1. This second appeal is preferred by the plaintiff who claims as against the defendants a declaration of title in regard to, and possession of, certain lands alleged to have been sold to him by the predecessor in interest of the defendants by a registered kibala dated the 22nd Baisakh 1312.
2. It appears that the price agreed upon was Rs. 45. At the time the deed was registered, the plaintiff paid Rs. 39. The deed after registration was taken by the predecessor of the defendants who has since died. It is stated in the plaint that there was an understanding between the plaintiff and the predecessor of the defendants that the deed should be delivered to the plaintiff on payment, to the predecessor of the defendants of Rs. 6 the balance of the purchase -money. The deed relates to two plots of land and the defendants plead that one of the plots has been fraudulently inserted in the kabala without the knowledge of the executant. As to the other plot they state in their written statement that there is no dispute. The plaintiff offered to pay the balance of the purchase-money to the predecessor of the defendants who refused to accept it and deliver the deed to the plaintiff.
3. In the Court of first instance, the case went to trial on the following issues: 1. Has the plaintiff cause of action for this suit? 2. Is the kabala relied on by the plaintiff a void document on account of fraud as well as for want of consideration? 3. To what relief or reliefs, if any, is the plaintiff entitled?' With reference to the first two issues, the principal question discussed in the judgment of the learned Munsif is whether or not the kabala was vitiated by fraud. This question he answered in the negative and gave the plaintiff a decree.
4. When the case came on appeal before the Court below, it was contended that the Munsif's findings were wrong and that the plaintiff was not entitled to the reliefs sought. The Subordinate Judge held that the sale had not been completed that the plaintiff was not in the circumstances entitled to bring a suit for a declaration of his right to the land and for possession and that his proper remedy was a suit for specific performance of the contract of sale. He, therefore, allowed the appeal and dismissed the suit.
5. In my opinion the first and third of the issues framed are wide enough to cover the ground on which the learned Subordinate Judge proceeded. As he indicates towards the end of his judgment, though the defendants may have relied principally on their allegations of fraud, they made a specific allegation in regard to one of the properties, which the learned Munsif dealing with the case on the basis of the habala did not consider or did not fully consider. On the pleadings, I think it was open to the Subordinate Judge to decide the case as he did. The fact that the defendants admitted that there was no dispute as to one of the properties is immaterial because the plaintiff's claim must be dealt with as a whole.
6. It is urged that the learned Subordinate Judge was wrong in thinking that the sale was incomplete. Reference has been made to the case of Ponnaya Goundan v. Muttu Goundan 17 M. 146 and of Sheo Naradn Singh v. Darbari Mdhton 2 C.W.N. 207. On the strength of these authorities it was argued that the mere registration of a sale-deed without delivery of the deed to the vendee was, or rather might be, sufficient to pass the property in land sold and that the onus of proving that the property had not passed was on the vendor.
7. It is clear from the second of the two cases cited that the mere registration of a deed of sale does not necessarily pass the title if the parties intend that no title shall pass upon registration till the consideration-money has been paid in full and the deed delivered to the vendee See also Mauladan v. Rughunandan Pershad Singh 27 C. 7. The question, therefore, which arises'' is whether the learned Subordinate Judge had sufficient grounds for thinking that the intention of the parties in the present case was that the title to the land sold should not be transferred till the balance of the purchase-money was paid and the deed was handed to the plaintiff. This is a question of fact and I need only say that we have the statement in the plaint to which I have already referred, and have, moreover, the conduct of the parties. It is clear that what happened was that the deed was registered and then taken back by the vendor without objection by the vendee, the plaintiff.
8. I am unable to say in the circumstances that there is no evidence justifying the learned Subordinate Judge in arriving at the conclusion to which he came. I might go further and say that I see no reason for differing from that conclusion. In my opinion, therefore, the ground of appeal, on which the appeal is mainly based, fails. A suit originally instituted as suit for a declaratory decree and consequential relief by way of possession cannot be turned into a suit for specific performance of a contract, this would be to alter the character of the suit and might prejudice the defendants in their defence.
9. In the view I take, this appeal must be dismissed with costs.