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Hemeswar Barua Vs. Poal Chandra Bora and anr. - Court Judgment

LegalCrystal Citation
Subject Property; Civil
CourtKolkata
Decided On
Reported inAIR1928Cal754
AppellantHemeswar Barua
RespondentPoal Chandra Bora and anr.
Cases ReferredPuchha Lal v. Kunj Behari Lal
Excerpt:
- .....being rs. 80 in the one and rs. 20 in the other.2. defendant 1 says that he bought the suit land in april 1918 from two vendors of the plaintiff and a third dafla named hari for rs. 180. but the sale-deed is unregistered. he has, however, possessed the land and paid government revenue for it ever since his purchase.3. the daflas left the village, at about the time of the sale to defendant 1. the court of first instance found that defendant 1 was in possession by virtue of his purchase and that the plaintiff was aware of the sale to him and of his possession at the time when he bought the land. the plaintiff paid a very low price and registered the two kobalas unnecessarily because he knew of defendant 1's purchase and wanted to defraud him.4. both the courts below have found.....
Judgment:

Garlick, J.

1. The plaintiff-appellant bought the suit land by two separate kobalas from Mt. Abari Defalani, defendant 2, of Suit No. 739, and from Taran Dafla defendant 2, of Suit No. 752 in April 1923. But defendant 1 prevented him from taking possession of the land saying that he had bought it from the Daflas some years earlier. So the plaintiff filed two suits for declaration of title and delivery of possession. His kobalas are registered kobalas although they did not require registration, the consideration being Rs. 80 in the one and Rs. 20 in the other.

2. Defendant 1 says that he bought the suit land in April 1918 from two vendors of the plaintiff and a third Dafla named Hari for Rs. 180. But the sale-deed is unregistered. He has, however, possessed the land and paid Government revenue for it ever since his purchase.

3. The Daflas left the village, at about the time of the sale to defendant 1. The Court of first instance found that defendant 1 was in possession by virtue of his purchase and that the plaintiff was aware of the sale to him and of his possession at the time when he bought the land. The plaintiff paid a very low price and registered the two kobalas unnecessarily because he knew of defendant 1's purchase and wanted to defraud him.

4. Both the Courts below have found that though the unregistered kobala of defendant 1 ought to have been registered it is admissible in evidence to prove the agreement to sell; and that that agreement having been part performed by defendant 1 is enforcible as if there had been a complete sale. The plaintiff's two suits have, therefore, been dismissed and he has filed these two appeals. The grounds of the appeals are first that an unregistered kobala with a consideration of Rs. 180 was not admissible in evidence, second that without that document there was no foundation for the doctrine of part performance, and third that the doctrine of part performance does not apply because a suit for specific performance of the contract was time barred.

5. In the present case a suit for specific performance of the unregistered kobala was not time barred at the date of the plaintiff's suit for though the unregistered kobala was executed in April 1918 there is nothing to indicate that the defendants had refused to register it. The cause of action for a suit for specific performance of the contract for sale would date from the time when defendant 1 became aware that his vendors had sold the land to the plaintiff. The second sale was in April 1923 and this suit was instituted in 1924, A suit for specific performance of the defendants' kobala was not, therefore, time barred when the plaintiff instituted the present suit.

6. It is argued that Section 49, Registration Act, prevents an unregistered kobala, which ought to be registered from being received as evidence of any transaction affecting the land and that it cannot, therefore, be sued as a basis for the doctrine of part performance. The ruling reported in Sanjih Chandra Sayal v. Santosh Kumar Lahiri A.I.R. 1922 Cal. 436 was cited in support of this contention.

7. In the face of Sections 17 and 49, Registration Act, and the ruling just cited it is difficult to say that this unregistered document was rightly admitted in evidence. But it has often been held that a sale-deed which is not admissible as a proof of title to land is nevertheless admissible for some collateral purpose; and in some cases it has been held that such a document is admissible to prove the existence of an agreement for sale for the purpose of applying the doctrine of part performance. In the present case there is also parol evidence of an agreement for sale. And this evidence is reinforced by the fact that the defendants were in possession of the land and were paying Government revenue for it. Their possession of the land and payment of revenue can only be accounted for by the fact that they had bought the land. Therefore, even without using this unregistered document there is evidence which can be relied on to show that there was an agreement for sale and that they took possession of the land in consequence of that agreement. In a ruling reported in Puchha Lal v. Kunj Behari Lal [1913] 18 C.W.N. 445 a similar unregistered document was admitted as evidence of the existence of an agreement for sale and was used as a foundation for the doctrine of part performance. We are of opinion, therefore, that the lower Courts committed no illegality in making use of this document.

8. It has been found that defendant 1 actually paid the consideration agreed upon and took possession of the land in consequence of that payment. His part of the contract was performed. And equity requires that the vendors part of the contract should also be performed. By virtue of the doctrine of part performance the agreement to sell the land to the defendants coupled with the payment of consideration money and delivery of possession was equivalent to a completed sale. The plaintiff, therefore, acquired no title by his subsequent purchase from the same vendors. The lower Courts have held that he was not a bona fide purchaser without notice of the sale but that he was aware both of the sale and of the defendant's possession of the land land that he bought the land at a low price for that reason. Both the appeals are dismissed with costs.

Mullick, J.

9. I agree.


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