K.S. Venkataraman, J.
1. This is an appeal against an order of remand. Defendants 1 and 2 are the appellants. They are brothers. The second defendant purchased the property in question, a small house site of 2 cents, from the owner, the third defendant, under a registered sale deed, Exhibit B-1 dated 20th February, 1956, for a sum of Rs. 80. The Plaintiff brought the suit for a declaration of her title and possession, claiming under a sale deed from the same third defendant Exhibit A-1, dated 21st September, 1957, for Rs. 100. Though that sale deed is after Exhibit B-1, the case of the plaintiff is that as early as on 29th June, 1952, under Exhibit A-2, the third defendant sold the property to her for Rs. 100 and put her in possession, but did not get the sale deed registered. The plaintiff alleges that in 1961 the defendants trespassed into the property and hence the suit.
2. The learned District Munsif held that Exhibit A-2, was not genuine. One of the reasons given by him for his conclusion is that in Exhibit B-2, dated 9th July, 1953, a registered mortgage executed by the plaintiff in favour of one Kuppanna Goundar relating to a property adjoining the suit site, the suit site is described as a boundary and as belonging to the third defendant. The learned District Munsif points out that if the plaintiff had been put in possession of the suit site in 1952 itself, though only under an unregistered sale deed, the suit site would not have been described as still belonging to the third defendant. The learned District Munsif found that the plaintiff had not proved possession from 1952. In view of these findings that Exhibit A-2 was not genuine and on the question of possession of the plaintiff from 1952, the learned District Munsif had no difficulty in holding that the sale deed, Exhibit B-1, in favour of defendant 2, would have to prevail over that to the plaintiff.
3. In appeal, however, the learned Additional Subordinate Judge, without giving his findings on the genuineness of Exhibit A-2 and the case of the plaintiff having been in possession from 1952, has observed that it was necessary to frame an issue and record a finding thereon, whether defendants 1 and 2 had knowledge of the sale deed, Exhibit A-2, dated 29th June, 1952, and on this ground he has set aside the judgment and decree of the learned District Munsif and remanded the suit for fresh trial.
4. Sri V. Krishnan, learned Counsel for the respondent-plaintiff, refers to Section 91 of the Trusts Act. It is as follows:
Where a person acquires property with notice that another person has entered into an existing contract affecting that property, of which specific performance could be enforced, the former must hold the property for the benefit of the latter to the extent necessary to give effect to the contract.
Sri T.V. Balakrishnan, learned Counsel for the appellants, concedes that Section 91 will govern the decision of this Case. But it is obvious that in order that Section 91 can be invoked by the plaintiff, it is necessary to prove, first of all, that the unregistered sale deed, Exhibit A-2, is genuine. That question had got to be decided first by the learned Subordinate Judge. If that question was decided against the plaintiff, no further question would arise and the suit would have to be dismissed. It was wrong on the part of the learned judge to have remanded the suit without deciding the question of the genuineness of Exhibit A-2.
5. Assuming that Exhibit A-2 is found to be genuine, the further question would arise whether the defendants had notice of Exhibit A-2 when they took the sale deed, Exhibit B-1. On this point, Sri T.V. Balakrishnan, learned Counsel for the appellants, contends that the plaintiff has not specifically pleaded in her plaint that the defendants had notice of Exhibit A-2 and that therefore it is not open to the plaintiff to raise that question at all. It is true that the plaint does not specifically say that the defendants had notice of Exhibit A-2. But the plaint states as a fact that the plaintiff had been in continuous possession and enjoyment of the property since June, 1952. Under Section 3 of the Transfer of Property Act, the possession of the plaintiff, if true, would be notice to the defendants of the title under which the plaintiff, was in possession from 1952. At the same time, it is clear that the plaintiff cannot seek to affect the defendants with notice of Exhibit A-2 except by proving the alleged possession of the plaintiff from 1952, because that is the only averment in the plaint relevant on the question of notice to the defendants. When the plaintiff filed her suit, she must have been aware that her sale deed. Exhibit A-1, was later in point of time than the sale deed, Exhibit B-1, and that the only way the plaintiff could displace Exhibit B-1 was by relying on Exhibit A-2 and the notice thereof to the defendants. The only averment made on the question of notice to the defendants was the possession of the plaintiff from 1952. Hence it is obvious that on the question of notice to the defendants of Exhibit A-2, the only relevant fact which could be proved by the plaintiff is the possession of the plaintiff from 1952. It may be added that the plaintiff was aware of the necessity of proving that the defendants had notice of Exhibit A-2, because a question was put to the first defendant as D.W. 1 in cross examination that the defendants had knowledge of Exhibit A-2.
6. The position therefore is that learned Subordinate Judge was not justified in setting aside the judgment of the learned District Munsif and remanding the suit. See also the decision of this Court on Order 41, Rule 23, Civil Procedure Code, quoted in Chinnan Ambalam v. Ramiah Maniam (1968) 81 L.W. 296, and Achammal v. Kistama Naidu (1968) 81 L.W. 291. The learned Subordinate Judge should have disposed of the appeal with reference to Order 41, Rule 24, Civil Procedure Code. He should frame an additional issue whether the defendants had notice of Exhibit A-2, and in considering that question he could incidentally go into the question of the plaintiff's possession from 1952.
7. The Judgment of the learned Subordinate Judge is accordingly set aside and the appeal--A.S.No. 385 of 1964 is remanded to him for disposal according to law and Order 41, Rule 24, Civil Procedure Code, and in the light of the observations contained in this Judgment. The appellants will get the costs of this appeal from the Respondent-Plaintiff. No leave.