Mt. Jasoda Kuar vs Janak Missir and Others

Jwala Prasad, J.—This appeal arises out of a suit in ejectment. Shorn of the details, the plaintiff''s case is that village Keri asli and dakhli, including its Tola Bhagiya was the ancestral Khairat property of three brothers, viz., Kinu Misra Gopal Misra and Rupan Misra. Tola Bhagiya is one of the dakhli or dependant villages of mauza Keri. It was let out in mokarrari by Rupan Misra and his co-sharers to one Prabhu Narayan Singh and others who granted a zarpeshgi lease, dated 7th April 1887, of their mokarrari right in favour of Bhawan Sahu and others. Defendant No. 6 is in possession of Tola Bhagiya as zarpeshgidar under sale deed, dated the 18th March 1909 (Ex. 13). Three brothers Kinu Misra, Gopal Misra and Rupan Misra are dead. Defendant No. 1 is the son of Kinu Misra, and Defendants Nos. 2 to 5 are the sons of Gopal Misra. On the 22nd May 1895, corresponding to Jeth 14th, 1952, Sambat, Defendant No. 1, Janak Misra, son of Kinu Misra, Gopal Misra, father of Defendants Nos. 2 to 5, and Rupan Misra, conveyed to plaintiff by a deed of sale (Ex. 3-a) the whole of village Keri including Tola Bhagiya and other appurtenant Tolas for a consideration of Rs. 8,900 and in pursuance of the said kabala delivered possession of the same to her. The plaintiff continued to be in peaceful possession of the disputed property and has been paying cesses to the Kumar of Tori, proprietor of the village. The plaintiff''s husband, Bahadur Sahu, died in 1909, and she being a pardanashin lady there was nobody to look after her interest properly. The defendants, taking advantage of this, began to instigate the tenants of Keri to stop paying rent to the plaintiff, and managed to have Tola Bhagiya mapped and recorded as an independent village and to have some five hamlets or Tolas which really appertain to Keri proper included in Tola Bhagiya. They wrongfully and fraudulently got their names recorded in the settlement papers. The plaintiff coming to know of this, preferred an objection u/s 83 of the Chota Nagpur Tenancy Act, which was, however, rejected. The record-of-rights was finally published in Keri on the 14th January and in Bhagiya on the 21st January 1916. After this publication the defendants dispossessed the plaintiff from the whole property in 1916. Upon these allegations the plaintiff claims her title under the registered kabala, dated the 22nd May 1895, and also by adverse possession to the whole of village Keri asli mai dakhli including its hamlets. She further seeks a declaration to the effect that Bhagiya is a mere Tola (hamlet) which appertains to village Keri, and is not an independent mauza; that the real boundaries of: Bhagiya are those contained in the kabala of Defendant No. 6 (Ex. 13), dated the 18th March 1909, and that the said defendant only is entitled to hold the area of Bhagiya which is covered by his kabala and that the remaining portion, which has been mapped as part of Bhagiya by the revenue authorities in course of the recent cadastral survey appertains to Keri proper. The plaintiff, therefore, prays for recovery of possession of Keri and its hamlets as detailed in the plaint, with the exception of the trees mentioned in Schedule A, together with mesne profits of the value of Rs. 2,400 from December 1973 to 1975 and future mesne profits pendente lite.

Three sets of written statements were filed in the case: [1919] 4 Pat. L.J. 433 by Defendant No. 1, Janak Misra: AIR 1914 P.C. 67 by Defendants Nos. 2 to 5; and (3) by Defendant No. 6, the zarpeshgidar. The allegations in the first two pleadings are substantially the same. They plead, amongst other things, that the suit is not maintainable by plaintiff, impugning the kabala of 1895 (Ex. 3-a) set up by the plaintiff as a forged and fraudulent transaction; that it is bad for defect of parties and is barred by limitation. They had no property at Ranchi and as such there was fraud in registration. Defendant No. 1 was gained over by plaintiff''s husband, Bahadur Sahu, who was a famous litigant. They had incurred no debts and the so-called creditors were creatures of Bahadur Sahu. Bhagiya has correctly been surveyed and mapped. Plaintiff never held possession of the property, nor collected any rents from the tenants. Defendant No. 1 further contends that Bahadur Sahu was his agent (mukhtear-am), that he was entirely under his influence and executed a document in favour of Bahadur Sahu and his brother Binda Sahu on the representation that he would not have to part with possession of the property and that it would protect his interest in the same. Defendant No. 6 alleges that the mokarraridars Sham Karan Bharathi and others should have been made party to the suit, that Bhagiya has correctly been measured by the revenue authorities as an independent mauza, that the Khairatdar of Keri is only entitled to get an annual rent of Rs. 5 from the mokarraridar of Bhagiya and that Defendants Nos. 1 to 5 have all along been in possession of Keri and the plaintiff had no manner of title in or possession of the property. He pleaded limitation and contends that the plaintiff cleverly managed to get her name recorded in course of the settlement proceeding in the district without being in possession of the property. He, however, does not appear to have taken any keen interest in the Court below and has not entered appearance in this Court. The, real disputants are Defendants 1 to 5 and the two written statements filed by them are mutatis mutandis the same. The following issues were framed in the Court below:

