1. This is an appeal by the defendants first party from a decree of the Additional Subordinate Judge of Muzaffarpur, dated the 20th January, 1951, reversing the decree of the Munsif of Sitamarhi dated the 27th July, 1949. The relevant facts lie within a short compass. On the 3rd November, 1930, defendants Nos. 16 and 17 and one Baleshwar Singh for self and as guardian of defendants Nos. 18, 19 and 20 all of the second party, executed a deed of sale in favour of the plaintiffs in respect of the properties mentioned in schedules I and II to the plaint. On the 10th November, 1930, they executed another sale deed in favour of the defendants first party in respect of the properties mentioned in schedule I to the plaint along with other properties, which was duly registered, the sale deed in favour of the plaintiffs was presented for registration on 4th November, 1930, but for want of admission of execution of the deed by the executants, it could not be registered. On the 16th January, 1931, the plaintiffs filed an application before the Sub Registrar at Sitamarhi for compulsory registration of their deed.

2. The registration was refused by the Sub Registrar on 2nd February, 1931, and an appeal from his decision to the District Sub Registrar, Muzaffarpur, also failed on 29th June, 1931. Thereupon the plaintiffs instituted title suit No. 30/36 of 1931/1933 under section 77 of the Indian Registration Act for compulsory registration of the deed of sale. I may note here that the defendants first party were not impleaded in the suit as defendants. The Subordinate Judge who heard the suit dismissed it on 30th June, 1933. The plaintiffs took an appeal to the District Judge from this decision, which was allowed on 7th May, 1934, and the plaintiff's suit for compulsory registration was decreed.

3. The decree was put into execution and the sale deed was compulsorily registered on 23rd May, 1934. The defendants second party preferred an appeal to the High Court which was dismissed on 28th March, 1935. On 6th May, 1946, the present suit was instituted by the plaintiffs for a declaration of title to and recovery of possession of the properties mentioned in schedule I to the plaint and for confirmation of possession after establishment of their title in respect of schedule II properties with mesne profits.

4. The defendants first party resisted the plaintiffs' claim substantially on two grounds: firstly, that the sale deed in favour of the plaintiffs was a forged and fabricated document and, secondly that the suit was barred by limitation and they had acquired title by prescription. By a separate written statement the defendants second party supported the case made out by the defendants first party.

5. The learned Munsif held that the sale deed in favour of the plaintiffs was genuine and valid. As to the payment of the consideration, his finding was that only Rs. 86 out of the consideration of Rs. 2351 had been paid. He further held that the plaintiffs had possession over the properties mentioned in schedule II to the plaint. With respect to the schedule I properties, his finding was that the defendants first party were in possession continuously since the date of their sale deed and that the plaintiffs had knowledge of their sale deed and the suit was, therefore, barred by limitation. Accordingly he granted the plaintiffs a decree against the defendants second party confirming their possession over schedule II properties and dismissed the suit against the defendants first party in respect of schedule I properties.

6. The plaintiff took an appeal to the District Judge and the learned Subordinate Judge, who eventually disposed of the appeal, affirmed the finding of the learned Munsif that the sale deed in favour of the plaintiffs was genuine and valid and that only Rs. 86 had been paid to them out of the consideration. On the question of limitation, however, there was a divergence of opinion between the two courts below.

7. The learned Subordinate Judge thought that the period of limitation will run not from the-date of the sale in favour of the plaintiffs, namely, 3rd November, 1930, but from the date of the registration of the sale deed, i.e from 23rd May, 1934, and the suit having been instituted within 12 years from the date of registration, on 6th May, 1946, was well within time. He accordingly allowed the appeal and set aside the decree of the learned Munsif and gave the plaintiffs a decree for possession of schedule I properties-also. He, however, disallowed mesne profits on the ground that the plaintiffs had paid only & fraction of the consideration money.

8. Now the defendants first party have come up in second appeal and the plaintiffs have filed cross objection with respect to the mesne profits.

9. Mr. A.C Roy appearing for the appellants contended that the plaintiffs' suit was hopelessly barred by time and his clients have in the mean time perfected their title by adverse possession for upwards of 12 years. His contention is that the starting point of limitation is not the date of registration, but the date of the sale deed in favour of the plaintiffs. The registration was only an official formality and had nothing to do-with the conveyance of title which in his opinion was validly created on the date of the sale.

10. The defendants first party obtained the deed of transfer from the plaintiffs on the 10th November, 1930, and entered into possession of the property but since the transaction in their favour was invalid, as in view of the previous sale in favour of the plaintiffs the vendors had not valid title on that date, their possession was adverse from the very beginning to the rightful owners, namely, the plaintiffs. The defendants remained in adverse possession for more than the statutory period and had thereby acquired indefeasible title to the schedule I property. Mr. U.N Sinha representing the respondents contended that the possession of the defendants first party prior to 23rd May, 1934, when the registration of the plaintiffs' sale deed was effected, was not and could not be adverse to the plaintiffs because they had no right to immediate possession until the transfer was perfected by registration as required by the statute.

