Shaikh Mohammad Yaquoob Ally vs Chhotey Lal Mistri and Others

Dhavle, J.—I stated the facts of this ease when it was argued before me on 10th January last, and a remand was obtained by the appellant on two points. The first of these points was whether the evidence of the plaintiffs'' witnesses as regards plain, tiffs'' purchase from Mevi establishes or points to delivery of the property by Mevi to Chhotey Lal. The lower Appellate Court has answered the point by saying that there is admittedly no evidence on the record that Mevi delivered possession to Chhotey Lal at the time of or soon after the oral sale, but that the evidence adduced by the plaintiffs points to delivery of the property by Mevi to Chhotey Lal. This is a finding of fact which is conclusive against the appellant, for u/s 54, T.P. Act, tangible immovable property of a value of less than Rs. 100 can be sold either by a registered instrument or by a delivery, of the property. In the present case the appellant''s story was that the judgment-debtor Mevi, from whom he purchased the disputed house in the execution sale, had purchased Chhotey''s half of the house for Rs. 40, while the plaintiffs'' case was (and they include Chhotey and his sons) that Chhotey had purchased Mevi''s half of the house for Rs. 75.

Neither of the sales was supported by any registered sale-deed. Both were said to be oral sales supported by unregistered documents, and the sale relied on by the plaintiffs was dated 1918, while that relied on by the appellant seems to have been nine or ten years later. The learned advocate for the appellant has argued that the finding of the lower Appellate Court regarding the inferential deli, very of property should not be accepted. That finding rests on evidence which has been specified and is an inference of fact from the evidence set out. The learned advocate has not been able to show that the inference is impossible in law, and unless an appellant can do that, such findings of fact are binding in second appeal.

The learned advocate suggested that a sale effected by an unregistered document unaccompanied by a contemporaneous delivery of possession was no sale at all. But for this proposition he was not able to cite any authority. The sale-deed being unregistered will, of course, not operate to transfer the title; but I do not see why, if such a sale deed is executed today in respect of an immovable property worth not more than Rs. 100 and the property is delivered to the purchaser some days after this in pursuance of the sale deed, which would have taken no effect by itself, the sale should not stand. The finding of the lower Appellate Court comes to this that there is no direct evidence of delivery of possession at the time of the sale or soon after it but that there is evidence at the same time, which has been accepted by the lower Appellate Court, that after the sale, which must mean the attempted sale by means of the unregistered sale deed, the plaintiffs got exclusive possession over the house and the vendor left the village and had no concern with or possession over the house, circumstances from which delivery of possession at some undetermined time after the execution of the sale deed may legitimately be inferred. It is not as if the sale, on which the appellant relies, came so shortly after the plaintiffs'' sale as to make it at all material that the exact time when Mevi''s purchaser got into possession under that transaction is undetermined. The learned advocate referred to Makhan Lal v. Bunka Behari Ghose (1892) 19 Cal. 623.. But that was a case of an admitted sale by means of an unregistered instrument unaccompanied by possession. It was held that the transfer or sale was inoperative, and so it conferred no title on the vendee. But this is of no help to the appellant when it has been found as a fact that an unregistered instrument was executed in favour of Chhotey Lal and was followed though some time afterwards, by delivery of possession; appellants'' purchase in execution came years after.

There was another point on which the appellant had obtained a remand, and that was whether the disputed house lay in that part of Maksuspore which is covered by Tauzi No. 429, or whether it lay in Tauzi No. 2704-C, Maksuspore Masanni Chak Bag Harihar. The answer of the lower Appellate Court is in favour of the appellant. But the point raised by the appellant on 10th January was only subsidiary to the question of plaintiffs'' possession of the property. That question does not arise apart, of course, from what is implied in the delivery of possession, for there was no point about limitation raised in the lower Appellate Court, and such delivery of possession as has been found by the lower Appellate Court is sufficient to conclude the appeal against the appellant.

The appeal fails and is dismissed with costs.