Sultan Ahmed, J.:— The suit of which this appeal arises was instituted by the Plaintiff for recovery of possession with mesne profits of the land in dispute on the allegation that the Plaintiff obtained a mortgage decree over the property in suit and that he was resisted by the Defendant when the Plaintiff went to take delivery of possession. There was an alternative prayer for redemption of Plaintiff's dues if the Court could not give him khas possession.
2. It appears that the mortgage bond in favour of the Plaintiff was executed on the 2nd June, 1902 and the due date was 7th June, 1905. He filed a suit on the 7th November, 1906 and obtained the mortgage decree on the 8th March, 1907. He took out execution and purchased the property on the 11th May, 1909 and obtained formal delivery of possession on the 10th September, 1910 when he was resisted by Defendant No. 5 on the allegation that the property in suit had been sold to him by a pale deed executed on the 11th August, 1906 though this document was not registered until the 22nd November, 1906; hence the Plaintiff filed the present suit on the 3rd March, 1913 for ejectment of Defendant No. 5 and for recovery of possession and mesne profits as stated above.
3. Both the trial Court and the lower Appellate Court have given a decree for possession with mesne profits to the Plaintiff; hence Defendant No. 5 files this second appeal.
4. The learned Vakil appearing on behalf of the Appellant has firstly contended that the suit for possession was not maintainable. He submits that the Plaintiff is not entitled to a decree for possession but only to a decree for sale and he relies an the cases of Balli Singh v. Bindiswari Tewari(1). Hargu Lal Singh v. Gobind Rai(2) and Madan Lal v. Bhagwan Das(3) and I now proceed to consider whether these decisions are of any help to him. The case of Balli Singh v. Bindeswari Tewari is clearly distinguishable. On the other band the present case is fully covered by the suppositious case considered by their Lordships at p. 136. Their Lordships observed as follows:—
“A makes a simple mortgage in favour of B. and subsequently a similar mortgage in favour of C. B sues A on the mortgage without impleading C. He obtains a decree, brings the property to site and purchase it himself. By that purchase he acquires the right to possession of the mortgage property which up to that time had been enjoyed by the mortgagor. C not having been made a party to the suit brought by B had no opportunity of redeeming B, and in a subsequent suit brought by B to enforce possession of the property, C must be given an opportunity of redeeming B, but if he fails to redeem, B will have a decree for possession of the property and not for sale of the property. The reason why he gets a decree for possession of the property is that at the date of the suit he was entitled to possession of the property.”
5. These are exactly the facts of the present case. In the present case the District Judge directed that Defendant No. 5 should pay the mortgage money with costs and interest within six months from the date of the decree and on failure be do so the Plaintiff was to get possession of the disputed properties from the defendant. It is however urged by the learned Vakil appearing on behalf of the Appellant that the Plaintiff was at the date of his mortgage suit not entitled to possession of the property against all the world inasmuch as the property had already been sold to the Defendant No. 5 on the 11th August, 1906. It must be remembered that this sale deed, though executed on the 11th August, 1906, that is, prior to the date of the institution of the Plaintiffs' mortgage suit, was not registered until the 22nd November, 1906, and this raises an important question whether at the date of the suit Plaintiff was entitled to possession against the Defendant or not. Section 54 of the Transfer of Property Act lays down that “Sale is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. Such transfer in the case of tangible immoveable property of the value of one hundred rupees or upwards or in the case of a reversion or other intangible thing can be made only by a registered document;” and it has been laid down in Papireddi v. Narasareddi(4) and Sheo Narain v. Darbari(5) that the acquisition of ownership can only be made by a registered conveyance, and that the bible does not pass until the sale deed has been registered.
6. The learned Government Pleader, however submits that under section 47 of the Registration Act, the sale deed executed on the 11th August, 1906 became operative from that date on registration, that is, the ownership of the property vested in the vendee, Defendant No. 5 on the 11th August, 1906, immediately after the registration of the document on the 22nd November, 1906. That the ownership will be deemed to be vested in the vendee from the 11th August, 1906 after the registration on the 22nd November cannot be questioned, but the same time it is obvious that on the 7th November, 1906 when the suit of the Plaintiff was filed the ownership had not legally vested in Defendant No. 5. If the sale deed of the Defendant No. 5 had been registered on the 11th August, 1906, the ownership of the property would have vested in him on that date, and the Plaintiff's case on the authority of Balli Singh v. Bindeswari Tewari could not have succeeded. That is the important fact which makes the present case distinguishable from the facts of that case and also the cases of Hargu Lal Singh v. Gobind Rai and Madan Lal v. Bhagwan Das. The view that I have taken is not only supported by the suppositious case formulated in Balli Singh v. Bindeswari Tewari but is also fully supported by the case in Ram Prasad v. Bhikari Das(6) where the earlier Allahabad cases referred to above were fully considered. This contention of the learned Vakil for the Appellant must therefore be overruled.
7. The next ground urged is that the suit was barred by limitation. It is found by both the Courts below that when the Plaintiff's suit was filed the Plaintiff had no notice whatsoever of the transfer in favour of the Defendant No. 5 and both have found that the Plaintiff was apprised of the sale deed on the 9th September, 1910 when the Plaintiff went to take delivery of possession, and the suit having been filed within three years from that date is clearly therefore within time. This ground therefore must also fail. These are the two grounds upon which the decrees of the Courts below were availed and as they fall, I would dismiss this appeal with costs.
8. Coutts, J.:— I agree.
9. Appeal dismissed.