(1) "Has the plaintiff any cause of action?"

(2) "Is the Court-fee paid insufficient?"

(3) "Is the suit barred by limitation?"

(4) "Is Bhagiya a Tola of village Keri with boundaries as stated in the kabala, dated the 22nd May 1895, or is it an independent village as stated by Defendant No. 6?"

(5) "Has the plaintiff acquired any right, title or interest in village Keri and Tola Bhagiya and other Tolas with the exception of the trees mentioned in the plaint by her alleged purchase?"

(6) "Is the plaintiff entitled to get possession of the disputed property?"

(7) "Is defendant No. 6 a mere zarpeshgidar of Bhagiya only?"

(8) "Is the plaintiff entitled to got mesne profits. If so, how much?"

(9) "To what relief, if any, is the plaintiff entitled?"

(10) "Is the suit bad for defect of parties.

(11) "Is the suit maintainable by plaintiff?"

(12) "Whether the kabala set up by the plaintiff is illegal."

Does it affect the property conveyed thereby?

(13) Was plaintiff''s husband a mukhtear-am of the defendant? "Did he commit any breach of faith in taking the above kabala? Is it binding on the Defendants?.

Issue No. 2 is stated by the learned Subordinate Judge not to have been pressed by the defendants. Issue No. 10 has been decided in favour of the plaintiff. The remaining issues were decided against the plaintiff. In the result the Subordinate Judge dismissed the plaintiff''s suit. The learned Subordinate judge has considered Issues Nos. 3, 5, 6 and 13 together. The plaintiff''s title is based upon the kabala of the 22nd May 1895 (Exhibit 3-a), and the first question is whether this kabala was executed by Rupan Misra and Janak Misra, and Gopal Misra the predecessor-in-interest of Defendants 2 to 5. The learned Subordinate Judge says that "as regards the genuineness of the kabala (Exhibit 3-a) no express issue was laid down." He says that Defendants 2 to 5, the sons of Gopal Misra, emphatically deny the genuineness of the deed and that the pleadings of Defendant No. 1, Janak Misra, as set forth in his written statement, are "sufficiently vague," but, says the learned Subordinate Judge, taking together his pleadings and deposition, he also challenges the execution of the deed. Thus although no definite issue was framed as to the genuineness of the kabala, the learned Subordinate Judge has tried to deal with the question. He disposes of the witnesses called by the plaintiff to prove the execution of the deed by Rupan, Janak and Gopal with the remark that these witnesses are more or less creatures of the plaintiff''s husband, Bahadur Sahu, and that most of them, though they say that the execution took place in their presence, did not subscribe themselves as witnesses to the deed. As regards the signatures of the executants upon the deed in question, he observes:

Though each of them purported to have signed beqalam khas (by his own pen) the three signatures were affixed evidently by the same pen and hand. It is beyond dispute that whoever he might have been, it was the one and the same person who signed the names of the three executants on the deed. Again, though similarity of handwriting is no criterion for testing the genuineness of a deed, my attention has been drawn by the plaintiff''s pleader to the signatures of those alleged executants appearing on certain registered mortgage deeds (Exhibits 4 to 4-C). But I must say that the signature of Rupan as affixed to the kabala, does not resemble the one appearing on the mortgage deed (Exhibit 4).

There is, however, no such observation as regards the signatures of the other two executants Gopal and Janak, whose signatures also appear on the mortgage bonds (Exhibits 4 to 4-C). The learned Subordinate Judge does not definitely record a finding that Janak and Gopal, or for the matter of that Rupan, did not actually sign the deed in question.

