Ram Kishun Mahto vs Harihar Mahton

Ross, J.—The plaintiff alleged that 115 acres of land was his raiyati kasht; that one of the co-sharer landlords in execution of a money decree against him sold ''56 acre which was purchased by the defendant on the 22nd January 1915; that thereafter by agreement between the parties they cultivated the entire plot in alternate years. A dispute arose which led to a case u/s 145 of Criminal Procedure Code as a result of which the defendant came into possession of the whole land.

The plaintiff, therefore, sued for a declaration of his title to ''59 acre and for -partition and separate possession with mesne profits. The defence was that Rs. 150 was due to the defendant from the plaintiff and as the plaintiff could not arrange for payment of the money, in lieu thereof he gave 1*15 acres to the defendant who had been in possession of the entire plot as an absolute owner in lieu of that sum since the month of Jeth 1821. The plaintiff said that he would execute a deed of sale on the decision of the dispute between him and the landlord, Thereafter, the defendant, in order to protect his purchased property brought 56 acre out of the sai4 115 acres at execution sale. But the entire plot has been in his possession in lieu of Rs. 150 by verbal purchase and ''56 acre has been purchased at auction-sale and even after the auction-sale the remaining ''59 acre has been in possession of the defendant in lieu of Rs. 150 by verbal purchase. After the purchase at the auction-sale it was settled between the parties that out of Rs. 150 the plaintiff would execute a deed of sale, in respect of the remaining ''59 acre for Rs. 100 and would return the balance of Rs. 50, but he had not performed his agreement. The Munsif held that the defence was true and that the defendant was put into possession of the entire Survey Khata No. 959 because the sum of Rs. 150 was due to him from the plaintiff on account of grain. But, although he accepted the testimony of the defendant and his witness, he found in view of the provisions of Section 54 of the Transfer of Property Act that there had been no valid transfer of the land in suit because there was no registered document and he gave the plaintiff a decree for partition with mesne profits. The learned Subordinate Judge took the same view of the facts and of the law and dismissed the appeal. The defendant has now brought this second appeal.

The contention on his behalf is that this was not a verbal sale but a contract for sale; that the defendant has paid the consideration and has obtained possession and, therefore, the vendor, who is in a fiduciary relation, cannot oust him simply because he has failed to execute his part of the contract. It is pointed out that defendant could sue for specific performance of the agreement. In reply, it is contended that this was not the defence but a verbal purchase of ''56 acre in consideration Rs. 100 was pleaded, that even if it was an agreement for sale it created no interest in the land and the title is still in the plaintiff who can sue in ejectment and, further, that even if the doctrine of part performance is accepted the facts preclude its application in the present case because it is admitted that the agreement was subsequent to the auction-purchase and the defendant had been in possession from before the auction-purchase and he is, therefore, unable to show any act unequivocally referable to the agreement. It seems to me to be immaterial whether the transaction is described as sale by parol or an agreement for sale. If the sale cannot take effect as a sale for want of formality, it would have the effect of an agreement for sale with its consequences in equity. Now, the question is whether as a result of the agreement for sale of the entire plot in consideration of an advance already made, followed by possesssion, the defendant obtained a good title in equity to the land in suit. If he did, then the subsequent auction purchase of a portion of the land, the later agreement, the effect of which in substance was that the plaintiff should re-pay Rs. 50 to the defendant would not affect that title. The question in this suit is not as to the legal consequences, if any, of the later agreement, and the findings of fact of the Courts below relate to the original contract. The plaintiff relies on Section 54 of the Transfer of Property Act which enacts that a contract for sale of Immovable property does not of itself create any interest in or charge on such property. Now the effect of this Section has been considered in a number of cases: Bapu Apaji Potdar v. Kashinath Sudoba Gulmire [1917] 41 Bom. 438, Venkatesh Damodar Mokashi v. Mallappa Bhimappa 1922 Bom. 9, Puchha Lal v. Kunj Behary Lal 18 C.W.N. 45. In Jnan Chandra Dan v. Rajani Kanta Pal 22 C.W.N. 522 it was held that the view taken in the last mentioned decision was not overruled by the Privy Council in Maung Shwe Goh v. Maung Inn [1917] 44 Cal. 542. The contrary view was taken in Lalchand v. Laxman [1904] 28 Bom. 466 and by the Full Bench of the Madras High Court in Karri Veerareddi v. Kurri Bapereddi [1906] 29 Mad. 326. In this state of the authorities this Court will follow the decisions of the Calcutta High Court where the equitable doctrine of part performance has been clearly rocognised. That the facts come within the doctrine is clear. There was payment of money by the defendant to the plaintiff, or what comes to the same thing, an acknowledgment of a debt owed by the plaintiff to the defendant, in lieu of which the possession of land was transferred under an agreement for sale. This satisfies the test laid down by Grant, Master of the Bolls, in Frame v. Dawson [1807] 14 Ves. 386 that the act must be an act, unequivocally referring to, and resulting from the agreement, and such that the party would suffer an injury amounting to fraud, by the refusal to execute that agreement. His Lordship observed "the principle, of the cases is, that the act must be of such a nature, that, if stated, it would of itself infer the existence of some agreement; and then parol evidence is admitted; to show, what the agreement is." In view of these principles I hold that the defendant has a good title to the land, in suit and the appeal must be decreed with costs and the decrees of the Courts below set aside and the suit dismissed with costs throughout.