J W THOMAS Vs. HANUMAN PRASAD

JUDGEMENT

(1.) This is a second appeal by the plaintiff, whose suit has failed in the two lower Courts. The matter was extremely simple, but around it there have grown a number of erroneous ideas both of law and fact. The plaintiff sued on the allegation that, on 28 March 1924, the defendant executed and got registered a sale-deed in favour of the plaintiff, conveying to the plaintiff plot 21 in the Cantonment of Allahabad in consideration of the payment of rupees 4,000 Para. 3 of the plaint runs as follows: After the receipt of the money and the execution of this document, the defendant did not deliver possession over it to the plaintiff nor could he do so, inasmuch as he defendant, had no right to transfer the said property. The plaintiff accordingly sued for the return of Rs. 4,000 consideration and also for interest.

(2.) The defence was that possession had been given to the plaintiff, and para. 15 of the written statement sets forth: This defendant purchased the said property in November 1914, under a registered sale-deed from Mrs. Eates, the former owner and remained the owner in possession thereof up to 27 March 1924, the date of the execution of the sale-deed in question, without the interference of any one. Similarly Mrs. Eates had prior to the purchase by this defendant, been the owner in possession thereof.

(3.) The issues framed were: (1) Has the plaintiff got any cause of action and right of suit? (2) Is he entitled to the refund of the sale price and damages? If so, how much? (3) To what relief, if any, is the plaintiff entitled. 3. We consider that the two lower Courts have failed to apply their minds to the real question at issue, i.e., whether the defendant was the owner in possession of plot 21, as he claimed in para. 15 of the written statement, and whether the defendant had power to transfer his interest. We have summoned from the Cantonment authority the registers of the Cantonment, and they show clearly, beyond any doubt whatever, that plot 21 is owned by Government and that the defendant had merely the interests in that plot of a lessee from Government. These registers are maintained under statutory provisions, and are as follows: (1) Register of Government lands held by lessees outside bazaar, maintained under Section 271, Cantonment Code 1912, No. 21 is entered in this register as leasehold. (2) Register of transfers of immovable properties, maintained under Section 274, Cantonment Code 1912. Thus shown the transfer of plot 21, which is entered in this register as a leasehold. (3) Register of private lands situated in the Allahabad Cantonment. There are only two entries in this register of land owned by mahants, and there is no entry of plot 21 in this register.