11. His argument substantially is that the possession of a trespasser cannot be adverse to the real owner so long as the real owner is not entitled to possession and is, therefore, not in a position to put an end to the trespass. He has submitted that prior to the date of the registration the plaintiffs had no right to demand possession or to sue for possession and because of this disability of the plaintiffs, the possession of the appellants could not in law be adverse to them.

12. The question in the case before me 1st what is the nature of the possession of the appellants remaining in possession of the suit properties after an invalid conveyance to them by a common vendor and whether the plaintiffs' right; to sue accrued immediately on the execution of the sale deed in their favour or after its registration. The solution of this question depends upon the effect of the registration of the transference of title. The important question is, does the title-pass on the execution of the sale deed or on its registration. There is no direct authority on the point. Having regard, however, to the provision of section 54 of the Transfer of Property Act, I am inclined to accept the contention of Mr. Roy as correct.

13. Section 54 of the Transfer of Property Act is as follows:

“54. Sale defined. “Sale” is a transfer of ownership in exchange for a price paid or promised or part paid and part promised.

Sale how made. Such transfer, in the case of tangible immoveable property of the 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.”

14. On a proper construction of this section it appears that a transfer of ownership takes Place immediately on the sale. A registration is only a statutory mode of making the sale and it does not affect the creation of title by the sale. Section 47 of the Indian Registration Act provides that a registered document shall operate from the time from which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration. It will be observed that Section 47 of the Indian Registration Act does not purport to create a new title, but only affirms the title which was created by the sale deed.

15. The title is complete and the effect of registration is only to make it absolute and unquestionable. Had it not been so, any subsequent alienation between the date of the sale and the date of the registration would defeat the said title. It has, however, been established by authorities that if the title is complete except for registration, no subsequent alienation or dealing with the property by the vendor can defeat the title which on registration becomes an absolute one dating from the date of the execution of the document.

16. The title is, therefore, there by mere execution of the sale deed and the formality of registration had nothing to do with the passing of title. The provisions of the Transfer of Property Act relating to gift came up for consideration by their Lordships of the Privy Council in the case of T.V Kalyanasundaram Pillai v. Karuppa Mooppanar, AIR 1927 PC 42 (A). In order to appreciate the decision of their Lordships of the Privy Council it will be necessary to reorodnce here the provisions of sections 122 and 123 of the Transfer of Property Act which for all practical purposes are the same as provisions relating to sale enacted by section 54 of the said Act, Section 122 of the Transfer of Property Act provides as follows:

“Gift is the transfer of certain existing moveable or immoveable property made voluntarily and without consideration by one person called the donor, to another, called the donee, and accepted by or on behalf of the donee.

17. Such acceptance must be made during the life time of the done and while he is still capable of giving. If the donee dies before acceptance, the gift is void.

18. Section 123 is in these terms:

“For the purpose of making a gift of immoveable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses. For the purpose of making a gift of moveable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery.

Such delivery may be made in the same way as goods sold may be delivered.”

19. The question mooted before their Lordships was whether or not there was complete gift until registration. The argument advanced before the Privy Council was that until registration there is no complete gift and that if the donee dies or revokes or becomes incapable of making the gift before registration, it cannot take effect. While negativing this argument their Lordships of the Privy Council observed as follows:

“They are unable to see how the provisions of section 123 of the Transfer of Property Act can be reconciled with section 47 of the Registration Act, except upon the view that while registration is a necessary solemnity in Order to the enforcement of a gift of immovable property, it does not suspend the gift until registration actually takes place. When the instrument of gift has been handed by the donor to the donee and accepted by him the former has done everything in his power to complete the donation and to make it effective.

Registration does not depend upon his consent, but is the act of an officer appointed by law for the purpose, who, if the deed is executed by or on behalf of the donor and is attested by at least two witnesses must register it if it is represented by a person having the necessary interest within the Prescribed period. Neither death nor the express revocation by the donor, is a ground for refusing registration, if the other conditions are complied with.”

20. Their Lordships held in that case that where the donor of immovable property has handed over to the donee an instrument of gift duly executed and attested, and the gift has been accepted by the donee, the donor has no power to revoke the gift prior to the registration of the instrument. In effect they held that the title created by the gift was perfect and valid and was not in any manner subject to or conditional upon the registration.

21. The principle laid down in this case was affirmed by the Privy Council in a subsequent case in Venkat Subba Srinivas v. Subba Ram, AIR 1928 PC 86 (B). In my opinion, there is no difference in principle between a sale and a gift. The transference of ownership passes on the execution of the sale deed. So is the case with a gift except this that in the case of gift over and above the making of the gift there should be also acceptance of the gift by the donee. On the question of effect of registration, however, there is no such difference.

