- (1.) THIS is a second appeal by the plaintiff in a suit for possession.
(2.) THE plaintiff Mulo instituted the present suit in the court of Munsif, Hindaun, on 6th October, 1951, on the allegations that she was the owner of a Nohara situated at Hindaun in the Mohalla of Dhakar Porha and more fully described in the plaint. It was alleged that the defendant Gokul wanted to grab that Nohara and fabricated a false document of sale with that object, and thereafter instituted proceedings under sec. 107/145 Cr. P. C. against the plaintiff, Parshadi, a cousin of her husband, and the sons of Parshadi. It was alleged that the criminal court declared the possession of the defendant, and placed Gokul in possession on 3rd July 1951, which necessitated the institution of the present suit. Gokul defendant filed his written statement on 7th November, 1951, alleging that the plaintiff was at one time the owner of the Nohara, but she sold the Nohara in lieu of a consideration of Rs. 1000/- on 18th July, 1949, and executed a sale deed and delivered possession of the same to the answering defendant. It was alleged that some time later dishonesty entered her mind, and she alongwith Parshadi and his sons Kanhaia and Shrichand forcibly dispossessed the defendant, whereupon the defendant took proceedings under sec. 145 Cr. P. C. and got back possession under orders of the court on 3rd July, 1951. It was alleged that the land under the Nohara was of the State, and the possession of the plaintiff was of a licencee, and the defendant's application for being so considered by the State had also been allowed. Kanhaia had objected in those proceedings, but was not successful. It was also alleged that Parshadi and his two sons Kanhaia and Shrichand had instituted a suit against the defendant on 20th August, 1949, for possession of this Nohara, but were unsuccessful, and they withdrew the suit on 23rd February, 1951. It was alleged that the suit had been falsely instituted. The trial court held that the Nohara was at one time the property of the plaintiff, but she had parted with her possession on 18th July, 1949, by sale to the defendant, and although the sale deed being unregistered was ineffective for the purpose of transferring the property, the plaintiff had in lieu of certain consideration executed a document of sale, 3nd put the vendee defendant, in possession, and was, therefore, not entitled to go back on that agreement under sec. 53a of the Transfer of Property Act, and was debarred from claiming possession to the property. The suit was accordingly dismissed with costs. The plaintiff filed an appeal, but the same judgment was upheld by the learned Civil Judge by judgment of 14th August, 1952. The plaintiff has come in second appeal It was argued by learned counsel for the appellant that the provisions of S. 53-A of the Transfer of Property Act were not applicable in the present case, because there was nothing on the record to show that the plaintiff had put the defendant in possession of the property under the sale. Learned counsel referred to the last portion of the statement of Gokul in which he said that he Was in possession of the Nohara for 7 or 8 years past under permission of the plaintiff. It was urged that if the defendant was already in possession of the property, and nothing was done thereafter under the sale deed, it could not be said that the possession was delivered in part performance of the contract of sale. It was then argued that the document of sale being unregistered, the plaintiff was entitled to succeed. It may be mentioned that the two courts have held that the document of sale dated 18th July, 1949, had been executed by the plaintiff. It was also held that the plaintiff had also executed a rent-note Ex-D. 1 on the same date after the execution of the sale deed for using a portion of the Nohara for tying her cattle for a few months in the rainy season at annas 8 per month. There is also mention in the document of sale that as from that date the possession had been delivered to the vendee and the vendor had given up possession of that property. Where a person in whose favour a document of sale is written is already in possession of the property, though as a tenant, or a licencee, or a mortgagee, or otherwise, under permission of the vendor, it is not necessary that the vendee should be dispossessed, and then re-put in possession for the applicability of sec. 53-A of the Transfer of Property Act. All that is necessary to show is that the nature of the possession was changed after the execution of the sale deed. This can be shown either by the document itself or from other evidence that the nature of possession was changed. In the present case, there is not only a clear declaration in the deed of sale that the vendor's possession had come to an end and the vendee's possession as owner began from the time of the transaction of sale. The second document Ex. D. 2 also shows that while the vendee Gokul was prior to that date a tenant of the plaintiff Mulo, the possession got changed, and Mulo had to write a document of lease for keeping her she-buffalo in the Nohara. If any authority were needed for this proposition reference may be made to Bahadur Singh, Singhee vs. Rani Jyotirupa Debi (1 ). There is no force in the contention that the possession was not delivered under the sale, and, therefore, sec. 53-A of the Transfer of Property Act was not applicable. Learned counsel for the appellant tried to argue in a feeble manner that the transaction of sale was highly suspicious and should not be held to have been proved by the two lower courts, The suspicion was said to arise because the deed was not registered and the thumb impression of the plaintiff Mulo was a blurred one on the document. It was said that Mst. Mulo was an illiterate lady, and the defendant might have been induced to put up this false sale in order to grab her property. A short history of the litigation will show that there is no force in any of these contention. The sale deed Ex. D. 2 was executed on 18th July, 1949, and on the same day the rent deed Ex. D. 1 was executed. On 26th August, 1949, Parshadi, his two sons Kanhai and Shrichand, collaterals of Mulo instituted a suit in the court of Munsif, Hindaun, that Mulo had made this alleged sale of the property which was property of the joint Hindu family of the plaintiffs and the husband of Mulo, and she had no right to alienate same and prayed for possession. Mst. Mulo by written statement of 6th April, 1950 (Ex. D. 10) admitted these allegations stating further that she had not executed any sale deed. While the suit was pending, Gokul instituted a complaint on 12th May, 1950, against Mulo, Kanhai and others that they were interfering with his possession, whereupon proceedings were started under sec. 107/145 Cr. P. C. The civil suit was withdrawn by the plaintiff on 23rd February, 1951 (Ex. D. 4 ). The criminal complaint was decided thereafter on 30th June, 1951 (Ex. D. 5), and the S. D. M. directed that Gokul be put in possession, and forbade the opposite party from interfering in that possession. In these proceedings Mulo was examined and she stated (Ex. D. 9) on 30th April, 1951, that she had made a will in favour of Kanhai, and he was looking after her litigation. She pretended that she did not know Gokul, nor did she know of the civil suit by Parshadi. Mst. Mulo filed a revision against the order of the Sub-Divisional Magistrate (Ex. D. 5 ). It was dismissed on 6th September, 1951, by the District Magistrate (Ex. D. 6 ). The present suit was instituted on 6th October, 1951. The above history of litigation shows that after the sale of the Nohara was effected the collaterals of Mulo wanted to set it aside by saying that Mulo had no right to sell it. Some time thereafter Mulo also changed her mind, and Gokul was forcibly dispossessed, but when Gokul was successful in his complaint, the present suit was instituted. This is, therefore, not a case where any undue influence was suggested or where any fraud had been committed to bring about a transaction. All that has happened is that the collaterals are not happy over the sale, and when their attempt to challange the sale as unauthorised was unsuccessful, they prevailed upon Mulo to repudiate the transaction altogether. The thumb impression on the deed of sale and rent note were superimposed after the deeds had been produced in the court of Munsif in the suit instituted by Par-shadi, and Gokul made several applications in that court for an enquiry how the documents came to be mutilated after having been produced in court vide Ex. D. 7 and D. 8. The genuineness of the document of sale has been held proved by the two courts, and that finding shows that the interpolation must have been done by the person who wanted to get rid of the sale. There is no force in any of the contentions. The appeal fails and is dismissed with costs. . ;