Mohapatra, J. -
(1.) THIS is a plaintiff's Second Appeal against the reversing Judgment of Shri B. Misra, Additional Subordinate Judge, Sambalpur dated 6-1-50 which arises out of a suit brought by the plaintiff for a declaration of his title and for confirmation of his possession or in the alternative for recovery of possession on the basis of a sale by the defendants 1, 2 and 3 on 11-3-1942 for a sum of Rs. 22/-. The plaintiff further alleges that defendants 1, 2 and 3 executed an unregistered deed of sale in favour of the plaintiff on that date but particularly relied upon the factum of delivery of possession of the disputed land by defendant 1, 2 and 3 in his favour to complete the transaction of sale. The defence was an attack on the genuineness of the transaction, i. e, the unregistered deed of sale. They further took up the plea that there was no delivery of possession as alleged by the plaintiff. Both ,the Courts below have concurrently found in fact that the unregistered deed of sale is a genuine transaction and further that there was in fact delivery of possession. But while the trial court decreed the plaintiff's suit on the finding that the same transaction was completed by delivery of possession as the value of the property in dispute was below Rs. 100/- and found that the unregistered deed is admissible only for the purpose of proving the nature and character of the possession of the plaintiff, the lower appellate court relying upon a Madras decision in -- 'Kuppuswami Goundan v. Chinnaswami Goundan', A.I.R. 1928 Mad 546 (A) has dismissed the plaintiff's case on the finding that there being an unregistered deed of sale that alone is admissible for the purpose of proving the contract between the parties on the question of sale and as the document is not a registered document it must be taken out of consideration as being inadmissible. The plaintiff will toe barred by the provisions of Section 91, Evidence Act, to prove the terms of the sale by proving the actual delivery of possession inasmuch as the terms have been embodied in the form of a document. Shri Sen appearing on behalf of the plaintiff-appellant contends that the view taken by the learned lower appellate court is contrary to law and is contrary to the decisions of the various High Courts of India and even contrary to a subsequent decision of the Madras High Court wherein -- 'AIR 1928 Mad 546 (A)' was not followed. By a reference to Section 54, T. P. Act, which runs as follows: (His Lordship after quoting the provisions stated:) We find it clear that in cases of sales of this description where the subject-matter of the sale is valued at less than Rs. 100/-, the same can be effected either by a registered instrument or by delivery of the property itself. In the present case, the plaintiff bases his case on the position that the sale is completed by the fact of delivery of possession as required under the provisions of Section 54, T.P. Act. Indeed a document which in the present case was unregistered was unnecessary. In our opinion, it cannot be suggested for a moment that the plaintiff's sale will be invalid even, though, completed by actual delivery of possession simply because the parties wanted the other terms of the contract between them to be rendered into writing, such as, the price, the default clause the clause for damages etc. if the plaintiff does not get possession of, if he is dispossessed. The factum of actual delivery of possession cannot be deemed to be a term of the contract as provided for under the provisions of Section 91, Evidence Act. As such, the plaintiff is certainly entitled to prove the factum of actual delivery of possession in spite of the present unregistered deed of sale and in the present case, there being such delivery of possession, the sale is complete. We may in this connexion refer to a decision of their Lordships of the Patna High Court in --'Keshwar Mahton v. Sheonandan Mahton', A. I. R. 1929 Pat 620 (B). Exactly the same points arose for consideration before their Lordships that in a case of the description where the property is valued at less than Rs. 100/- and the sale was effected by delivery of possession even though there was an unregistered deed embodying the terms of the contract between the parties, their Lordships expressed their opinion categorically that Section 91, Evidence Act, is not a bar to prove the transaction of sale by actual delivery of possession. Their Lordships further held that the unregistered deed is admissible for the collateral purpose, collateral to the pertinent purpose of completing the title to the property, to show the terms of agreement between the parties and the nature and character of possession. The decision reported in -- 'A. I. R. 1928 Mad. 546 (A)' was placed before their Lordships. Their Lordships were expressly of opinion that if --'AIR 1928 Mad 546 (A)' lays down any other principle which is contrary to this, their Lordships were not inclined to agree with the view. THIS decision of the Patna High Court has been followed by the Bombay High Court in -- 'Tribhovan Hargovan v. Shankar Desai', A. I. R. 1943 Bom 431 (C). THIS seems to be the view of the Allahabad High Court as expressed in -- 'Daya Bam v. Sita Ram', AIR 1925 All 206 (D). We will last of all refer to the subsequent decision of the Madras High Court in -' Muhammad Gosukani v. Md. S. Maracayar', A. I. R. 1936 Mad 301 at p 303 (E). Their Lordships considered the view expressed in the previous decision in -- 'AIR 1928 Mad 546 (A)' and made observations as follows:
"The expression 'mere delivery of property' does not, of course, find a place in Section 54; and with, respect I am unable to see why, if the property is such as may be sold by delivery, it is any the less so sold because the parties, upon agreeing to the sale, unnecessarily have recourse to the execution of a document. Nor am I able to understand why the incontestable proof afforded by such a document of an agreement between the parties may not be accepted as such."
Their Lordships disagreeing with the view expressed in the previous case found that in such a case proof of completion of the title can be obtained by actual delivery of possession and the document is admissible for showing the terms of the contract as between the parties. THIS being the decided view of most of the High Courts, we find that the plaintiff has succeeded in proving his title to the property by proof of actual delivery of possession and by proving the terms of the contract embodied in the unregistered sale deed. The appeal, therefore, is allowed. The judgment and decree of the lower appellate court are set aside and the judgment and decree of the trial court are restored. As Shri Misra appearing on behalf of the respondents frankly conceded that the position of law relied upon by the appellant is irresistible, there will be no order for costs. The plaintiff is entitled to costs of the lower appellate court. Mohanty, J.
(2.) I agree.;