22. In my opinion a sale is complete when a sale deed is executed by the vendor and the vendor has no right in law to rescind or revoke the sale, registration or no registration. After a sale is completed by execution of a deed, registration comes as a matter of course and is not dependent upon the volition of the vendor. It can be brought about compulsorily in the event of refusal by the vendor to assent to the registration. The principles laid down by their Lordships of the Privy Council in the aforesaid case were applied to a sale by the Allahabad High Court in the case of Mahsdeo Singh v. Mian Din, AIR 1938 All. 431 (C). I would respectfully adopt the reasoning of Ganga Natfi J., who delivered the judgment in that case.

23. It follows from the above that the title of the plaintiffs to the disputed property was complete on 3rd November, 1930. The question is what is trip consequence of this. If they had title about, which there can be no doubt, then the possession of the appellants which commenced on 10th November, 1930, became adverse to the plain tiffs and if the plaintiffs did not bring the suit for possession within 12 years, their right to the disputed property was extinguished under section 28 of the Limitation Act.

24. Absence of registration did not disentitle the plaintiffs to institute a suit for possession against the defendants first party. The courts below have found that the plaintiffs had knowledge of the transfer in favour of the defendants first party. Therefore, they could have very well impleaded them as defendants in their suit for compulsory registration and might have asked for additional relief, namely, declaration of title and possession. There appears to be no legal bar to the combining of these reliefs in one and the same suit. Any way, a separate suit could undoubtedly have been brought. If they failed to avail themselves of it, I think their remedy is barred.

25. There are certain decisions which though not strictly in point, throw considerable light on the question. I shall first refer to a decision of the Calcutta High Court in the case of Anand Coomari v. Ali Jamin, ILR 11 Cal. 229 (D). The facts of that case were as follows. On the 25th of September, 1867, A executed a conveyance of certain land to B for valuable consideration. On the same day A acknowledged the execution of the deed before the Registrar who afterwards registered the same on the 19th of October, 1867; B never entered into possession of the land.

26. On the 14th November, 1874, C purchased this land at a sale in execution of a decree which he had obtained against B; C did not enter into possession of this land but on the 26th September, 1879, brought a suit for the recovery thereof against A, who had all along remained in possession. It will be noticed that the suit brought by C against A was within 12 years from the date of registration but beyond 12 years from the date of the sale.

27. Their Lordships of the Calcutta High Court held that in case of a sale out and out the vendor remaining in possession that possession was adverse to the purchaser and, therefore, a suit was barred by limitation. In the present case instead of the vendors, persons claiming through them, though under an invalid title, remained in possession continuously for more than 12 years. If the title of Ali Jamin was inchoate due to absence of registration, his case must have been decided differently by the Calcutta High Court.

28. A similar view was taken by a Division Bench of the Allahabad High Court in the case of Bindeshri v. Somnath Bhadry, AIR 1916 All. 199 (E). In that case a house was sold on January 10, 1909. The sale deed was presented for registration the same day, but the registration was completed on 29th January, 1909. The suit for zarichaharum was brought on the 20th January, 1915, and the question was whether the suit was in time. Their Lordships of the Allahabad High Court held that the suit was barred by limitation, the right to sue having accrued to the plaintiff from the date of the sale and not from the date of completion of registration. The rulings aforesaid support the conclusions I have reached.

29. It is true, as contended by Mr. Sinha that possession cannot be adverse against a person who is not entitled to possession. The crux of the question, however is: were not the plaintiffs in this case entitled to possession prior to the registration of the sale deed Having regard to the raitio decidendi of the aforesaid cases there can be no doubt that the plaintiffs had a right to institute a suit for possession immediately after the execution of the sale deed when there was an illegal invasion of their title the position that emerges is this: the plaintiff's acquired a good title by purchase on 3-11-1930.

30. Subsequently on 10-11-1930, the appellants entered into possession of the disputed land under a claim, or, more precisely, colour of title, that is to say, by virtue of a document which was void in law and did not confer on them a valid title. Although the title that the defendants had under the sale deed was void, their possession nevertheless being under a claim or colour of title), must be regarded as adverse to the persons entitled to possession. They remained in such possession for upwards of twelve years and consequently acquired a perfected title by prescription: See the case of Thakur Bageswari Charan Singh v. Thakurain Jagarnath Kuari*, AIR 1929 Pat 117 (P).

31. I hold, therefore, that the plaintiffs' suit for recovery of possession of the disputed properties in possession of the appellants is barred by limitation.

32. The plaintiffs have filed a cross-objection with respect to the mesne profits disallowed by the court of appeal below. The question of mesne profits now does not arise in view of the findings above. Any way, when they had not paid the major portion of the consideration, the learned Subordinate Judge was, in my opinion, right in disallowing mesne profits altogether. The cross objection, therefore, has no merit.

33. In the result the appeal is allowed with costs throughout. The judgment and decree of the court of appeal below are set aside and the decree of the learned Munsif is restored. The cross objection is also dismissed, but without costs.

V.B.B

34. Appeal allowed.