He then refers to another circumstance throwing suspicion upon the transaction which is said to have resulted in the kabala in question, and that is that Anwar Khan, who is said to have identified the executants and was before the Registrar both when this kabala and the mortgage deed (Exhibit 4) were admitted to registration, was Bahadur Sahu''s gomashta.

In short, the learned Subordinate Judge has thrown out certain criticisms as regards the evidence adduced by the plaintiff to prove the execution of the kabala in question, but has not come to a definite finding that the kabala was not executed by Rupan, Gopal and Janak. That this is so will eminently appear from the finding of the learned Subordinate Judge upon the question of the execution of the kabala. He concludes his judgment upon this point in the following words:

In fact, the circumstances attending the execution of the kabala are extremely suspicious and the evidence regarding execution offered on behalf of the plaintiff should, therefore, be received with caution."

True, but the learned Subordinate Judge stops here and does not give us his definite finding upon the point after examining the evidence in the case in the light of the above caution. A careful analysis of the evidence will show that there is no room for any suspicion as to the due execution of the deed in question by Rupan, Gopal and Janak. Two of the executants Rupan and Gopal are dead. Their heirs Defendants 2 to 5, deny the execution of the kabala by them. Ramtahal Misra, Defendant No. 2, son of Gopal Misra, had examined himself to prove the negative and denies the signatures upon the kabala in question as being of his father, and Gopal and his uncle Rupan. But is he competent to prove or disprove the signatures of Gopal and Rupan? He was 20 to 30 years of age on the 8th day of December 1920, when ho was examined as a witness in the case. Therefore, in 1895, he was a lad of 9 years. He says in his evidence that he got discretion about 18 years ago, that is, in the year 1902. He nowhere makes himself competent to prove or disprove the signatures of Gopal and Rupan. In order to prove the hand-writing or signature of another person one must show that he is acquainted with the handwriting or signature of the person. Ramtahal does not say a word about it in his evidence-in-chief. In cross-examination he gives up the show altogether, where he says:

I have no paper written by my father or uncle. I have no recollection of their handwriting. Their writing was of different style. I know how to read and write a little.

Janak Misra, Defendant No. 1, has also examined himself in the case. He is 59 years of age and certainly he was associated with his brothers Rupan and Gopal in the management of his family affairs. He is supposed to be one of the executants of the bond. If there was anybody who was competent to speak about the signatures of Gopal and Rupan, it was Janak Misra. He, however, does not take the responsibility of denying their signatures upon the kabala in question. There is, therefore, though a denial in the written statement filed by Defendants 2 to 5, no evidence in the case disproving or denying the signatures of Gopal and Rupan upon the kabala in question. Therefore, the denial in the written statement is not substantiated and Janak''s omission in the written statement, to expressly deny the signatures, is a proof positive that the signatures on the kabala in question, which purport to be of Gopal and Rupan, are theirs. Janak has not the hardihood of expressly denying in his written statement his own signature upon the kabala in question. His written statement, if carefully scrutinized, is a tacit ''admission of the execution of the bond under the influence of Bahadur Sahu by means of inducements for the future benefit of Janak. No doubt, in paragraphs 7 and 10 he denies the genuineness and the correctness of the deed. In paragraph 16 he says that the plaintiff''s husband Bahadur Sahu and his brother Binda Sahu exercised complete influence and control over him (Janak), and under their advice and instructions he signed on plain papers, and perhaps the kabala in question is one of such papers. In paragraph 21 he says: "So far as the Defendant No. 1 recollects, it is this: that the said Bahadur Sahu once proposed to him that it was proper for him to execute such a bond as would prevent (him) from contracting debts, and if any debt came to light, the same could be used against it; that there would be no change in his possession and occupation and that it would be within his power to get the same set aside if he had any objection. If the bond in suit is in reality that very (instrument) which was executed under the advice and instruction of the said Bahadur and Binda Sahu, the Defendant No. 1 was duped to execute it under fraud; but the contents of the bond in suit are certainly not those of the bond whose execution was (once contemplated)."

