Bajrangi Gope and Others vs Rupnarain Mahton and Others

This second appeal by the defendant first party against a decision of the Additional Subordinate Judge of Patna, reversing that of the Additional Munsif of Bihar, raises the question whether the plaintiffs as the purchasers of the land in suit by three unregistered sale deeds can recover possession as against the defendants in a suit for ejectment.

The plaintiffs purchased the land in suit by mean3 of three sale deeds, one for Rs. 50, dated 4th June 1936, the second for Rs. 100, dated 22nd March 1937, and the third for Rs. 55, dated 18th June 1938. The land subject to the sale was an occupancy holding which under the terms of Section 26(c), Bihar Tenancy Act, as amended in 1934, again as amended by Act XI [11] of 1938, requires that in order that a transfer of an occupancy holding can validly take place, it must be by a registered document. The defendants are the transferees from the transferee of Mt. Pano Kuer, who was the original tenant of this holding. It appears that Mt. Pano Kuer transferred by a registered document dated 7th September 1939 this holding 4o defendant second party, who in their turn sold it to defendant first party on 1st November 1941 by another registered document. In consequence of a proceeding u/s 144, Criminal P.C., in the year 1941 immediately after the execution of the sale deed in favour of the defendant first party, the plaintiffs'' case is, that their possession over the land in suit came to be disturbed. They, consequently, instituted the suit for & declaration of title and confirmation of possession, in the alternative, for recovery of possession.

The learned Munsif dismissed the suit finding that the plaintiffs failed to prove their title to the land in suit. The learned Subordinate Judge, on appeal, however, has decreed the suit of the plaintiffs and passed a decree ejecting the defendants.

It is contended on behalf of the appellants before us that the learned Subordinate Judge has erred in holding that the plaintiffs proved their title to the land in suit inasmuch as the documents of title relied upon by the plaintiffs were unregistered sale deeds and as such failed to confer any title on them. The contention raised on behalf of the appellants seems to be well founded. Section 260 of the old Act, now replaced by Section 26A, clearly lays down that no transfer of an occupancy holding can be made unless it be by means of a registered document. It was attempted to be argued on behalf of the respondents that as the provisions of Section 26A of the present Act do not apply to the present transfers, the transfers were not invalid. We fail to see any distinction between the terms of Section 26C, as it stood before the amendment, and those of Section 26A after its amendment in 1938. The effect of both the provisions clearly is that whenever it is intended to transfer an occupancy holding, it must be done by a registered document so that, as provided by the Act, the landlord''s fee may be deposited before the Registrar which, as provided in the section, may be transmitted to the landlord. It should be remembered that before the introduction of the provisions of Section 26A, or Section 26(b), an occupancy holding could be only transferred if there was a custom of transferability established in the locality or with the consent of the landlord. When this restriction on the transfer of the occupancy holding came to be removed by the statute, it was provided that such a transfer should be effected only by registered documents so that the fee for registration available to the landlord may be deposited before the Registrar. It is, therefore, provided that the Registrar shall refuse to register a document unless the landlord''s fee is paid. It is clear that in order that a title in any occupancy holding may be created by transfer, it must follow strictly the provisions of the law touching upon such transfer as provided in t Section 26(b) of the old Act or Section 26(a) of the present Act.

Our attention was drawn to a decision in the case of Pandit Ram Chander Vs. Pandit Maharaj Kunwar and Others, , by the learned Counsel appearing on behalf of the respondents in support of the proposition that a plaintiff can maintain the suit relying upon the fact that the possession of the land was transferred to him, the terms of the transfer being ascertainable from the unregistered documents, binder the provisions of Section 53-A, T.P. Act. The facts of that case were entirely different. To begin with, the plaintiff in that suit was not suing for ejectment. The suit was merely to defend his possession as against the person who was trying to disturb his possession, and he never asked for a declaration of his title to the land. All that be tried to establish was his possession and he sought relief by injunction against the defendant from interfering with his possession. As it was not required that the plaintiff should prove his title, the document of title was not required to be put in evidence. It is well established that the provisions of Section 53-A, T.P. Act can be available to a defendant to protect his possession, but they cannot be availed of by the plaintiff who has to prove his title in a suit for ejectment. The distinction is clear. The plaintiff in order to sue for ejectment has to establish his title to the land in suit. He cannot eject the defendant unless he has better title. The defendant in possession can rely upon his title based on possession u/s 53-A, T.P. Act, and can resist the suit for ejectment filed by the transferor, because he would be under an estoppel he cannot deny the title which was created by him in favour of the defendant, although invalidly for want of certain formalities of law.

So far as the present case is concerned, it is unnecessary to discuss any further the question as to whether in the circumstances of the case the plaintiffs could rely upon the provisions of Section 53-A, T.P. Act inasmuch as the transfer in their favour is bad by reason of the provisions of the Bihar Tenancy Act which not only provide that no transfer of an occupancy holding can be effected unless it be by a registered document but also that the document cannot be registered unless the landlord''s fee has been deposited. In view of these considerations, the judgment and decree of the lower appellate Court are set aside and those of the Munsif restored. The appeal succeeds and is allowed with costs.