1. This is second appeal preferred by the defendant-appellant and cross-objections filed by the plaintiff-respondent No. 1 against the judgment and decree dated 4th December, 1992 passed by the IInd Additional District Judge, Vidisha in Civil Appeal No. 8A/1983 which arose from the judgment of Civil Judge, Class II, Sironj in Civil Suit No. 67A/1968.
2. The plaintiff-respondent No. 1 had sued the defendants with the allegations that the defendants No. 2, 3 and 4 sold the suit land to him for Rs. 3,000/- (three thousand) by a registered sale-deed dated 9th of June, 1967 and they gave its possession to him. He had sown crop in the month of Ashadh, Samvat 2024. But after that the defendant No. 1 started quarrelling with him over this land, claiming that it belonged to him. Then in the proceedings under section 145 CrPC the defendant No. 1 was declared to be in possession of the suit land. Then the plaintiff filed the present suit for declaration of the title and possession of the land and also claimed mesne profits at the rate of Rs. 400/- (four hundred) per year as from 1.4.1968.
3. The defendants No. 2 to 4 supported the claim of the plaintiff.
4. Defendant No. I - appellant however denied that the plaintiff purchased this property from defendants No. 2 to 4. He also urged that in any case if there was any sale deed, it was ineffective against his right on the land. He claimed that he always remained in possession of the suit land and the proceedings under section 145 CrPC arose because the plaintiff tried to interfere with the property. He claimed to have purchased the suit land from defendant No. 3 with the consent of defendant No. 2 and 4 for Rs. 3,000/- (three thousand) by an unregistered sale deed, where under the possession was also given to him. He has performed his part of agreement of sale and so he was protected by the doctrine of part performance of the contract. Therefore, he claims to have become owner of the suit land. It is urged that if knowing of these facts, the plaintiff purchased the suit land from the defendant No. 2 to 4, he could not acquire any title to it.
5. Defendants No. 2 to 4 denied that they ever sold or agreed to sell the suit land to defendant No. 1 on receiving this consideration or gave its possession to the defendant No. I. They urged that defendant No. 1 interfered with the possession of the plaintiff after about six months of sale to and delivery of the possession by them to the plaintiff. 6. The trial Court decreed the suit of the plaintiff to the extent of 2/3rd share of the suit land declaring him bhumiswaini to that extent and also directing delivery of possession to him to that extent. A further decree was passed on 6.2.1970 that Baboolal defendant No. 2 will pay Rs. 1,000/- (one thousand) to the plaintiff in respect to the 1/3rd share which he had agreed to sell to defendant No. I.
7. Against this judgment and decree the defendant No. 1 filed an appeal and plaintiff filed cross-objections; which were heard by the Additional District Judge. The appeal was dismissed and cross-objections were allowed. The plaintiff's suit was decreed in to but claim for mesne profits was dis-allowed. 8. The defendant No. 1 approached the High Court by filing Second Appeal No. 327/72 and the High Court vide judgment dated 29th November, 1982 accepted the plea and remanded the case to the first appellate Court for fresh decision according to law after taking into consideration the material evidence on record. The High Court had infact observed that the finding of the first appellate Court, that certain documents produced by defendant No. 1 as agreement of sale in his favour by Baboo Lal and the receipts of the payment of money were not related to the property in suit, could not be sustained. The High Court reversed these findings, holding that the document which purported to be the document of sale related to this property and so remanded the case back for decision afresh by the first appellate Court, observing at the same time that the appeal and the cross-objections should be decided afresh except the cross- objections pertaining to refusal of the grant of mesne profits, as that aspect became final. High Court further observed that the lower appellate Court will not feel fettered by any observation made in the order as to believability or non- believability of any particular evidence or that on the material on record the plea of defence under section 53-A of the Transfer of property Act can be successfully raised or not. The first appellate Court was to assess the evidence on record independently and also the legal position. This judgment of the High Court was dated 29th of November, 1982.
