ISHAR DAYAL THAKUR Vs. SHEOPARSAN SINGH

JUDGEMENT

(1.) This appeal has been filed by the plaintiff. It arises out of a suit instituted by him for declaration of title over and confirmation of possession or in the alternative, recovery of possession of 4.39 acres of land. In substance, the plaintiff's case was that he had obtained a permanent Mokarrari lease of the disputed property from defendant No. 1. There was an alternative prayer to the effect that if the plaintiff is not held entitled to a decree for confirmation or recovery of possession, then a decree for Rs. 1350/- may be passe in plaintiff's favour as against defendant No. 1. The facts are as follows: The Plaintiff alleged that defendant No. 1 had borrowed a sum of Rs. 1350/- from the plaintiff on two handnotes in 1951. As, the plaintiff was demanding his dues, it was agreed between him and defendant No. 1 that the disputed property would be settled with the plaintiff permanently on payment of a Nazrana of Rs. 5000/-. The plaintiff was put in possession of the disputed property in Jeth 1361 Fs. in lieu of the interest due on the two handnotes mentioned above. Thereafter on the 20th November, 1954, the disputed document was executed, settling the land permanently at a fixed rent with the plaintiff. The Nazrana was settled at Rs. 5000/- and the amount of Rs. 1350/- due on the handnotes, was set off. It was agreed that the balance amounting to Rs. 3650/- would be paid by the plaintiff to defendant No. 1 on receipt of the registration receipt of the lease. It was alleged by the plaintiff that after the registration of the document, at the request of defendant No. 1, plaintiff had paid Rs. 1617/- to one Sheopujan Thakur to whom money was due from defendant No. 1. According to the plaintiff, he had paid another sum of Rs. 1783/- to defendant No. 1 in cash on two-occasions. Thus, the only sum which remained due from the plaintiff was Rs. 250/-. According to the plaintiff, he had several times approached defendant No. 1 to accept this amount of Rs. 250/- and to hand over the registration receipt after endorsement, but defendant No. 1 had avoided doing so on one pretext or another. The plaintiff therafter came to know that defendant No. 1 had executed a deed of cancellation of the patta dated the 20th November, 1954, on the 19th March, 1955, According to the plaintiff, on the same date defendant No. 1 had executed another lease in favour of defendant No. 2. Defendant No. 2 started interfering with the plaintiff's possession on the strength of his settlement, said to have been made on the 19th March, 1955. Hence this suit by the plaintiff.

(2.) The suit was contested by both the defendants. Recording to defendant No. 1, nothing had been paid to him in cash by the plaintiff. It was contended that this defendant did not owe any amount of money to Sheopujan Thakur and he had never asked the plaintiff to pay any amount of money to Sheopujap Thakur. According to defendant No. 1, in spite of repeated demands, the plaintiff had not paid to him the balance of the consideration money, and therefore, he had cancelled the patta and had executed another lease in favour of defendant No. 2. Defendant Ho. 1 had, however, alleged that defendant No. 2 had not also paid defendant No. 1 in full and an amount of Rs. 1850/- was still due from defendant No. 2 to defendant No. 1. The case of defendant No. 2 was that a fresh lease had been rightly executed in his favour by defendant No. 1, but that the allegation of defendant No. 1 that a sum of Rs. 1850/-was still due was wrong. Substantially, on these allegations the parties went to trial and the learned Additional Subordinate Judge passed a decree in favour of the Plaintiff for a sum of Rs. 1350/- as against defendant No. 1. It was held by the learned trial Judge that title had not passed to the plaintiff merely on the execution and registration of the Patta on the 20th November, 1954. According to the learned trial Judge, defendant No. 2 was entitled to recover possession of the disputed property from the plaintiff. On appeal by the plaintiff, the learned Additional District Judge has confirmed the money decree passed in favour of the plaintiff as against defendant No. 1. But the decree for possession in favour of defendant No. 2 has been set aside.

(3.) Learned counsel appearing for the appellant has argued three points in this appeal. First, it has been contended that the Courts below have wrongly held that title had not passed to the plaintiff on the execution and registration of the lease on the 20th November, 1954, on the ground that the intention of the parties was to the effect that title would pass on payment of the full consideration, namely, Rs. 5000A. It is argued by the learned counsel that there is a distinction between Section 54 and Section 105 of the Transfer of Property Act, in the sense, that in the case of a sale governed by Section 54, the passing of title to the property sold may depend on the intention of the parties. But, it is urged that in the case of a lease covered by Section 105 of the Transfer of Property Act, only a right to enjoy the property 'passes, and, therefore, the transfer of the right to enjoy occurs on the execution and registration of a document and not on the theory of intention of the parties. It is argued by learned counsel for the appellant that the decisions of this Court dealing with the transfer of title under a sale will not govern the case of a lease covered by Section 105 of the Act. The distinction raised by learned counsel for the appellant is to the effect that when a sale of a property takes place under Section 54, the property itself passes, whereas when a lease is effected under Section 105, what is transferred is merely a right to enjoy the property. Having heard learned counsel for the parties in this context. I am not inclined to accept the distinction raised on behalf of the appellant. It may be that when a sale of property takes place under Section 54, the tangible property Itself passes, but nevertheless when a transfer of a right to enjoy a property governed by Section 105 comes into existence, the right that passes is also in the nature of an immovable property. Therefore, in both cases, in my opinion, it has to be ascertained on the facts and circumstances as to what was the intention of the parties concerned. In the instant case, the Court below nave rightly considered the question as to what was the intention of the parties on the 20th November, 1954, and as to when title, In the sense, title to the lease-hold property, passed from defendant No. 1 to the plaintiff. Both the Courts below have held that the intention of the parties could not have been that title to the lease hold property would pass on the 20th November, 1954, even though an amount of Rs. 3650/- was still due from the plaintiff to defendant No. 1. It has been held that the parties must have intended that a title to the lease hold property would pass only when, the entire consideration money had passed, i.e., after the amount of Rs. 3650/- was paid by the plaintiff to defendant No. 1, after the patte had been registered and there had been an exchange of equivalent. This question, in my opinion, has been correctly decided by the Courts below.