Therefore, whereas he starts with the denial as to the execution of the bond he tacitly admits that he executed the instrument in question under the advice and instruction of Bahadur Sahu and Binda Sahu, for the purposes mentioned in paragraph 21 of his written statement. According to him, he did execute such an instrument. No other instrument has been filed in the case or shown in evidence to have been executed by him as suggested in paragraph 21. Therefore, conclusively, the kabala in question is the instrument referred to in paragraph 21, and therefore the execution of the kabala is admitted, though it is said to have been executed under fraud and circumstances that effect should not be given to it. This has been his substantial plea as disclosed in his evidence. He says in his evidence that he had imposed great confidence in Bahadur Sahu who had a power-of-attorney in his favour (Exhibit P), dated the 14th December 1880, and that he used to manage his Keri property, which is the subject-matter of dispute in this case. Considering all the circumstances the learned Subordinate Judge stigmatizes the defence of Janak Misra as set forth in his written statement as being vague.

Now, as regards his signature upon the bond, the attitude of Janak Misra in the box has been to deny all his signatures on any paper whatsoever. He went so far as to deny his verification and signature on his written statement filed in this case. Upon this the Court remarked, "the man appears to be a fool.'' This pulled him up and he immediately admitted his signature upon the verification on the written statement. The Court records his deposition thus: "(Then says) I signed it myself." He says: "Bahadur Sahu was my karpardaz. He might have had the kabala fraudulently signed by me. I used to sign blank paper occasionally. Exhibit 3-A does not contain our signatures." The signature of Janak Misra upon the verification on his written statement filed in this case, which is now his admitted signature, and that upon the kabala in question are manifestly similar. We have carefully compared the signatures of Rupan, Gopal and Janak on the kabala in question and on the previous documents (Exhibits 4 to 4-e) from 1888 to 1891. The signatures, not only appearing as executants of the document in question but also those made before the Sub-Registrar in all those documents, appear to be similar, that is, Rupan''s signatures on all these documents are similar; so are of Gopal and Janak Misra respectively. They have got peculiar ways of writing, particularly Janak. His letters are of a peculiar style and even a superficial look at them would not fail to impress one with their similarity. These signatures were examined by the learned vakil, Mr. P.C. Roy, on behalf of the respondents and he conceded that the signatures are similar. The learned Subordinate Judge is entirely wrong when he says that the signatures of the three executants were written by the same pen and hand. The signatures of three executants Rupan, Gopal and Janak are in different style altogether. The learned Subordinate Judge has overlooked the signatures of these executants before the Registrar. These signatures could not be by one and the same person, but must have been by three different persons. The documents bear their thumb impressions. The thumb impressions are not of one and the same person. They are evidently of three different persons. The suspicion lurking in the mind of the learned Subordinate Judge was that one and the same person signed the documents for all the three brothers. This is obviously wrong. There is direct evidence in the case of a number of witnesses on behalf of the plaintiff, who swore to the execution of the kabala by three brothers. The learned Subordinate Judge brushes them aside upon the ground ''that they are servants or relations of Bahadur Sahu, husband of the plaintiff; but it is common knowledge that a vendee always wants to have his own men as witnesses to the sale deed. All the marginal witnesses of the kabala, except Piru Khan, are dead, and the plaintiff has examined him. No reason has been given by the Court below why his evidence should not be accepted. Upon a careful consideration of the evidence and giving our best consideration to the criticisms of the learned Subordinate Judge we have unhesitatingly come to the conclusion that the document in question was executed by Rupan, Gopal and Janak.

The learned Subordinate Judge then addresses himself as to the consideration for the kabala.

[His Lordship then considered the various sums representing the consideration for the deed and came to the conclusion that the bond was executed for consideration and that the entire consideration money was paid off. The judgment then proceeded:]

Rupees 1,800 was paid in cash at the time of registration as is noted on the document itself. The document cannot be impugned as being without consideration. It was duly executed by Rupan, Gopal and Janak for good consideration. Therefore the document created a valid title in favour of the vendee with respect to the property purported to have been conveyed by it.

[His Lordship then dealt with the evidence as to possession adduced in the case and proceeded.]

The evidence before us has confirmed us in our conviction that the Mt. is the rightful owner of the property in dispute and has been in possession up to 1910 when disturbance began on behalf of the Misras, the defendants, and she was completely dispossessed about that time. Janak Misra had not produced any collection papers before the Assistant Settlement Officer, nor has he been able to produce any before us before 1910.