9. It was, after this remand order that the first appellate Court passed the impugned judgment dated 4th of December, 1992 confirming the decree passed by the trial Court. The appeal as well as the cross-objections were dismissed. The first appellate Court observed that the document Ex. D-1 indicated that Baboolal (defendant No. 3) sold 1/3rd of his share to Ramlal (Defendant No. 1) and Rs. 1,400/- (fourteen hundred) was paid to him on the date, and rest of the consideration was agreed to be paid later on; it was observed that Baboolal was owner of the 1/3rd share and he sold it to Ramlal. It was further found that 2/3rd share of the land was sold by defendants No. 2, 3 and 4 to the plaintiff and although Baboolal also purported to sell his 1/3rd share to the plaintiff but he could not do so, as he had already sold it to Ramlal. It was also observed that Ramlal had obtained the possession of 1/3rd share under the agreement and so there was part performance of the contract as also he had paid the consideration too.
10. The parties approach this Court again by filing appeal and cross-objections. The appeal is filed by Ramlal and cross-objections by plaintiff- respondent No. 1 Mangal Singh. The contentions of the counsel for appellant is again that he became owner of the entire land as per agreement Ex. D-1, although it was unregistered and without stamp. It amounted to the sale with possession, transferred to the appellant, or if the possession of the appellant was already there, he was allowed to continue in possession under this deed. It was on behalf of Nanhoolal (defendant No. 2) and Kanhaiyalal (defendant No. 4) also, with their consent, so it is binding on them in respect of full land. It was urged that the transfer in favour of the plaintiff Mangal Singh by defendants No. 2 to 4 was subsequent act in the year of 1967 and it could not affect the right of the defendant No. 1, which he acquired as per agreement Ex. D-1.
11. The appeal was admitted on the ground that a legal question was involved; whether Ramlal-appellant was having right under section 53A of the Transfer of Property Act with respect to the entire property and, whether the document Ex. D-1 had not been given proper evidentiary weight. The cross- objections urge that the findings of the trial Court as well as the first appellate Court regarding 1/3rd share having been sold by Baboolal to Ramlal is perverse and based on no evidence? The cross-objections have also claimed mesne profits.
12. As regards the claim of the mesne profit in cross-objections, that aspect has already been decided in previous appeal of the High Court with the findings that the plaintiff had proved no right of mesne profits. So that aspect will not be considered, any more.
13. Considering the points raised in the cross-objections filed by respondent No. 5, this Court vide order dt. 28.10.93 framed following further questions to be heard along with already framed questions of law in the appeal:
"(i) Whether finding as to 1/3rd share of Babulal having been sold to Ramlal, with delivery of possession, is perverse?
(ii) Whether the lower appellate Court ought to have awarded mesne profits and if so to what extent?
(iii) Whether the cross-objections are barred by limitations?
(iv) Whether the right of the 'respondent to file cross-objections is foreclosed by the principle of constructive res judicata in view of the decision dated 29.11.82 in the S.A. 327/92 made in an earlier round of litigation before this Court?"
Among these questions, as already noticed above, question No. 2 and 4 are already foreclosed by the observation of this Court in the remand order. This Court finds that the cross-objections are filed on 28.9.93, while the notice of appeal was accepted by respondent No. 1 on 15.7.93, as is clear from the order of the date, on which it was filed. So the cross-objection by respondent No. 1 was filed on the 75th day, which is within limitation as the cross-objection could be filed within 90 days after service of notice on respondent No. 1.
14. Thus, the only question for consideration is question No. 1 in this cross-objection and the questions framed in appeal as already noticed.
15. The document Ex. D-1 may be looked into to find out rights of appellant- defendant No. 1 over the suit land. This is an undated document on ordinary sheet of the paper without any stamp. It recites that Baboolal had 'sold his 1/3rd share in the particular field named as 'Babulalji Wala' measuring 13-14bigha, Mouja- Ramnagarto Ramlal for a consideration of Rs. 3,000/- (three thousand), of which Rs. 1,400/- (fourteen hundred) had been received and the rest would be received in instalments as under : Rs. 600/- (six hundred) in the month of Magh Samvat 2022, and Rs. 1,000/- (one thousand) in the month of Vaisakh Samwat 2023 and the document would be got registered. If the money was not paid, Rs. 1,000/- (one thousand) would be deducted as Battai money for one year and rest of money will be refunded and the field would be taken into possession by the vendor.
