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Deonandan Singh and others v. Rambahal Singh and others
Factual and Procedural Background
Plaintiffs (now appellants) instituted a suit for declaration of their title and recovery of possession with mesne profits. Plaintiffs 3 and 4 had purchased the raiyati interest in the suit lands from pro forma defendants 7 to 10 by two deeds of sale (Exts. 5/f and 5/g) executed on 21 November 1953. The contesting defendants resisted the suit, asserting long-standing cultivating possession (apart from two plots, No. 1 and No. 25, in Rajmahal Sub‑Division) under the pro forma defendants and claiming they had acquired occupancy rights; they contended plaintiffs could not evict them though plaintiffs might be entitled to rent. Plaintiffs alleged they had been on the land as batai‑dars under defendants 7 to 10 before purchase. Except plots 1 and 25 (Rajmahal Sub‑Division), the other lands under the sale deeds were in Ramnagar, P.S. Barh (Tauzi Nos. 8092 and 8705) in Patna district.
The trial court decreed the plaintiffs' suit, finding the defendants had neither possession nor title to the lands. On appeal the lower appellate court reversed that finding and dismissed the suit for two stated reasons: (1) the plaintiffs had practised fraud on registration by including plots 1 and 25 (situate in Rajmahal) in the deeds so as to obtain registration at Rajmahal, and (2) the plaintiffs failed to prove they were in cultivating possession as bataidars before 21 November 1953 or remained in possession until the suit (instituted on 9 August 1958). The appellate court also found the contesting defendants had been in cultivating possession for more than twelve years and had thereby acquired occupancy rights. This appeal followed.
Legal Issues Presented
- Whether the inclusion of plots No. 1 and No. 25 situate in Rajmahal Sub‑Division in the sale deeds (Exts. 5/f and 5/g) amounted to fraud on registration.
- Whether the plaintiffs proved possession (as batai‑dars) within twelve years prior to the suit so as to be entitled to recover possession from the defendants.
- Whether, having found the plaintiffs' title but defendants' long possession, the plaintiffs were entitled to recover possession or only to rent and declaration of title.
- As raised by respondents, whether Section 20 of the Santhal Parganas Tenancy Act, 1949 (restricting transfer of raiyati interest unless expressed in record of rights) affected the validity of including plots 1 and 25 in the sale deeds (this point was noted but not decided for lack of material).
Arguments of the Parties
Appellants' Arguments
- The inclusion of plots 1 and 25 in Exts. 5/f and 5/g was not fraudulent because those plots in Rajmahal Sub‑Division belonged to the plaintiffs' vendors (pro forma defendants 7 to 10) or their family; the vendors therefore had an interest to transfer.
- Exts. 10 and 10(a) (khatians) were produced to show the pro forma defendants' ancestors had interest in plots 1 and 25; Ext. 10 explicitly bore the name of Balgovind Singh, father of defendants 7 to 10.
- The lower appellate court erred in reading the evidence of P.W.18 (plaintiff No. 4): the appellate court recorded that P.W.18 admitted plaintiffs were not in possession of plots 1 and 25, but the judgment's reading of that witness was incorrect.
- Reliance on Mt. Ram Dai v. Ram‑chandrabali Devi (AIR 1919 Pat 572: 4 Pat LJ 433) to argue that inclusion of a portion of property in a deed (even if vendor had ceased to have interest in that portion) does not necessarily amount to fraud on registration where the transferor acted bona fide and the property existed.
Respondents' Arguments
- Where a property included in a deed is non‑existent, or the vendor did not have any interest in it, or could not put the vendee in possession, inclusion of that property in the deed constitutes fraud on registration. To support this general proposition, respondents relied on several Judicial Committee decisions (cited in the opinion).
- Emphasis was placed on the Judicial Committee decision cited as LR 48 IndAp 127 (AIR 1921 PC 8) where inclusion of a cowrie interest purchased from a person without title was held to be fraud on registration; respondents urged analogy.
