concurrently found that the defendants and their predecessors-in-Interest have been in possession of the disputed land for a very long period. He further urged that in view of this finding, the patta Ex. P. 1 produced by the plaintiffs, which is in the nature of a sale deed and purported to create rights in the immovable property, was compulsorily registerable under Section 54 of the Transfer of Property Act, irrespective of the fact that the value of the immovable property as mentioned in the patta Ex. P. 1 does not exceed Rs 100/-. The learned counsel emphasised that the patta Ex. P. 1 being an unregistered document cannot prove the plainuffs' title to the land in question. The plaintiffs have therefore no locus stand to bring the suit for eviction of the defendants who have been in uninterrupted possession for a very long time. On the other hand, it is contended on behalf of the plaintiffs that the patta Ex. P. 1 is not a sale deed but it is only a sanad evidencing the sale of the land by a thikaha. It therefore did not require registration Reliance is placed on a Division Bench decision of this Court in Bachhraj v. Sundermal and Ors. . In that case, the plaintiff brought a suit against the defendant for possession of the land situate in Khod village in the former State of Marwar and for mesne profits. The plaintiff's case was that he had obtained the patta of the land from the thikana on 20-8-44 for Rs. 401/ and that the defendant was a trespasser thereon. The defendant was a trespasser thereon. The defendant contested the suit and pleaded that the patta was in the nature of a sale-deed and purported to create rights on the immovable property of the value exceeding Rs. 100/- and as such it was compulsorily registerable under Section 17(1)(b) and (c) of the Marwar Registration Act, 1934 and that the patta having not been registered, did not affect the suit property which was comprised in the patta and did not convey any title or interest in favour of the plaintiff Their lordships after consldering the provisions of the Marwar Patta Ordinance, 1921, the practice followed in respect of the pattas issued for transactions in jagir lands and referring to the fact that upto March 1949 the Transfer of Property Act, 1889 was not in force in the former Marwar State, observed:
On giving proper consideration to these facts, we can safely arrive at a conclusion that ordinarily the grant of a patta followed a prior oral sale in a proper proceeding and that pattas used to be issued to reccognise the oral sale in the customary manner by the grant of patta and that the patta merely contalned a recital of a prior completed oral sale In these circumstances, in our opinion, a patta cannot ordinarily be considered a sale-deed or a document by itself creating rights in immovable properties. Such a docment, in our opinion, did not require to be registered compulsorily.
We may at this stage refer to a decision of the former Chief Court reported in Jutha v. Bhoma 1939 Marwar LR 266 (Civil) where a Bench of that Court observed as follows:
The Transfer of Property Act is not in force in Marwar so that the statutory provisions of that Act embodied in Section 54 as to the modes of transfer of property cannot be enforced and an oral sale can be recognised as valid. The patta which is issued by the thikana is not a sale-deed. It is only a sanand evidencing the sale of land by thikana, In case of thikana land sold by public auction according to the principles of the Patta Ordinance as in case of Khalsa land, it is not necessary to execute a registered sale deed in favour of the purchaser.There can be no doubt that the Chief Court had the advantage of having intimate knowledge of the practices relating to the grant of pattas by jagirdars and, therefore, the view taken by the court deserves to be given due weight and we see no good reason to differ from it. We are not unconscious of the fact that in some cases the jagirdar might have combined transaction of sale and the issue of a patta and might have issued a patta which by itself might have purported to create rights it immovable property. Such a patta might require to be registered compulsorily. The final conclusion then to which we reach is that whether a patta should be registered or not, cannot be decided in the facts and circumstances under which the patta was granted. Ordinarily, the presumption will be that the patta was intended to be the sanad evidencing the sale of land by thikana and did not require registration.
6. Bearing in my mind the principles enumerated in the aforesaid case, it may be observed at the outset that in the present case the patta Ex. P. 1 was obtained by the plaintiffs on 15-2-50 whereas in Bachhraj's case (Supra) the patta was obtained on 20-8-44, that is the patta in the oresent case was obtained after coming into fcrce of the Transfer of Property Act & in Bachbraj's cafe (supra) the patta was obtained before coming into force of the Transfer of Property Act. That being the position, there is no doubt that Section 54 of the Transfer of Properly Act was applicable when the patta Ex. P. 1 dated 15-2-50 was issued by the thikana. After coming into force of Section 54 of the Transfer of Property Act, no oral sale could be recognised and held valid. In Bachbraj's case (supra) the patta was treated as sanad on the ground that there was a completed oral sale before the patta was issued, but after coming into force of Section 54 of the Transfer of Property Act, no oral sale could be held to be valid. The patta Ex. P. 1 on the analogy of Bachhraj's case (supra) cannot be treated as a sanad. In this view of the matter, Bachhraj's case is clearly distinguishable and cannot be applied tothe facts of the present case.
