Shiba Prasad Goswami and others vs Upendra Samanta Singhar

Varma, J

In this case the plaintiff filed a suit for confirmation or in the alternative for recovery of possession over the disputed land. The facts are very simple. Pro forma defendants 4 to 6 executed a kobala on 25th February 1921 in favour of defendants 1 to 3 for a sum of Rs. 60 in respect of the land. The kobala was registered but it does not appear that the names of the purchasers were mutated in the landlord''s sheerest against the property. On 3rd March 1926 the same defendants executed another kobala in respect of the property for a sum of Rs. 100 in favour of the plaintiff, along with some other properties. In the course of the recent settlement the land was recorded in the name of defendants 1 to 3 and although that entry was questioned by the plaintiff under S. 116, Orissa Tenancy Act, he did not succeed. The plaintiff therefore filed the suit out of which this appeal arises. The trial Court dismissed the suit but the lower appellate Court decreed it in favour of the plaintiff.

The lower appellate Court has referred to the fact that the kobala dated 25th February (P-2). 1921, was produced by the plaintiff himself, that the name of defendants 1 to 3 was not mutated in the landlord''s sherista and he also referred to the evidence of a proforma defendant who says as to how this kobala happened to remain in his possession and was ultimately handed over to the plaintiff. The evidence given by the proforma defendant P.W. 2. was that defendants. 1 to 3 wished to pay only Rs. 20 saying that the property covered by the sale deed was jama dharya jogya (liable to assessment of rent) and proposed to pay the balance after mutation by the zamindar, and as the executants of that kobala refused to take the sum of Rs. 20 the sale deed remained with them. Dealing with the receipts filed by the parties the lower Court has come to the conclusion that the plaintiff''s witnesses were reliable and he disbelieved those of the defendants. Then he comes to the conclusion that the plaintiff is in possession and his possession must be maintained.

In second appeal there is the usual ground that the lower appellate Court made out a new case, of which it is is not necessary to take any serious notice. The only important point of law urged by Mr. S.N. Ray on behalf of the appellants is that once the sale deed was registered, title passed to defendants 1 to 3 and thereafter there was no title left in the proforma defendants 4 to 6 to transfer to the plaintiff, and he refers to the decision in Kamta Prasad v. Lachmi Sah, 1929 Pat 550 = 123 I.C. 71. In that case however the proposition of law urged by Mr. Ray was held with a reservation that a sale once registered passed title unless it was established to the satisfaction of the Court that the intention of the parties was that title should not pass until the payment of consideration. In cases of sale it is very seldom the intention of parties to allow title to pass without receiving the consideration. To gather the intention of the parties one has only to the kobala itself where the term, and conditions arc mentioned. The kobala in this case has been translated in the course of the argument and the relevant portion of it is as follows:

We sell the undermentioned 1.02 acres of land together with all rights and interests appertaining to it at the current market rate for the consideration of Rs. 60 to you the purchasers and having received in cash from you the whole of the consideration money we put you in owner-shin and possession of the sold land and stipulate that from this day you the purchasers will hold and enjoy the same for generation to generation so long as the sun and the moon endure and on getting your names recorded in the proper seriates and on making payment of rent, will obtain rent receipts thereof and will ho competent to do anything with the sold property as you like. Neither we nor our heirs have any claim or'' right therein........

The fact that the document remained in possession of the defendants coupled with the statement of P.W. 2 shows clearly that title was not to pass until the consideration was paid. A similar case come up before this Court presided over by his Lordship the Chief Justice (S.A. No. 62 of 1927 Cuttack). In that case there was a balance of Rs. 900 which remained unpaid to the vendor and the kobala remained in his possession. His Lordship was of opinion that the fact that the defendants registered the document was not material to the issue in the case and that the only point was whether the plaintiffs who had not paid the consideration money which they agreed to pay are nevertheless entitled to the property leaving the vendors merely cither in the position of having lien over the property until the purchase money was paid or in the position of simply having to sue for the purchase price. He went on to observe that the contract having been reduced into writing its terms must be sought from a consideration of the writing itself. The terms laid down there were in these (P-4) words: "after taking from you the balance of Rs. 900 we make you owner in pos session thereof" and his Lordship held that they clearly implied that the transfer of title and the payment of the Rs. 900 were to be contemporaneous. In this view of the case the mere fact that the document was registered without being acted upon or without the consideration being paid, does not in any way help defendants 1 to 3. The rest of the case is concluded by findings of fact with which I cannot interfere. I would therefore dismiss the appeal with costs. The prayer for a certificate about the fitness of the case for an appeal under the Letters Patent is refused.