SUDARSAN ROUT Vs. JAIRAM SAHU AND ORS.
HIGH COURT OF ORISSA
Jairam Sahu And Ors.
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Mohapatra, J. -
(1.) IT is the unsuccessful Defendant 1 in both the Courts below, who is the Appellant in this second appeal. It arises out of a suit for declaration of Plaintiff's title in respect of the disputed properties and for recovery of possession on the allegation that the Plaintiffs have been dispossessed since the year 1946 From the genealogy appearing in the judgment of the Lower Appellate Court Plaintiffs 1 and 2 belong to the branch of Bidei and Defendant No. 2 Dura is the widow of Durjyodhan who is the son of Maguni, Maguni being the brother of Bideis. It is the admitted case of both parties that Bidei and Maguni were separate. The Plaintiff's case is that the properties were the self -acquired properties of Bidei, Durjyodhan having absolutely no interest in it. D. 2 has executed a sale deed in favour of Defendant No. 1 on 20th August, 1945. The Plaintiff's contention being that as Durjyodhan had no right title and interest in respect of the property, the sale transaction by Defendant No. 2 in favour of Defendant No. 1 conferred no title. The further attack of the Plaintiff was that even though Durjyodhan was recorded in respect of the disputed property wrongly in the settlement record of right, he was never in possession of the properties which were all along in the possession of the Plaintiff. But to avoid troubles, in Kartik of 1938 the Plaintiff after making a payment; of Rs. 66/ - purchased the disputed proper flies by oral sale from Durjyodhan. The defence is a denial hat the properties were the separate properties of Bidei and also a further denial of the oral transaction. Defendant No. 1 contended that the properties really belonged to Durjyodhan; after Durjyodhan's death he has got title to the properties by virtue of the kabala executed by the widow of Durjyodhan.
(2.) THE Courts below negatived the contention of the Plaintiff that the properties belonged to Bidei; but allowed a decree in favour of the Plaintiff on the basis of the oral sale alleged by the Plaintiff. Indeed, there is no registered transaction evidencing the sale. The question that arises, therefore, on the allegation of the Plaintiff that he was all along in possession of the disputed properties, and there being no actual delivery of possession on the date of the alleged oral sale, is that, whether the sale can be taken to be a valid and complete sale under the provisions of Section 54 of the T.P. Act. On a perusal of the Section, it is clear that a sale in respect of properties below Rs. 100/ - can be effected only by a registered document or by delivery of possession. In the present case, when there was no delivery of possession, a registered document was compulsory. The sale therefore, in the absence of a registered document is an invalid sale as contended by the Appellant. The principle has been well elucidated in a decision reported in Sibendra Pada v. Secretary of State for India, I.L.R. 35 Cal. 207 wherein Sir Asutosh Mookheri made very clear observations that Section 54 of the T.P. Act has got to be rightly construed and the transaction of such nature in respect of tangible immovable property can be completed only by a registered document, and in a case where the vendee was already in possession of the property the registered document is compulsory. The same view was also taken by a Full Bench of the Allahabad High Court in the case reported in, I.L.R. 50 All. 986. The Patna High Court however took a little lenient view in the matter, and enunciated the principle that if there is a declaration by the vendor that he ceased to have any interest in the property and also a subsequent Overt Act by him wherein he has got the names of the vendee recorded in the Settlement records, or in the Land Registration department, this may be taken to be substantial compliance with the provisions of Section 54 of the T.P. Act.
(3.) THIS view indeed wad clearly enunciated in the case reported in Pheku Mian v. Syed Ali which is a Bench decision of the Court. This decision is confirmed by another Bench of the same Court in the case reported in Ramkishun Sao v. Emperor. The present case however is very clearly distinguishable from the facts in those two cases and the principle laid down therein does not apply to the present case. In the present case, there is absolutely no evidence laid by the Plaintiff that there was such a declaration renouncement by the vendor, nor is there any evidence to the effect that the vendor did any Overt Act by which he got the name of the vendee recorded in any of the public papers. The only evidence led by the Plaintiff and accepted by the courts below being that the Plaintiff was already in possession of the properties prior to the alleged sale, in my view, it cannot be taken to be a substantial compliance with the provisions of Section 45 of the T.P. Act. There being in the present case no registered document, nor any Actual delivery of possession or any other Overt Act, the sale must be taken to be invalid.;
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