- Respondents also pointed to Section 20, Santhal Parganas Tenancy Act, 1949, arguing transfer of a raiyati interest in Rajmahal Sub‑Division may be invalid unless the right of transfer is expressed in the record of rights, thereby contesting the competence of pro forma defendants 7 to 10 to include plots 1 and 25 in the sale deeds.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Mt. Ram Dai v. Ram‑chandrabali Devi (AIR 1919 Pat 572: 4 Pat LJ 433) | That inclusion in a transfer deed of a portion of property in respect of which the transferor had ceased to have title does not necessarily amount to fraud on registration where the transferor acted bona fide and the property existed; registration at the appropriate place remains proper. | The court found this authority aptly applicable: even if the plaintiffs' vendors had ceased to have interest in plots 1 and 25, inclusion would not by itself prove fraud on registration. The case supports the view that plaintiffs derived good title under Exts. 5/f and 5/g. |
| LR 41 IndAp 110 : AIR 1914 PC 67 (Judicial Committee) | Generally cited for the proposition that where property included in a deed is non‑existent or vendor had no interest, inclusion may amount to fraud on registration. | The court acknowledged the proposition as generally sound but held it did not help respondents because, on the facts, the Rajmahal plots existed and the vendors had at some point an interest in them. |
| LR 48 IndAp 127 : AIR 1921 PC 8 (Judicial Committee) | Where a vendor included in a deed an interest which he (or his predecessor) never had (example: a cowrie interest bought from a person without title), the inclusion was treated as fraud on registration. | The court accepted the authority but distinguished it: in the present case the plaintiffs' vendors had at some point a semblance of title or interest, and therefore the strict ratio of that decision did not apply. |
| AIR 1934 PC 157 : 61 Ind App 286 (Judicial Committee) | Also cited for the general proposition that inclusion of non‑existing or non‑owned property in a transfer may amount to fraud on registration. | The court treated the decision as supporting the general rule but found it inapposite on the facts because the Rajmahal plots existed historically and were connected with the vendors' family rights; therefore these authorities did not establish fraud here. |
Court's Reasoning and Analysis
The court proceeded by reviewing the factual record and the appellate findings. Key elements of its reasoning were:
- Examination of evidence relating to plots 1 and 25: The court noted that Ext. 10 (khatian) includes plot No. 25 and bears the name of Balgovind Singh, father of defendants 7 to 10; Ext. 10(a) showed names associated with the same joint family (references to Haricharan Singh and others). The trial court's view that plaintiffs were in possession was contrasted with the lower appellate court's contrary reading of P.W.18's evidence; the judge found the appellate court had misread that witness and that the documents (khatians) were admissible and supported the plaintiffs' case to some extent.
- On the fraud‑on‑registration question: The judge identified the critical legal point — fraud on registration would be established where a property included in the deed was non‑existent or the vendor had never had any semblance of title and included it solely to obtain registration. Applying the authorities cited by both sides, the court concluded that those authorities stating the proposition were generally correct but were distinguishable here because (a) the Rajmahal plots existed, (b) at one time the vendors' branch of the family had an interest in those plots, and (c) the khatian evidence supported that connection. Therefore, there was no established fraud on registration in the facts of this case.
- On the possession and twelve‑year requirement: The court recognized that whether plaintiffs were in possession as batai‑dars before 21 November 1953 was a question of fact. The trial court had found for plaintiffs, but the appellate court had drawn a contrary conclusion after considering documentary and oral evidence. The judge held that the appellate finding (that plaintiffs did not prove possession and that defendants had been in cultivating possession for more than twelve years) was a factual finding supported by evidence (rent receipts, postal acknowledgements, money‑order coupons, postcards and numerous oral witnesses) and therefore not open to successful challenge in this second appeal.
