JOGENDRA SAHU Vs. GUNEI SAHU

JUDGEMENT

(1.) THIS appeal comes before us on reference by a learned Judge of this Court sitting singly. The question of law arising in the case is stated to be whether a plaintiff who has not presented his deed for registration can maintain a suit either to get it registered, or to compel his vendor and a third party to execute a new deed in his favour and register that new deed. That question has been canvassed in most of the Courts in India, and has revealed a wide divergence of judicial opinion. On the one hand, are decisions of the Bombay, Madras and Rangoon High Courts and on the other are decisions of the Allahabad, Calcutta and Patna High Courts. So far as this Court is concerned, the matter was decided as long ago as 1925 in Uma Jha V/s. Chetu Mandar A.I.R. 1926 Pat. 89 by a Division Bench whose decision was binding on the learned Judge who made this reference. It was there held that the Registration Act does not touch or affect the equitable jurisdiction possessed by the Civil Courts to pass a decree for specific performance where circumstances exist entitling the plaintiff to such a decree. The decree which was passed in that case was a decree I for specific performance, directing the defendants to execute and register a fresh conveyance in favour of the plaintiff. The decree in the present case follows the decree that was passed in that case. We see no justification for referring this matter to a larger Bench. The decision of the Division Bench has not been challenged in this Court for sixteen years. 3. The only other question that has been argued is with regard to a document which came into existence in favour of the defendant prior to the conveyance in favour of the plaintiff. The facts relevant to this matter are that on 30 September 1935, defendant 1 agreed to sell plot No. 65, one of the plots in dispute in this litigation, to defendant 2 for Rs. 170-8-0, out of which Rs. 30 was paid as earnest money. On 25 April, 1936, defendant 1 agreed to sell plot No. 65 and plot No. 453 to the plaintiff, and on the following day executed a sale-deed in favour of the plaintiff receiving Rs. 66 as part of the consideration for the sale. The sale deed on which the defendant relies in the present litigation is a deed dated 23 May 1936, which was executed in favour of defendant 3, the adopted son of defendant 2, by defendant 1 in consideration of Rupees 197-8-0, Rs. 52-8-0 of which was paid in cash and the balance set off against previous dues. The trial Court held that this sale deed of 23 May 1936 was not for consideration and was not a bona fide transaction. THIS finding was not challenged seriously by the learned advocate who appeared for the defendants in the Court of appeal below with the result that it has not been reversed by that Court. With the memorandum of appeal in the Court of appeal below the defendants attached a copy of a document which contained the terms of the agreement of 30 September 1935, by which defendant 1 had agreed to sell plot No. 65 to defendant 2. It is now contended on behalf of defendants 2 and 3 that this document should have been considered by the Court of appeal below. The Court of appeal below was never moved to take this document into evidence and no steps were taken to convince the Court that this was a case in which the appellate Court should have taken additional evidence, or have given the defendants an opportunity of proving this document. In the circumstances it is difficult to understand the contention that the Court of appeal below has erred in not considering this document which was not before it and which had not been properly proved. The result is that the appeal fails, and is dismissed with costs. Meredith, J. I agree.