The conclusion to which we have arrived at in disagreement with the view of the Subordinate Judge is that the kabala in question is a genuine document and was duly executed by Rupan, Gopal and Janak. It was given effect to and the title passed to the plaintiff and that she obtained possession thereunder in 1895 just after the deed was executed and she continued to be in possession until she was dispossessed as stated above. The suit was instituted on the 16th May 1919 well within time for recovery of possession. This disposes of Issue No. 3, which relates to limitation.

Incidentally I may say a few words as regards Issue No. 13. This issue does not seem to have been drawn up artistically. The plaintiff''s husband held a power of attorney from Janak Misra (Ex. F), dated the 14th December 1880, and, as already observed, this power of attorney was with a view to save the trouble of the principal going to the Registration office for registering her document. The evidence is not convincing as to Bahadur Sahu being a general Mukhtear-Am having a general power of attorney for all kinds of business to be transacted on behalf of the defendants. He had no special power of attorney of any sort from Defendants 2 to 4 or their ancestors Rupan and Gopal. No evidence has been given in this case of any breach of faith having been committed by Bahadur Sahu with respect to the kabala in question. If Bahadur Sahu was a shrewd man, as the Subordinate Judge calls him, Janak Misra appears to be equally shrewd for just after the death of Bahadur Sahu he began to manipulate all kinds of measures, proper or improper in order to disturb the possession of the lady. He set up some of the tenants to say that the plaintiff had only 8 annas share in the village and that the remaining 8 annas was held by Ramtahal Misra. He himself in the suit brought for rent by the Msmt. said that he was holding under Ramtahal Misra, proprietor of 8 annas share. He did not deny in that case that the Msmt. had no title to the village under the kabala in question. He took advantage of the plaintiff being a pardanashin woman and wholly dispossessed her by the time the Assistant Settlement Officer dealt with the village in 1915, and he succeeded in maintaining his, what the Assistant Settlement Officer calls, illegal possession as a trespasser in the village and had his name recorded as such. If we are right in our view that he solemnly executed the deed of sale and received consideration and gave possession of it to the vendee, he was repaying the faithful services of Bahadur Sahu by manipulating deceitful measures against her. No case of fraud and undue influence has been made out and no facts and circumstances sufficient to raise such a plea been definitely averred in the written statement or proved. The last portion of this issue "Is it binding on the defendants" has already been answered. The Defendant No. 1 and the predecessor-in interest of Defendants 2 to 5 executed the sale-deed in question and the kabala is therefore binding upon the defendants.

The next question would then naturally arise as is'' set forth in Issue No. 6: "Is the plaintiff entitled to get possession of the disputed property?"

