Jenkins, C.J:— This is an Appeal from a judgment of Mr. Justice Coxe who has set aside the decree of the lower Appellate Court and restored that of the first Court with costs.
The suit is brought for khas possession of certain lands, and the facts with regard to those lands that have been established in the evidence are these: The Plaintiff's title to them is by virtue of a transfer in 1907, but at that time the Defendant, 1st party, was in possession of the lands and had paid the purchase-money for them to the Plaintiff's vendor, that payment having been made prior to the purchase by the Plaintiff. In these circumstances, can the Plaintiff's claim prevail? I think not. To begin with, the Plaintiff, apart from such notice as would be imputed to him of the Defendant's right to the land by virtue of his possession, is found as a fact by the lower Appellate Court to have known of the previous sale to the Defendant, and it is further found by the learned Judge of the lower Court of Appeal that he is unable to accept the suggestion that the vendor may have perpetrated an act of bad faith without any collusion on the part of the Plaintiff. He distinctly comes to the conclusion that there was complicity between the Plaintiff and the vendor, and that can only mean a deliberate design to defraud the Defendants of such rights as had not been fully completed by reason of failure to comply with all the formal requirements of the law. Now we have the position that the Defendant, 1st party, was in possession of the lands under a contract for sale under which the purchase-money had been paid prior to the transfer to the Plaintiff, and that the Plaintiff was well aware of that position. I cannot see how in these circumstances the Plaintiff can possibly recover the lands from the Defendant, first party.
There are cases, of which Walsh v. Lonsdale is a type, which establish the protection to which in a Court of Equity a person in the position of the Defendants is entitled. It is quite true that the question whether the Defendants, 1st party, were entitled to bring a suit for specific performance in vindication of their rights was not debated before the lower Appellate Court, but there is no matter brought to our notice which can throw any serious doubt upon the Defendant's right to complete their right by such a suit. On these grounds I think that the suit must fail. This is no invasion or evasion of the Registration Act. It is merely securing to a party those rights to which he is entitled apart from the Act—rights to which he has a good title in Courts to which the abiding direction has been given to proceed in all cases according to equity and good conscience. Rights of this class can in the ordinary course only be enforced against a third party, such as the Plaintiff here is, where that party has notice of those rights, so that I feel in no way embarrassed by the suggestion that there is anything in the policy of the Registration Act which stands in the way of the ultimate result at which the District Judge arrived. In the view that I take, it is unnecessary to elaborate the position of the Defendants, but I may point out that if carried to its full extent the doctrine for which the Plaintiff contends would deprive a purchaser of his lien for purchase-money paid by him, even at the instance of one who took with notice.
The result is that the judgment of Mr. Justice Coxe is set aside, and the decree of the lower Appellate Court restored. The Appellants are entitled to their costs throughout.
This decree relates only to the 14 bighas which are claimed by the Defendants. To the rest of the land in suit the Defendants have not made any claim, and they are not in possession of it. In regard to that, therefore, there is no cause of action.
Appeal allowed.