16. It appears that before the Sub-Divisional Magistrate, Vidisha, stamp duty and penalty were paid on the document and it was stated that the deed had been released from being impounded. But it is unregistered, it does not recite the delivery of possession except recital that if amount of consideration was not paid as stipulated, the vendor was entitled to enter the field. Still it is undated document. The two Courts below have found that it was executed by Babulal. Finding was given by the trial Court that it was executed by Babulal, on the basis of the evidence of the attesting witnesses. Ex. D-1 is annexed as certified copy of the original. It appears that the original has been taken back by Ramlal from the file, after producing the certified copy. There are four other documents Ex. D-2 to D-5 which are also certified copies of the receipts of payment of money to Nanhoolal. These are as under :
(a) Ex. D-2 : for Rs. 200/- (two hundred) of the month Jeth Wadi-12 Samwat been paid to Nanhoolal about the field.
(b) Ex. D-3 : for Rs. 400/- (four hundred) of the month Vaisakh Sudi-1 Samvat 2023 to Nanhoolal by Ramlal.
(c) Ex. D-4 : for Rs. 700/- (seven hundred) of the month of Falgun Wadi-11 Samwat 2023. The money purports to have been paid to Nanhoolal by Ramlal.
(d) Ex. D-5 : For Rs. 600/- (six hundred) by Ramlal to Nanhoolal dt. 26.3.66. This money Rs. 1900 (one thousand nine hundred) was allegedly received by Nanhoolal the co-owner from Ramlal. Thus, a total payment from Ramlal to Babulal and Nanhoolal was Rs. 3,300/- and not Rs. 3,000/- The receipts D-3 to D-4 do not contain any mention that the money was paid for land or what for the amount was paid. Receipt D-2 recites that it was paid for 'field'. Nanhoolal (DW 5) has denied his own signature on the original of these receipts or having received any money or having sold the property to Ramlal. The trial Court however noticed that in the year of Samwat 2022 and 2023 Ramlal was recorded in possession of the land of survey No. 12. He was recorded as Bhumiswami of entire suit land by order dated 26.7.67 by Naib Tahsildar. This copy of 'Khasra' however which was read by the trial Court, was not exhibited in evidence and is not exhibited on record.
17. It is to be kept in mind that an agreement to sell land does not pass title. Ex. D-1 recites two aspects; one that the property has been sold, secondly that the sale deed would be got registered. If one considers it as a sale, then it is ineffective and does not pass title. It may or may not provide a defence under section 53 A of the Transfer of property Act. If it is agreement to sell, still it does not pass title. So the findings of first appellant Court that Ramlal became Bhumiswami of 1/3rd share is against facts and law. The finding is perverse.
18. Let us now examine the validity of the mutation order. The order of Naib Tahsildar, which mutated the land in the name of defendant-appellant, as Bhumiswami, has not been produced on record. It appears from his application dt. 8.8.94, the certified copy of which is on record, that the claimed Bhumiswami rights under section 190(2) of the M.P. Land Revenue Code, 1959. A perusal of that provision will be proper :
"Sec. 190. Conferral of Bhumiswami rights on occupancy tenants :—
(1)…………………
(2) Where an application is made by a Bhumiswami in accordance with the provisions of sub-section (1) of section 189, the rights of a Bhumiswami shall accrue to the occupancy tenant in respect of the land remaining with him after resumption, if any, allowed to the Bhumiswami with effect from the commencement of the agricultual year next following the date on which the application is finally disposed of."
Section 189(1) of this Code deals with resumption by Bhumiswami in certain cases - a Bhumiswami whose land is held by an occupancy tenant of the categories specified in sub-section (1) of section 185 except in items (a) and (b) of clause (i) thereof. The defendant-appellant was not an occupancy tenant nor he claims so in his written statement, so he could not be covered by these provisions. There is no provision in this Code under which he might have acquired Bhumiswami rights of any land of which he became an offeree under agreement to sale from a Bhumiswami or a Bhumiswami co-sharer.”