The answer to this would have been a very simple one after what has been said above had it not been for Issue No. 12; "Whether the kabala which has been set up by the plaintiff is illegal? Does it affect the property conveyed thereby?" Therefore before Issue No. 6 is answered Issue No. 12 must be disposed of. Under this issue the learned Subordinate Judge has decided that the Sub-Registrar of Ranchi, who registered the document acted without jurisdiction, inasmuch as the vendors Rupan, Gopal and Janak had no property within the jurisdiction of the Ranchi Sub-Registry. Now, the properties conveyed by the sale deed are the properties in dispute mauza Keri and its Tolas (dependent hamlets) and a portion of a house situate in Ranchi. Mauza Keri appertains to Palamau district and is outside the Ranchi district. According to the finding of the Subordinate Judge village Keri is 85 miles from Daltonganj and 40 miles from Ranchi. The executants of the bonds are residents of Mouza Keri. The vendee Mt. Jasoda Kuar and her husband Bahadur Sahu were residents of Mouza Harhanj in the district of Palamau about 48 miles off. The house in question stood in the name of Liladhar Misra, Am-Mukhtear of Bahadur Sahu, and Ganpat Sahu, brother-in-law of Bahadur Sahu. The house originally belonged to a Kumhar, who conveyed the same to Liladhar and Ganpat on the 25th of June 1883. Deocharan, brother of Liladhar, executed a Kabala (Exhibit 3) claiming half the share jointly with Liladhar in the house in question on the 22nd May 1895, wherein he claimed that he along with his brother Liladhar had half share in the house which was purchased in the name of Liladhar and Ganpat, and he sold one of the rooms of that house roofed with tiles said to be in his possession for a sum of Rs. 10 to Janak Misra, one of the executants of the sale deed in question (Exhibit 3-a.) The two sale deeds (Exhibits 3 and 3-a) were presented to the Sub-Registrar of Ranchi for registration almost simultaneously between 2 and 3 p.m. and they were registered. The sale deed (Exhibit 3) relating to the house bears No. 2630 for 1895 entered in Book I, Volume 19, at pages 87-88. The sale deed (Exhibit 3-a) relating to mauza Keri in dispute bears No. 2632 for 1895 entered in Book I, Volume 13, at pages 275-279. Janak Misra, in whose favour a portion Of the house in Ranchi was sold by Exhibit 3 did not intend to keep the house to himself, for immediately he conveyed the same by means of the sale deed (Exhibit 3-a).to Mt. Jasoda Kuar. Therefore the sale deed (Exhibit 8) was executed with a view to give him title to the house situate in Ranchi in order that the sale deed (Exhibit 3-a) with respect to mauza Keri be, presented for registration and registered in Ranchi. Neither of the parties lived either at Ranchi or at Daltonganj, and the distance from their respective residences to Daltonganj was almost double. Obviously they thought it convenient to have the document registered at Ranchi instead of at Daltonganj, as 45 miles in that part of the country is an inconvenient distance to travel for ordinary people not having good conveyance at their disposal, the country being covered by hills and jungle. This in itself is not a dishonest motive and might in the circumstances be a good motive to avoid going to Daltonganj. In the present case nothing has been shown why the parties would avoid having the document registered at, Daltonganj, except the one ground referred to above, No circumstance has been shown to indicate that the parties wanted to avoid the publicity of the registration of the sale deed (Exhibit 3-a) in the Daltonganj district. There is nothing to show that they wanted to defeat or defraud any creditor or that they had any other sinister, motive. Therefore the fact that Janak got the sale deed executed in his favour by Deocharan with respect to the house in Ranchi would not in itself affect the registration of the document provided it was a bona fide deed with a view to carry out the intentions of the parties in executing and registering the sale deed (Exhibit 3-a) in Ranchi with respect to mauza Keri. It is said that Deocharan had no interest in the house and that the house belonged to Bahadur Sahu and that he was the real purchaser under a sale deed, dated the 25th June 1883 from a Kumar in the farzi name of his Am-Mukhtear, Liladhar Misra and his brother-in-law Ganpat Sahu. In support of this reference is made to Exhibit A, sale deed executed by Bahadur Sahu in favour of Akhouri Sundar Behari, Lal, dated the 19th March 1902, several years after the kabala in question (Exhibit 3-a). In that sale deed Bahadur Sahu recites that he had purchased the house in question under a registered sale deed, dated the 25th June 1883, with his own funds farzi in the name of his Mukhtear-am Liladhar Misra and his brother-in-law Ganpat Sahu, and that he disposed of it to Akhouri Sundar Behari Lal for Rs. 125 Deocharan Misra, brother of Liladhar Misra, on the other hand in the sale deed (Exhibit 3) stated that he was a co-sharer with Liladhar in the house in question and that he owned and possessed one of the rooms of that house and that he sold that off to Janak Misra per sale deed (Exhibit 3) on the 22nd May 1895. Bahadur Sahu took part in the execution of the sale deed (Exhibit 3-a) in favour of his wife, the plaintiff in the case. The deed confirmed the sale of the house by Deocharan to Janak by Exhibit 3. Bahadur Sahu, therefore, allowed the property to be sold by Deocharan Misra in favour of Janak Misra. The sale deed of the 25th June 1883 in favour of Liladhar Misra and Gopal Sahu on the face of it shows that Liladhar Misra had interest, and Deocharan is brother of Liladhar. Therefore, upon the document as it stands, it cannot be said that Liladhar or Deocharan had no title to the house in question. According to the tenor of the document and the relationship that existed between Deocharan and Liladhar; the former would appear to have title to the house in question which he purported to convey by the sale deed (Exhibit 3) to Janak. In a proceeding for registration of a document title to property cannot be gone into. There was a property, namely, the house situate within the Ranchi district and the Sub-Registrar of Ranchi had jurisdiction to register the document relating to the house in question. Deocharan Misra purported by kabala (Exhibit 3) to sell a portion of that house to Janak Misra, and Janak Misra therefore under that sale deed, acquired an ostensible title which he forthwith conveyed by (Exhibit 3-a) to the plaintiff. Section 28 of the Indian Registration Act does not require anything more than the existence of a property within the jurisdiction of a particular Sub-Registrar in order to entitle him to register the same: Mt. Ram Dei v. Ram Chandrabati Debi [1919] 4 Pat. L.J. 433.

