KASTURCHAND BHIKAMCHAND SHOP Vs. ATMARAM

JUDGEMENT

(1.) JACKSON , A.J.C. 1. This appeal arises from a suit for a declaration that two fields, are liable to attachment and sale in execution of the plaintiff's decree against Lalchand, the father of defendant 2, The fields in question were sold by Lalchand on 8th December 1920 to defendant 1. In each of the sale deeds (Exs. 1 D-2 and 1 D-3) a small piece of open land situated in mouza Wazar has been< included and by this inclusion it was-possible to register the deeds in mourn Amrapur. It is urged, in the first place, that the two sites in mouza Wazar did not belong to Lalchand, that they were included in the deeds merely to enable the registration to be obtained at Amrapur and that there has consequently been a fraud upon the law of registration.

(2.) AS regards the question of ownership-the lower Court; has found that Lalchand, was in possession of the two sites and that he used them for four months of every year for tethering his cattle which ha sent to Wazar for grazing. Prom this it finds that Lalchand's ownership has been sufficiently established. Its reasoning is open to criticism as regards the effect that it gives to the appellant's admission of the map filed on behalf of defendant 1 and as regards the misapplication of the maxim that possession follows title. What the lower court should have done is to hold that possession is prima facie evidence of title under Section 110, Evidence Act, and its finding is not necessarily incorrect because of the mistakes referred to. It is argued that, as laid down in Radhikadas v. Harmohanlal [1917] 13 N.L.R. 25, possession of the nature proved cannot be held to prove title, but I think that the argument is wrong. The possession proved is essentially different from that dealt with in the ruling cited. I hold that the possession proved is prima facie evidence of title and that the appellant had to prove that there was no title in Lalchand. This he has failed to do.

(3.) IT is urged that, nevertheless, the transfer is fraudulent on the following grounds: (1) That Lalchand's mother was the sister of defendant 1, (2) that payment of Rs. 1,000 of the consideration has been held to be doubtful, (3) that Lalchand and after him his son defendant 2 have been left in possession of the fields, (4) that Lalchand transferred nearly the whole of his property, (5) that the method of registration shows a desire for secrecy, and (6) that there was ho pressing necessity to pay off at least one of the two mortgage debts said to have been satisfied as a result of the sale.