KALIRAM MAJUMDAR Vs. DULALRAM CHOUDHURY

JUDGEMENT

(1.) This appeal arises out of a suit for delivery of possession of 12 bighas of land on declaration of title. These and other lands originally belonged to one Bhakatram who died on 30 March 1908 leaving a will-by which be bequeathed the lands in suit to his daughter Annapriya, the wife of the plaintiff. She died on 21 August 1910 leaving her mother Parbatipriya as her heir. Parbatipriya died on 16 February 1925. The defendant Dulalram alleged that he had purchased the property from Parbatipriya and he resisted the claim in suit. It appears that on 20 July 1910 Annapriya executed a deed of sale in favour of Parbatipriya. About a month later Annapriya died. On 3 September 1910 Parbatipriya mutated her name as heir to her deceased husband. On 21 February 1915 she executed a deed of sale in favour of the defendant Dulalram who is the brother's son of Bhakatram. On 22nd February 1915 Dulalram mutated his name. As mentioned already Parbatipriya died on 16 February 1925 and the plaintiff brought the present suit on 20 August 1925. The main defence was that Parbatipriya purchased the property from Annapriya and then sold it to Dulalram and consequently plaintiff had no title. Both the Courts took the view that the deed of sale executed by Annapriya in favour of Parbatipriya and that executed by Parbatipriya in favour of Dulalram were invalid for want of registration, and consequently the property devolved on the plaintiff. The first Court decreed the suit, but the learned Judge took the view that Parbatipriya had acquired title by adverse possession and in that view he dismissed the suit. The learned Judge further held that the defendant redeemed certain mortgages to the extent of Rs. 130 and that in any case the plaintiff was not entitled to immediate possession with out repaying the amount of Rs. 130 to the defendant. As to this last point there is no appeal.

(2.) In this second appeal by the plaintiff the only point is that the learned Judge was wrong in holding that the suit was barred by limitation. It is contended in the first place that the learned Judge overlooked the fact that, as regards the plaintiff, the cause of action did not arise until after the death of Parbatipriya. The learned Judge took the view that Parbatipriya was holding adversely to Annapriya at least from the date of the deed of sale which was 20 July 1910. This deed of sale was held to be invalid for want of registration. It is contended for the respondents in this Court that this view is wrong because the consideration was less than Rs. 100 and according to the finding of the learned Judge Parbatipriya was already in possession of the property. It appears that of the 12 bighas, 8 or 9 bighas were under mortgage. The learned Judge seems to hold that after Bhakatram's death the lands continued to be in the possession or under the management of Parbatipriya. From this it does not follow that no delivery of possession was required in order to validate the deed of sale under Section 54, T.P. Act. It has been held that in such a case, where delivery of possession is not possible, the deed in order to be valid must be registered. This view was taken in the case of Sibendrapada Banerjee V/s. Secy. of State (1907) 34 Cal 207 and again in the case of Hushmat V/s. Jamir A I R 1919 Cal 525. It has also been held that mere delivery of title-deed is not enough to constitute delivery of possession: see the case of Mathura Prosad V/s. Chandra Narayan AIR 1921 PC 8. Both the Courts have found that the evidence does not show that there was any sort of delivery of possession and consequently under Section 54, T.P. Act, the deed of sale in favour of Parbatipriya and that in favour of Dulalram were invalid for want of registration.

(3.) Then the learned Judge took the view that adverse possession started from the date of the deed of sale of Parbatipriya. But Annapriya died only a month later and Parbatipriya was entitled to come into possession as her heir. Plaintiff was not entitled to immediate possession and the contention for the appellant is quite correct that, BO far as the plaintiff was concerned his cause of action did not arise until after the death of Parbatipriya. Possession in order to be adverse must be by a person claiming as of right as against the true owner; it must be continuous for the statutory period and open and notorious; it would not do if the possession is merely permissive, nor will it do if the person against whom adverse possession is sought is not entitled to immediate possession, nor will it do if the circumstances show that person had no knowledge of the hostile claim. Here the circumstances are that the matter was between the mother and the daughter. A deed of sale was executed, but it was not registered and there was no delivery of possession. The mother continued to manage the property as before and on the death of the daughter she remained as her heir ostensibly. She mutated her name after the daughter's death.