Decided on July 31,1979



M. K. SHAH - (1.) The original plaintiff whose suit for a permanent injunction and in the alternative for possession of the agricultural land bearing survey number 215 (paiki) admeasuring 14 acres situated in the sim of village Iploda taluka Meghraj district Sabarkantha against the respondents-defendants was dismissed by the court of the Civil Judge (Senior Division) Himatnagar by an order dated 18th July 1972 passed in special civil suit No. 11 of 1970 has preferred the present appeal.
(2.) The only question therofore which requires to be considered is as to whether the defendants have become the owners of the suit land having purchased the same for a consideration of Rs. 1 800 as alleged by them and as accepted by the trial court. There is no dispute that the alleged transfer is in respect of immovable property of the value of more than Rs 100/- and as provided by sec. 54 of the Transfer of Property Act such a transfer in case of tangible immovable property of a value of one hundred rupees and upwards or in the case of a reversion or other intangible thing can be made only by a registered instrument. It is not the defendants case that in the instant case the transfer was made by any registered instrument. The defendants case is full of shifts and changes in this behalf. At one stage they stated that there was oral transfer. At another stage they stated that a writing was executed by the plaintiff in the summer of 1960 when an amount of Rs. 1 0 was paid by the plaint- iff to the defendants. But the plaintiff took away that writing under the pretext of getting his sons signature thereon and that the writing was thereafter never returned. If the writing required the signature of his son then it would have been an incomplete writing. Even if it was a complete writing then also it would not be admissible in evidence by virtue of the bar contained in sec. 49 of the Registration Act. Sec. 49 so far as relevant for our purpose reads thus : "49 No document required by sec. 17 or by any provision of the Transfer of Property Act 1882 to be registered shall (a) effect any immovable property comprised therein: or (b) x x x x x x x (d) be received as evidence of any transaction affecting such property or conferring such power unless it has been registered " In view of this specific provision it is difficult to understand how the learned Judge permitted evidence with regard to the contents of this document as secondary evidence when the document itself was not admissible assuming for the sake of argument that it was a complete document. It appears that the learned Judge in his judgment from the deposition of some witnesses observed that the writing was executed and was suppres- sed by the plaintiff. The learned Judge has observed : " As the plaintiff did not produce the writing after notice was given to him the defendants were entitled to give secondary evidence of the document and it is proved by the depositions of the abovestated witnesses that the plaintiff Sold the land for- Rs. 1 800 to the defendants". In my opinion the learned Judge has completely missed the significance of legal provisions contained in sec. 54 of the Transfer of Property Act read with sec. 49 of the Registration Act with regard to transfer of an immovable property. The learned Judge in the very passage even goes to the length of observing that there was sale by oral agreement. The law is very clear on the point and it cannot be gainsaid that there cannot be any oral sale in respect of an immovable property of the value of Rs. 100 or more much less the sales by an unregistered document. There is therefore no substance in the defendants case that they become the owners of this property by virtue of the plaintiff having transferred the same for a consideration of Rs. 1 800 As earlier observed no such transfer can be effected in the first instance by virtue of the bar contained in sec. 43 of the Tenancy Act because the plaintiff himself had become the deemed purchaser of the property under sec. 32 of the Tenancy Act and he being the owner of the property in that sense that means in the sense of being a deemed purchaser he is debarred from transferring any land or interest in land without following the mandatory procedure prescribed in sec. 43 of the Tenancy Act which admittedly in the instant case has pot been followed
(3.) It was lastly argued by Mr. Upadhyaya that the defendants by virtue of the fact that they are in possession of the properly and that by virtue of the fact that they have purchased the property for Rs. 1800 would be entitled to defend their possession by virtue of sec. 53-A of the Transfer of Property Act. I am unable to accept this contention. Sec. 53-A of the Transfer of Property Act in the first instance requires the contract to transferer for consideration an immovable property by a writing. It then requires that the transferee in part performance of the contract has taken possession of the property or any part thereof or the transferee being already in possession continues in possession in part performance of the contract and has done some act in furtherance of the contract and lastly it requires that he has performed and/or is willing to perform his part of the contract. Now in the instant case there is no agreement or contract in writing between the parties with regard to any such transfer for consideration of the suit land by a writing signed by the plaintiff or on his behalf. Unless the contract is required into writing the first ingredient of the section does not get satisfied and the second step cannot be taken. Again there is also nothing to show that the defendants had taken posse- ssion of the property in part performance of the contract. They were put in possession by virtue of the Nokarnama Ex. 161 which is not in part performance of any contract of transfer nor can it be said that they were continued in possession in part performance of a contract of transfer. The evidence shows that when the plaintiff found that the defendants were trying to create rights in their favour and they had got their names entered in the revenue record the plaintiff became vigilant and he got his name entered. The evidence through which I have been taken does not in my opinion establish that any such writing as is alleged was executed. There was no basis or justification for permitting any secondary evidence of any such writing. The existence of the writing therefore is not established and sec. 53-A therefore cannot be pressed into service by the defendants to defend their possession. In this view of the matter it will have to be held that the defendants were put into possession by virtue of the Nokarnama Ex. 151 on 27th June 1959 and that by that writing they were allowed to he on the land because they were engaged for remuneration to do agricultural work on the plaintiffs field. No tenancy or any interest whatsoever in the land was ever created in their favour. Their occupation therefore was that of licensees and that licence was revoked and withdrawn when the plaintiff came to know that the defendants were trying to create rights in their favour. The defendants therefore became trespassers on the property after revocation of the licence and after the plaintiff asked them to hand over possession. They are therefore illegally in possession of the suit lard and the plaintiff should therefore succeed in his suit for possession as also for mesne profits. Appeal allowed;

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