7. Section 54 of the Transfer of Property Act gives definition of sale and enumerates the modes by which the sales can be effected. It reads as under:
Section 54. 'Sale' is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.
Such transfer, in the case of tangible immovable property of all value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.
In the case of tangible immovable property, of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.
Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.
A contract for the sale of immovable Property is a contract that settled between the parties.
It does not, of itself, create any interest in or charge on such property.
8. The general principle is that where the law prescribes a mode of transfer, compliance of that mode is necessary before property can pass so as to confer title against the third person. It has been laid down in Radhakishan Laxminarayan Toshniwal v. Shridhar Alshi and Ors. : 1SCR248 :
Wherever the Transfer of Property Act is in force, Mohammedan Law or any other personal law is inapplicable to transfers and no title passes except in accordance with that Act.
A bare reading of Section 54 would show that in cases of sale where the subject matter of sale is valued at less than rupees one hundred, the sale can be effected either by a registered instrument or by delivery of the properly. In the absence of the registered document, the proof regarding completion of sale where the subject matter is valued at less then rupees one hundred can only be obtained by actual delivery of property In such a case, the purpose of showing the terms of he contract agreed between the parties and not in proof of showing title to the land. In the present case, both the courts below have held that the plaintiffs have failed in proving actual delivery of the possession of the property sold. In the circumstances Ex. P. 1 being unregistered cannot confer any title in favour of the plaintiffs in respect of the land in dispute.
9. The learned counsel for the plaintiff appellants took me through the contents of Ex. P. 1 to show that it was issued on the basis of the old patta of the Smt. year 1921, Baisakh Badi 7 Hi. argument is that Ex. P. 1 was merely a renewal of the old patta and if the defendants had taken the plea in their written statement that the patta Ex. P. 1 being unregistered did not confer any title to the plaintiffs in respect of the land in dispute they would have produced the old patta of the Smt. year 1921, Baisakh Badl 7. It is further urged that had that patta been produced, it would have thrown light on the title as it was issued before the coming into force of the Transfer of Property Act. The learned coursel therefore prayed that in all fairness to the plaintiffs, an opportunity should be given to them to produce the patta dated Baisakh Badi 7, Smt. 1921 and lead evidence to prove the same Similarly, it is contended on behalf of the defendants that because the courts below erroneously raised presumption under Section 90 of the Evidence Act, they did not produce evidence in proof of the patta Ex. D. 2 as also to show that it related to the disputed land. The learned counsel for the defendants, in the circumstances, submits that an opportunity should be afforded to them to prove the patta Ex. D/2 as also the fact that it related to the land purchased from Himmat Mal. In my opinion, the contentions of both the parties deserves to be accepted The plaintiffs should be given an opportunity to produce and prove their old patta of the Smt. year 1921, Baisakh Badi 7 and similarly, the defendants should be afforded an opportunity to prove the genuineness of their patta Ex. D/2 and also that it relates to the land in dispute.
10. In the result, I remit the case to the learned Additional District Judge, Sirohi, with the direction that the plaintiffs shall be afforded an opportunity to produce their old patta of the Smt. year 1921, Baisakh Badi 7 and lead evidence to prove the same. The defendants shall then be given an opportunity to produce evidence in rebuttal Therefore the defendants shall produce their evidence to prove the patta Ex. D/2 and the fact that it relates to the land in question. Having done so, the plaintiffs shall be given an opportunity to rebut that evidence. The learned Additional District Judge after recording the evidence of the parties as indicated above, shall remit the evidence to this court together with his findings within three months The parties are directed to appear before the learned Additional District Judge, Sirohi, on 1-9-75. The record of the case shall be sent to the Additional District Judge as soon as possible. In any case, it must reach the Court of the Additional District Judge before 1-9-1976.