- On the Santhal Parganas Tenancy Act, 1949, s.20 point: The respondents raised this statutory argument before the court below and on appeal (that transfer of raiyati interest in Rajmahal might be invalid unless expressed in record of rights). The judge stated there were insufficient materials on record to determine whether the finally published record of rights authorised such a transfer and that the point had not been fully raised below; accordingly the court declined to enter into a discussion on that point.
- Synthesis of title and possession: The court reconciled its conclusions by accepting that plaintiffs had established title by virtue of Exts. 5/f and 5/g (deriving title from pro forma defendants 7 to 10), and that there was no proven fraud on registration. At the same time the defendants' long possession (found by the lower appellate court) gave them occupancy rights such that the plaintiffs could not recover physical possession.
Holding and Implications
Holding:
PARTLY ALLOWED. The appeal is partly allowed: the court declared the plaintiffs' title over the suit properties but refused to permit the plaintiffs to recover possession from the defendants who had acquired occupancy rights by long possession.
Direct consequences and remedial orders:
- The plaintiffs are entitled to a declaration of title to the suit properties (they derived good title under Exts. 5/f and 5/g from pro forma defendants 7 to 10).
- The plaintiffs are not entitled to recover possession from the defendants; the defendants were held to be Shikmidars (occupancy ralyats) under the plaintiffs by virtue of long cultivation and occupancy.
- The plaintiffs are entitled to rent from the defendants from the date of purchase, i.e., from November 1953.
- The decree and judgment of the lower appellate court are modified to this extent.
- Because both parties had partial success, there was no order for costs in this Court.
Implications for precedent: The opinion applies and distinguishes established authorities on fraud in registration but does not purport to lay down any new general principle beyond applying those authorities to the facts; no broader new precedent is announced in the judgment.
JUDGMENT
H. Mahapatra, J.
1. Plaintiffs who brought a suit for declaration of their title and recovery of possession with mesne profits are the appellants. Their case was that plaintiffs 3 and 4 purchased from pro forma defendants 7 to 10 the raivati interest in respect of the suit lands under two deeds of sale (Exts. 5/f and 5/g) executed on the 21st of November, 1953, The contesting defendants resisted the suit on the ground that they had been in cultivating possession of the suit lands apart from two plots, plot No. 1 and plot No. 25 in Rajmahal Sub-Division under the pro forma defendants 7 to 10 for many many years and they had acquired occupancy right therein. Plaintiffs, therefore, were not entitled to evict them from the lands though they may be entitled to receive rent from the defendants. The plaintiffs had asserted that before their purchase they were on the land as batai-dars under defendants 7 to 10 belonging to Rajmahal Sub-Division. Except the two plots, 1 and 25. other lands under the two deeds of sale were in Ramnagar, P. S. Barh, Tauzi Nos. 8092 and 8705 in the district of Patna.
2. The trial Court decreed the plaintiffs' suit on a finding that the defendants were neither in possession over the suit lands nor they had any title thereto in any way. On appeal by the defendants that finding has been reversed and the suit has been entirely dismissed on two reasons; one was that the plaintiffs had practised fraud on registration by including plots 1 and 25 situate in Rajmahal Sub-division in the deeds of sale (Exts. 5/f and 5/g) so as to get them registered at Rajmahal. The other reason was that the plaintiffs failed to prove their story that they were in cultivating possession of the suit lands as bataidars before November, 1953 or were in possession after that till the institution of the suit which .was on the 9th of August, 1958. The lower appellate court categorically found that the defendants succeeded in proving their possession over the lands for a very long time, more than twelve years by which they acquired right of occupancy over the lands.
