Maksudan Singh v. Darbargir

1. The plaintiff Muksudan Singh, malguzar of Kacharbod, filed this suit on 26th March 1925, against Darbargir who had purchased by means of an unregistered sale-deed dated 2nd October 1922, 8-53 acres of occupancy land for Rs. 256 from Mt. Premkuar, the tenant of the land in suit. Darbargir was put in possession in accordance with the sale. Mangal Singh, a nephew of Mt. Premkuar, was made a defendant, because he used to live with Mt. Premkuar, was her heir, had signed the sale-deed and had thus given his consent to the sale. Mt. Kala applied on 17th July 1925, to be made a defendant, as she alleged that she was the daughter of Mt. Premkuar and was added as a defendant. The defendant Darbargir stated that he purchased the land for Rs. 481, after obtaining the consent of the plaintiff, that he had been in possession since 2nd October 1922., that as plaintiff did not apply under Section 13 of the C.P Tenancy Act for setting aside the transfer, his remedy is barred and this Court has no jurisdiction. Mt. Kala put in a written statement in which she stated that she was the heir of Mt. Premkuar and not Mangal Singh, and that plaintiff had no right to bring the suit.

2. The trial Court found that plaintiff had not consented to the sale, that Darbargir was in possession of the land in suit from 2nd October 1922, that Mt. Kala was Mt. Premkuar's daughter, that civil Court had jurisdiction to try the suit, that the sale-deed was inadmissible for want of registration, that Mangal Singh signed the sale-deed as an attesting witness, that Mt. Kala's claim had become barred and passed a decree for possession in favour of the plaintiff.

3. The lower appellate Court held that the malguzar's consent was not proved, that the civil Court had no jurisdiction to entertain the suit, that Mt. Kala's claim was not barred against the plaintiff who was not in possession, that the landlord had no right of re-entry unless it was proved that the tenant right had ceased to exist and accordingly dismissed the plaintiff's suit.

4. The first point which is urged in this appeal is that the civil Court has jurisdiction to entertain this suit under Section 9 of the CPC, and Section 105(c) of the Tenancy Act, has no application to such a suit. In this case the transfer, which is by an unregistered deed, is invalid and the intended tranferee is not a transferee at all and is a trespasser at civil law and can be ejected from the land by a suit. In Chindhu v. Bameshwarnath A.I.R 1927 Nag. 30 , 22 N.L.R 128, Kotwal, A.J.C, and Prideaux, A.J.C, in a similar case, held as follows:

“We are of opinion that registration in contravention of any provision of law whatever be the cause that led to the contravention is ineffectual and must be ignored. Wo agree with the view taken in Nilkant v. Ghulya [1917] 13 N.L.R 165 , 42 I.C 384 and the reasons given in support of that view. If the registration is ignored there is no transfer in cases where registration is necessary and the jurisdiction of the civil Court is not barred.”

5. In this case the sale being for Rs. 481 registration was necessary and as the document could not be registered there was no transfer and the vendee is a trespasser and the civil Court has jurisdiction to entertain the suit.

6. The next point which is urged is that the plaintiff is entitled to possession though Mt. Kala, the daughter of Mt. Premkuar is a defendant in the suit, because Mt. Kala never undertook to cultivate the holding, pay rent to the landlord and was never in possession of the holding. Mt. Premkuar died in June 1924, and she was the tenant of the land in suit at the time of her death. She was succeeded by her daughter Mt. Kala who on Mt. Premkuar's death, became the tenant of the land in suit and is still the tenant. The plaintiff's case against defendant 3 was that she was not the daughter of Mt. Premkuar and in the alternative he had pleaded, that in case it was held that she was Mt. Premkuar's daughter, she could not claim the land in preference to the plaintiff's right who was the lambardar. The lambardar as such has no such preferential right and, therefore, cannot be allowed to take possession of the land, when the tenant is alive and her tenant right has not come to an end. The position of Darbargir is that of a liecensee and Mt. Kala is the tenant of the land in suit. As the tenant is a party to this suit, the plaintiff cannot be put in possession, and, therefore, his suit for possession must be dismissed.

7. Considering the fact that the appellant hae succeeded on the main point involved in the appeal, though his suit fails for other reasons because Mt. Kala is also a party to this suit, it seems fair and proper that each party should bear his costs as incurred in this Court and the Courts below. The plaintiff's suit for possession is dismissed and the appeal is rejected.

8. Appeal rejected.