Giridhar Roy vs Gowri Kant Roy

Glover, J.—In this case two parties claimed the same parcel of land under two separate bills of sale from the same vendors. The plaintiff''s deed of sale is dated the 6th of Pash 1272, the defendant''s is dated the 25th Bhadra of the same year. The plaintiff''s deed was registered, the defendant''s was not registered. The Judge has reversed the decision of the Court of first instance, on the ground that the mere fact of registration will not give priority to a deed later in date than one not registered when there is collusion or fraud between the purchaser under the registered deed of sale and the vendors, and he appears to have taken the fact that the vendors had previously sold this land to other parties (a sale which the Judge considers to be amply proved by very creditable evidence) as sufficient reason to presume collusion on the part of the bolder of the registered deed. He has therefore held, reversing the decision of the first Court, that the defendant''s deed of sale being prior in date takes precedence of the plaintiff''s deed of sale although that deed of sale is registered, It appears to us that the Judge has mistaken the meaning of the law in this case. If he means to say that a party who purchases an estate, and registers his purchase-deed, knowing that previous to his purchase the land had already been sold to another party who had not taken the precaution of registering, then no doubt be would be right in saying that the holder of the registered deed would not be entitled to priority over the holder of a non-registered deed of anterior date, on the ground of collusion between the vendor and the vendee. But if a purchaser buys bona fide without any notice or knowledge of any previous sale of the property, and takes the precaution which the law advises him to take by Act XVI of 1864, and registers his purchase-deed, then no doubt his registered deed would have priority over a deed of a date anterior to it, but not registered. In this case the Judge has not stated on what grounds he has come to the conclusion (if that be the conclusion he has come to, of which we have some doubt) that the plaintiff had been colluding with his vendors.

The mere fact of the land having been previously disposed of by his vendor, would be no proof that the subsequent purchaser was acting fraudulently or collusively, for it may very well be that he knew nothing whatever of the previous transaction.

We think that the special appellant in this case has the right to have the Judge''s opinion clearly given, as to whether he bought with knowledge of the prior sale to the defendant or not. If he bought with knowledge then the Judge''s decision will stand; if on the contrary he was an ignorant purchaser for value, there is no reason why the provisions of section 68 of Act XVI of 1864, which is the Act applying to this case, should not give him a prior claim to the land in suit.

An objection was taken in the course of the argument by the special respondent''s pleader, to the effect that the original plaint did not ask for possession of the land or for the cancellation of the defendant''s deed of sale, but was confined merely to the recovery of the value of certain jack fruits which one of the parties accused the other of having plundered. This objection appears to us altogether untenable; in the first place the omission was rectified before the case came on for bearing, and when the issues were fixed they included the whole matter in dispute between the parties; no objection was made as to the insufficiency of the plaint at any time, and the case went to trial with the whole of the evidence which both parties were able to give in support of their respective contentions, and at this stage of the case we cannot allow such an objection to influence the decision. Another point which has been brought to our notice is, that the Judge has come to no finding as to the question of possession, and it is argued that if a party claiming under an unregistered deed of sale could show that at the time of the sale he likewise got possession of the property sold, that would have a very great effect in determining the issue between the parties, notwithstanding that the second deed of sale was registered, and we have been referred to a decision of this Court in the case of Salim Sheikh v. Boidonath Ghuttuck 12 W.R. 217, in which it has been laid down generally, that the fact of obtaining possession has always been treated as a most important element in the acquisition of title. As the case is now going back, in order that the Judge may re-try the whole question, we do not think it necessary to lay down any rule with reference to this objection; the Judge will of course consider it with the rest of the evidence when he passes a fresh decision in the case,

The case is remanded with reference to the above remarks, and costs will follow the result. Mitter, J.

I concur.