3. Learned Counsel appearing for the plaintiffs appellants urged that the finding that there has been any fraud in regard to registration was not correct. He pointed out that the two Plots, 1 and 25 situate in Rajmahal Sub-division which were included in the two deeds of sale (Exts, 5/f and 5/g) really belonged to the plaintiffs' vendors, defendants 7 to 10 and the Court below was wrong in thinking that they had no interest therein. Exts. 10 and 10(a) are the two khatians which the plaintiffs had produced to show that the pro forma defendants 7 to 10's ancestors had interest in those two plots of land, but the lower appellate court found that those two documents, Exts. 10 and 10(a) (Khatians) did not show that they were finally published nor did they show the date of such publication. Secondly, the lower appellate Court thought thai neither of those two documents showed the name of the father of the pro forma defendants 7 to 10. I am afraid, there has been a serious error of record committed by the lower appellate court in this respect. Ext. 10 which includes plot no, 25 bears the name of Balgovind Singh, father of defendants 7 to 10. In the other one, Ext. 10(a), the name of Balgovind Singh appears to have been scored through and the name of his cousin Haricharan Singh, son of Damari Singh was mentioned.
There cannot be any doubt that these two plots, 1 and 25 belonged to the joint family consisting of the descendants of Mohan Singh. Haricharan Singh and Balgovind Singh belonged to that family; that at one point of time the two branches including that of defendants 7 to 10 had interest in these two plots cannot be denied. It was further asserted that there had been a partition and defendants 7 to 10's branch ceased to have any interest in these two plota That will hardly be very much relevant on the question of alleged fraud in registration unless it is established that defendants 7 to 10 fraudulently inserted these two plots in the sale deeds without intending to transfer title in those two plots to the vendees so as to obtain registration at Rajmahal. The lower appellate court also appears to have committed another error in regard to the evidence of P. W. 18, who was the plaintiff No. 4. The trial court referred to his evidence and said that he asserted that the plaintiffs were in possession whereas the lower appellate court referring to that evidence has stated that he admitted that the plaintiffs were not in possession of the two plots, 1 and 25. Though no special ground was taken in the memorandum of appeal in regard to this incorrect reading of the evidence of P. W. 18, I went through that evidence, when I found that there was a conflicting reference to this witness in the two judgments and I was not able to discover that P. W, 18 had stated that the plaintiffs were not in possession ot plots, 1 and 25.
4. The position that emerges is that these two plots belonged to the family to which the defendants 7 to 10 belong, and that in respect of plot No. 25 at least their father's name (Balgovind Singh) was entered in Ext. 10, the Khatian. Whether those Khatians were finally published record of rights or not is not very rraterial unless the presumption of correctness was sought to be attached to that. That they were admissible in evidence cannot be doubted. They go to support the plaintiffs' case to some extent.
5. Learned counsel for the appellants referred to the case, Mt. Ram Dai v. Ram-chandrabali Devi. ( AIR 1919 Pat 572:4 Pat LJ 433 ) to contend that even if the plaintiff's vendors had ceased to have interest in one of the plots included in the sale deed, that gave jurisdiction to the Sub-Registrar at Rajmahal to register the document and that would not amount to fraud on registration. In the reported decision a property included in the deed of transfer was partly situated in Benaras and partly elsewhere. The transferor had ceased to have any title to the portion situated in Benaras, but that portion had been included in the deed of transfer which gave jurisdiction to the registering authority at Benaras to register the document of transfer. It was held that the transferor who was acting in a perfectly bona fide manner had ceased to have any interest in the portion of the property situated in Benaras, but the inclusion thereof would not amount to a fraud on registration, I think this case has very apt application to the facts in the case before us, assuming that the defendants 7 to 10 had ceased to have any interest in plots 1 and 25 in Rajmahal.