19. "Occupancy tenant" is defined in section 185 of this Code and in Madhya Bharat region it is clause (ii) of that section. It does not cover any such person i.e. intended vendee who might have entered into the agreement to purchase. The right of occupancy are conferred on the person who might be tenant of the category given under the section. section 169 of the code reads as under :
'' 169. Unauthorised lease etc. — If a Bhumiswami —
(i) leases out for any period any land comprised in his holding in contravention of section 168; or
(iii) by an arrangement which is not a lease under sub-section (1) of section 168 allows any person to cultivate any land comprised in his holding otherwise than as his hired labour and under that arrangement such person is allowed to be in possession of such land for a period exceeding two years without being evicted in accordance with section 250; the rights of an occupancy tenant shall —
(a) in the case of (i) above, thereupon accrue to the lessee in such land; and
b) in the case of (ii) above, on the expiration of a period of two years from he date of possession; accrue to such person in that land :
Provided that nothing in this section shall apply to a land comprised in the holding of a Bhumiswami belonging to a tribe which has been declared to be an aboriginal tribe under sub-section (6) of section 165 and which is leased out by him or in respect of which he has made an arrangement as aforesaid, as the case may be.
The appellant was neither lessee of the suit land nor was he in possession in an arrangement which though not a lessee as covered by section 168 of the code, but, analogous to lease. An agreement to sale will not be covered by section 169(ii). Even alleged agreement of Babulal in favour of Ramlal was not or more than two years before filing of the suit, as first additional instalment was payable during MAGH 2022 which corresponds to the period 8.1.1966 to 5.2.1966 and before the suit dispute u/s 145 CrPC had arisen. In any case, it is not shown that at the time when the suit was filed i.e. 12.7.1967 the appellant Ramlal was in possession of the suit property for more than two years. Nor has it been so found by the either court-below. It is really strange that the Tehsildar purported to mutate this property in favour of Ramlal as Bhumiswami.
20. Section 158 of this Code defines 'Bhumiswami' in Madhya Bharat region in clause (b) of sub-section 1 that if at the time of going to the Court, the concerned person is a Muafidar, Inamdar or a Confessional holder as defined in Madhya Bharat Land Revenue and Tenancy Act, Samvat 2007 (66 of 1950), he will be Bhumiswami, i.e. on the date of the Act.
21. The acquisition of Bhumiswami right after the Act is provided in section 190. The appellant does not fall in any of those categories. Thus apparently if there was any order of Naib Tahsildar mutating the appellant as a Bhumiswami in revenue record, that was without any law to support it and beyond the provisions of M.P. Land Revenue Code. It was totally ultra vires, without jurisdiction and has to be ignored.
22. We find that there was no material on record to show when appellant Ramlal entered into possession of the entire suit land or any portion of it. The plaintiffs allegation was that he entered into possession under the garb of proceedings under section 145 of CrPC on 1.4.68. The case set up by the defendant-appellant was that the plaintiff wanted to interfere in possession under the garb of provision under section 145 of CrPC.
23. The first appellate Court has not decided the question of possession of Ramlal defendant, nor that Ramlal acquired Bhumiswami rights merely by agreement to sell from one co-owner followed by possession, under any provision of M.P. Land Revenue Code, but, has held that the agreement of sale Ex. D-1 Ramlal became owner of 1/3rd share in the suit land, which belong to Babulal. It appears that the first appellate Court has accepted that document Ex. D-1 as having passed title to the extent of 1/3rd share of Babulal to Ramlal defendant No. 1 This was erroneous, on the face of it and so would be called perverse. An agreement to sell does not transfer title to vendee. So also a document purporting to effect sale, cannot transfer title if it is unregistered. These clear legal propositions have been ignored by both the Courts below.
