Jeo Narayan Mahto vs Budhan Mahto and Others

Harries, C.J.—This is a plaintiff''s appeal from a decree of the learned Additional Subordinate Judge of Patna dismissing his claim to possession of certain property. The suit giving rise to the appeal was brought by the plaintiff for recovery of possession of 1.28 acres but of khata No. 169 of Mauza Saidpore. It appears that one Shivanandan Mahto (defendant 8) held 7.55 acres of kasht lands in this mauza. On 27th September 1927 Shivanandan Mahto mortgaged his 7.55 acres of land as security for Rs. 500 borrowed from the plaintiff. On 17th August 193 Shivanandan Mahto sold 3.91 acres to the plaintiff in full satisfaction of the mortgage dues which were then said to be lis. 900. It is to be observed that 3.41 acres of this land sold formed part of the land which was the subject-matter of the mortgage of 27th September 1927. According to the plaintiff, he entered into possession of the land but was dispossessed of 1.28 acres thereof in March 1935 by the contesting defendant. Accordingly, he brought this suit for possession.

The defence to the claim for possession was that Shivanandan Mahto on 7th August 1934 that is ten days before the sale to the plaintiff, had sold 1.28 acres out of the land later sold to the plaintiff, to the contesting defendant. It appears that difficulties arose about the registration of this sale deed, but it was eventually registered compulsorily on 26th February 1935. The contesting defendant contended that the moment his deed was registered he had good title to the land, from the date of the sale deed namely 7th August 1934. That being so, Shivanandan Mahto could not ten days later, sell that same 1.28 acres of land to the plaintiff.

In the trial Court it was alleged inter alia by the plaintiff that the sale deed to the contesting defendant dated 7th August 1934 was a fictitious and colourable transaction, and the learned Munsif so held and decreed the plaintiff''s claim. The lower appellate Court however disagreeing with the trial Court, held that this sale deed of 7th August 1934 was a genuine and bona fide transaction, and as it gave a good title to the contesting defendant the plaintiff who claimed title under a subsequent sale deed could not dispossess him. Accordingly, the plaintiff''s claim for possession was dismissed in its entirety. This second appeal first came before a learned single Judge of this Court who referred it to a Bench.

On behalf of the appellant it has been contended that the lower appellate Court was wrong in holding that the contesting defendant had a good title to this 1.28 acres of land. It is urged that the execution of the sale deed on 7th August 1934 gave the contesting defendant no title to the land and, therefore, on 17th August 1934 Shivanandan Mahto had every right to sell the land again to the plaintiff.

The plaintiff immediately perfected his title by having his sale deed registered and therefore it is said the plaintiff had an indefeasible title on 26th February 1935 when the sale deed in favour of the contesting defendant was registered. Counsel contends that this subsequent registration could not possibly deprive the plaintiff of the title which he obtained by his sale deed of 17th August 1934 coupled with immediate registration. Unfortunately for the plaintiff, a document which has been registered dates back to the date of its execution. Section 47, Registration Act, is clear and is in these terms:

A registered document shall operate from the time from which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration.

It is therefore clear that the sale deed in favour of the contesting defendant dated 7th August 1934 operated immediately after its registration not from the date of registration which was 26th February 1935 but from the date of its execution namely 7th August 1934. If the sale deed operates from this latter date, then it is clear that the contesting defendant had a good title by sale and that a subsequent sale to the plaintiff of the 1.28 acres of land could give the latter no title. Counsel for the appellant has urged that effect cannot be given to Section 47 by reason of the provisions of Section 54, T.P. Act, which provides that a sale of property of the value of over Rs. 100 can be made only by a registered instrument. The sale to the contesting defendant however was made by a registered instrument, though registration actually took place after the date of the sale deed to the plaintiff and its registration. In my view the sale to the plaintiff was always subject to the sale to the defendant being perfected by registration in which case nothing would pass to the plaintiff at all.

The view which I have expressed has already been accepted by this Court in Faiyazuddin Khan Vs. Mt. Zahur Bibi, . In that case a deed relating to certain properties requiring registration was executed, and before it could be registered-the properties were attached. A Bench of this Court held that the attachment did not prevail against the deed as the deed when-registered took effect from the date of its execution. For these reasons, I am satisfied that the lower Court was right in holding that the contesting defendant had a good title to this land in dispute namely 1.28 acres and therefore the plaintiff''s claim was bound to fail.

Mr. Sushil Madhav Mullick has however urged that he is entitled to a decree for damages against Shivanandan Mahto, defendant 8, and that we should at least give him a money decree against this defendant. It is to be observed that no claim for damages has ever been made up to this stage against any of the defendants, and it is impossible for this Court to allow the whole of the reliefs to be changed and to pass a decree against defendant 8 against whom no claim has previously been made.

I express no opinion as to whether the plaintiff has or has not a cause of action against defendant 8; but it appears to me that if he has a cause of action he must enforce it by another suit. Relief cannot be given to the plaintiff as against defendant 8 in these proceedings.

No other point has been taken in this appeal, and I would, for the reasons already given, dismiss the appeal with costs to the contesting defendant-respondent 1.

Manohar Lall J.

I agree.