6. Learned Counsel appearing for the contesting defendants-respondents referred me to three decisions of the Judicial Committee LR 41 IndAp 110 : AIR 1914 PC 67 LR 48 I.A. 127 : (AIR 1921 PC 8) and ( AIR 1934 PC 157:61 Ind App 286:61 Ind App 286) to strengthen his argument that where the property included in the deed of transfer is non-existent or where the vendor did not have any interest in that property, or where the vendor could not put the vendee in possession of such property, the parties to a deed of transfer including that property would be guilty of fraud on registration. The proposition, generally speaking is undisputed, but that will not help the defendants in the present case. Here the property (Plots 1 and 25) situated in Rajmahal Sub-division was in existence and at one point of time the Vendors' branch in the family had interest therein and physical possession was capable of being delivered of that. Learned counsel very much stressed upon the case in LR 48 IndAp 127 : (AIR 1921 PC 8). There the vendor purchased one cowrie interest in a property and included that in the deed of transfer, but he had purchased that from a person who did not have any title over that property. Thus the vendor or his predecessor-in-interest had at no point of time any semblance of title or interest in that property. It is in that context, the inclusion of that property to obtain the facility of registration of the deed of transfer was considered by their Lordships of the Judicial Committee to be a fraud on registration.
In the instant case, It cannot be argued that the plaintiffs' vendors at no point of tune had any semblance of interest in those properties. As far as plot No. 25 is concerned, their father's name (Balgovind Singh) has been entered in Ext. 10. As far as plot No. 1, their uncle's name had also been entered. Which properties were allotted to which branch exclusively in the family partition was a matter of evidence. Absence of such evidence does not lead to the conclusion that the plaintiffs' vendors without having any semblance of title to the properties had included them to commit a fraud on registration. I would, therefore, conclude that on the facts of this case there was no fraud on registration and the plaintiffs derived a good title under Exts. 5(f) and 5(g) from the pro forma defendants 7 to 10 whose title was not disputed by the contesting defendants.
7. The other question that arises for consideration in this appeal and which was equally stressed upon strongly by learned counsel for the appellants is whether the plaintiffs proved their possession within twelve years of the suit so as to be able to recover possession from the defendants. In this respect the1 trial court found in favour of the plaintiffs, but the lower appellate court on a consideration of the same evidence came to a different conclusion. Whether the plaintiffs were in possession of this land as bataidars before the date of their purchase (21st November, 1953) was purely a question of fact and the appellate finding against them in that respect cannot be assailed here. Learned counsel was not able to assert that that finding of the lower appellate court was not based on any evidence. In regard to defendants' possession, the lower appellate court is clear that they were able to show that they had been in cultivating possession of these lands for more than twelve years on account of which they acquired right of occupancy in that. For the appellants, it was contended that this finding is not only in conflict with that of the trial court, but is untenable on evidence. No ground has been taken in the memorandum of appeal to show that there is no evidence to support this finding of the appellate court. On the other hand, all the documentary evidence like the rent receipts, postal acknowledgments, money-order coupons, post cards as well as numerous oral evidence have been referred by the lower appellate Court while considering this question and its conclusion is in favour of the defendants' possession for more than twelve years. It will be very difficult to assail this finding on a question of fact in a second appeal.
8. Learned counsel for the respondents (defendants) pointed out to section 20 of the santhal parganas tenancy act, 1949 where transfer of a raiyati interest in a holding is to be invalid unless such right of transfer is expressed in the record of rights. Rajmahal Sub-division is in Santhal Parganas. This argument was raised to support the lower appellate court's finding about fraud on registration. The argument was that the pro forma defendants 7 to 10 were not competent to include plots 1 and 25 in the sale deed because that was not transferable. Whether in the finally published record of rights such transfer was authorised or not, I do not know nor either of the parties is able to show. This point had not been raised in the appellate court below. There are not enough materials on record to conclude one way or the other on this question. In that view, I do not propose to enter into a discussion on this question.
9. The result is that the defendants' possession having been found and the plaintiffs' title having been established, the latter (plaintiffs) will be entitled to the declaration of their title over the suit properties, but they will not be en- titled to recover possession from the defendants who are Shikmidars under them being occupancy ralyats The plaintiffs, however, will be entitled to rent from the defendants since the date of their purchase, that is, from November, 1953. The appeal is accordingly partly allowed and the judgment and decree of the appellate Court below are modified to this extent. In view of partial success of both the parties, there will be no order for costs in this Court.
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