1. The plaintiffs' case was that they, as heirs of their father Bangshiram, were entitled to recover possession from the defendants of certain lands. Defendant 1 is the son of one Chandrakala, who is a daughter of Bangshiram and is defendant 5. Defendant 5 was married to one Golak, who had a brother Neel. Plaintiffs' case was that Golak and Neel were the former owners of the land and that they sold the land to Bangshiram in 1286 B.S. and that they were dispossessed by the defendants (SIC)1334 B.S.
2. The defence was that, under an arrangement between Bangshiram on the one hand and Golak and Neel on the other, the latter two remained in possession in spite of the sale to the former; that, in 1225, Bangshiram sold the land to defendant 5 and the latter thus came into possession after Golak's death. The Courts below have allowed the plaintiffs a decree. They were of opinion that when the land was in the possession of Golak and Neel, and so of defendant 5 at the time of Bangshiram's sale to her, there could be no delivery of possession of it to her; and, as the kabala evidencing the sale was an unregistered one, there was no valid sale. The trial Court held that the possession of the defendants originated in an arrangement with, and so permission from, Bangshiram, and there was no evidence to show that such possession ever became hostile or adverse. The Subordinate Judge held that such possession, though originally permissive, could become adverse to Bangshiram since the sale by the latter to her, but that, in point of fact, defendant 5 had no possession, and that the defendants had failed to prove that they had possessed the land for more than 12 years before suit. He held therefore that the defendants acquired no title by adverse possession. Defendants 1 and 5 have appealed. On the question of validity of the sale, as effected by delivery of possession, the Courts below have relied on Sibendravada Banerjee v. Secy, of State (1907)34 Cal 207, which is an authority for the proposition that, if at the time of the intended sale the vendee is already in possession, there can be no sale by delivery of possession. In the case of Gunga Narain Gope v. Kali Churn Goala (1894) 22 Cal 179, it had been held that, 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 possession. The learned Judges, who decided Silendrapada's case (1907)34 Cal 207, distinguished Gunga Narain Gope's (1894) 22 Cal 179 on the ground that in the case before them the vendee had been in possession from before.
3. They were of opinion that, as delivery is the essence of the transaction, there could be no delivery in the circumstances and so there was no valid sale. They were of opinion that no loose construction should be put upon Section 54, as the consequences of such a construction may be far reaching and injurious in many instances. It is very difficult to agree with all that has been said in Sibendrapada Banerjee s case (1907)34 Cal 207. It has been dissented from in Muthukaruppan Samban v. Muthu Samban AIR 1915 Mad 573 and in Dawood v. Moideen Batcha AIR 1925 Mad 566, and has been very guardedly referred to and not expressly approved in Bhaskar Gopal v. Padman Hira (1916) 40 Bom 313. In Fatik Karikar v. Rajendra Nath (1900) 4 CWN 142n it was held that where the property was in the possession of a usufructuary mortgagee, the process of making over of the property by the mortgagee to the mortgagor and redelivery by the latter to the former was not necessary to bring about a sale in favour of the former under Section 54, T.P. Act, but that it would be enough, if the mortgagee took the property as a purchaser and the mortgagor admitted that from that moment the purchaser held the property as purchaser and not as mortgagee. In Fakira Mahton v. Leakut Hosain AIR 1914 Cal 754, the learned Judges were not inclined to hold that such a strict interpretation of Section 54, as was suggested in Sibendrapada's case (1907)34 Cal 207, was justified.
4. In Sonai Chutia v. Sonaram Chutia (1916) 34 IC 692 no exprest dissent was expressed, but it was said that the sale in that case was valid, as there was in fact a delivery of possession, because the boundaries of the land had been pointed out and everything that was possible to do for such delivery was done; formal possession being delivered and endorsement of satisfaction being made on the mortgage bond, under which the vendee had been holding possession from before as mortgagee. In a later case, namely, Hushmat v. Jamir AIR 1919 Cal 325, both Sibendrapada's case (1907)34 Cal 207 and Fatik Karikar's case (1900) 4 CWN 142n, were referred to, as if the two were not in cOnflict with each other; and Walmsley,J., observed that if of two plots mortgaged to a person one is subsequently sold to him and the said person restores possession of the plot, which is not sold, to the mortgagor and retains possession of the one that is sold, that would be good evidence of delivery of possession. The present case is distinguishable from Sibendrapada''s case (1907)34 Cal 207, in that the defendant 5 was at the date of the sale in permissive possession under an arrangement with Bangshiram. I am not therefore obliged to apply that ruling to this, case. The evidence on the record satisfies me that whatever was necessary and possible in the circumstances to effect a delivery of possession was done. The details spoken to by defendant 5 amply make out that Bangshiram 'made over the land of the kabala to her satisfaction,' and that, after the sale, she made over the rest of the land in her possession to her father.
5. The essence of delivery no doubt is that possession should change but I think it is enough if the character of possession changed; in other words, if the vendor converted by appropriate declarations or acts the previous possession of the vendee, which in this case was permissive possession, into possession as' that of a vendee. I hold therefore that there was sufficient delivery of possession within the meaning of Section 54, T.P. Act. On this finding, for the plaintiff's to succeed, they must show that they have acquired a title by adverse possession. The case has not been looked into from this point of view. This will have to be done now and for this purpose I send it down, so that the lower appellate Court may determine the question of adverse possession and then finally dispose of the appeal before it. The appeal is allowed and the case will be remanded with the aforesaid directions. The costs of this appeal will abide the result of the remand.