The cases cited are distinguishable. In the case reported in S.C. Harendra Lal Roy v. Hari Das Devi AIR 1914 P.C. 67 the property mentioned in the mortgage bond in question was a fictitious property. It had no existence in Calcutta, and therefore u/s 28 the registration of the document was invalid. In the case of Mathura Prasad v. Chanara Narain Chowdhury AIR 1921 P.C. 8 the sale deed with respect to 2 bighas 1 katha in Kolhua in the district of Muzaffarpur which purported to give title to a party to a mortgage in order to entitle the registration thereof in the district of Muzaffarpur was not produced nor was it shown that there was delivery of possession by virtue of the sale deed. In that case it was found that to the knowledge of both parties the mortgagor had no title in that property and that he never intended to part with that property. In those circumstances the registration of the document in the district of Muzaffarpur was held to be inoperative having been registered outside the registration law. The circumstances of this case are quite different from any of those cases. The first case obviously does not apply, inasmuch as the house in the district of Ranchi is not a fictitious property. The second case does not apply, inasmuch as on the face of the previous sale deed of the 25th June 1883 Liladhar Misra, brother of Deocharan Misra, had title to the property, and Bahadur Sahu who took part in the execution of both the sale deeds (Exhibits 3 and 3-a) led Janak Misra to believe that Deocharan had title to the house and did not disclose his own title if any. Therefore, these decisions of their Lordships of the Judicial Committee do not apply to the present case. The vendees who themselves took part in the transaction re. the registration of the documents (Exhibits 3 and 3-a) cannot be permitted to take this plea.

We, therefore, hold in disagreement with the view taken by the learned Subordinate Judge that the document in question is not illegal on account of its having been registered by the Sub-Registrar of Ranchi. The Issue No. 12, having been thus answered, the answer to Issue No. 6 is obvious; and that answer is in the affirmative.

The plaintiff is entitled to get possession of the disputed property. The plaintiff''s title is fortified in this case by the fact that she had been in possession of the property for over 12 years from 1895 to 1909. Her possession was to the knowledge of Janak Misra who had taken part in the exercise of right of possession by the plaintiff, some of the counterfoils having been signed by himself. She, therefore, acquired an absolute title to the property by adverse possession for over 12 years, having exercised it openly and adversely to the knowledge of the defendants. Therefore, even if the registration of the document was illegal, the title acquired by her adverse possession remains intact, and the defendants have no right to dispossess her in the manner in which they did in the year 1910 or thereafter.

The obvious result of these findings is that the plaintiff is entitled to succeed in the suit, and the suit must be decreed.

The next question is the extent of the decree to be given in favour of the plaintiff. Her case in short is that she is entitled to get possession of all the properties in mauza Keri with Tola Bhagiya and that the other Tolas appertaining thereto, and that the survey entry recording some of the Tolas as appertaining to Bhagiya as distinct from mauza Keri is wrong. This issue has not so much concern with Defendants Nos. 2 to 5, but only Defendant No. 6. Defendant No. 6, as already observed in the earlier part of the judgment, has not taken keen interest in the litigation and did not contest the plaintiff''s claim either here or in the Court below, though he filed a written statement; and in this appeal he has not entered appearance. It appears that the sale deed of 1909 (Exhibit 13) filed in this case describes the extent of the property to which the Defendant No. 6 is entitled as zarpeshgidar of the mokarrari interest in that village. He is not entitled to hold possession of more than what that document gives him. Therefore the plaintiff is entitled to take khas possession of all the properties, except Tola Bhagiya as described and detailed in the deed of 1909 (Exhibit 13). This again was a clever move on the part of Janak Misra to have a large quantity of lands excluded from mauza Keri and to have Tola Bhagiya recorded in the record-of-rights in his name as owner thereof.

The result is that the judgment of the Court below is reversed and the decree is set aside, and the plaintiffs'' suit is decreed with costs throughout. The plaintiffs will also be entitled to get mesne profits prior to the suit from Defendants Nos. 1 to 5. The amount will be determined in a subsequent proceeding; she will get mesne profits also pendente lite as also for the subsequent period up to the date of delivery of possession or three years from the date of the decree of this Court, whichever event occurs first.

Adami, J

I agree.