24. Ramlal appellant-defendant in his statement in Court on 22.1.70 stressed that only Babulal was the owner of this land and he purchased it from Babulal for Rs. 3,000/- vide Ex. D-1 and further that after recording of this document Babulal gave possession of this land to him, that he initially paid Rs. 1400/- to Babulal and Rs. 1900/- in four instalments to Nanhoolal on the asking of Babulal and obtained receipts Ex. D-2 to D-5 for the same. Dhannalal (DW 2) is a witness to some of the receipts of payments by Ramlal and also to the document Ex. D-1. He is giving a narration that there had been a partition between Babulal and his two brothers and Babulal sold his share to Ramlal. He does not say that Nanhoolal signed the receipts Ex. D-2 to Ex. D-5, but, this witness himself signed these receipts. According to him Babulal had admitted to him that he has given possession to Ramlal.
25. As against this Bhurckhan another witness to that document Ex. D-1 says that Babulal had promised that he would give possession and the possession was not given in his presence by Babulal, but, Ramlal entered into possession later on. The story narrated by Baijnath (DW 4) was entirely different. According to him one Rustom Khan was cultivating this land and from Rustom Babulal took possession. Whether Babulal gave possession to Ramlal is not known by this witness.
26. Defendants 2 to 4, i.e. all the original owners denied, in their written statement, sale to Ramlal or agreement to sell any part of suit land, in his favour. They pleaded sale in favour of plaintiff Mangal Singh. It is also important that Nanhoolal defendant-vendor appeared as his own witness and denied the sale or receipt of money. He denied sale by Babulal also. He denied his signature on any of the receipts Ex. D-2 to Ex. D-5. He asserted sale to plaintiff by all the brother and denied that Ramlal was ever put in possession. However, Tulsi Ram (DW 6) on behalf of defendant No. 2 to 4 asserted possession of this land was given by three brothers to Mangal Singh plaintiff, as they were in possession.
27. There is no revenue record showing cultivation of this land by appellant-defendant Ramlal. In the agreement to sale or sale deed Ex. D-1 there is no date nor any recitation that possession has been given. One recitation is that Rs. 600/- would be paid in Magh Samwat 2022 and Rs. 1,000/- in Vaisakh Samvat 2023. These recitations suggest that this document was executed before the month of Magh Samwat 2022. Magh Samwat 2022 fell between 8.1.66 to 5.2.66. There is nothing in the document Ex. D-1 to suggest that Babulal was executing it on behalf of his brothers or that they consented. In evidence Ramlal has not asserted that Babulal executed this deed and or signed it on behalf of the brothers. He narrated that Babulal was the only owner and executed this document on his behalf. There is no material on record to infer that Babulal was the only person in possession of this land, when Ex. D-1 might have been executed by him. In the document Ex. D-1 which is a registered sale deed by three brothers in favour of plaintiff Mangal Singh dt. 9.6.66 and registered on 12,6.66, it is recited therein that they are in possession of the property and they have given possession thereof to the purchasers.
28. From the absence of evidence of possession having been handed over by Babulal to Ramlal at any time in respect of suit land that Ramlal entered into possession of this land under this agreement of sale. Atleast there is no evidence to support this conclusion. The trial Court in the initial judgment dt. 12.10.80 held that in Samwat 2022 to 2023 Ramlal was in possession of the land. The first appellate Court did not give any specific finding on this aspect. This Court finds that there is no evidence of delivery of possession by Babulal to Ramlal and further that Babulal could not have legally given possession of the suit land to Ramlal when all the co-sharers were owners in possession of the property jointly. His handing over possession, would in any case be unauthorised and could not be called handing over possession under agreement to sell his share.
29. The necessary conditions for application of section 53A of Transfer of Property Act are :—
1. Contract to transfer immovable property by owner;
2. For consideration;
3. By writing signed by him or on his behalf;
4. The transferee takes possession in part performance of the contract of property or part thereof or being already in possession continues so in part performance of the contract and does something in furtherance of the contract;
5. The transferee is willing to perform his part of the contract. If these conditions are fulfilled then inspite of defect or registration or other defect in the deed, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the term of the contract.
