1. Before deciding the appeal we must ask the District Judge to return findings--as to whether there was in fact a sale to the 2nd. defendant,--and if so, whether the plaintiff, when he took his sale-deed, had notice of the prior sale to the 2nd defendant.
2. The findings should be returned by the 81st July 1908 when seven days will be allowed for filing objections. In compliance with the above order the District Judge of South Arcot submitted the following
3. I have been directed by the High Court to return findings on the following two questions:
(a) Whether there was in fact a sale to the 2nd defendant?
(b) If there was such a sale, whether plaintiff, when he took his sale-deed, had notice of that sale?
4. Appellant's pleader objects that in the lower Court there was no issue as to whether plaintiff had notice of the sale to 2nd defendant, and that, therefore, the High Court should have allowed additional evidence to be taken. In my opinion the objection is not well-founded. The first issue framed by the District Munsif raises the questions whether 1st defendant sold to 2nd defendant on 30th July 1900, and whether the sale was a valid one. There could have been no sale to 2nd defendant unless 2nd defendant was put in possession of the land; and if 2nd defendant was in possession when 1st defendant sold to plaintiff then plaintiff must be presumed to have had notice of the sale to 2nd defendant for possession is strong evidence of notice. Plaintiff could have asked the District Munsif to frame an issue as to whether he had notice of the sale to 2nd defendant. As he did not ask for such an issue and allowed the case to be decided practically on the 1st issue framed by the District Munsif, I do not think that his present objection should be allowed.
5. Was there a. sale by 1st defendant to 2nd defendant? It is certain that no title was conveyed to 2nd defendant by the unregistered sale-deed, Exhibit I. In the case of immovable property of a value less than Rs. 100 title may be transferred by delivery of the property. Now there is no evidence that on 31st July 1900, 1st defendant placed 2nd defendant or his agent in possession of the property. First defendant, as plaintiff's witness No. 1, denies that he placed the site in the possession of 2nd defendant; and in cross-examination he said 'after I sold the site to him (i, e. to plaintiff,) the 2nd defendant stocked hay.' I must observe that in the last line of page 12 of the printed paper the words 'the defendant' should be altered into 'him.' Neither 2nd defendant nor any of his witnesses says that 1st. defendant put 2nd defendant in possession of the site. Second defendant says, it is true, that from the date of Exhibit 1, he has been in possession of the site, but it is difficult to believe him, for if he was put in possession why did he think it necessary to ask 1st defendant for a registered sale-deed? In Sibendrapada Banerjee v. Secretary of State for India in Council 34 C. 207; 5 C.L.J. 390; Mookerjee and Holmwood, JJ. remarked that the language of Section 54 of the Transfer of Property Act is clear, that it speaks of a delivery by transfer of the property, and that delivery is the essence of the transaction. They referred to the judgment of Trevelyam, J., in Gunga Narain Gope v. Kali Churn Goala 22 C.179 and remarked: 'if on the date of the sale the vendee gets into possession with the assent, express or implied, of the vendor, it may be held that there has been delivery of the property.' In the present case the evidence that 2nd defendant has been in possession of the site since the date of Exhibit 1, is vague and unsatisfactory. I am not prepared to believe the evidence. In my opinion 2nd defendant has failed to prove that 1st defendant put him in possession of the site in dispute. My finding, therefore, is that there was not a sale by 1st defendant to 2nd defendant.
6. Accepting the finding we dismiss the second appeal with costs.