30. There is an explanation to this defence of the transferee that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.
31. In the present case, the record, firstly, does not show any material that Ramlal obtained possession under the contract or in part performance thereof from the transferor owner or that he was in possession earlier. Secondly, all the three owners were not the transferor and only one of them, Babulal, according to Ramlal, agreed to transfer the property. Babulal had right to transfer only his 1/3rd share, but, he purported to agree to sell the whole land. Thirdly, Babulal was not in possession of entire land. All the three co-owners were in joint possession. Babulal could not lawfully transfer possession of this land to Ramlal. Unlawful entry in possession cannot be accepted by Courts for applying the doctrine of part-performance, which though given statutory recognition u/s 53 A of Transfer of Property Act is a doctrine of equity. Fourthly, there is no evidence that the entire consideration was paid by the defendant-Ramlal to the transferor Babulal as per terms of agreement Ex. D-1, Ex. D-2 to D-5 are not proved to have been received by Babulal or 'on his instructions, by Nanhoolal'. The 1st instalment of Rs. 600/- payable by Magh Samwat 2022, was not paid in time, by any of receipts Ex. D-2 to D-4. The evidence is wanting if these moneys were paid. The trial Court as well as the first appellate Court has not held that Nanhoolal received these moneys on behalf of Babulal and have also held that Nanhoolal did not agree to sell his property. So the fact that entire consideration passed to the vendor Babulal is not established. The case set up by Ramlal was that Babulal, with the consent of his two brothers, sold the land. This is not the case in his own evidence. In the receipts Ex. D-2 to Ex. D-5 there is no mention that the money was paid for this land for the complete consideration payable to Babulal. Ex. D-2 mentions payment about 'field'. Ex. D-3 to D-5 do not mention why payment was made. In the face of these factors, the necessary conditions for applying doctrine of part-performance of contract are not established. 32. Thus the finding of the trial Court that Ramlal entered into possession in part performance of the contract of sale Ex. D-1 is based on no material and first appellate Court has failed to give any finding on that aspect. Resultantly the defence of part performance of contract cannot be available to Ramlal.
33.1 do not find any material on record to suggest that the plaintiff Mangal Singh knew about this agreement of transfer by Babulal in favour of Ramlal. His claim is that he had taken possession and cultivated the land and in the next crop Ramlal interfered and proceedings under section 145 of CrPC arose. Ramlal entered into possession at that stage. The evidence on record does not show that Ramlal was in possession when the sale Ex. P-1 in favour of Mangal Singh was executed on 7.5.67. The order of Naib Tahsildar in favour of Ramlal purported to be of 26.7.67 i.e. two months after the sale deed of defendants.
34. The High Court in its remand order dt. 29.11.82 in Second Appeal No. 327/72 in this case had observed that the first appellate Court will not feel fettered by any observation made in the remand order nor any observation should be understood to mean that a particular evidence is believed or not believed or that the plea under section 53A of the Transfer of Property Act contains all the ingredients or not or whether it is maintainable or not.
35. So the learned appellate Court was entitled to and duty bound to reach its own conclusion on all these aspects on the evidence on record. This Court notices now that the appellate Court in its second judgment has not given any further finding about possession or part performance, but has considered that Ramlal became Bhumiswami by deed Ex. D-1. This Court has, therefore, proceeded to evaluate the evidence on its broad aspects, instead of making a shuttle-cock of the case by sending it again to the lower appellate Court.
36. For the reasons noted above, it is clear that Ramlal was not entitled to defend his possession of the suit land under section 53A of the Transfer of Property Act nor even 1/3rd share thereof. The plaintiff-respondent No. 1 being the owner by purchase from the owners (Bhumiswamis) for consideration without notice is entitled to seek possession from defendant No. 1 in respect of the entire suit land.
37. This cross-objection of respondent No. 1 plaintiff is, therefore, partly accepted and appeal of defendant is dismissed. The judgment and decree of the trial Court and first appellate Court are modified to this extent that the plaintiff- respondent No. 1 shall be entitled to the possession of the entire suit land from the defendant.
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